O'Grady v. Stokes, 2005 ABQB 247

• Judge: Kenny, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 22, 2004
• Citations: 2005 ABQB 247;(2005), 375 A.R. 109 (QB)

O'Grady v. Stokes (2005), 375 A.R. 109 (QB)

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. MY.024

Regina O'Grady (plaintiff) v. Dr. Shelley Stokes (defendant)

(0101 00705; 2005 ABQB 247)

Indexed As: O'Grady v. Stokes

Alberta Court of Queen's Bench

Judicial District of Calgary

Kenny, J.

April 26, 2005.

Summary:

During a medical examination, the defen­dant doctor told the plaintiff that she did not like the look of a mole on her chest and that she wanted to remove it to be biopsied. The plaintiff made three appointments for the removal. She cancelled two appointments and during the third she decided not to have the mole removed. The plaintiff went to the Cayman Islands for six months and she had the mole removed after she returned to Canada. The plaintiff had a malignant mela­noma. She underwent more extensive surgery and chemotherapy. The plaintiff sued the defendant, arguing, inter alia, that she should have advised the plaintiff that the mole could be cancerous and of the risks of delaying its removal.

The Alberta Court of Queen's Bench dismissed the action. There was no breach of the standard of care required of the defen­dant. Even if the court had found a breach of the standard of care, causation had not been established.

Damage Awards - Topic 634

Torts - Injury to the person - Medical or dental malpractice - During a medical examination in July 1998, the defendant doctor told the plaintiff that she did not like the look of a mole on her chest and that she wanted to remove it to be biop­sied - The plaintiff made three appoint­ments for the removal - She cancelled two appoint­ments and during the third she decided not to have the mole removed - The plaintiff went to the Cayman Islands for six months and she had the mole removed in July 1999 after her return to Canada - The plaintiff had a malignant melanoma - She underwent more extensive surgery and chemotherapy - She also suf­fered from depression - The plaintiff sued the defen­dant, arguing, inter alia, that she should have advised the plaintiff that the mole could be cancerous and of the risks of delaying its removal - The Alberta Court of Queen's Bench dismissed the action - However, the court held that an appropri­ate award of general damages for the plaintiff's pain and suffering and loss of enjoyment of life would have been $70,000 - See paragraphs 214 to 221.

Medicine - Topic 3048

Relation with patient - Consent to treat­ment - Negligence or fault - Duty of the treating doctor to inform patient - During a medical examination, the defendant doctor told the plaintiff that she did not like the look of a mole on her chest and that she wanted to remove it to be biop­sied - The plaintiff made three appoint­ments for the removal - She cancelled two appoint­ments and during the third she decided not to have the mole removed - The plaintiff went to the Cayman Islands for six months and she had the mole removed after her return to Canada - The plaintiff had a malignant melanoma - The plaintiff sued the defendant - She con­tended that if the defendant had advised her that the mole could be cancerous or melanoma she would have had it removed earlier - The plaintiff argued that this was an informed consent case - The Alberta Court of Queen's Bench held that there was no breach of the duty to inform - There was no duty on the defendant to disclose the fact that there was a mere possibility that the mole could be malig­nant - The plaintiff was an educated woman and would know that her doctor would have a reason for her instructions and that those instructions should be fol­lowed or questioned if not understood - See paragraphs 182 to 192.

Medicine - Topic 3082

Relation with patient - Charts, records, opinions and reports - Standard of care - During a medical examination, the defen­dant doctor told the plaintiff that she did not like the look of a mole on her chest and that she wanted to remove it to be biopsied - The plaintiff made three ap­pointments for the removal - She cancelled two appointments and during the third she decided not to have the mole removed - The plaintiff went to the Cayman Islands for six months and she had the mole removed after her return to Canada - The plaintiff had a malignant melanoma - The plaintiff sued the defendant for medical negligence - The Alberta Court of Queen's Bench held, inter alia, that the defendant did not breach the requisite standard of care by filling out the plaintiff's visa appli­cation form for the Cayman Islands and indicating that there was no pathological diagnosis - At the time that she filled out the form, there was no pathological diag­nosis - See paragraphs 166 to 168.

Medicine - Topic 3082

Relation with patient - Charts, records, opinions and reports - Standard of care - [See Medicine - Topic 4260.1 ].

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - The plaintiff had a malignant melanoma - She underwent extensive surgery and chemotherapy - The plaintiff sued the defendant doctor, argu­ing, inter alia, that she should have advised the plaintiff that a mole on her chest could be cancerous and of the risks of delaying its removal - The Alberta Court of Queen's Bench dismissed the action, finding no breach of the requisite standard of care - Even if there had been a breach of the standard of care, the plaintiff had not established that the delay in removing the mole resulted in the malignant melanoma or the spreading of the cancer - It was not enough for the plaintiff to show that her injuries were "possibly" caused by the defendant's negligence - Nor was it enough to prove that there was a loss of a chance in avoiding the injury - See para­graphs 193 to 200.

