Gilberds v. Sobey et al., (2011) 520 A.R. 366 (QB)

• Judge: Ross, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: August 02, 2011
• Citations: (2011), 520 A.R. 366 (QB);2011 ABQB 491

Gilberds v. Sobey (2011), 520 A.R. 366 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. AU.035

Heather Gilberds (plaintiff) v. Alan Sobey, Capital Health and Caritas Health Authority operating a Hospital known as the Grey Nuns Community Hospital (defendants)

(0703 13334; 2011 ABQB 491)

Indexed As: Gilberds v. Sobey et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Ross, J.

August 2, 2011.

Summary:

During a 1999 lymph node biopsy performed by the defendant doctor, the plaintiff suffered damage to her spinal accessory nerve. Causation was conceded and damages were agreed to. The plaintiff sued the defendant for damages. The only issues in the plaintiff's medical negligence action were whether the claim, not commenced until 2007, was barred by the Limitations Act and whether the doctor was negligent in performing the biopsy.

The Alberta Court of Queen's Bench dismissed the action. The plaintiff's claim was not barred by the limitation period, because the limitation period did not commence running until 2007. The doctor failed to obtain the plaintiff's informed consent to surgery by informing her of the material risk of nerve damage without telling her the known statistical probability (5%). However, the lack of informed consent was not causative, as the plaintiff would still have elected surgery had she known the risk disclosed to her was 5%. Finally, it was not negligent to perform surgery rather than a more conservative approach, the surgery was not performed negligently and the failure to diagnose the nerve damage in the post-surgery examination was not negligent.

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - In 1999, the 22 year old plaintiff had enlarged lymph nodes - The defendant doctor explained the two options to obtain a definitive answer on whether the nodes were cancerous or benign: a conservative approach (monitor only) and lymph node biopsy surgery - The doctor favoured the conservative approach, advising that the nodes were probably benign - The doctor explained the surgical risks, including permanent damage to her spinal accessory nerve - As the plaintiff wanted a definitive answer, surgery was chosen - The nodes were benign - After surgery, the plaintiff reported muscle spasms in her shoulder and mobility problems - She regained shoulder movement and the pain diminished with massage therapy and physiotherapy - In 2003, the plaintiff moved to Taiwan for two years to teach English - She experienced no medical problems while there, but her shoulder "looked strange" when she returned in 2005 - In January 2007, a neurologist diagnosed the damage to her spinal accessory nerve caused by the biopsy surgery - Surgery to repair the nerve damage was no longer possible - The damage was permanent - In October 2007, the plaintiff commenced a medical negligence action - The Alberta Court of Queen's Bench held that the claim was not barred by the Limitations Act - The limitation period did not commence running until January 2007, when the nerve damage was first discovered - See paragraphs 40 to 53.

Medicine - Topic 3045

Relation with patient - Consent to treatment - What constitutes informed consent - In 1999, the 22 year old plaintiff had enlarged lymph nodes - The defendant doctor explained the two options to obtain a definitive answer on whether the nodes were cancerous or benign: a conservative approach (monitor only) and lymph node biopsy surgery - The doctor favoured the conservative approach, advising that the nodes were probably benign, but also advised that his wife would probably favour the surgery - The doctor explained the surgical risks, including permanent damage to her spinal accessory nerve - As the plaintiff wanted a definitive answer, surgery was chosen - The plaintiff claimed that the doctor failed to obtain her informed consent to the surgery, because although he advised her of the material risk of nerve damage, he did not tell her it was 5% - The Alberta Court of Queen's Bench held that "effective communication of treatment risks requires some information on the probability of a particular result" - The doctor assigned probabilities to less probable risks (bleeding and infections), but not to the more probable and serious risk of nerve damage - The 5% probability should have been disclosed, which may have misled the plaintiff to believe that since the probability was not disclosed, it must be less than the other risks (i.e., less that 1-3%) - The court rejected the plaintiff's claim that the doctor recommended surgery - At most, he stated that reasonable people could differ on whether to have the surgery or not - However, had the plaintiff been advised that the disclosed risk was 5%, applying a subjective/objective approach, she would still have elected to have the surgery, as both she and her mother were insisting on a definitive diagnosis - Accordingly, the failure to obtain informed consent was not causative of the plaintiff's injury - See paragraphs 57 to 108.

Medicine - Topic 4245

Liability of practitioners - Negligence - Surgical operations by doctors - In 1999, the 22 year old plaintiff had enlarged lymph nodes - The defendant doctor explained the two options to obtain a definitive answer on whether the nodes were cancerous or benign: a conservative approach (monitor only) and lymph node biopsy surgery - The doctor favoured the conservative approach, advising that the nodes were probably benign, but also advised that his wife would probably favour the surgery - The doctor explained the surgical risks, including permanent damage to her spinal accessory nerve - As the plaintiff wanted a definitive answer, surgery was chosen - The nodes were benign - After surgery, the plaintiff reported muscle spasms in her shoulder and mobility problems - She regained shoulder movement and the pain diminished with massage therapy and physiotherapy - In 2003, the plaintiff moved to Taiwan for two years to teach English - She experienced no medical problems while there, but her shoulder "looked strange" when she returned in 2005 - In January 2007, a neurologist diagnosed the damage to her spinal accessory nerve caused by the biopsy surgery - Surgery to repair the nerve damage was no longer possible - The damage was permanent - In October 2007, the plaintiff commenced a medical negligence action - The plaintiff sued the doctor for damages, claiming that it was negligent to perform unwarranted surgery, the surgery was performed negligently and post-surgery examinations negligently failed to detect the nerve damage - The Alberta Court of Queen's Bench dismissed the action - The surgery was not unwarranted - The surgery was not negligently performed - The doctor employed the preferable technique of exposing the structure to be removed while checking at the same time to see whether there was a nerve in the area of the surgery - Negligence could not be inferred merely because nerve damage occurred - It was a recognized risk even absent negligence - The doctor's post-surgery examination, which did not diagnose nerve damage, was not negligent - The doctor noted "no concerns" and there was no evidence that the plaintiff suffered shoulder problems until a much later date - See paragraphs 109 to 141.

