Braun Estate v. Vaughan et al., (2000) 145 Man.R.(2d) 35 (CA)

• Judge: Scott, C.J.M., Twaddle and Monnin, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: February 03, 2000
• Jurisdiction: Manitoba
• Citations: (2000), 145 Man.R.(2d) 35 (CA)

Braun Estate v. Vaughan (2000), 145 Man.R.(2d) 35 (CA);

    218 W.A.C. 35

MLB headnote and full text

Temp. Cite: [2000] Man.R.(2d) TBEd. FE.043

Albert Braun, as Executor of the Estate of Nora Eileen Braun (plaintiff/respondent/appellant/respondent) v. Dr. John Vaughan (defendant/appellant/respondent) and Thompson General Hospital (defendant/appellant)

(AI 98-30-03844; AI 99-30-04090;

AI 99-30-04134)

Indexed As: Braun Estate v. Vaughan et al.

Manitoba Court of Appeal

Scott, C.J.M., Twaddle and Monnin, JJ.A.

February 3, 2000.

Summary:

A young mother underwent a tubal ligation. The gynaecologist failed to act on the result of a Pap smear that was taken. The Pap smear showed the early stages of cervi­cal cancer when there was a 100% probabil­ity of recovery with proper treatment. The mother was diagnosed with cervical cancer about one year after the tubal ligation. She died of cervical cancer about a year and a half later. She was 32 years old and left behind a husband and three children. Her estate brought a negligence action against the gynaecologist and the hospital.

The Manitoba Court of Queen's Bench, in a decision reported at 124 Man.R.(2d) 1, held that gynaecologist was negligent, the hospital was vicariously liable for the gy­naecologist's negligence and the hospital was entitled to indemnification by the gynae­cologist for the damages payable. The court assessed damages. The gynaecologist appealed the finding of negligence against him as well as the conclusion that the hospi­tal had no direct liability. The gynaecologist and the hospital appealed the damage awards. The estate sought significant increases in the amount of damages awarded.

The Manitoba Court of Appeal held that the gynaecologist was negligent for failing to follow up on the result of the test. Also the hospital was negligent for failing to provide a reasonable and practical system to verify that vital test results were received and made available to treating physicians. The court assessed the respective degrees of fault at 80% against the gynaecologist and 20% against the hospital.

Damage Awards - Topic 64

Injury and death - Body injuries - Geni­tals (incl. reproductive system) - [See Damage Awards - Topic 634 ].

Damage Awards - Topic 84

Injury and death - Fatal accidents - Mother and wife - A young mother un­derwent a tubal ligation at a hospital - The gynaecologist took a Pap smear but did not follow up on the cytology report - The mother was diagnosed with cervical cancer about a year after the tubal ligation - She died of cervical cancer a year and a half later - She was 32 and left three children, the youngest of whom was five years old -The trial judge found the gynaecologist negligent and awarded each of the children $14,500 damages, the husband $10,000, the mother and father of the deceased $14,500 each and her siblings $3,500 each - The Manitoba Court of Appeal elimi­nated the inflation factor added by the trial judge to the awards under the Fatal Acci­dents Act and reduced their damage awards - See paragraphs 70 to 84.

Damage Awards - Topic 86

Injury and death - Fatal accidents - Daughter - [See Damage Awards - Topic 84 ].

Damage Awards - Topic 89

Injury and death - Fatal accidents - Sib­lings - [See Damage Awards - Topic 84 ].

Damage Awards - Topic 488

Injury and death - General damage awards - Cost of housekeeping services and child care - A young mother underwent a tubal ligation in a hospital - The gynaecologist took a Pap smear but did not follow up on the cytology report - The mother was diagnosed with cervical cancer about a year after the tubal ligation - She died of cervical cancer a year and a half later - She left three children, the youngest of whom was five years old - The youngest child, now 8, lived with his paternal grandparents - The father had remarried and the 15 year old son lived with the father and his new wife - The daughter was an adult - The trial judge awarded $75,026.75 for past loss of homemaking services and $168,680 for future loss - The Manitoba Court of Appeal held that a deduction for contingencies should have been made - The court reduced the dam­age awards respecting the deceased's housekeeping services by a 25% contin­gency allowance - See paragraphs 88 to 116.

Damage Awards - Topic 634

Torts - Injury to the person - Medical or dental malpractice - A young mother underwent a tubal ligation in a hospital - The gynaecologist took a Pap smear but did not follow up on the cytology report - The Pap smear showed the early stages of cervical cancer that had the probability of a 100% recovery rate with proper treat­ment - The mother died of cervical cancer about three years after the tubal ligation - She was 32 years old and left behind a husband and three children, the youngest of whom was five years old - Her estate brought a negligence action against the gynaecologist and the hospital - The trial judge awarded the estate $60,000 nonpe­cuniary general damages - The Manitoba Court of Appeal declined to increase the award - See paragraphs 57 to 69.

Damages - Topic 2117

Torts causing death - Method of assess­ment of value of the dependency (lump sum) - Contingencies - [See Damage Awards - Topic 488 ].

