Hetu v. Traff et al., (1999) 247 A.R. 278 (QB)

• Judge: Johnstone, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 25, 1999
• Citations: (1999), 247 A.R. 278 (QB)

Hetu v. Traff (1999), 247 A.R. 278 (QB)

MLB headnote and full text

Temp. Cite: [1999] A.R. TBEd. JL.087

Nicole Hetu (plaintiff) v. Terrance N. Traff, Terrance Traff Professional Corporation, John Doe, Jane Doe No. 1 and Jane Doe No. 2, Valtchev Uterine Mobilizer Inc., Royal Alexandra Hospital of Edmonton and Capital Health Authority - Region 10 (defendants)

(Action No. 9512 000827)

Indexed As: Hetu v. Traff et al.

Alberta Court of Queen's Bench

Judicial District of Wetaskiwin

Johnstone, J.

June 25, 1999.

Summary:

On January 30, 1995, the defendant doctor performed a tubal ligation on the plaintiff. He left part of a surgical instrument in her vaginal cavity which was subsequently expelled with substantial attendant pain. The pain continued following this event, resulting in further exploratory surgery which con­firmed that the doctor had, in addition, negligently clipped a portion of the plaintiff's left round ligament to her left fallopian tube. In the Spring of 1996, the plaintiff was diagnosed with severe depression. The plaintiff sued the doctor and others for damages caused by the doctor's medical malpractice. The plaintiff discontinued the action against all the defendants except the doctor and his professional corporation. At issue were whether the doctor caused or materially contributed to the plaintiff's psy­chiatric disorder and the quantum of dam­ages.

The Alberta Court of Queen's Bench allowed the action and awarded, inter alia, $40,000 general damages which included loss of housekeeping capacity.

Damage Awards - Topic 64

Injury and death - Body injuries - Geni­tals or reproductive system - On January 30, 1995, the defendant doctor performed a tubal ligation on the plaintiff - He left part of a surgical instrument in her vaginal cavity which was subsequently expelled with substantial attendant pain - The pain continued - Exploratory surgery confirmed that the doctor had, in addition, negligently clipped a portion of the plaintiff's left round liga­ment to her left fallopian tube - In the Spring of 1996, the plaintiff was diagnosed with severe depression - The Alberta Court of Queen's Bench held that the doctor's negligence materially contrib­uted to the plaintiff's psychiatric disorder and causation was established - The court awarded the plaintiff $40,000 general damages, which included a $5,000 award for loss of housekeeping capacity.

Damage Awards - Topic 204

Injury and death - Psychological injuries - Depression - [See Damage Awards - Topic 64 ].

Damages - Topic 1536

General damages - Elements of general damages - Loss or impairment of house­keeping capacity - [See Damage Awards -Topic 64 ].

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - The Alberta Court of Queen's Bench stated that "[g]enerally, the test for causation is the 'but for' or sine qua non test, which requires the plaintiff to show that the injury would not have occurred 'but for' the negligence of the defendant ... In certain circumstances where the 'but for' test is unworkable, as in scientifically or medically complex cases, the courts have recognized that causation may be established where the defendant's negligence 'materially contrib­uted' to the occurrence of the injury and that this need not be proved to a rigid degree of scien­tific precision ... but can best be answered by ordinary common sense" - See para­graph 34.

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - The Alberta Court of Queen's Bench stated that "[w]here there are numerous factors causing the plaintiff's injury, the defendant will be liable for all injuries 'caused or materially contributed' to by his or her negligence; simply put, the defendant is not excused from liability merely because other causal factors, for which the defendant is not responsible, also helped produce the harm. It is suffi­cient if the defendant's negligence was a cause or materially contributed to the harm" - See paragraph 35.

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - A plaintiff claimed that a doctor's negligence in performing her tubal ligation caused her subsequent depression - The Alberta Court of Queen's Bench stated that it had to "... ascertain whether the defendant doctor's negligence is part of the cause of a single indivisible injury; if it is, the defendant doctor is 100% liable. This is so even though the defendant doctor's act alone was not enough to create the injury, providing the remaining cause is non-tortious, as the law does not permit apportionment between tortious and non-tortious causes. However, if my finding is that this psychiatric dis­order is separate and distinct from the physical pain resulting from the negligent tubal ligation, then apportionment, or more correctly separation, is permitted" - See paragraph 36.

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - On January 30, 1995, the defendant doctor performed a tubal ligation on the plaintiff - He left part of a surgical instrument in her vaginal cavity which was subsequently expelled with substantial attendant pain - The pain con­tinued - Exploratory surgery confirmed that the doctor had, in addition, negligently clipped a portion of the plaintiff's left round liga­ment to her left fallopian tube - In the Spring of 1996, the plaintiff was diagnosed with severe depression - The defendants alleged that the plaintiff's psy­chiatric dis­order was caused by the death of her father and a fraud investigation against her by her employer - The Alberta Court of Queen's Bench held that the doctor's negli­gence materially contributed to the plain­tiff's psychiatric disorder and causation was established - See paragraphs 31 to 57.

