Brown et al. v. University of Alberta Hospital et al., (1997) 197 A.R. 237 (QB)

• Judge: Marceau, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 20, 1997
• Citations: (1997), 197 A.R. 237 (QB)

Brown v. Alta. Hospital (1997), 197 A.R. 237 (QB)

MLB headnote and full text

Nadine Lanai Brown, also known as Nadine Lanai Fogh, also known as Nadine Lanai Steiner, by her next friend, Liana Fogh, Liana Steiner and Steve Brown (plaintiffs) v. The University of Alberta Hospital, University Hospitals Board, Gene Doris Armstrong, Executrix of the Estate of Heman Brock Armstrong, also known as Brock Armstrong, also known as Hemen Brock Armstrong, deceased, Gustav Ortega, Grazyna B. Jackiewicz, Richard Sebba, Dr. Wheler, John C. Taylor, Jack D.R. Miller, Gary A.J. Gelfand, Kenneth C. Petruk, Phyllis Millard, Gwen A. Docherty, Elizabeth A. Orichowski and Katherine Melo (defendants)

(Action No. 8703-29408)

Indexed As: Brown et al. v. University of Alberta Hospital et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Marceau, J.

March 20, 1997.

Summary:

On December 27, 1985, a father took his three month old daughter to University of Alberta Hospital, claiming that she had fallen off a couch. A CT Scan, indicated bilateral subdural hematomata but the full implications of the report were not brought to the attention of the doctors treating the infant. The child's condition improved and the child was released on December 31. On January 4, 1986, the infant was taken to the hospital again by her father who claimed to have fallen with the child, causing the child to lose consciousness. A CT Scan revealed massive subdural hematomata leaving the child severely disabled. Suspected child abuse was reported after the January 4 inci­dent. The child and her mother commenced an action against the hospital, the child's treating physicians and nurses (the defen­dants), arguing that on the child's first trip to the hospital had the defendants recognized possible child abuse, the second incident could have been prevented.

The Alberta Court of Queen's Bench dis­missed the action against all defendants except for the neuroradiologist who inter­preted the CT Scan and did not communicate to the treating physicians the fact that the scan showed subdural hematomata which were likely non-accidental (i.e., caused by child abuse). The court assessed damages accordingly.

Damage Awards - Topic 102

Injury and death - Head injuries - Brain damage - A three month old child sus­tained massive subdural hematomata after being shaken by her father - She was left in a near vegetative state (severe spastic quadriplegia, unable to communicate, needed tube feeding, could not sit inde­pendently, no significant visual skills, no toileting ability, profoundly retarded) - The Alberta Court of Queen's Bench held a neuroradiologist liable for the child's damages where he read an earlier CT Scan of the child and failed to tell the treating physicians that the scan was indicative of child abuse - The Alberta Court of Queen's Bench awarded $35,000 nonpecu­niary general damages and $196,000 for loss of future income, plus damages for cost of future care - Damages were reduced by 50% for the contingency that the child would have been abused in any event - See paragraphs 232 to 399.

Damage Awards - Topic 120

Injury and death - Head injuries - Result­ing in quadriplegia - [See Damage Awards - Topic 102 ].

Damage Awards - Topic 493

Injury and death - General damage awards - Loss of prospective earnings - A three month old child sustained massive subdural hematomata after being shaken by her father - She was left in a near vege­tative state (severe spastic quadriplegia, unable to communicate, needed tube feed­ing, could not sit independently, no sig­nificant visual skills, no toileting ability, profoundly retarded) - A medical mal­practice suit ensued - The Alberta Court of Queen's Bench awarded $196,000 dam­ages for loss of future income (i.e., $294,000 less 33% lost years deduction based on personal living expenses) - See paragraphs 287 to 304.

Damage Awards - Topic 580

Torts - Injury to third parties - General and special damages for personal care of injured person - A three month old child sustained massive subdural hematomata after being shaken by her father - She was left in a near vegetative state (severe spas­tic quadriplegia, unable to communicate, needed tube feeding, could not sit inde­pendently, no significant visual skills, no toileting ability, profoundly retarded) - A medical malpractice suit ensued - The Alberta Court of Queen's Bench awarded the child's mother a lump sum of $120,000 for lost wages and care of the child but rejected the mother's claim for damages for nervous shock - See paragraphs 330 to 355.

Damage Awards - Topic 634

Torts - Injury to the person - Medical malpractice - [See Damage Awards - Topic 102 ].

