Forsberg et al. v. Naidoo et al., 2011 ABQB 252

• Judge: Thomas, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 04, 2010
• Citations: 2011 ABQB 252;(2011), 516 A.R. 201 (QB)

Forsberg v. Naidoo (2011), 516 A.R. 201 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. JL.135

Wayne Forsberg, Shirley Forsberg, Kimberlee Berkeley, Christopher Berkeley, Her Majesty The Queen in Right of Alberta, and Wayne Forsberg and Shirley Forsberg carrying on business as a partnership under the name and style of Forsberg & Forsberg (plaintiffs) v. Dr. Dadi B. Naidoo (defendant)

(0203-17011; 2011 ABQB 252)

Indexed As: Forsberg et al. v. Naidoo et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Thomas, J.

July 15, 2011.

Summary:

On October 14, 2000, the 61 year old plaintiff arrived at a rural hospital emergency department with meningitis, which required immediate antibiotic treatment to counter the rapidly spreading infection. The defendant doctor examined the plaintiff, ordered tests and made two unsuccessful attempts to perform a lumbar puncture, but did not administer any antibiotics. Three hours later, the doctor transferred the plaintiff to an Edmonton hospital, where he was immediately given antibiotics. Unfortunately, the delay in administering antibiotics resulted in the amputation of both legs (one above and one below the knee), his right arm below the elbow and part of his left hand. The plaintiff and others brought a medical negligence action for damages against the doctor. The doctor admitted that the failure to administer antibiotics at any time during the three hours constituted negligence, but disputed "at what time" that failure to administer antibiotics became negligent.

The Alberta Court of Queen's Bench found the doctor negligent and assessed damages accordingly.

Damages - Topic 591

Limits of compensatory damages - Predisposition to damage (thin skull or crumbling skull rule) - "Thin skull" or "crumbling skull" - A doctor's negligence in failing to immediately administer antibiotics to a 61 year old plaintiff suffering from meningitis resulted in him having both legs, one arm and part of a hand amputated - The doctor presented evidence of a "crumbling skull", arguing that the plaintiff's pre-existing degenerative intervertebral disc, arthritis and reduced bone density would have inevitably led to future impairment - The Alberta Court of Queen's Bench rejected the "crumbling skull" defences - A defendant who raised a "crumbling skull" argument had to prove that a "measurable risk" of impairment existed - The doctor presented no evidence of the probable progression of those pre-existing conditions in the absence of the negligent injury - There was no evidence to quantify the "measurable risk" - It was not sufficient to "guess" what would have happened as a result of the pre-existing conditions - See paragraphs 310 to 318.

Damage Awards - Topic 43

Injury and death - Arm and hand injuries - Amputation - [See Damage Awards - Topic 131 ].

Damage Awards - Topic 131

Injury and death - Leg injuries - Amputation - On October 14, 2000, the 61 year old plaintiff arrived at a rural hospital emergency department with meningitis, which required immediate antibiotic treatment to counter the rapidly spreading infection - The defendant doctor failed to administer antibiotics before transferring the plaintiff to an urban hospital, where antibiotics were immediately administered - The delay resulted in the amputation of both legs (one above and one below the knee), his right arm and part of his left hand - But for the doctor's negligence, the plaintiff would have lost only the toes on both feet and no substantial part of his hands would have been amputated - Extensive skin grafts and a lesser amount of time in intensive care and rehabilitation would have resulted - The plaintiff had a high degree of functional impairment and required day-to-day care assistance - His life expectancy was reduced from 84 to 80.2 years - The maximum award of general damages for nonpecuniary loss, adjusted for inflation, was $360,000 - The Alberta Court of Queen's Bench awarded $270,000 general damages for nonpecuniary loss - See paragraphs 322 to 334.

Damage Awards - Topic 368

Injury and death - Disease or illness - Infections - [See Damage Awards - Topic 131 ].

Damage Awards - Topic 483

Injury and death - General damage awards - Artificial limbs - [See Damage Awards - Topic 489 ].

