Cory v. Bass, (2011) 506 A.R. 1 (QB)

• Judge: Tilleman, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 21, 2011
• Citations: (2011), 506 A.R. 1 (QB);2011 ABQB 360

Cory v. Bass (2011), 506 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. JL.014

Melanie Cory (plaintiff) v. Dr. Sydney Bass (defendant)

(0701 08024; 2011 ABQB 360)

Indexed As: Cory v. Bass

Alberta Court of Queen's Bench

Judicial District of Calgary

Tilleman, J.

June 21, 2011.

Summary:

Cory had attacks of pain after her gallbladder had been removed. Dr. Bass, a gastroenterologist, advised her that she had a high probability of common bile duct stones. Cory brought a medical negligence action against Dr. Bass, concerning the events surrounding an endoscopic retrograde cholangiopancreatography (ERCP) procedure. During the procedure, Cory, 43 at the time, suffered a perforation of her duodenum and developed severe necrotizing pancreatitis and sepsis. As a result she suffered serious injuries and was hospitalized. Cory alleged negligence concerning Dr. Bass's diagnosis of common bile duct stones, his recommendation of the therapeutic ERCP, his failure to recommend alternative diagnostic procedures and his advice to her concerning the risks of the ERCP procedure.

The Alberta Court of Queen's Bench held that Dr. Bass was negligent. Cory was entitled to damages totalling $129,150.63: general damages $90,000 (after 10% reduction); past loss of income $20,912; and special damages/past loss of care $18,238.63. The defendant fell below the standard of care in failing to fully explain the material risks and alternative options of the ERCP. Those alternatives were reasonable and their foreseeable risks were much lower. Further, Cory established that she would have opted for one of the two alternative diagnostic tests and "but for" the failure of Dr. Bass to properly outline all material facts and material risks involved in the ERCP, a reasonable person in Cory's position would not have proceeded with the ERCP. Also, the lack of informed consent was a cause of the injury and the unfortunate result would have been avoided.

Damage Awards - Topic 55

Injury and death - Body injuries - Abdomen - [See Damage Awards - Topic 65 ].

Damage Awards - Topic 62

Injury and death - Body injuries - Pancreas - [See Damage Awards - Topic 65 ].

Damage Awards - Topic 65

Injury and death - Body injuries - Bladder or bowels - The Alberta Court of Queen's Bench found that the defendant, a gastroenterologist, was negligent in his treatment of the plaintiff, concerning the events surrounding a therapeutic procedure (the ERCP) - Following the ERCP, the plaintiff had suffered a bowel perforation - She was admitted to intensive care where she then developed severe and necrotizing pancreatitis and compartment syndrome - She underwent open abdominal surgery with drainage in her abdomen - Two months after she was initially hospitalized she had a large skin graft taken from her right thigh which was placed on her open abdominal cavity - The plaintiff was readmitted numerous times to hospital - Reconstructive surgery involved the removal of the skin graft - She continued to experience pain and bladder troubles, but did not take the prescribed pancreatic enzyme therapy - An issue was the appropriate assessment of damages, and whether the plaintiff mitigated the damages - The court based on its review of the case law, awarded the plaintiff $100,000, less a 10% deduction - The plaintiff had some continued restrictions on her ability to enjoy life, including her pre-procedure fitness level - Her pain and bladder troubles could be minimized, however, if she took the prescribed enzymes - See paragraphs 223 to 248.

Damage Awards - Topic 498

Injury and death - General damage awards - Pain and suffering, loss of amenities and other nonpecuniary damages - [See Damage Awards - Topic 65 ].

Damages - Topic 1011

Mitigation - In tort - Personal injuries - Treatment for - [See Damage Awards - Topic 65 ].

Evidence - Topic 7061

Opinion evidence - Expert evidence - Particular matters - Professional standards of care - [See second Medicine - Topic 4242 ].

Medicine - Topic 3045

Relation with patient - Consent to treatment - What constitutes informed consent - Informed consent was the primary issue in this medical negligence case - The Alberta Court of Queen's Bench stated that "a patient has the right to know the nature of any proposed therapy, its risks and benefits and what alternatives may exist. To prove liability the plaintiff must prove that the physician did not disclose a risk or alternative that ought to have been disclosed. The plaintiff must also establish that had such a risk or alternative been disclosed, a reasonable person in the plaintiff's position would not have agreed to undergo the procedure or treatment" - The court considered the analysis of informed consent as developed in the Supreme Court of Canada in Lepp v. Hopp (1980) and reaffirmed in Reibl v. Hughes (1990) - See paragraphs 100 to 104.