Damages - Topic 1404.1

Special damages - Limitation of - Life expectancy - A three month old child sustained massive subdural hematomata after being shaken by her father - She was left in a near vegetative state (severe spas­tic quadriplegia, unable to communicate, needed tube feeding, could not sit inde­pendently, no significant visual skills, no toileting ability, profoundly retarded) - A medical malpractice suit ensued - The Alberta Court of Queen's Bench deter­mined that for purposes of assessing dam­ages, the child, who was now 11, would live another seven years - See paragraphs 232 to 286.

Damages - Topic 1450

Special damages - Transportation - A three month old child sustained massive subdural hematomata after being shaken by her father - She was left in a near vege­tative state (severe spastic quadriplegia, unable to communicate, needed tube feed­ing, could not sit independently, no sig­nificant visual skills, no toileting ability, profoundly retarded) - A medical mal­practice suit ensued - The Alberta Court of Queen's Bench in awarding an amount for a van to transport the child held that only the difference between a specially equipped vehicle and a regular vehicle was recoverable - See paragraphs 382 to 387.

Damages - Topic 1548

General damages - General damages for personal injury - Management of fund fee (investment counselling) - A three month old child sustained massive subdural he­matomata after being shaken by her father - She was left in a near vegetative state (severe spastic quadriplegia, unable to communicate, needed tube feeding, could not sit independently, no significant visual skills, no toileting ability, profoundly retarded) - A medical malpractice suit ensued - The Alberta Court of Queen's Bench in assessing damages declined to award a management fee where the child's life expectancy was seven years and the fund was not so large as to require sophis­ticated investment - See paragraphs 395 to 399.

Damages - Topic 1550

General damages - General damages for personal injury - Prospective loss of wages or earnings (incl. formula) - [See Damage Awards - Topic 493 ].

Damages - Topic 1556

General damages - General damages for personal injury - Calculation and method of assessment - Contingencies - Deduc­tion for - [See Damage Awards - Topic 102 ].

Damages - Topic 2542

Torts affecting the person - Nervous shock - [See Damage Awards - Topic 580 ].

Hospitals - Topic 2044

Liability of hospitals - To patients - Duty of care - The Alberta Court of Queen's Bench rejected the argument that the Uni­versity of Alberta Hospital could adhere to a lesser standard in detecting and prevent­ing child abuse than other tertiary care hospitals in Canada - See paragraph 133.

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - [See Limitation of Actions - Topic 9050 and second Medi­cine - Topic 4324 ].

Limitation of Actions - Topic 3108

Actions in tort - Negligence - Personal injury - On December 27, 1985, a three month old child was taken to hospital - A CT Scan indicated bilateral subdural he­matomata but the treating doctors were not told by the neuroradiologist that the injury was possibly non-accidental and indicative of child abuse - The child was released on December 31 - On January 4, 1986, the child was taken to the hospital again - A CT Scan revealed massive subdural hema­tomata which left the child severely dis­abled - On December 11, 1987, the child commenced proceedings against the hospi­tal, her treating physicians and nurses, alleging negligence - The Alberta Court of Queen's Bench held that no limitation period expired before the child's statement of claim was issued (Limitation of Actions Act, ss. 55, 59) - See paragraphs 27 to 92.

Limitation of Actions - Topic 9050

Persons under disability and exemptions and exclusions - Infants - General - Section 59(1) of the Alberta Limitation of Actions Act extended the limitation period in a case where the person entitled to bring an action was under disability at the time the cause of action arose to two years from the date the person ceased to be under disability - Section 59(2) provided that s. 59(1) did not apply if the person under disability was a minor in the actual cus­tody of a parent or guardian - The Alberta Court of Queen's Bench interpreted s. 59 and discussed whether the discoverability rule applied to s. 59 - See paragraphs 31 to 56.

Limitation of Actions - Topic 9051

Persons under disability and exemptions and exclusions - Infants - Application of limitation periods - [See Limitation of Actions - Topic 3108 ].

Limitation of Actions - Topic 9058

Persons under disability and exemptions and exclusions - Infants - Infants in actual custody of parent or guardian - [See Lim­itation of Actions - Topic 3108 and Limitation of Actions - Topic 9050 ].

Limitation of Actions - Topic 9305

Postponement or suspension of statute - Discoverability rule - [See Limitation of Actions - Topic 9050 and second Medi­cine - Topic 4324 ].

