Campbell v. Jones et al.,

• Jurisdiction: Manitoba
• Judge: Joyal
• Neutral Citation: 2016 MBQB 10
• Citation: 2016 MBQB 10,(2016), 324 Man.R.(2d) 58 (QB),324 ManR(2d) 58,(2016), 324 ManR(2d) 58 (QB),324 Man.R.(2d) 58
• Date: 11 January 2016
• Court: Court of Queen's Bench of Manitoba (Canada)

Campbell v. Jones (2016), 324 Man.R.(2d) 58 (QB)

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. FE.011

Jerry Campbell and Sandra Campbell, and the said Jerry Campbell and Sandra Campbell as Litigation Guardians for Dylan Campbell (plaintiffs) v. Jodi Jones, Aaron MacInnes, Leena Patel, Scott Sawyer, Andrea Wilkie-Gilmore, Kiser Qureshy, Chad Chapman, D. Williams, Janelle Krahn, Kelly Saranchuk, Anne Marie Nyhof, Winnipeg Regional Health Authority carrying on business as the Health Sciences Centre (defendants)

(CI 10-01-68960; 2016 MBQB 10)

Indexed As: Campbell v. Jones et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Joyal, C.J.Q.B.

January 11, 2016.

Summary:

The plaintiffs, a morbidly obese 11 year old boy (5'6" and 250 lbs) and his parents, brought a medical negligence action against the defendant hospital, doctors and nurses. Several days after an uneventful tonsillectomy, the boy arrived at the hospital's emergency department suffering from a "post-tonsillectomy bleed". Within two hours, the boy suffered cardiac arrest that left him with massive brain damage and in a vegetative state. The plaintiffs alleged that certain acts and omissions by doctors and nurses were negligent and caused the boy's brain damage. Particularly, the plaintiffs argued that negligent treatment resulted in decompensated hypovolemic shock and/or a partially obstructed airway, which caused the injury.

The Manitoba Court of Queen's Bench dismissed the action for want of causation. The "cause in fact" of cardiac arrest was an acute sudden and complete pulmonary or respiratory obstruction that was not caused by any action taken or not taken by the doctors and nurses and, in any event, any such actions or inaction did not, in most instances, constitute negligence. The court provisionally assessed damages.

Damage Awards - Topic 102

Injury and death - Head injuries - Brain damage - In 2012, an 11 year old boy who arrived at the hospital emergency department with a post-tonsillectomy bleed suffered an acute sudden and complete pulmonary or respiratory obstruction that resulted in brain damage that left the boy in a vegetative state - His life expectancy was reduced to 23.2 to 24.1 years of age (8.6 to 9.5 years from 2012) - Although the doctors and nurses were found not liable for the catastrophic injury, the Manitoba Court of Queen's Bench provisionally assessed damages - The boy and his parents sought $250,000 to $300,000 general damages for non-pecuniary loss, arguing that the boy retained some cognitive awareness and some visceral signs of happiness, sadness, comfort and pain - The court accepted medical evidence that the boy was in a permanent vegetative state with no cognitive awareness - Accordingly, nothing that an award of general damages could buy would provide the boy with solace over the remaining years of his life - The court awarded a moderate amount of $50,000 as general damages for non-pecuniary loss - See paragraphs 479 to 487.

Damages - Topic 1288

Losses by third parties - Recoverable losses - General and special damages for personal care of injured person - In 2012, an 11 year old boy who arrived at the hospital emergency department with a post-tonsillectomy bleed suffered an acute sudden and complete pulmonary or respiratory obstruction that resulted in brain damage that left the boy in a vegetative state - The boy's parents brought an in trust claim for $150,000 to $200,000 for uprooting their lives to care for the boy - The boy was being cared for in the hospital - The parents had not taken advantage of offered special training to assist in his care - They visited him approximately once a week in the hospital - The Manitoba Court of Queen's Bench provisionally assessed $7,000 per year for each parent - The court stated that "in trust claims are not designed to compensate parents for grief or loss, or for their unrealized expectations for their injured or victimized children. Despite my sympathies for [the boy's] parents, I must be tempered by the caution urged upon me by the defendants that every parent expends time, money and energy on their children, whether able or injured. It is only when the amount exceeds that which would otherwise be expended that an entitlement arises." - In this case, that extraordinary time was limited - See paragraphs 503 to 508.