Medicine - Topic 4248.1

Liability of practitioners - Negligence - Consent of patient - [See Medicine - Topic 3045 ].

Medicine - Topic 4254

Liability of practitioners - Negligence - Post-operative care - [See Medicine - Topic 4245 ].

Medicine - Topic 4324

Liability of practitioners - Bars to actions - Limitation periods - [See Limitation of Actions - Topic 15 ].

Cases Noticed:

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; 31 D.L.R.(4th) 481, refd to. [para. 42].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1; 10 D.L.R.(4th) 641, refd to. [para. 42].

De Shazo v. Nations Energy Co. et al. (2005), 367 A.R. 267; 346 W.A.C. 267; 2005 ABCA 241, refd to. [para. 43].

Sun Gro Horticulture Canada Ltd. v. Abe's Door Service Ltd. et al. (2006), 397 A.R. 282; 384 W.A.C. 282; 273 D.L.R.(4th) 295; 2006 ABCA 243, refd to. [para. 44].

Gayton v. Lacasse (2010), 482 A.R. 179; 490 W.A.C. 179; 2010 ABCA 123, refd to. [para. 44].

Fleming v. Reid and Gallagher (1991), 48 O.A.C. 46; 4 O.R.(3d) 74; 82 D.L.R.(4th) 298 (C.A.), refd to. [para. 63].

Ciarlariello et al. v. Schacter et al., [1993] 2 S.C.R. 119; 151 N.R. 133; 62 O.A.C. 161; 100 D.L.R.(4th) 609, refd to. [para. 63].

Dickson et al. v. Pinder et al. (2010), 489 A.R. 54; 2010 ABQB 269, refd to. [para. 64].

Lepp v. Hopp, [1980] 2 S.C.R. 192; 32 N.R. 145; 22 A.R. 361; 112 D.L.R.(3d) 67, refd to. [para. 66].

Reibl v. Hughes, [1980] 2 S.C.R. 880; 33 N.R. 361; 114 D.L.R.(3d) 1, refd to. [para. 67].

Kelly v. Lundgard et al. (2001), 286 A.R. 1; 253 W.A.C. 1; 202 D.L.R.(4th) 385; 2001 ABCA 185, refd to. [para. 70].

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. 70].

Munir v. Jackson (2006), 148 A.C.W.S.(3d) 151 (Ont. Sup. Ct.), refd to. [para. 71].

Eldridge et al. v. British Columbia (Attorney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81; 151 D.L.R.(4th) 577, refd to. [para. 76].

Matuzich v. Lieberman et al., [2002] O.T.C. 510; 115 A.C.W.S.(3d) 337 (Sup. Ct.), refd to. [para. 79].

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; 148 D.L.R.(4th) 48, refd to. [para. 95].

Chasse v. Evenson et al. (2006), 399 A.R. 121; 2006 ABQB 342, refd to. [para. 126].

Rhine v. Millan et al. (2000), 263 A.R. 201; 78 Alta. L.R.(3d) 352; 2000 ABQB 212, refd to. [para. 127].

Clare v. Ostolosky et al. (2001), 300 A.R. 341 (Q.B.), refd to. [para. 127].

Fontaine v. Loewen Estate, [1998] 1 S.C.R. 424; 223 N.R. 161; 103 B.C.A.C. 118; 169 W.A.C. 118; 156 D.L.R.(4th) 577, refd to. [para. 127].

Keller v. Penkoske et al. (1999), 256 A.R. 1; 1999 ABQB 912, affd. (2004), 348 A.R. 54; 321 W.A.C. 54; 2004 ABCA 4, refd to. [para. 130].

Kaban v. Sett and Salvation Army Grace General Hospital (1994), 90 Man.R.(2d) 26; 43 A.C.W.S.(3d) 1015 (Q.B.), affd. (1994), 97 Man.R.(2d) 185; 79 W.A.C. 185; 50 A.C.W.S.(3d) 908 (C.A.), leave to appeal refused (1995), 189 N.R. 240; 102 Man.R.(2d) 320; 93 W.A.C. 320 (S.C.C.), refd to. [para. 130].

Authors and Works Noticed:

Picard, Ellen I., and Robinson, Gerald B., Legal Liability of Doctors and Hospitals in Canada (4th Ed. 2007), pp. 149 [para. 80]; 308 [para. 126].

Counsel:

David N. deVere (Weir Bowen LLP), for the plaintiff;

Megan L. McMahon (Gowling Lafleur Henderson LLP), for the defendants.

This action was heard on March 14-23, 2011, before Ross, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on August 2, 2011.