Medicine - Topic 4243.1

Liability of practitioners - Negligence - Child abuse cases - A three month old child was treated at hospital for a head injury - A CT Scan indicated bilateral subdural hematomata but the treating doctors were not told by the neuroradiolo­gist that the injury was possibly non-acci­dental and indicative of child abuse - The child was released but a few days later returned to the hospital - A second CT Scan revealed massive subdural hema­tomata which left the child severely dis­abled - The Alberta Court of Queen's Bench held that on the first hospital stay the neuroradiologist was negligent in not telling the treating physicians of the com­plete significance of the hematomata - The court held that "but for" the neuroradiolo­gist's negligence the further abuse would not have occurred when it did - See para­graphs 195 to 203, 206 to 231.

Medicine - Topic 4250

Liability of practitioners - Negligence - Failure to diagnose an illness - A three month old child was taken to hospital - A CT Scan indicated bilateral subdural he­matomata but the treating doctors were not told by the neuroradiologist that the injury was possibly indicative of child abuse - The child was released but a few days later returned to the hospital - A second CT Scan revealed massive subdural hema­tomata which left the child severely dis­abled - The child and her mother argued that the three treating paediatricians should not have released the child initially without knowing the cause of her problems - The Alberta Court of Queen's Bench held that the paediatricians were not negligent - There was no rule that doctors must not discharge patients who present as clinically healthy because they do not know what caused the illness in the first place - See paragraphs 185 to 194.

Medicine - Topic 4253

Liability of practitioners - Negligence - Tests - [See Medicine - Topic 4243.1 ].

Medicine - Topic 4324

Liability of practitioners - Bars to actions - Limitation periods - A child was hospi­talized twice for head injuries - After the second incident, the child was left severely disabled because she sustained massive subdural hematomata - Over a year later, the child's mother commenced proceedings against the daughter's treating physicians and nurses and the hospital, alleging negli­gence - The physicians and hospital raised a limitation period argument respecting the mother's claim (Limitation of Actions Act, ss. 56, 57) - The Alberta Court of Queen's Bench held that the one year limitation period was not applicable to the mother's tort claim where the mother was not in a doc­tor-patient relationship or a hospital-patient relationship - See paragraphs 12 to 26.

Medicine - Topic 4324

Liability of practitioners - Bars to actions - Limitation periods - Section 55 of the Alberta Limitation of Actions Act provided that in cases of medical malpractice an action must be commenced within one year from the date when the professional services terminated - The Alberta Court of Queen's Bench held that the discoverability rule applied to s. 55 generally - See para­graphs 57 to 75.

Medicine - Topic 4324

Liability of practitioners - Bars to actions - Limitation periods - [See Limitation of Actions - Topic 3108 ].

Medicine - Topic 4361

Liability of practitioners - Breach of con­tract - General - A child was hospitalized twice for head injuries - After the second incident, the child was left severely dis­abled because she sustained massive subdural hematomata - Over a year later, the child's mother commenced proceedings against the daughter's treating physicians and nurses and the hospital, arguing that had the case been handled properly, sus­pected child abuse would have been re­ported thereby preventing the second injury - The Alberta Court of Queen's Bench held that to the extent that the mother's claim against the physicians and hospital was based on breach of contract that claim must fail because the mother was not a party to the physician-patient contract - See paragraph 24.

Medicine - Topic 6866

Nurses - Negligence - Patient care - Negligent care - A three month old child was treated at hospital for a head injury - A CT Scan indicated bilateral subdural hematomata but the treating doctors were not told by the neuroradiologist that the injury was possibly non-accidental and indicative of child abuse - The child was released but a few days later returned to the hospital - A second CT Scan revealed massive subdural hematomata which left the child severely disabled - The child and her mother alleged that the nurses who treated the child were negligent in, inter alia, not suspecting child abuse and report­ing their suspicions - The Alberta Court of Queen's Bench held that the nurses were not negligent - See paragraph 204.

Cases Noticed:

Campbell v. Fang and Steinhauer (1994), 155 A.R. 270; 73 W.A.C. 270 (C.A.), appld. [para. 13].

Edmonton (City) v. Lovat Tunnel Equip­ment Inc. and Rotek Inc. (1993), 141 A.R. 271; 46 W.A.C. 271 (C.A.), refd to. [para. 14].

Perrie v. Martin, [1986] 1 S.C.R. 41; 64 N.R. 195; 12 O.A.C. 269, refd to. [para. 15].

Méthot v. Montreal Transportation Com­mission, [1972] S.C.R. 387, refd to. [para. 17].

Hewer v. Bryant, [1969] 3 All E.R. 578 (C.A.), refd to. [para. 34].

Todd v. Davison, [1971] 1 All E.R. 994 (H.L.), refd to. [para. 34].

