Best et al. v. Hoskins et al., 2006 ABQB 58

• Judge: Verville, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 20, 2006
• Citations: 2006 ABQB 58;(2006), 390 A.R. 1 (QB)

Best v. Hoskins (2006), 390 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. JA.106

Elizabeth Best, John Best and Her Majesty the Queen in the Right of Alberta (plaintiffs) v. Christopher F. Hoskins and Dr. Tarrik Motan (defendants)

(0103 12019; 2006 ABQB 58)

Indexed As: Best et al. v. Hoskins et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Verville, J.

January 20, 2006.

Summary:

The plaintiff agreed to undergo a hysterectomy. She suffered complications and a second emergency surgery had to be conducted to rectify the problems. The plaintiff sued the defendants in negligence. The defendants filed their statement of defence and subsequently applied to withdraw certain admissions. The court dealt with the application and the action at trial.

The Alberta Court of Queen's Bench dismissed the application and the action.

Damage Awards - Topic 55

Injury and death - Body injuries - Abdomen - The 63 year old plaintiff agreed to undergo a hysterectomy - She suffered complications and a second emergency surgery had to be conducted to rectify the problems - As a result of the surgeries, the plaintiff had excruciating pain - Several pounds of flesh were removed during the second surgery that saved her life - The plaintiff subsequently underwent four rectification surgeries which included skin grafting - The plaintiff continued to have horrific scarring - The relationships in the plaintiff's life were altered, including her relationship with her husband - The plaintiff sued the defendants in negligence - The Alberta Court of Queen's Bench provisionally assessed damages as follows: $140,000 general damages, $25,000 for loss of housekeeping capacity and $6,500 for loss of consortium - See paragraphs 105 to 124.

Damage Awards - Topic 73.1

Injury and death - Body injuries - Scarring - [See Damage Awards - Topic 55 ].

Damage Awards - Topic 495

Injury and death - General damage awards - Loss of housekeeping capacity - [See Damage Awards - Topic 55 ].

Damage Awards - Topic 585

Torts - Injury to third parties - Loss of consortium - [See Damage Awards - Topic 55 ].

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - The plaintiff agreed to undergo a hysterectomy performed by the defendants - She suffered complications and a second emergency surgery had to be conducted to rectify the problems - The surgeon discovered suture involvement of the bowel and greenish bowel content draining into the wound - The plaintiff had also developed necrotizing fasciitis (infection of the deep layers of skin) - The plaintiff sued the defendants in negligence - The Alberta Court of Queen's Bench dismissed the action - The court held that the defendants had met the required standard of care - However, if the court was wrong in its conclusion, it held that the plaintiff's injuries were caused by the defendants - The bowel injury could only have been caused by the defendants because evidence of the injury was apparent before the second surgery - Further, the most likely source of the plaintiff's necrotizing fasciitis was the contamination of her operative wound by bowel fluid - See paragraphs 92 to 104.

Medicine - Topic 4242

Liability of practitioners - Negligence or fault - Standard of care - The plaintiff agreed to undergo a hysterectomy performed by the defendants - She suffered complications and a second emergency surgery had to be conducted to rectify the problems - The surgeon discovered suture involvement of the bowel and greenish bowel content draining into the wound - The plaintiff sued the defendants in negligence - The Alberta Court of Queen's Bench dismissed the action - Based on the evidence, the injury to the bowel was a risk that could occur without negligence and there was no evidence that either defendant was negligent in the course of performing the surgery - The defendants met the standard of care required of them when conducting the surgery and in particular when they closed the incision - The defendants also met the required standard of care in visiting the plaintiff the next morning according to the usual practice - See paragraphs 71 to 91.

Medicine - Topic 4245

Liability of practitioners - Negligence or fault - Surgical operations by doctors - [See Medicine - Topic 4241.2 , Medicine - Topic 4242 and Medicine - Topic 4248.1 ].