Damage Awards - Topic 487.1

Injury and death - General damage awards - Necessary services provided by family members - On October 14, 2000, the 61 year old plaintiff arrived at a rural hospital emergency department with meningitis, which required immediate antibiotic treatment to counter the rapidly spreading infection - The defendant doctor failed to administer antibiotics before transferring the plaintiff to an urban hospital, where antibiotics were immediately administered - The delay resulted in the amputation of both legs (one above and one below the knee), his right arm and part of his left hand - But for the doctor's negligence, the plaintiff would have lost only the toes on both feet and no substantial part of his hands would have been amputated - Extensive skin grafts and a lesser amount of time in intensive care and rehabilitation would have resulted - The plaintiff had a high degree of functional impairment and required day-to-day care assistance - The plaintiff's wife assisted the plaintiff in caring for his limb stumps, attaching his prosthetics, administering drugs and assisting in hygienic activities, all matters falling outside the usual duties of a caring family member - Based on 13,780 hours at $17.40 per hour, less a 10% reduction for the care that would have been provided for the severity of the injuries the plaintiff would have suffered but for the negligence, the Alberta Court of Queen's Bench awarded $215,794.80 compensation for the wife's care - Further, the plaintiff's daughter and son-in-law provided more limited assistance, for which the court awarded $23,977.20 - See paragraphs 336 to 360.

Damage Awards - Topic 487.1

Injury and death - General damage awards - Necessary services provided by family members - Respecting damages for the unpaid assistance of a spouse and other family members, the Alberta Court of Queen's Bench restated the following relevant principles: "1. Where services are necessary as a result of the plaintiff's injuries, they are prima facie compensable; 2. The claim is that of the plaintiff/victim, not the provider of the services; 3. What is compensable is the value of the services to the plaintiff; 4. The maximum value of such services is the cost of obtaining the services outside the family; 5. Where the opportunity cost to the care-giving family member is lower than the cost of obtaining the services independently, the court will award the lower amount; 6. To be compensable the services had to be outside the normal duties expected of a spouse or family member." - See paragraph 337.

Damage Awards - Topic 489

Injury and death - General damage awards - Cost of future care and treatment - On October 14, 2000, the 61 year old plaintiff arrived at a rural hospital emergency department with meningitis, which required immediate antibiotic treatment to counter the rapidly spreading infection - The defendant doctor failed to administer antibiotics before transferring the plaintiff to an urban hospital, where antibiotics were immediately administered - The delay resulted in the amputation of both legs (one above and one below the knee), his right arm and part of his left hand - But for the doctor's negligence, the plaintiff would have lost only the toes on both feet and no substantial part of his hands would have been amputated - Extensive skin grafts and a lesser amount of time in intensive care and rehabilitation would have resulted - The plaintiff had a high degree of functional impairment and required day-to-day care assistance - The Alberta Court of Queen's Bench assessed damages for future care, including the cost of prosthetics, a live-in caregiver, nursing assistance, rehabilitation (physiotherapy), home renovations and modifications to an urban bungalow as the plaintiff would have to leave his farm, transportation costs (modified van), non-prosthetic mobility aids, and various household equipment costs - The plaintiff was not entitled to damages for moving costs, as a move from the farm to an urban bungalow would have been inevitable - See paragraphs 361 to 429.

Damage Awards - Topic 493

Injury and death - General damage awards - Loss of prospective earnings - In 2000, the 61 year old plaintiff was a successful dairy farmer - He contracted meningitis - The defendant doctor negligently failed to immediately administer antibiotics - The plaintiff lost both legs, one arm and part of the other hand - Difficulties in keeping the dairy farm running led the plaintiff to switch to beef production, which he had experience in - Unfortunately, the beef operation was financially unsuccessful due to the unanticipated outbreak of bovine spongiform encephalitis (BSE) - The disastrous effect on the beef industry resulted in the plaintiff selling his beef cattle in 2006 - At issue was damages for lost income arising from the loss of the dairy farm, the effect of the failed beef operation and whether the plaintiff failed to mitigate his loss by making unreasonable choices - The Alberta Court of Queen's Bench held that there was no failure to mitigate - The decision to switch from a dairy farm to beef production and the subsequent decision to sell the beef cattle due to the market conditions caused by BSE were both reasonable - Damages for lost business income were assessed at $1,037,957 - See paragraphs 462 to 540.

Damage Awards - Topic 495

Injury and death - General damage awards - Loss of housekeeping capacity - On October 14, 2000, the 61 year old plaintiff arrived at a rural hospital emergency department with meningitis, which required immediate antibiotic treatment to counter the rapidly spreading infection - The defendant doctor failed to administer antibiotics before transferring the plaintiff to an urban hospital, where antibiotics were immediately administered - The delay resulted in the amputation of both legs (one above and one below the knee), his right arm and part of his left hand - But for the doctor's negligence, the plaintiff would have lost only the toes on both feet and no substantial part of his hands would have been amputated - Extensive skin grafts and a lesser amount of time in intensive care and rehabilitation would have resulted - The plaintiff had a high degree of functional impairment and required day-to-day care assistance - The plaintiff was no longer to do "handyman" tasks, including snowblowing, mowing the lawn, routine maintenance, etc. - The Alberta Court of Queen's Bench awarded the plaintiff $3,500 per year for loss of domestic services - See paragraphs 430 to 438.