Medicine - Topic 3045

Relation with patient - Consent to treatment - What constitutes informed consent - The Alberta Court of Queen's Bench stated that "The use of a properly drafted consent form should be seen by the courts as valuable objective evidence of the disclosure of the risks documented in the form, as well as notice to the patients of their entitlement to ask questions regarding the risks documented in the form and other matters of concern to them, such as nature and purpose of treatment, if that is not already obvious to the patients" - See paragraph 106.

Medicine - Topic 3045

Relation with patient - Consent to treatment - What constitutes informed consent - Much of this case centered on whether or not the defendant physician should have told the plaintiff about the two alternative diagnostic procedures that were available - The Alberta Court of Queen's Bench stated that "The language of Reibl and Hughes [1980 S.C.C.] is couched in terms of disclosure of risks. However, more recent case law supports my view that there is no doubt that patients must be informed about reasonable alternatives, particularly alternatives that are more conservative and involve fewer risks than the treatment proposed" - In summary, the court stressed the point that "a physician must disclose reasonable alternatives to any therapy they propose. A patient cannot make a meaningful and informed choice to consent to a therapy unless the patient knows the consequences of reasonable alternatives and is able to balance the risks and benefits of the proposed therapy against those alternatives" - See paragraphs 107 to 112.

Medicine - Topic 3045

Relation with patient - Consent to treatment - What constitutes informed consent - The plaintiff alleged negligence on the part of Dr. Bass, a gastroenterologist, concerning his recommendation of the therapeutic procedure (ERCP), his failure to recommend alternative diagnostic procedures, and his advice concerning the risks of the ERCP - An issue was whether Dr. Bass obtained the necessary informed consent from the plaintiff prior to the ERCP - The plaintiff signed a consent form at the hospital on the day of the procedure - However, the form was not counter-signed by Dr. Bass, as it should have been - The plaintiff was not told of the two alternative diagnostic tests prior to proceeding with the ERCP - The Alberta Court of Queen's Bench held that the alternatives were "important options" and that "a gastroenterologist in the circumstances would have been required to advise the patients of the options" - Dr. Bass had an obligation to advise the plaintiff of the existence of the diagnostic tests and his reasons for preferring to proceed directly with the ERCP, including outlining the risks of waiting to obtain the less invasive tests - "It is a very reasonable standard to expect a gastroenterologist to advise a patient of the existence of less invasive and reasonably germane tests. In failing to do so, Dr. Bass fell below the standard of care" - See paragraphs 151 to 178.

Medicine - Topic 3045

Relation with patient - Consent to treatment - What constitutes informed consent - The plaintiff alleged medical negligence on the part of the defendant, a "very busy" gastroenterologist - The Alberta Court of Queen's Bench held that the defendant failed to obtain the plaintiff's informed consent to the treatment at issue, and that fell below the standard of care - The defendant did not spend the necessary amount of time required to fully explain the relevant risks or alternatives to the plaintiff - Further, and importantly, there was no evidence of discussion or explanation of the other possible diagnosis - The fact that the defendant failed to sign the consent form on the day of the treatment further convinced the court that the risks were not fully explained - "In my view, and absent surgical emergencies (which this was not), it is a two stage process: the first discussion takes place during the initial consult in the office, the second discussion should take place on the day of the surgery to ensure that the patient has no further questions and fully understands the risks" - See paragraph 203.

Medicine - Topic 3045

Relation with patient - Consent to treatment - What constitutes informed consent - The Alberta Court of Queen's Bench found a breach of the duty to inform - The next issue was causation - "I must now assess what a reasonable person in the position and circumstances of the Plaintiff would have done if they had been informed of the material facts regarding the risks and the available alternatives to the procedure [the ERCP]. Further, a second question also arises: would the diagnostic tests have made a difference?" - The court concluded that, with respect to alternative diagnostic tests, it was reasonable to assume that had the plaintiff been advised of the less invasive tests, together with a full discussion of the risks of the ERCP, she would have opted for one of the two alternative diagnostic tests - With respect to the "complex" second question, the court was satisfied on the totality of the evidence and on a balance of probabilities that the damage would have been avoided if the plaintiff had been advised of the existence of the alternative diagnostic tests - See paragraphs 205 to 222.