Medicine - Topic 4248

Liability of practitioners - Negligence or fault - Failure to inform or disclose (incl. treatment choices) - [See Medicine - Topic 4248.1 ].

Medicine - Topic 4248.1

Liability of practitioners - Negligence or fault - Consent of patient - The plaintiff consulted Hoskins, a gynaecologist - After testing, Hoskins discovered irregular changes in the cells of the lining of the plaintiff's uterus - The plaintiff agreed to undergo a hysterectomy performed by Hoskins and Motan (the defendants) - She suffered complications and a second emergency surgery had to be conducted to rectify the problems - She sued the defendants in negligence - She submitted that Hoskins did not have her informed consent to perform the surgery - The plaintiff argued that this was elective surgery, that the status quo was an option and that the decision was driven by fear and ignorance and the expedience of time - The Alberta Court of Queen's Bench dismissed the action - The plaintiff was fully informed as to why a hysterectomy was recommended and properly informed of the material risks - She was given a copy of the pathologist's report so that she could study the matter and further inform herself - She was not rushed into surgery, but rather only decided after the third call from the hospital to undergo same, some 6 months after the meeting - She was in a position to make a proper decision with respect to the consent she was asked to give - See paragraphs 53 to 70.

Practice - Topic 2128

Pleadings - Amendment of pleadings - Statement of defence - To withdraw admission - The plaintiff agreed to undergo a hysterectomy - The plaintiff suffered complications and a second emergency surgery had to be conducted to rectify the problems - The plaintiff sued the defendants in negligence - The defendants filed their statement of defence - At trial, they applied to withdraw certain admissions - The court dealt with the application and the action at trial - The Alberta Court of Queen's Bench dismissed the application - The defendants waited too long to make the application - At this juncture it would have been necessary to declare a mistrial if the application was granted - Matters such as this took a long time to get on to trial - The surgery had taken place over 6 years ago and the plaintiff was almost 70 years old - Such prejudice could not be compensated for by costs - See paragraphs 16 to 33.

Cases Noticed:

Davies et al. v. Edmonton (City) and Baker (1991), 126 A.R. 109; 84 Alta. L.R.(2d) 121 (Q.B.), refd to. [para. 19].

Dwyer v. Fox et al. (1996), 181 A.R. 223; 116 W.A.C. 223 (C.A.), refd to. [para. 19].

Anderson v. Lakey et al. (2003), 341 A.R. 183; 2003 ABQB 770 (Master), dist. [para. 19].

Videto v. Kennedy (1981), 125 D.L.R.(3d) 127; 33 O.R.(2d) 497 (C.A.), refd to. [para. 64].

Lepp v. Hopp, [1980] 2 S.C.R. 192; 32 N.R. 145, refd to. [para. 64].

Reibl v. Hughes, [1980] 2 S.C.R. 880; 33 N.R. 361; 114 D.L.R.(3d) 1, refd to. [para. 64].

Kovacich et al. v. St. Joseph's Hospital et al., [2004] O.T.C. 942 (Sup. Ct.), refd to. [para. 69].

Neuzen v. Korn, [1995] 3 S.C.R. 674; 188 N.R. 161; 64 B.C.A.C. 241; 105 W.A.C. 241, refd to. [para. 71].

ter Neuzen v. Korn - see Neuzen v. Korn.

Santos v. Traff et al. (1999), 251 A.R. 223 (Q.B.), refd to. [para. 76].

McBride and McBride v. Langton (1982), 39 A.R. 61; 22 Alta. L.R.(2d) 174 (Q.B.), refd to. [para. 88].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 93].

Aristorenas v. Comcare Health Services et al., [2004] O.T.C. 778 (Sup. Ct.), refd to. [para. 103].

Semeniuk v. Cox et al. (2000), 258 A.R. 73; 76 Alta. L.R.(3d) 30 (Q.B.), refd to. [para. 110].

Webb et al. v. Motta et al. (1998), 233 A.R. 9 (Q.B.), refd to. [para. 110].