Blair v. Fundytus (1978), 11 A.R. 243; 5 Alta. L.R.(2d) 346 (T.D.), refd to. [para. 34].

Millard v. Millard and Calgary (City) (1983), 65 A.R. 355 (C.A.), refd to. [para. 43].

Bearhead et al. v. Bryant and Wilson Seventy-One Ltd. (1986), 70 A.R. 208 (Q.B.), refd to. [para. 47].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109; 37 C.C.L.T. 117; 42 R.P.R. 161; 31 D.L.R.(4th) 481; 34 B.L.R. 187, refd to. [para. 53].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1; [1984] 5 W.W.R. 1; 10 D.L.R.(4th) 641; 29 C.C.L.T. 97; 8 C.L.R. 1, refd to. [para. 53].

Fehr v. Jacob and Bethel Hospital (1993), 85 Man.R.(2d) 63; 41 W.A.C. 63 (C.A.), not folld. [para. 58].

Scott v. Birdsell et al. (1993), 143 A.R. 254 (Q.B.), not folld. [para. 61].

Langenhahn v. Czyz, [1996] A.J. No. 196 (Q.B.), agreed with [para. 63].

Campbell v. Fang and Steinhauer (1993), 146 A.R. 238 (Q.B.), agreed with [para. 63].

Kelly v. Lundgard et al. (1996), 189 A.R. 34 (Q.B.), agreed with [para. 69].

Desormeau v. Holy Family Hospital, Prince Albert, [1989] 5 W.W.R. 186; 76 Sask.R. 241 (C.A.), agreed with [para. 70].

Costello and Dickhoff v. Calgary (City)(No. 2) (1989), 97 A.R. 348; 67 Alta. L.R.(2d) 376 (C.A.), refd to. [para. 71].

K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321, refd to. [para. 72].

Crits v. Sylvester (1956), 1 D.L.R.(2d) 502 (Ont. C.A.), affd. [1956] S.C.R. 991, refd to. [para. 167].

Rietze v. Bruser (No. 2), [1979] 1 W.W.R. 31 (Man. Q.B.), refd to. [para. 168].

Gibbons et al. v. Harris, [1924] 1 D.L.R. 923 (Alta. C.A.), refd to. [para. 169].

McGhee v. National Coal Board, [1972] 3 All E.R. 1008 (H.L.), refd to. [para. 207].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94; 72 D.L.R.(4th) 289; 4 C.C.L.T.(2d) 229, refd to. [para. 207].

Athey v. Leonati et al. (1996), 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243; 140 D.L.R.(4th) 235 (S.C.C.), refd to. [para. 207].

Snell v. Farrell (1986), 77 N.B.R.(2d) 222; 195 A.P.R. 222 (T.D.), refd to. [para. 210].

Toneguzzo-Norvell et al. v. Savein and Burnaby Hospital, [1994] 1 S.C.R. 114; 162 N.R. 161; 38 B.C.A.C. 193; 62 W.A.C. 193, refd to. [para. 296].

Webster et al. v. Chapman et al. (1996), 114 Man.R.(2d) 1 (Q.B.), refd to. [para. 301].

Granger et al. v. Ottawa General Hospital et al. (1996), 7 O.T.C. 81 (Gen. Div.), refd to. [para. 301].

Marchand v. Public General Hospital, [1996] O.J. No. 4420 (Gen. Div.), refd to. [para. 301].

Dubé v. Penlon Ltd. (1994), 21 C.C.L.T.(2d) 268 (Ont. Gen. Div.), refd to. [paras. 303, 330].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; 83 D.L.R.(3d) 452; [1978] 1 W.W.R. 577; 3 C.C.L.T. 225, refd to. [paras. 305, 349].

Knutson v. Farr, [1982] 5 W.W.R. 114 (B.C.S.C.), revd. [1984] 5 W.W.R. 315 (B.C.C.A.), refd to. [para. 307].

Semenoff et al. v. Kokan et al. (1989), 42 B.C.L.R.(2d) 6 (S.C.), varied (1990), 45 B.C.L.R.(2d) 294 (S.C.), varied (1991), 4 B.C.A.C. 191; 9 W.A.C. 191; 59 B.C.L.R.(2d) 195 (C.A.), refd to. [para. 309].

Toneguzzo-Norvell (Guardian ad litem of) v. Burnaby Hospital, [1991] B.C.J. No. 2206 (S.C.), refd to. [para. 310].

Wenden v. Trikha et al. (1991), 116 A.R. 81 (Q.B.), refd to. [para. 324].