Damages - Topic 2378

Torts causing death - Particular damage claims - Loss of guidance, care and com­panion­ship - A gynaecologist and a hospi­tal were found negligent in the death of a young mother from cervical cancer - The trial judge awarded the hus­band, three children, the mother and father and sib­lings dam­ages under the Fatal Accidents Act - The Manitoba Court of Appeal declined to increase the damages - The court opined that "moderation and pre­dictability" were best achieved by maintaining the conven­tional award approach with respect to claims under the Act - See paragraphs 70 to 80.

Hospitals - Topic 2044

Liability of hospitals - To patients - Duty of care - A young mother went to hospital to have a tubal ligation performed by a gynaecologist - The gynaecologist took a Pap smear, but did not follow up on the cytology report - The Pap smear showed the early stages of cervical cancer which had the probability of a 100% recovery rate with proper treatment - The mother died of cervical cancer about three years after the tubal ligation - Her estate brought a negligence action against the gynaecologist and the hospital - The Manitoba Court of Appeal held that the gynaecologist was negligent for failing to follow up on the result of the test - Also the hospital was negligent for failing to provide a reasonable and practical system to verify that vital test results were received and made available to treating physicians - The court assessed the re­spective degrees of fault at 80% against the gynaecologist and 20% against the hospital - See paragraphs 32 to 56.

Medicine - Topic 4252.2

Liability of practitioners - Negligence or fault - Obstetrical or gynaecological care - [See Hospitals - Topic 2044 ].

Medicine - Topic 4253

Liability of practitioners - Negligence or fault - Tests - [See Hospitals - Topic 2044 ].

Torts - Topic 35

Negligence - Standard of care - Particular persons and relationships - Medical doc­tors and medical personnel - [See Hospi­tals - Topic 2044 ].

Torts - Topic 39

Negligence - Standard of care - Particular persons and relationships - Hospitals - [See Hospitals - Topic 2044 ].

Torts - Topic 2530

Vicarious liability - Master and servant - Employer - Liability for acts of employees - [See Hospitals - Topic 2044 ].

Cases Noticed:

Rose Estate v. Belanger (1985), 32 Man.R.(2d) 282 (C.A.), refd to. [para. 24].

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. 34].

ter Neuzen v. Korn - see Neuzen v. Korn

Anderson v. Chasney, [1949] 4 D.L.R. 71 (Man. C.A.), affd. [1950] 4 D.L.R. 233 (S.C.C.), refd to. [para. 34].

Cahoon v. Edmonton Hospital Board (1957), 23 W.W.R.(N.S.) 131 (Alta. S.C.), refd to. [para. 36].

Worth v. Royal Jubilee Hospital et al., [1980] B.C.J. No. 1336 (C.A.), refd to. [para. 37].

Yepremian v. Scarborough General Hospi­tal (1980), 28 O.R.(2d) 494 (C.A.), refd to. [para. 43].

Martin v. Listowel Memorial Hospital et al. (1998), 72 O.T.C. 1 (Gen. Div.), refd to. [para. 46].

Lachambre v. Nair et al., [1989] 2 W.W.R. 749; 74 Sask.R. 87 (Q.B.), refd to. [para. 47].

Dorschell v. Cambridge (City) (1980), 30 O.R.(2d) 714 (C.A.), refd to. [para. 48].

Osburn v. Mohindra and St. John General Hospital (1980), 29 N.B.R.(2d) 340; 66 A.P.R. 340 (T.D.), refd to. [para. 48].

DeJong v. Owen Sound General and Mar­ine Hospital et al., [1996] O.J. No. 2254 (Gen. Div.), varied (1996), 94 O.A.C. 12 (C.A.), refd to. [para. 51].

Lord Nelson Hotel Ltd. et al. v. Cambrian Construction Ltd. et al. (1976), 17 N.S.R.(2d) 336; 19 A.P.R. 336; 1 C.C.L.T. 345 (C.A.), refd to. [para. 51].

Clyke v. Blenkhorn et al. (1958), 13 D.L.R.(2d) 293 (N.S.S.C.), refd to. [para. 51].

Cempel v. Harrison Hot Springs Hotel Ltd. (1997), 100 B.C.A.C. 212; 163 W.A.C. 212 (C.A.), refd to. [para. 52].

Bergen Estate v. Sturgeon General Hospi­tal et al. (1984), 63 A.R. 62 (Q.B.), refd to. [para. 53].

Villeneuve et al. v. Sisters of St. Joseph of Diocese of Sault Ste. Marie et al., [1972] 2 O.R. 119 (C.A.), refd to. [para. 54].

Smoke v. Assiniboine et al. (1987), 45 Man.R.(2d) 241 (Q.B.), refd to. [para. 58].

Urbanski v. Patel et al.; Firman et al. v. Patel (1978), 84 D.L.R.(3d) 650 (Man. Q.B.), refd to. [para. 59].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182, refd to. [para. 60].

Lindal v. Lindal, [1981] 2 S.C.R. 629; 39 N.R. 361, refd to. [para. 62].

Benham v. Gambling, [1941] A.C. 157 (H.L.), refd to. [para. 73].

