Fournier et al. v. Wiens, (2004) 368 A.R. 306 (QB)

• Judge: Verville, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 19, 2004
• Citations: (2004), 368 A.R. 306 (QB);2004 ABQB 430

Fournier v. Wiens (2004), 368 A.R. 306 (QB)

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. JN.057

Mary Ann Fournier and Her Majesty the Queen in Right of Alberta (plaintiffs) v. Helmut Wiens (defendant)

(0103 00064; 2004 ABQB 430)

Indexed As: Fournier et al. v. Wiens

Alberta Court of Queen's Bench

Judicial District of Edmonton

Verville, J.

June 10, 2004.

Summary:

In January 2001, a large tumour (synovial sarcoma) was removed from the plaintiff's neck, along with muscle and a segment of vertebrae. Following the surgery, the plaintiff experienced neck pain and used different devices to stabilize her neck. The plaintiff sued the defendant general practitioner for damages, claiming that she told him about a lump (the sarcoma) on her neck in 1999 or 2000 and that the defendant was negligent in failing to diagnose the lump. In July 2002, the plaintiff suffered a severe stroke (unrelated to the surgery), which left her significantly disabled.

The Alberta Court of Queen's Bench found that the defendant was informed of the sarcoma/lump sometime in 1999 and that his negligence in failing to diagnose the lump caused the plaintiff to incur physical injuries over and above the injuries that would have occurred in any event. It also caused her psychological suffering. The plaintiff's stroke did not subsume or cut off those damages, but reduced the ongoing effect. The court awarded the plaintiff general damages of $50,000 and special damages of $1,224.40.

Damage Awards - Topic 205

Injury and death - Psychological injuries - Mental distress - In January 2001, a large tumour (synovial sarcoma) was removed from the plaintiff's neck, along with muscle and a segment of vertebrae - Following the surgery, the plaintiff experienced neck pain and used different devices to stabilize her neck - In July 2002, she suffered a severe stroke (unrelated to the surgery), which left her significantly disabled - The Alberta Court of Queen's Bench found that the plaintiff had told the defendant general practitioner about a lump (the sarcoma) on her neck sometime in 1999 and that the defendant was negligent in failing to diagnose the lump - The court held that an earlier diagnosis would have resulted in less invasive surgery and that the delay in diagnosis also caused the plaintiff psychological suffering - The court awarded the plaintiff general damages of $50,000 - In doing so it attributed 50% of the plaintiff's physical injury resulting from the surgery to the delay in diagnosis - It also considered the psychological injury to the plaintiff and the effect of her stroke, which did not subsume or cut off damages, but reduced the effect of ongoing damages - See paragraphs 146 to 163.

Damage Awards - Topic 485

Injury and death - General damage awards - Whether award should be itemized by trial judge - The plaintiff sued the defendant general practitioner for damages, alleging that he failed to diagnose a lump on her neck (synovial sarcoma) - The plaintiff sought damages under separate heads for the physical injury and the psychological injury which she suffered as a result of the delay in diagnosis - The Alberta Court of Queen's Bench stated that when taking an itemized approach to damages, the court had to be concerned with overlap, duplication and set-off - Therefore, care had to taken when analyzing damages as suggested by the plaintiff, because the nonpecuniary awards in pre-existing cases likely gave a global amount, which included some psychological suffering - The court also stated that most of the cases which isolated psychological stress as a head of damage were cases where the undiagnosed illness was fatal - The court declined to award damages under different heads in this case, but rather made one award - See paragraphs 146 to 159.

Damage Awards - Topic 634

Torts - Injury to the person - Medical or dental malpractice - [See Damage Awards - Topic 205 ].

Damages - Topic 587

Limits of compensatory damages - Intervening cause - Nonculpable accidents or events occurring prior to or after trial - [See Damage Awards - Topic 205 ].

Damages - Topic 1532

General damages - Elements of general damages - Mental distress or emotional upset - [See Damage Awards - Topic 485 ].

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - [See Medicine - Topic 4250 ].

Medicine - Topic 4250

Liability of practitioners - Negligence or fault - Failure to diagnose an illness or condition - In January 2001, a large tumour (synovial sarcoma) was removed from the plaintiff's neck, along with muscle and a segment of vertebrae - The Alberta Court of Queen's Bench found that the plaintiff had told the defendant general practitioner about a lump on her neck (the sarcoma) sometime in 1999, that the defendant had palpated the lump in a focused examination and that he had concluded that it was not significant and made no note of it - The court held that the defendant breached the standard of care and was negligent in failing to diagnose the lump - See paragraphs 110 to 117 - The court accepted evidence that deep to the surface sarcomas were difficult to detect - It accordingly found that if the defendant had not been told of the lump by the plaintiff, he would not have breached the standard of care by failing to note it at the time of or prior to the physical examination - See paragraphs 118 to 124.

Cases Noticed:

Tailleur et al. v. Grande Prairie General and Auxiliary Hospital and Nursing Home District No. 14 et al. (1999), 228 A.R. 274; 188 W.A.C. 274 (C.A.), leave to appeal refused (1999), 252 N.R. 194; 255 A.R. 397; 220 W.A.C. 397 (S.C.C.), refd to. [para. 76].

Cranwill v. James et al. (1994), 164 A.R. 241 (Q.B.), affd. (1997), 193 A.R. 204; 135 W.A.C. 204 (C.A.), leave to appeal refused (1997), 223 N.R. 227; 212 A.R. 235; 168 W.A.C. 235 (S.C.C.), refd to. [para. 77].

Clare v. Ostolosky et al. (2001), 300 A.R. 341 (Q.B.), refd to. [para. 78].