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - The plaintiff had a malignant melanoma - She underwent extensive surgery and chemotherapy - The plaintiff sued the defendant doctor, argu­ing, inter alia, that she should have advised the plaintiff that a mole on her chest could be cancerous and of the risks of delaying its removal - The Alberta Court of Queen's Bench dismissed the action, finding no breach of the requisite standard of care - Even if there had been a breach of the standard of care, causation had not been established - The plaintiff had asked the court to infer causation on the basis that it was the very breach that left her in the position of being unable to establish causa­tion - However, the "robust and pragmatic" approach to causation enunciated in Snell v. Farrell (S.C.C.) did not go so far as to shift the onus of disproving causation onto the defendant, even when the very act or omission complained of left a plaintiff in the position of being unable to affirmative­ly establish causation - While the case law left it open for the courts to infer causation on the basis of common sense without the necessity of strict scientific proof, no such inference could be drawn in this case where the defendant had adduced evidence to the contrary - See paragraphs 201 to 203.

Medicine - Topic 4242

Liability of practitioners - Negligence or fault - Standard of care - During a medical examination in July 1998, the defendant doctor told the plaintiff that she did not like the look of a mole on her chest and that she wanted to remove it to be biop­sied - The plaintiff made three appoint­ments for the removal - She cancelled two appoint­ments and during the third she decided not to have the mole removed - The plaintiff went to the Cayman Islands for six months and had the mole removed in July 1999 after her return to Canada - The plaintiff had a malignant melanoma - The plaintiff sued the defendant, arguing that she breached the standard of care by, inter alia, failing to advise the plaintiff that the mole could be cancerous - The Alberta Court of Queen's Bench held that the standard practice for a family practitioner in Calgary in 1998 would be to monitor a mole with an irregular border, but it did not include advising a patient that a mole with an irregular border could lead to malignant melanoma - See paragraphs 157 to 162.

Medicine - Topic 4242

Liability of practitioners - Negligence or fault - Standard of care - During a medical examination, the defendant doctor told the plaintiff that she did not like the look of a mole on her chest and that she wanted to remove it to be biopsied - The plaintiff made three appointments for the removal - She cancelled two appointments and during the third she decided not to have the mole removed - The plaintiff went to the Cay­man Islands for six months and had the mole removed after her return to Canada - The plaintiff had a malignant melanoma - The plaintiff sued the defendant for medi­cal negligence - The Alberta Court of Queen's Bench held that the defendant did not breach the requisite standard of care in failing to advise the plaintiff that she should have the mole removed prior to going to the Cayman Islands - The defen­dant's management of the mole was rea­sonable - She recommended that the plain­tiff have the mole removed in the Cayman Islands or before she left for the Caymans and she advised the plaintiff to watch for changes - See paragraphs 172 to 178.

Medicine - Topic 4248

Liability of practitioners - Negligence or fault - Failure to inform or disclose - [See both Medicine - Topic 4242 ].

Medicine - Topic 4251.3

Liability of practitioners - Negligence or fault - Failure to follow up - During a medical examination, the defendant doctor told the plaintiff that she did not like the look of a mole on her chest and that she wanted to remove it to be biopsied - The plaintiff made three appointments for the removal - She cancelled two of the ap­pointments and during the third she decided not to have the mole removed - The plaintiff went to the Cayman Islands for six months and had the mole removed after her return to Canada - The plaintiff had a malignant melanoma - The plaintiff sued the defendant for medical negligence, arguing, inter alia, that the defendant failed to appropriately follow up when the plain­tiff rebooked two appointments to have the mole removed - The Alberta Court of Queen's Bench held that the defendant did not breach the standard of care in failing to follow up with the plaintiff - The Guidelines from the College of Physicians and Surgeons of Alberta ("Preventing Follow-up Failures When Caring for Patients"), which were cited by the plain­tiff's expert, were not intended to apply in cases of mole removal - Further, patients had to meet the standard of care of a rea­sonable patient and had a duty to take an active role in their health care and to fol­low a physician's instructions - See para­graphs 169 to 171.

Medicine - Topic 4259.2

Liability of practitioners - Negligence or fault - Defences - Failure of patient to attend appointments or follow up - [See Medicine - Topic 4251.3 ].