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - [See sixth Medicine - Topic 3045 and Torts - Topic 54 ].

Medicine - Topic 4242

Liability of practitioners - Negligence or fault - Standard of care - This was a medical negligence action against a specialist, i.e., a gastroenterologist - The Alberta Court of Queen's Bench, with respect to the standard of care, stated that "A doctor undertakes that he or she possesses and utilizes the skill, knowledge and judgment of the average reasonable doctor. In judging the average reasonable doctor, regard must be had to the special class and community to which the doctor belongs. If he or she holds himself or herself out as a specialist, a higher degree of skill is required of him, equal to that of a reasonably competent member in her group of specialists ... In the case of a specialist the physician's behaviour will be assessed in light of the conduct of other ordinary specialists, who possess a reasonable level of knowledge, competence and skill in that field" - In the case at bar, the defendant was a skilled gastroenterologist, and the court held him to that skilled standard - See paragraphs 93 to 96.

Medicine - Topic 4242

Liability of practitioners - Negligence or fault - Standard of care - The plaintiff alleged negligence on the part of the defendant, a gastroenterologist, concerning his diagnosis of common bile duct stones, his recommendation of the therapeutic procedure (ERCP), his failure to recommend alternative diagnostic procedures (MRCP or EUS) and his advice concerning the risks of the ERCP - An issue was whether the defendant failed to meet the appropriate standard of care - Much of the case turned on whether the defendant's original diagnosis of gallstones was correct, as the experts agreed that if there was a high probability of gallstones then it was correct to proceed with an ERCP - However, the plaintiff's expert (Dr. Singh) disagreed with the diagnosis and in his opinion, the plaintiff had a low probability of gallstones - The Alberta Court of Queen's Bench concurred, and having heard all the experts and evidence, accepted Dr. Singh's testimony on that point for the following reasons - There could be different reasons for biliary colic pain and the existence of pain did not necessarily mean that there was a stone - It was agreed that a 4 mm stone would show up on an MRCP or EUS - Ultrasound results indicated that there was no evidence of gallstones - The liver enzyme tests were not conclusive - Based on the court's review of the totality of the evidence, it was possible "but not at all certain" that the plaintiff had gallstones - See paragraphs 117 to 150.

Medicine - Topic 4242

Liability of practitioners - Negligence or fault - Standard of care - [See fourth Medicine - Topic 3045 ].

Torts - Topic 54

Negligence - Causation - Test for (incl. "but for" test and "material contribution" test) - This was a medical negligence action - The Alberta Court of Queen's Bench stated that "[t]he basic test for determining causation remains the 'but for' test ... The 'but for' test requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant ... In special circumstances where it proves unworkable the law has recognized exceptions to the basic 'but for' test and has applied the 'material contribution' test" - As part of this cause of action, the plaintiff had to establish a causal link between the negligence and the injury - If it was determined that the doctor failed to adequately disclose material risks of a procedure or alternative treatments or tests, "the Court must apply the modified objective standard to determine whether the lack of disclosure caused the loss ... Therefore, the test is whether a reasonable person in the circumstances of the patient, have consented to the procedure when all the material information, including material risks were disclosed? The onus of proving that the patient would not have undergone the procedure lies with the patient" - The additional component in this case was whether the damage would have been avoided if the alternative had been chosen - See paragraphs 113 to 116.

Cases Noticed:

Wilson v. Swanson, [1956] S.C.R. 804, refd to. [para. 93].

Challand v. Bell (1959), 18 D.L.R.(2d) 150 (Alta. S.C.), refd to. [para. 93].

Crits v. Sylvester, [1956] O.R. 132 (C.A.), affd. [1956] S.C.R. 991, refd to. [para. 94].

Fournier et al. v. Wiens (2004), 368 A.R. 306; 2004 ABQB 430, refd to. [para. 95].

Kehler v. Myles and Foothills Provincial General Hospital (1986), 74 A.R. 259 (Q.B.), affd. (1988), 92 A.R. 345 (C.A.), leave to appeal refused [1989] 1 S.C.R. x; 101 N.R. 231; 95 A.R. 236, refd to. [para. 97].

Belknap v. Meakes (1989), 64 D.L.R.(4th) 452 (B.C.C.A.), refd to. [para. 98].

Crick v. Mohan (1993), 142 A.R. 281 (Q.B.), refd to. [para. 99].

Scott v. Mohan - see Crick v. Mohan.