Evidence - Topic 7000.4

Opinion evidence - Expert evidence - General - Admissibility - General - The Manitoba Court of Queen's Bench held that experts had a duty to provide independent assistance to the court by way of objective, unbiased opinions which should be seen to be an independent product of the expert - The expert was to be "uninfluenced as to form or content by the exigencies of the litigation" - The first stage of the admissibility of expert evidence required establishing that the proposed expert met the R. v. Mohan (1994 SCC) threshold requirements of "logical relevance; necessity; absence of an exclusion rule; and a properly qualified expert" - The second stage involved a discretionary balancing of the potential risks and benefits of admitting the proposed expert evidence - The expert's duty to the court should go to the admissibility of the evidence rather than just weight and there was a threshold admissibility requirement respecting independence and partiality - The court stated that "any purported bias should be properly considered as part of the 'qualified expert' factor of the Mohan framework. ...  If an expert is unable or unwilling to provide an independent and impartial opinion pursuant to their duty to the court, then they are not a 'properly qualified expert'. ...  Where a proposed expert attests or testifies under oath as to his or her recognition and acceptance of the duty owed to the court to give fair, objective and non-partisan opinion evidence, absent a connected and substantiated challenge, the threshold will have been met." - See paragraphs 146 to 149.

Evidence - Topic 7001

Opinion evidence - Expert evidence - General - Qualifications and declaration that a witness is an expert - [See Evidence - Topic 7000.4 ].

Evidence - Topic 7012

Opinion evidence - Expert evidence - Basis for opinion - The Manitoba Court of Queen's Bench stated that "in the context of expert evidence, no matter how well respected or impressive is the expertise, the expert opinion provided will be only as persuasive or reliable as the admissible foundational evidence upon which it is supposed to be based. ...  Accordingly, even if the foundational evidence is admissible, if the foundation of the given opinion is based on information or working assumptions which are not complete, not clearly established in the evidence, or if the opinion is based on a misapprehension of the evidence, that opinion from an otherwise highly respected and authoritative expert will be compromised." - See paragraph 172.

Medicine - Topic 4241.2

Liability of practitioners - Negligence - Causation - The plaintiffs, a morbidly obese 11 year old boy (5'6" and 250 lbs) and his parents, brought a medical negligence action against the defendant hospital, doctors and nurses - Several days after an uneventful tonsillectomy, the boy arrived at the hospital's emergency department suffering from a "post-tonsillectomy bleed" - Within two hours, the boy suffered cardiac arrest that left him with massive brain damage and in a vegetative state - The plaintiffs alleged that certain acts and omissions by doctors and nurses were negligent and caused the boy's brain damage - Particularly, the plaintiffs argued that negligent treatment resulted in decompensated hypovolemic shock and/or a partially obstructed airway, which caused the injury - The Manitoba Court of Queen's Bench dismissed the action for want of causation - The "cause in fact" of cardiac arrest was an acute sudden and complete pulmonary or respiratory obstruction - Nothing that the doctors and nurses did, or did not do, caused the obstruction that caused the brain damage - Even assuming that some of the acts or omissions were negligent, "in no instance can I conclude that 'but for' an individual act or omission, the injuries suffered by [the boy] would not have occurred. ...  I cannot conclude that 'but for' the cumulative effect of any of the alleged acts or omissions on the part of the nurses or physicians, [the boy's] injuries would not have occurred. ...  there was no persuasive evidence adduced as to what ought to have been done that could have been done so as to prevent [the boy's] sudden complete airway obstruction and cardiac arrest." - See paragraphs 336 to 469.

Medicine - Topic 4242

Liability of practitioners - Negligence or fault - Standard of care - The Manitoba Court of Queen's Bench generally discussed the standard of care applicable to both doctors and nurses - See paragraphs 75 to 81.

Medicine - Topic 4252.4

Liability of practitioners - Negligence or fault - Emergency room treatment - [See Medicine - Topic 4241.2 ].

Medicine - Topic 4260.2

Liability of practitioners - Negligence or fault - Medical records - Plaintiffs argued that doctors and nurses were negligent for, inter alia, failure to contemporaneously chart the sequence of events and what occurred during the emergency room treatment of a patient - The Manitoba Court of Queen's Bench distinguished between contemporaneous charting during chaotic emergency room treatment and treatment in other wards in a hospital - The court stated, inter alia, that "there will be cases ... where certain failures to chart or record vitals will constitute discrete breaches in the standard of care. In other cases, like this one, context and explanation will persuade a court that the taking and recording of vitals are but one aspect in the obligation to monitor a patient ('monitor' need be broadly understood) and that such failures, while not to be encouraged or cavalierly accepted, do not always or prima facie mean proper procedures were not followed or that such failures were negligent." - See paragraph 394.

Medicine - Topic 6863

Nurses - Negligence - Patient care - Causation - [See Medicine - Topic 4241.2 ].

Medicine - Topic 6864

Nurses - Negligence - Patient care - Standard of care - [See Medicine - Topic 4242 ].