Damage Awards - Topic 499

Injury and death - General damage awards - Transportation - [See Damage Awards - Topic 489 ].

Damage Awards - Topic 585

Injury and death - Torts - Loss of consortium - On October 14, 2000, the 61 year old plaintiff arrived at a rural hospital emergency department with meningitis, which required immediate antibiotic treatment to counter the rapidly spreading infection - The defendant doctor failed to administer antibiotics before transferring the plaintiff to an urban hospital, where antibiotics were immediately administered - The delay resulted in the amputation of both legs (one above and one below the knee), his right arm and part of his left hand - But for the doctor's negligence, the plaintiff would have lost only the toes on both feet and no substantial part of his hands would have been amputated - Extensive skin grafts and a lesser amount of time in intensive care and rehabilitation would have resulted - The plaintiff had a high degree of functional impairment and required day-to-day care assistance - The Alberta Court of Queen's Bench awarded $25,000 damages for loss of consortium - See paragraphs 541 to 546.

Damages - Topic 1022

Mitigation - In tort - What constitutes reasonable remedial measures - [See Damage Awards - Topic 493 ].

Evidence - Topic 7061

Opinion evidence - Expert evidence - Particular matters - Professional standards of care - At issue was whether a "specialist" or "expert" doctor could comment on the standard of care of a non-specialist medical professional - The Alberta Court of Queen's Bench stated that "while courts have generally concluded that the opinion of one kind of expert was not helpful to assess the standard of care of an expert with a different area of specialization ... the same could not be said for an expert in a field who testified in relation to the appropriate standard of a generalist. ... Specialists develop the guidelines which are then applied by general practitioners. ... A specialist was therefore 'well suited to comment on the appropriate diagnostic and treatment regime' for a non-specialist who encounters a patient with a condition that falls within the specialist's area of expertise. ... Provided the 'specialist' provides testimony as to the appropriate conduct of a non-specialist, then that evidence is highly relevant and should be considered." - See paragraphs 97 to 100.

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - The 61 year old plaintiff arrived at a rural hospital emergency department suffering from meningitis - The defendant emergency room doctor was negligent in failing to immediately administer broad spectrum antibiotics, in failing to arrange earlier blood tests, and in failing to arrange a more timely transfer to an urban hospital better equipped to treat the plaintiff - Although the urban hospital immediately administered antibiotics, it was too late to avoid amputating the plaintiff's two legs, right arm and part of his left hand - The doctor argued that causation was not proved, because by the time the plaintiff reached the rural hospital the infection had already progressed to the point where the damage required amputation; that outcome was inevitable with or without his negligence - The Alberta Court of Queen's Bench held that the negligence respecting the transfer and blood samples did not cause any part of the plaintiff's injuries - However, causation was established respecting the negligent failure to immediately administer antibiotics - The court was satisfied that the severity of the plaintiff's injuries would have been reduced, albeit not eliminated, with the more timely administration of antibiotics - Additional injury resulted from the doctor's negligence - Had there been no negligence, the plaintiff would not have had a substantial part of either hand amputated and would have lost only his toes on both feet, not his legs - Extensive skin grafts would have been needed - Less time would have been spent in intensive care and rehabilitation - See paragraphs 156 to 294.

Medicine - Topic 4242.1

Liability of practitioners - Negligence or fault - Standard of care - Rural practitioners - [See Medicine - Topic 4252.4 ].

Medicine - Topic 4252.4

Liability of practitioners - Negligence or fault - Emergency room treatment - A patient arriving at a rural hospital emergency department displayed what was correctly diagnosed as a bacterial infection (most likely meningitis) - After initial examination, the doctor administered saline, spoke with an infectious disease specialist and attempted two unsuccessful lumbar punctures - Blood samples were not taken for one hour - Antibiotics were never administered - The doctor admitted negligence in failing to administer broad spectrum antibiotics - The doctor correctly arranged for a transfer to an urban hospital better equipped to care for the critical patient, but the failure to use a "critical care line" dedicated to that purpose resulted in a three hour delay - Upon arrival at the Edmonton hospital, antibiotics were immediately administered, but it was too late - Both of the patient's legs, one arm and one hand were amputated - The Alberta Court of Queen's Bench held that the doctor breached the standard of care of a rural emergency room doctor confronted with a patient displaying symptoms suggesting meningitis - It was negligent not to administer broad spectrum antibiotics immediately after the initial examination and taking of blood samples - If blood samples could not have been immediately taken (over one hour delay here), antibiotics should have been administered without waiting - It was also negligent not to use the "critical care line" to arrange a more timely transfer - See paragraphs 121 to 154.