Larter v. Freightliner of Canada Ltd. et al. (1990), 106 N.B.R.(2d) 188; 265 A.P.R. 188 (T.D.), revd. (1991), 113 N.B.R.(2d) 11; 285 A.P.R. 11 (C.A.), refd to. [para. 110].

Larter v. Universal Sales Ltd. - see Larter v. Freightliner of Canada Ltd. et al.

Dushynski v. Rumsey, [2001] 9 W.W.R. 327; 295 A.R. 309 (Q.B.), revd. (2003), 327 A.R. 373; 296 W.A.C. 373 (C.A.), refd to. [para. 114].

Fobel v. Dean and MacDonald (1991), 93 Sask.R. 103; 4 W.A.C. 103 (C.A.), refd to. [para. 115].

Hilliard v. Grabinski et al. (1998), 221 A.R. 201; 1998 ABQB 427, refd to. [para. 115].

Meyer v. Neuman et al., [2004] A.R. Uned. 243; 2004 ABQB 232, refd to. [para. 115].

Tat v. Ellis et al. (1996), 180 A.R. 44 (Q.B.), varied (1999), 228 A.R. 263; 188 W.A.C. 263; 1999 ABCA 12, refd to. [para. 115].

McLaren v. Schwalbe, [1994] 4 W.W.R. 532; 148 A.R. 1 (Q.B.), refd to. [para. 115].

Benstead v. Murphy (1992), 7 Alta. L.R.(3d) 38 (Q.B.), varied (1994), 157 A.R. 198; 77 W.A.C. 198; 23 Alta. L.R.(3d) 251 (C.A.), refd to. [para. 115].

Jones v. Cheesebrough et al., [2003] A.R. Uned. 117; 2003 ABQB 196, refd to. [para. 115].

Williams v. Goodell (1988), 68 Sask.R. 81 (Q.B.), refd to. [para. 115].

Dyck et al. v. Wilkinson et al., [2004] A.R. Uned. 657; 2004 ABQB 731, refd to. [para. 115].

Zaiffdeen v. Chua et al. (2004), 358 A.R. 274; 2004 ABQB 331, affd. (2005), 380 A.R. 200; 363 W.A.C. 200; 2005 ABCA 290, refd to. [para. 115].

Jensen v. Thompson et al. (2002), 328 A.R. 354; 2002 ABQB 1066, refd to. [para. 115].

Kungl v. Schiefer, [1962] S.C.R. 443, refd to. [para. 120].

Mitchell v. U-Haul Co. of Canada Ltd. et al. (1986), 73 A.R. 91; 47 Alta. L.R.(2d) 193 (Q.B.), refd to. [para. 120].

Joyce v. Canadian Pacific Hotels Corp. et al. (1994), 161 A.R. 53; 26 Alta. L.R.(3d) 72 (Q.B.), refd to. [para. 120].

Smith v. Armstrong et al. (1991), 123 A.R. 285; 1 Alta. L.R.(3d) 13 (Q.B.), refd to. [para. 120].

Forlano v. Lane (1979), 19 A.R. 58 (Q.B.), revd. in part (1981), 65 A.R. 156 (C.A.), refd to. [para. 120].

Lakusta v. Fischer, [1997] A.J. No. 84 (Q.B.), refd to. [para. 120].

Brouwer v. Grewal and Edmonton (City) (1995), 168 A.R. 342; 30 Alta. L.R.(3d) 244 (Q.B.), refd to. [para. 120].

Authors and Works Noticed:

Picard, Ellen I., and Robertson, Gerald B., Legal Liability of Doctors and Hospitals in Canada (3rd Ed. 1996), p. 281 [para. 72].

Counsel:

J. Royal Nickerson, Paul Foisy and Ryan O'Connor (Nickerson Roberts Holinski & Mercer), for the plaintiffs;

Rose M. Carter, Q.C., and Gregory Sim (Bennett Jones LLP), for the defendants.

This application and action were heard on November 14 to 24, 2005, by Verville, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on January 20, 2006.