Torts - Topic 54

Negligence - Causation - Test for (incl. ''but for'' test and ''material contribution'' test) - The Manitoba Court of Queen's Bench stated that "causation is essentially a practical question of fact which can best be answered by ordinary common sense rather than abstract metaphysical theory. Just as that practical question of fact does not require abstract theorizing, neither does it require determination by scientific precision. ...  The governing 'but for' test requires that the plaintiff show that the injury would not have occurred but for the negligence of the defendant. ...  However, the jurisprudence has recognized that in certain limited circumstances, the 'but for' test is not workable. In those situations, the courts have adopted the 'material contribution' test for determining causation. On that test, causation is established if the defendant's negligence materially contributed to the occurrence of the injury. ...  The exceptional but sometimes permitted use of the material contribution test arises where there is an impossibility of proving the defendant's negligence using the 'but for' test. That would include situations where it is impossible to say which of two or more tortious acts caused an injury." - See paragraphs 67 to 69.

Cases Noticed:

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

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. 61].

Matheson v. Pirani et al. (2008), 226 Man.R.(2d) 148; 2008 MBQB 95, refd to. [para. 66].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94, refd to. [para. 66].

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. 67].

Hanke v. Resurfice Corp. et al., [2007] 1 S.C.R. 333; 357 N.R. 175; 404 A.R. 333; 394 W.A.C. 333; 2007 SCC 7, refd to. [para. 69].

Todd v. Pegado, 2014 ONSC 2783, refd to. [para. 69].

Clements v. Clements, [2012] 2 S.C.R. 181; 431 N.R. 198; 331 B.C.A.C. 1; 565 W.A.C. 1; 2012 SCC 32, refd to. [para. 70].

Fish & Associates Professional Corp. v. Kippel, [2008] O.A.C. Uned. 42; 2008 ONCA 79, refd to. [para. 71].

St-Jean v. Mercier, [2002] 1 S.C.R. 491; 282 N.R. 310, refd to. [para. 71].

Cottrelle et al. v. Gerrard et al. (2003), 178 O.A.C. 142; 67 O.R.(3d) 737 (C.A.), refd to. [para. 71].

Timlick v. Heywood (2015), 320 Man.R.(2d) 277; 2015 MBQB 148, refd to. [para. 73].

Gemoto v. Calgary Regional Health Authority et al., [2006] A.R. Uned. 644; [2006] 2 W.W.R. 243; 2006 ABQB 740, dist. [para. 76].

Gros v. Victoria General Hospital et al. (2001), 160 Man.R.(2d) 7; 262 W.A.C. 7; 2001 MBCA 134, refd to. [para. 79].

Abbott and Haliburton Co. Ltd. et al. v. WBLI Chartered Accountants, [2015] 2 S.C.R. 182; 470 N.R. 324; 360 N.S.R.(2d) 1; 1135 A.P.R. 1; 2015 SCC 23, refd to. [para. 145].

National Justice Compania Navieru S.A. v. Prudential Assurance Co., [1993] 2 Lloyd's Rep. 68 (Q.B.), refd to. [para. 146].

R. v. Abbey (W.N.) (2009), 254 O.A.C. 9; 97 O.R.(3d) 330; 2009 ONCA 624, refd to. [para. 147].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 147].

R. v. M.C. (2014), 325 O.A.C. 1; 314 C.C.C.(3d) 336; 2014 ONCA 611, refd to. [para. 147].

Dmytriw et al. v. Odim et al. (2015), 314 Man.R.(2d) 261; 2015 MBQB 24, refd to. [para. 147].

Suwary et al. v. Women's College Hospital et al., [2009] O.T.C. Uned. E71; 2009 CanLII 31985 (Sup. Ct.), refd to. [para. 154].

Skeels Estate et al. v. Iwashkiw et al., [2006] A.R. Uned. 344; [2006] 11 W.W.R. 632; 2006 ABQB 335, refd to. [para. 391].

Chow v. Wellesley Hospital et al., [1999] O.T.C. 252; 86 A.C.W.S.(3d) 222 (Gen. Div.), dist. [para. 479].

Chow et al. v. Hiscock et al., [2005] B.C.T.C. Uned. A02; 171 A.C.W.S.(3d) 612; 2005 BCSC 1933, dist. [para. 479].

Steinebach v. Fraser Health (2011), 310 B.C.A.C. 142; 526 W.A.C. 142; 2011 BCCA 302, dist. [para. 479].

Bauer v. Seager et al. (2000), 147 Man.R.(2d) 1; 2000 MBQB 113, dist. [para. 479].

Fullerton v. Delair et al., [2005] B.C.T.C. 204; 137 A.C.W.S.(3d) 853; 2005 BCSC 204, refd to. [para. 505].

Counsel:

Robert L. Tapper, Q.C., Chris Wullum and Sadira Garfinkel, for the plaintiffs;

G. Todd Campbell and Nicole M. Watson, for the defendant physicians;

Michael T. Green and William Bowles, for the defendant nurses and The Winnipeg Regional Health Authority, carrying on business as The Health Sciences Centre.

This action was heard before Joyal, C.J.Q.B., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on January 11, 2016.