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

Neuzen v. Korn, [1995] 10 W.W.R. 1; 188 N.R. 161; 64 B.C.A.C. 241; 105 W.A.C. 241; 127 D.L.R.(4th) 577 (S.C.C.), refd to. [para. 79].

Wilson v. Swanson, [1956] S.C.R. 804; 5 D.L.R.(2d) 113, refd to. [para. 80].

Tiesmaki v. Wilson, [1974] 4 W.W.R. 19 (Alta. S.C.), affd. [1975] 6 W.W.R. 639 (Alta. App. Div.), refd to. [para. 81].

Goodwin v. Brady (1991), 7 C.C.L.T.(2d) 319 (B.C.S.C.), affd. (1994), 41 B.C.A.C. 147; 66 W.A.C. 147; 89 B.C.L.R.(2d) 27 (C.A.), refd to. [para. 82].

Hunter v. Hanley, [1955] S.L.T. 213 (H.L.), refd to. [para. 82].

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), 95 A.R. 236 (S.C.C.), refd to. [para. 83].

Schanczl v. Singh (1987), 56 Alta. L.R.(2d) 303 (Q.B.), refd to. [para. 84].

Rose v. Dugon et al. (1990), 108 A.R. 352 (Q.B.), refd to. [para. 88].

Ostby v. Bondar et al. (1998), 218 A.R. 132 (Q.B.), refd to. [para. 91].

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. 92].

St-Jean v. Mercier, [2002] 1 S.C.R. 491; 282 N.R. 310; 2002 SCC 15, refd to. [para. 92].

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. 94].

McArdle Estate v. Cox et al., [2003] 6 W.W.R. 264; 327 A.R. 129; 296 W.A.C. 129, refd to. [para. 95].

Oiom v. Brassington (1990), 52 B.C.L.R.(2d) 240 (C.A.), refd to. [para. 97].

Laferrière v. Lawson, [1991] 1 S.C.R. 541; 123 N.R. 325; 38 Q.A.C. 161, refd to. [para. 98].

Sohal v. Brar (1998), 211 A.R. 81 (Q.B.), affd. (1998), 223 A.R. 141; 183 W.A.C. 141 (C.A.), refd to. [para. 98].

Wilson et al. v. Vancouver Hockey Club (1983), 5 D.L.R.(4th) 282 (B.C.S.C.), affd. (1985), 22 D.L.R.(4th) 516 (B.C.C.A.), refd to. [para. 99].

Jobling v. Associated Dairies Ltd., [1981] 2 All E.R. 752 (H.L.), refd to. [para. 101].

Penner v. Mitchell (1978), 10 A.R. 555; 89 D.L.R.(3d) 343 (C.A.), refd to. [para. 102].

Stranden v. Le, [1994] A.J. No. 428 (Q.B.), consd. [para. 131].

Stuwe v. McLeod (2000), 254 A.R. 296 (Q.B.), consd. [para. 131].

Dear v. Styre et al. (2002), 318 A.R. 115 (Q.B.), consd. [para. 131].

Pettipas v. Klingbeil et al. (2000), 260 A.R. 1 (Q.B.), refd to. [para. 135].

Hanson v. Heuchert (1997), 197 A.R. 46 (Q.B.), refd to. [para. 135].

Krawchuk v. Mellor, [2003] A.R. Uned. 75; [2003] 7 W.W.R. 323 (Q.B.), refd to. [para. 135].

Quinton v. DeBoice (1997), 204 A.R. 60 (Q.B.), refd to. [para. 136].

Philip v. Hironaka (1997), 210 A.R. 1 (Q.B.), refd to. [para. 136].

Cherwoniak v. Walker (1999), 249 A.R. 74 (Q.B.), affd. (2001), 293 A.R. 198; 257 W.A.C. 198 (C.A.), refd to. [para. 136].

Kempton v. Park, [1994] O.J. No. 320 (Gen. Div.), affd. [1994] O.J. No. 2651 (C.A.), refd to. [para. 137].

Mitchell v. Labow et al., [1995] O.J. No. 621 (Gen. Div.), consd. [para. 137].

Newman Estate v. Swales, [2002] O.T.C. 493 (Sup. Ct.), consd. [para. 141].

Stell v. Obedkoff, [2000] O.J. No. 4011 (Sup. Ct.), consd. [para. 142].

Pittman Estate v. Bain (1994), 19 C.C.L.T.(2d) 1 (Ont. Gen. Div.), consd. [para. 143].

Knor v. Fehr (1997), 210 A.R. 33 (Q.B.), refd to. [para. 144].

Ostby v. Bondar et al. (1998), 218 A.R. 132 (Q.B.), refd to. [para. 145].

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. 146].

Authors and Works Noticed:

Cooper-Stephenson, Kenneth D., and Saunders, Iwan B., Personal Injury Damages in Canada (2nd Ed. 1996), pp. 102 [para. 146]; 484, 485 [para. 147].

Picard, Ellen I., and Robertson, Gerald B., Legal Liability of Doctors and Hospitals in Canada (3rd Ed. 1996), pp. 173 [para. 76]; 174 [paras. 76, 79]; 175 [para. 79]; 186, 187, 188 [para. 80]; 239 [para. 88]; 241 [para. 89]; 245, 246 [para. 90]; 280 [para. 86]; 281 [paras. 83, 86, 87]; 282 [para. 86, 87]; 283 [para. 86].

Counsel:

Joe Miller and Carole Karbonik, Weir Bowen, for the plaintiffs;

Ken Lenz and Larina Taylor, Bennett Jones LLP - Calgary, for the defendants.

This action was heard on April 19, 2004, before Verville, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on June 10, 2004.