Cases Noticed:

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. 4].

Elofson v. Davis et al., [1997] 5 W.W.R. 614; 195 A.R. 321 (Q.B.), refd to. [para. 4].

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. 4].

Crick v. Mohan (1993), 142 A.R. 281 (Q.B.), folld. [para. 4].

Scott v. Mohan - see Crick v. Mohan.

Layton v. Westcott (1992), 134 A.R. 297; 6 Alta. L.R.(2d) 91 (Q.B.), refd to. [para. 4].

McCabe v. Lomax, [1994] O.J. No. 70 (Gen. Div.), refd to. [para. 4].

Painter v. Rae, [1998] 8 W.W.R. 717; 127 Man.R.(2d) 133 (Q.B.), refd to. [para. 4].

Brouwer v. Grewal and Edmonton (City) (1995), 168 A.R. 342; 30 Alta. L.R.(3d) 244 (Q.B.), refd to. [para. 4].

McLaren v. Schwalbe (1994), 148 A.R. 1; 16 Alta. L.R.(3d) 108 (Q.B.), refd to. [para. 4].

Penner v. Mitchell (1978), 10 A.R. 555; 89 D.L.R.(3d) 343 (C.A.), refd to. [para. 4].

Levesque v. Comeau, [1970] S.C.R. 1010, refd to. [para. 4].

Fobel v. Dean and MacDonald (1991), 93 Sask.R. 103; 4 W.A.C. 103; 83 D.L.R.(4th) 385 (C.A.), leave to appeal refused (1992), 138 N.R. 404; 97 Sask.R. 240; 12 W.A.C. 240 (S.C.C.), refd to. [para. 4].

Logozar v. Golder (1992), 136 A.R. 363; 7 Alta. L.R.(3d) 44 (Q.B.), affd. (1994), 157 A.R. 102; 77 W.A.C. 102; 23 Alta. L.R.(3d) 201 (C.A.), leave to appeal dismissed (1995), 190 N.R. 398; 178 A.R. 198; 110 W.A.C. 198 (S.C.C.), refd to. [para. 4].

Benstead v. Murphy (1992), 7 Alta. L.R.(3d) 38 (Q.B.), affd. (1994), 157 A.R. 198; 77 W.A.C. 198; 23 Alta. L.R.(3d) 251 (C.A.), refd to. [para. 4].

Korpela v. March (1993), 138 A.R. 179; 9 Alta. L.R.(3d) 117 (Q.B.), refd to. [para. 4].

McBride and McBride v. Langton (1983), 39 A.R. 61 (Q.B.), refd to. [para. 5].

Harding v. Himel, [1991] O.J. No. 1041 (Gen. Div.), refd to. [para. 5].

Paling v. Mander, [1993] O.J. No. 1205 (Gen. Div.), refd to. [para. 5].

Booker v. Harper, [1996] O.J. No. 955 (Gen. Div.), refd to. [para. 5].

Tat v. Ellis et al. (1999), 228 A.R. 263; 188 W.A.C. 263 (C.A.), folld. [para. 5].

R. v. Béland and Phillips, [1987] 2 S.C.R. 398; 79 N.R. 263; 9 Q.A.C. 293; 36 C.C.C.(3d) 481; 60 C.R.(3d) 1, refd to. [para. 5].

MacCabe v. Board of Education of Westlock (Roman Catholic Separate School) District No. 110 et al. (1998), 226 A.R. 1 (Q.B.), refd to. [para. 5].

Labbee et al. v. Peters et al. (1997), 201 A.R. 241 (Q.B.), refd to. [para. 5].

Morris et al. v. Budnarchuk (1997), 204 A.R. 197 (Q.B.), refd to. [para. 5].

Olson et al. v. General Accident Assurance Co. of Canada (1998), 218 A.R. 310 (Q.B.), refd to. [para. 5].

McGhee v. National Coal Board, [1972] 3 All E.R. 1008 (H.L.), refd to. [para. 6].

Wickberg v. Patterson (1997), 196 A.R. 43; 141 W.A.C. 43; 145 D.L.R.(4th) 263 (C.A.), refd to. [para. 6].

Horsley v. MacLaren (1971), 22 D.L.R.(3d) 545 (S.C.C.), refd to. [para. 6].

S.A.B. et al. v. Drift Development Ltd. et al. (1999), 236 A.R. 145 (Q.B.), refd to. [para. 6].

Harbora v. McIvor (1997), 202 A.R. 99 (Q.B.), refd to. [para. 6].

Counsel:

R.L. Duke, Q.C., and Katrina M. Haymond (Miller Thomson), for the plaintiff;

Simon Johnson (Bennett Jones), for the defendants, Terrance N. Traff and Terrance Traff Professional Corp.

This action was heard on June 7-10 and 14-15, 1999, by Johnstone, J., of the Alberta Court of Queen's Bench, Judicial District of Wetaskiwin, who delivered the following decision on June 25, 1999.