Cases Noticed:

Neuzen v. Korn, [1995] 3 S.C.R. 674; 188 N.R. 161; 64 B.C.A.C. 241; 105 W.A.C. 241; 127 D.L.R.(4th) 577, refd to. [para. 13].

St-Jean v. Mercier, [2002] 1 S.C.R. 491; 282 N.R. 310; 2002 SCC 15, refd to. [para. 13].

Stoddard v. Montague et al. (2006), 412 A.R. 88; 404 W.A.C. 88; 2006 ABCA 109, refd to. [para. 15].

Skeels Estate et al. v. Iwashkiw et al., [2006] A.R. Uned. 344; 63 Alta. L.R.(4th) 26; 2006 ABQB 335, refd to. [para. 16].

Zazelenchuk et al. v. Kumleben et al. (2007), 430 A.R. 294; 2007 ABQB 650, refd to. [para. 16].

Malinowski v. Schneider (2010), 494 A.R. 201; 2010 ABQB 734, refd to. [para. 97].

Alakoozi Estate v. Hospital for Sick Children et al., [2002] O.T.C. 817; 117 A.C.W.S.(3d) 828 (Sup. Ct.), affd. (2004), 187 O.A.C. 187; 131 A.C.W.S.(3d) 762 (C.A.), refd to. [para. 98].

Robinson v. St. Joseph's General Hospital et al. (1999), 117 O.A.C. 331; 29 C.P.C.(4th) 184 (C.A.), refd to. [para. 98].

Briffett v. Gander and District Hospital Board et al. (1996), 137 Nfld. & P.E.I.R. 271; 428 A.P.R. 271; 29 C.C.L.T.(2d) 251 (Nfld. C.A.), refd to. [para. 98].

Quintal v. Datta and Skochylas (1988), 68 Sask.R. 104; 12 A.C.W.S.(3d) 139 (C.A.), refd to. [para. 98].

Lurtz v. Duchesne et al., [2003] O.T.C. 319; 122 A.C.W.S.(3d) 384 (Sup. Ct.), varied on other grounds (2005), 194 O.A.C. 119; 136 A.C.W.S.(3d) 1055 (C.A.), refd to. [para. 99].

Guest v. Bonderove & Co. et al. (1988), 88 A.R. 277; 59 Alta. L.R.(2d) 86 (C.A.), refd to. [para. 158].

Blackwater et al. v. Plint et al., [2001] B.C.T.C. 997; 93 B.C.L.R.(3d) 228; 2001 BCSC 997, varied on other grounds (2003), 192 B.C.A.C. 1; 315 W.A.C. 1; 235 D.L.R.(4th) 60; 2003 BCCA 671, affd. [2005] 3 S.C.R. 3; 339 N.R. 355; 216 B.C.A.C. 24; 356 W.A.C. 24; 2005 SCC 58, refd to. [para. 159].

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. 160].

Nattrass et al. v. Weber et al. (2010), 477 A.R. 292; 483 W.A.C. 292; 316 D.L.R.(4th) 666; 2010 ABCA 64, leave to appeal denied (2010), 410 N.R. 390; 510 A.R. 398; 527 W.A.C. 398 (S.C.C.), refd to. [para. 282].

Viscount Dunedin in Admiralty Commissioners v. S.S. Susquehanna, [1926] A.C. 655, refd to. [para. 296].

West & Son Ltd. v. Shephard, [1964] A.C. 326, refd to. [para. 296].

Andrews et al. v. Grand and 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, refd to. [para. 296].

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; 140 D.L.R.(4th) 235, refd to. [para. 315].

Greenhalgh et al. v. Douro-Dummer (Township) et al., [2009] O.T.C. Uned. U74 (Sup. Ct.), refd to. [para. 324].

Baker v. Suzuki Motor Co. et al. (1993), 143 A.R. 1; 12 Alta. L.R.(3d) 193 (Q.B.), refd to. [para. 324].

Gallson v. Butzow et al., [1995] B.C.T.C. Uned. B48; 16 M.V.R.(3d) 241; 57 A.C.W.S.(3d) 525 (S.C.), refd to. [para. 324].