Lawrence Estate et al. v. Good (1985), 33 Man.R.(2d) 312 (C.A.), refd to. [para. 74].

Larney Estate v. Friesen (1986), 41 Man.R.(2d) 169 (C.A.), refd to. [para. 75].

Bentley (Guardian ad litem of) v. Bentley, [1994] B.C.J. No. 1118 (S.C.), refd to. [para. 78].

Ashley Estate v. Goodman, [1994] O.J. No. 1672 (Gen. Div.), refd to. [para. 78].

Nielsen et al. v. Kaufmann (1986), 13 O.A.C. 32 (C.A.), refd to. [para. 78].

Nightingale v. Mazerall and Elliott (1991), 121 N.B.R.(2d) 319; 304 A.P.R. 319; 9 C.C.L.T.(2d) 186 (C.A.), reving. (1990), 113 N.B.R.(2d) 123; 285 A.P.R. 123 (T.D.), refd to. [para. 78].

Augustus v. Gosset, [1996] 3 S.C.R. 268; 202 N.R. 241, refd to. [para. 79].

Carignan v. Carignan (1989), 61 Man.R.(2d) 66 (C.A.), refd to. [para. 95].

Chartier v. Chartier, [1999] 1 S.C.R. 242; 235 N.R. 1; 134 Man.R.(2d) 19; 193 W.A.C. 19, refd to. [para. 95].

Parsons Estate v. Guymer (1998), 110 O.A.C. 362; 162 D.L.R.(4th) 390 (C.A.), refd to. [para. 95].

Naeth v. Warburton (1993), 116 Sask.R. 11; 59 W.A.C. 11 (C.A.), refd to. [para. 96].

Ball v. Kraft (1966), 60 D.L.R.(2d) 35 (B.C.S.C.), refd to. [para. 98].

Skelding et al. v. Skelding, [1994] 9 W.W.R. 538; 90 B.C.A.C. 81; 147 W.A.C. 81 (C.A.), refd to. [para. 99].

Butterfield v. Butterfield Estate (1996), 96 O.A.C. 262 (C.A.), refd to. [para. 99].

Larocque Estate v. Belhumeur and Mani­toba Public Insurance Corp. (1983), 22 Man.R.(2d) 81 (Q.B.), refd to. [para. 105].

Ring Estate and Filiatrault-Ring v. Full­erton et al. (1983), 25 Man.R.(2d) 241 (Q.B.), refd to. [para. 105].

MacNeil v. Gillis (1995), 138 N.S.R.(2d) 1; 354 A.P.R. 1 (C.A.), refd to. [para. 109].

McNichol Estate and McNichol v. Mardell, [1984] 5 W.W.R. 177; 55 A.R. 161 (C.A.), refd to. [para. 110].

Duong Estate v. Au (1984), 29 Man.R.(2d) 206 (Q.B.), refd to. [para. 110].

Donnelly v. Joyce, [1974] 1 Q.B. 454, refd to. [para. 115].

Statutes Noticed:

Fatal Accidents Act, R.S.M. 1987, c. F-50; C.C.S.M., c. F-50, sect. 3(4) [para. 70].

Authors and Works Noticed:

Cooper-Stephenson, Personal Injury Dam­ages in Canada (2nd Ed. 1995), pp. 700 [paras. 104, 105]; 701 [paras. 105, 110]; 702, 703, 704 [para. 105]; 710 [para. 97].

Fridman, G.H.L., Hospital Liability for Professional Negligence (1980), 4 Legal Medical Q. 80, p. 81 [para. 40].

Magnet, J.E., Corporate Negligence as a Basis for Hospital Liability - A Com­ment on Yepremian v. Scarborough General Hospital (1978-79), 6 C.C.L.T. 121, p. 122 [para. 39].

Nadel, A.G., Hospital's Liability for Negli­gence in Failing to Review or Supervise Treatment Given by Doctor, or to Require Consultation, 12 A.L.R.(4th) 57, generally [para. 41].

Osode, P., The Modern Hospital and Res­ponsibility for Negligence - Pointing Canadian Courts in the Right Direction (1993), Anglo American Law Rev. 289, p. 309 [para. 43].

Picard, Legal Liability of Doctors and Hospitals in Canada (2nd Ed. 1984), p. 302 [para. 38].

Picard and Robertson, Legal Liability of Doctors and Hospitals in Canada (3rd Ed. 1997), p. 367 [para. 42].

Waddams, Law of Damages (1999) (Loose Leaf Ed.), generally [para. 105].

Counsel:

G.T. Campbell and H.D. Van Iderstine, for the appellant/respondent, Vaughan;

V.H. Schroeder, Q.C., and O.L. Currie, for the respondent/appellant, Braun;

M.T. Green and K.L. Dixon, for the ap­pellant, Thompson Hospital.

This appeal was heard on November 19 and 22, 1999, before Scott, C.J.M., Twaddle and Monnin, JJ.A., of the Manitoba Court of Appeal. On February 3, 2000, Scott, C.J.M., delivered the following judgment for the court.