Rayner v. Knickle and Kingston (1991), 88 Nfld. & P.E.I.R. 214; 274 A.P.R. 214 (P.E.I.C.A.), refd to. [para. 332].

Laplante v. Laplante, [1993] B.C.J. No. 2025 (S.C.), refd to. [para. 334].

Crane v. Worwood, [1992] 3 W.W.R. 638 (B.C.S.C.), refd to. [para. 338].

Falls v. Falls, [1995] B.C.J. No. 968 (S.C.), refd to. [para. 338].

Stevens (Litigation Guardian of) v. Four­ney, [1993] O.J. No. 759 (Gen. Div.), refd to. [para. 346].

Kenyeres (Litigation Guardian of) v. Cul­li­more, [1992] O.J. No. 540 (Gen. Div.), refd to. [para. 346].

Cherry v. Borsman, [1992] 6 W.W.R. 701; 16 B.C.A.C. 93; 28 W.A.C. 93 (C.A.), dist. [para. 346].

Gravel et Gravel v. Hôtel-Dieu d'Amos, [1989] R.J.Q. 64; 28 Q.A.C. 39; [1989] R.R.A. 10 (C.A.), refd to. [para. 346].

Cherry v. Borsman (1991), 75 D.L.R.(4th) 668 (B.C.S.C.), refd to. [para. 347].

Jacobs v. McLaughlin and Calgary (City) (1986), 71 A.R. 104; 46 Alta. L.R.(2d) 1 (Q.B.), refd to. [para. 383].

Mandzuk v. Vieira and Insurance Corp. of British Columbia, [1989] 5 W.W.R. 131; 89 N.R. 394 (S.C.C.), refd to. [para. 395].

Mallett v. McMonagle, [1970] A.C. 166 (H.L.), refd to. [para. 406].

Stan's Power Tong Service Ltd. v. Argus Machine Co. (1988), 93 A.R. 18; 64 Alta. L.R.(2d) 150 (C.A.), refd to. [para. 406].

Statutes Noticed:

Limitation of Actions Act, R.S.A. 1980, c. L-15, sect. 55 [para. 7]; sect. 56 [paras. 22, 74]; sect. 59 [para. 32].

Authors and Works Noticed:

Balakrishnan & Wolf, Life Expectancy of Mentally Retarded Persons in Canadian Institutions, American Journal of Mental Deficiency (1975-76), vol. 80, p. 650 [para. 273].

Bruce, Christopher, Assessment of Per­sonal Injury Damages (1992), p. 33 [para. 382].

Cooper-Stephenson & Saunders, Personal Injury Damages in Canada (2nd Ed. 1996), pp. 380 to 381 [para. 405].

Crichton, J.U., MacKinnon, M., and White, C.P., The Life Expectancy of Persons with Cerebral Palsy, Develop. Med. & Child Neuro. (1995), vol. 37, p. 567 [para. 245].

Evans, Cerebral Palsy: Why We Must Plan for Survival, Archives of Disease in Childhood, The Journal of the British Paediatric Association (1990), vol. 65, p. 1329 [para. 273].

Eyman, Richard, The Life Expectancy of Profoundly Handicapped People with Mental Retardation, New England Jour­nal of Medicine (1990), vol. 323, No. 9, p. 323 [para. 238].

Eyman, Richard, Survival of Profoundly Disabled People with Severe Mental Retardation, American Journal of Di­seases of Children (March 1993), vol. 147, No. 3, p. 329 [para. 238].

Kaveggia, Survival Analysis of the Sev­erely and Profoundly Mentally Retarded, American Journal of Medical Genetics (1985), vol. 21, pp. 213 to 223 [para. 273]; 214 [para. 275].

Luntz, Harold, Assessment of Damages for Personal Injury and Death (3rd Ed. 1990), p. 131 [para. 403].

Picard, E., Legal Liability of Doctors and Hospitals in Canada (3rd Ed. 1996), pp. 174 [para. 165]; 194 [para. 170].

Robertson, Case Comment, Scott v. Bird­sell (1994), 32 Alta. Law Rev. 181, pp. 183 to 184 [para. 62].

Counsel:

H.W. Veale, Q.C., and R.T. O'Neill and R.J. Wasylyshyn (Student-at-Law), for the plaintiffs (except Steve Brown);

R.A. Philion, for the plaintiff, Steve Brown;

J.G. Martland, Q.C., and J.J. Heelan, for the defendant Physicians;

W.M. Wintermute, Q.C., and J.M. Guthrie, for the defendant Hospital and Nurses.

This action was heard before Marceau, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on March 20, 1997.