Izony v Weidlich, [2006] B.C.T.C. 1315; 151 A.C.W.S.(3d) 847; 2006 BCSC 1315, refd to. [para. 324].

Grewal v. Brar et al., [2004] B.C.T.C. 1157; 133 A.C.W.S.(3d) 284; 2004 BCSC 1157, refd to. [para. 324].

Tailleur et al. v. Grande Prairie General and Auxiliary Hospital and Nursing Home District No. 14 et al. (1996), 180 A.R. 389; 38 Alta. L.R.(3d) 112 (Q.B.), revd. (1999), 228 A.R. 274; 188 W.A.C. 274; 1999 ABCA 2, leave to appeal refused (1999), 252 N.R. 194; 255 A.R. 397; 220 W.A.C. 397 (S.C.C.), refd to. [para. 324].

Mackow v. Sood (1991), 124 A.R. 76; 30 A.C.W.S.(3d) 1219 (Q.B.), affd. (1993), 141 A.R. 233; 46 W.A.C. 233; 18 C.P.C.(3d) 371 (C.A.), refd to. [para. 324].

Layden and Layden (J.B.) Oilfield Contractors Ltd. v. Cope et al. (1984), 52 A.R. 70; 28 C.C.L.T. 140 (Q.B.), refd to. [para. 324].

Maldonado v. Bourassa (1988), 92 A.R. 337; 13 A.C.W.S.(3d) 153 (Q.B.), varied on other grounds (1990), 108 A.R. 321; 22 A.C.W.S.(3d) 1045 (C.A.), refd to. [para. 324].

Labrecque v. Heimbeckner et al. (2007), 434 A.R. 181; 2007 ABQB 501, refd to. [para. 337].

MacCabe v. Board of Education of Westlock (Roman Catholic Separate) School District (1998), 226 A.R. 1; 69 Alta. L.R.(3d) 1 (Q.B.), refd to. [para. 348].

R. v. Graat, [1982] 2 S.C.R. 819; 45 N.R. 451; 144 D.L.R.(3d) 267, refd to. [para. 363].

Silvaniuk v. Stevens (1999), 244 A.R. 75; 209 W.A.C. 75; 1999 ABCA 191, refd to. [para. 491].

Costello and Dickhoff v. Calgary (City) (1997), 209 A.R. 1; 160 W.A.C. 1; 1997 ABCA 281, leave to appeal refused (1998), 247 N.R. 149; 212 A.R. 398; 168 W.A.C. 398 (S.C.C.), refd to. [para. 491].

Janiak v. Ippolito, [1985] 1 S.C.R. 146; 57 N.R. 241; 9 O.A.C. 1; 16 D.L.R.(4th) 1, refd to. [para. 492].

Calmonton Investments Ltd. v. Tangye (1988), 87 A.R. 22; 71 Alta. L.R.(2d) 87; 51 D.L.R.(4th) 593 (C.A.), refd to. [para. 494].

Exchanger Industries Ltd. v. Dominion Bridge Co. (1986), 69 A.R. 22; 38 A.C.W.S.(2d) 417 (Q.B.), refd to [para. 534].

Volker Stevin Contracting Ltd. v. Columbia Bulk Transport Inc. et al. (2005), 383 A.R. 99; 2005 ABPC 187, refd to. [para. 535].

Christianson v. North Hill News Inc. (1993), 145 A.R. 58; 55 W.A.C. 58; 106 D.L.R.(4th) 747 (C.A.), refd to. [para. 535].

Madge v. Meyer et al. (1999), 256 A.R. 201; 1999 ABQB 1017, affd. (2001), 281 A.R. 143; 248 W.A.C. 143; 2001 ABCA 97, refd to. [para. 545].

Authors and Works Noticed:

Picard, Ellen I., and Robertson, Gerald B., Legal Liability of Doctors and Hospitals in Canada (4th Ed. 2007), generally [para. 8].

Waddams, Stephen M., The Law of Damages (Rev. 2nd Ed. 1991) (Looseleaf Ed.), p. 15-15 [para. 533].

Counsel:

Dale E. Johns, Kathryn Louise Redmond and Trisha G. Faurschou (Carscallen Leitch LLP), for the plaintiffs;

Megan L. McMahon and Erin Runnalls (Gowling Lafleur Henderson LLP), for the defendant.

This action was heard on October 1 to 31 and November 4, 2010, before Thomas, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on July 15, 2011.