Medicine - Topic 4260.1

Liability of practitioners - Negligence or fault - Taking of medical history - During a medical examination, the defendant doctor told the plaintiff that she did not like the look of a mole on her chest and that she wanted to remove it to be biop­sied - The plaintiff made three appoint­ments for the removal - She cancelled two appoint­ments and during the third she decided not to have the mole removed - The plaintiff went to the Cayman Islands for six months and had the mole removed after her return to Canada - The plaintiff had a malignant melanoma - The plaintiff sued the defen­dant for medical negli­gence - The Alberta Court of Queen's Bench held, inter alia, that the defendant's charting was adequate even though she failed to take a history of risk factors with respect to the plaintiff's susceptibility to melanoma - If the defen­dant had made the decision to follow the progress of the mole then more informa­tion may have been required in the chart - However, as she recommended mole removal that was neither necessary nor relevant - Her plan was to have the mole removed and biop­sied - See paragraphs 163 to 165.

Cases Noticed:

Tailleur et al. v. Grande Prairie General and Auxilary 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. 102].

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. 103].

Clare v. Ostolosky et al. (2001), 300 A.R. 341 (Q.B.), refd to. [para. 104].

Neuzen v. Korn, [1995] 3 S.C.R. 674; 188 N.R. 161; 64 B.C.A.C. 241; 105 W.A.C. 241; [1995] 10 W.W.R. 1; 127 D.L.R.(4th) 577, refd to. [para. 105].

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

Wilson v. Swanson, [1956] S.C.R. 804; 5 D.L.R.(2d) 113, refd to. [para. 107].

Challand v. Bell (1959), 18 D.L.R.(2d) 150 (Alta. S.C.), refd to. [para. 107].

McCann v. Hynman (2003), 336 A.R. 360; 2003 ABQB 693, affd. (2004), 354 A.R. 35; 329 W.A.C. 35; 2004 ABCA 191, refd to. [para. 109].

Kehler v. Myles and Foothills Provincial General Hospital (1986), 74 A.R. 259 (Q.B.), affirmed (1988), 92 A.R. 345 (C.A.), leave to appeal refused (1989), 101 N.R. 231; 95 A.R. 236 (S.C.C.), refd to. [para. 110].

Whitehouse v. Jordan, [1981] 1 All E.R. 267 (H.L.), refd to. [para. 114].

Crick v. Mohan (1993), 142 A.R. 281 (Q.B.), refd to. [para. 117].

Reibl v. Hughes, [1980] 2 S.C.R. 880; 33 N.R. 361; 114 D.L.R.(3d) 1; 14 C.C.L.T. 1, refd to. [para. 118].

Seney v. Crooks et al. (1998), 223 A.R. 145; 183 W.A.C. 145 (C.A.), refd to. [para. 118].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94; 72 D.L.R.(4th) 289; 4 C.C.L.T.(2d) 229, refd to. [para. 119].

St-Jean v. Mercier, [2002] 1 S.C.R. 491; 282 N.R. 310; 209 D.L.R.(4th) 513; 2002 CarswellQue 142; 2002 SCC 15, refd to. [para. 119].

McArdle Estate v. Cox et al. (2003), 327 A.R. 129; 296 W.A.C. 129; 6 W.W.R. 264; 13 Alta. L.R.(4th) 19; 17 C.C.L.T.(3d) 137; 2003 ABCA 106, refd to. [paras. 120, 193].

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; 31 C.C.L.T.(2d) 113; [1997] 1 W.W.R. 97, refd to. [para. 121].

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. 183].

Ciarlariello et al. v. Schacter et al., [1993] 2 S.C.R. 119; 151 N.R. 133; 62 O.A.C. 161; 15 C.C.L.T.(2d) 209; 100 D.L.R.(4th) 609, refd to. [para. 188].

Laferrière v. Lawson, [1991] 1 S.C.R. 541; 123 N.R. 325; 38 Q.A.C. 161; 78 D.L.R.(4th) 609; 6 C.C.L.T.(2d) 119, refd to. [para. 200].

Bertin v. Kristoffersen et al., [2000] N.B.R.(2d) (Supp.) No. 32 (Q.B.), revd. (2001), 244 N.B.R.(2d) 315; 634 A.P.R. 315; 2001 NBCA 118, refd to. [para. 219].

Nicolls v. B.C. Cancer Agency (1999), 15 B.C.T.C. 44 (S.C.), refd to. [para. 219].

Newman Estate v. Swales, [2002] O.T.C. 493 (Sup. Ct.), refd to. [para. 220].

Authors and Works Noticed:

Picard, Ellen I., and Robertson, Gerald B., Legal Liability of Doctors and Hospitals in Canada (3rd Ed. 1996), pp. 119 [para. 184]; 174 [paras. 102, 105]; 175 [para. 105]; 186 to 188 [para. 113]; 239 [para. 116]; 246 [para. 117]; 280 to 283 [para. 112]; 281 [paras. 110, 115].

Counsel:

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

V.R.M. Prather, for the defendant.

This action was heard on November 22, 2004, before Kenny, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on April 26, 2005.