Lepp v. Hopp, [1980] 2 S.C.R. 192; 32 N.R. 145; 22 A.R. 361, refd to. [para. 101].

Reibl v. Hughes, [1980] 2 S.C.R. 880; 33 N.R. 361, consd. [para. 101].

Martin et al. v. Capital Health Authority et al. (2008), 432 A.R. 165; 424 W.A.C. 165; 2008 ABCA 161, refd to. [para. 103].

Videto et al. v. Kennedy (1981), 33 O.R.(2d) 497 (C.A.), refd to. [para. 104].

Coughlin v. Kuntz (1987), 17 B.C.L.R.(2d) 365 (S.C.), affd. (1989), 42 B.C.L.R.(2d) 108 (C.A.), refd to. [para. 105].

Zimmer and Zimmer v. Ringrose (1981), 28 A.R. 69; 124 D.L.R.(3d) 215 (C.A.), leave to appeal dismissed (1981), 37 N.R. 289; 28 A.R. 92 (S.C.C.), agreed with [para. 108].

Haughian v. Paine (1987), 55 Sask.R. 99; 37 D.L.R.(4th) 624 (C.A.), refd to. [para. 108].

Zaiffdeen v. Chua et al. (2005), 380 A.R. 200; 363 W.A.C. 200; 2005 ABCA 290, refd to. [para. 109].

Gallant v. Brake-Patten (2010), 292 Nfld. & P.E.I.R. 279; 902 A.P.R. 279; 2010 NLTD 1, refd to. [para. 109].

Seney v. Crooks et al. (1998), 223 A.R. 145; 183 W.A.C. 145; 1998 ABCA 316, consd. [para. 110].

Dickson et al. v. Pinder et al. (2010), 489 A.R. 54; 2010 ABQB 269, consd. [para. 111].

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. 113].

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. 113].

Arndt et al. v. Smith, [1997] 2 S.C.R. 539; 213 N.R. 243; 92 B.C.A.C. 185; 150 W.A.C. 185, refd to. [para. 114].

Whitt v. Purkin (2008), 458 A.R. 176; 2008 ABQB 666, refd to. [para. 115].

Miller v. Budzinski et al., [2004] B.C.T.C. 1730; 2004 BCSC 1730, consd. [para. 236].

Emmonds v. Makarewicz (2000), 145 B.C.A.C. 293; 237 W.A.C. 293; 81 B.C.L.R. 75; 2000 BCCA 573, consd. [para. 237].

Smith v. Liwanpo et al., [2007] O.T.C. Uned. 700 (Sup. Ct.), affd. [2008] O.A.C. Uned. 385; 2008 ONCA 551, consd. [para. 238].

Bearden et al. v. Lee et al., [2003] O.T.C. 269 (Sup. Ct.), consd. [para. 239].

Kennedy v. Jackiewicz, [2003] O.T.C. 418 (Sup. Ct.), affd. [2004] O.J. No. 4816 (C.A.), consd. [para. 240].

Coburn v. Nagra et al., [2001] B.C.T.C. 234; 2001 BCSC 234, affd. (2002), 166 B.C.A.C. 223; 271 W.A.C. 223; 2002 BCCA 212, consd. [para. 241].

Kovacich et al. v. St. Joseph's Hospital et al., [2004] O.T.C. 942 (Sup. Ct.), refd to. [para. 242].

Koch v. Brydon (2008), 327 Sask.R. 35; 2008 SKQB 464, refd to. [para. 243].

Schultz v. Lloydminster Hospital, [1995] A.J. No. 1321 (Q.B.), refd to. [para. 243].

Labrecque v. Heimbeckner et al. (2007), 434 A.R. 181; 2007 ABQB 501, refd to. [para. 268].

Authors and Works Noticed:

Kent, C. Adèle, Medical Ethics, The State of the Law (2005), p. 138 [para. 116].

Picard, Ellen I., and Robertson, Gerald B., Legal Liability of Doctors and Hospitals in Canada (4th Ed. 2007), pp. 151 [para. 107]; 192 [paras. 116, 219]; 212 [para. 91]; 246, 301 [para. 99]; para. 111 [para. 109].

Counsel:

Brian E. Devlin, Q.C., for the plaintiff;

Steven Robertson and Christine Plante, for the defendant.

This action was heard on March 21, 2011, before Tilleman, J., of the Alberta Court of Queen's Bench, who delivered the following memorandum of decision, dated at Calgary, Alberta, on June 21, 2011.