Johnston et al. v. Hader et al., (2009) 478 A.R. 343 (QB)

• Judge: Kenny, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 09, 2009
• Citations: (2009), 478 A.R. 343 (QB);2009 ABQB 424

Johnston v. Hader (2009), 478 A.R. 343 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. AU.106

Madeline Johnston and HMQ in the Right of Manitoba and Alberta (plaintiffs) v. Dr. Walter John Hader, Dr. Hui Li, C. Lam, Z. Alebhai and P. Leblanc, Nurse Jane Doe #1-10, Foothills Medical Centre and Calgary Health Region, as Operator of Foothills Medical Centre (defendants)

(0301 08709; 2009 ABQB 424)

Indexed As: Johnston et al. v. Hader et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Kenny, J.

July 10, 2009.

Summary:

A patient, who underwent surgery to eliminate her epileptic seizures, suffered from post-operative right side paralysis. The patient sued two doctors (a neurosurgeon and a third year neurosurgery resident) for damages for medical malpractice, alleging that they breached the standard of care in performing the surgery.

The Alberta Court of Queen's Bench held that the doctors met the standard of care and dismissed the action.

Editor's Note: The Alberta Court of Appeal, per O'Brien, J.A., granted the patient an extension of time to file an appeal on condition that the patient post security for costs - see (2010), 487 A.R. 101.

Damage Awards - Topic 120

Injury and death - Head injuries - Resulting in paralysis - The plaintiff, a 56 year old woman, underwent surgery to eliminate her debilitating epileptic seizures, but as a result suffered from post-operative right side paralysis - She underwent physiotherapy, occupational therapy and speech language assistance - She moved into an assisted living housing complex, receiving approximately 4.5 hours of home care a week - The use of her right arm and leg did not return, however her facial droop, speech and swallowing problems and right visual field loss resolved - The right sided hemiplegia was permanent and she was therefore not able to be employed - Used an electric wheelchair for mobility, but was able to stand and walk short distances - She sued two doctors (a neurosurgeon and a third year neurosurgery resident) for damages for medical malpractice - The Alberta Court of Queen's Bench dismissed the action, but provisionally assessed nonpecuniary general damages of $200,000 - See paragraphs 158 to 167.

Damage Awards - Topic 634

Torts - Injury to the person - Medical or dental malpractice - [See Damage Awards - Topic 120 ].

Medicine - Topic 4242

Liability of practitioners - Negligence or fault - Standard of care - The Alberta Court of Queen's Bench (Kenny, J.), in discussing liability for medical malpractice, stated that "One of the principles that emerge from the case law is that the conduct of a doctor is not to be measured by the result ... Furthermore, jurisprudence establishes that courts must exercise caution in assessing the testimony of experts whose opinions are based on a retrospective assessment of medical issues ... In the oft cited case of Roe v. Minister of Health, [1954] 2 Q.B. 66 at 83 the court stated 'it is so easy to be wise after the event and to condemn as negligence that which was only a misadventure. We ought always to be on our guard against it, especially in cases against hospitals and doctors'. Determining negligence by focussing solely on the result of the medical treatment rather than the manner in which it was performed is improper and amounts to imposing a standard of excellence ... I must also bear in mind that jurisprudence establishes that surgical misadventure is not negligence even if truly unfortunate consequences result for the patient ... If the doctor has acted in accordance with a generally accepted practice, a breach of the standard of care will not be found simply because there are others who take a contrary view of that practice ..." - See paragraphs 112 to 116.

Medicine - Topic 4242

Liability of practitioners - Negligence or fault - Standard of care - A patient sued two doctors (a neurosurgeon and a third year neurosurgery resident) for damages for medical malpractice, alleging that they breached the standard of care in performing brain surgery - The Alberta Court of Queen's Bench discussed the standard of care - The court stated that in the case of a specialist, the doctor's behaviour had to be assessed in light of the conduct of other ordinary specialists, who possessed a reasonable level of knowledge, competence and skill expected of professionals in Canada, in that field - As to the standard expected of a resident, the general rule was that lack of experience would not reduce the standard of care of a junior medical practitioner - Here the resident was an established physician who was learning a medical speciality and should be held to the same standard as that of a prudent neurosurgeon - See paragraphs 106 to 111.

Medicine - Topic 4242

Liability of practitioners - Negligence or fault - Standard of care - A patient, who suffered from frequent debilitating epileptic seizures, underwent selective amygdalohippocampectomy surgery to alleviate the seizures - A blade on the Greenberg retractor which was used during surgery moved at least a centimeter too deep into the brain from its original position - The patient had resulting post-operative right side paralysis - The patient sued two doctors (a neurosurgeon and a third year neurosurgery resident) - The Alberta Court of Queen's Bench held that the doctors met the standard of care and dismissed the action - There was no evidence that the retractor was set up incorrectly or carelessly - All reasonable care was taken in placing the retractor into the brain and it was not placed in the brain stem - The retractor was most likely bumped inadvertently while the neurosurgeon was concentrating intensely on dissecting and removing the structures close to the brain stem - Inadvertence or misadventure was not negligence even though the outcome could be tragic for the patient - Here the tragedy occurred because the retractor moved - However, it could have moved when a surgeon was using the utmost care or when a surgeon was careless - In this case, the doctors proceeded in a prudent and safe manner and used the utmost care for the plaintiff's surgery - The movement of the retractor was a rare and severe outcome of this surgery and had tragic results for the plaintiff - However, that alone was not a basis for a finding that the doctors breached the standard of care - See paragraphs 149 to 155.

Medicine - Topic 4245

Liability of practitioners - Negligence or fault - Surgical operations by doctors - [See second and third Medicine - Topic 4242 ].

Medicine - Topic 4257

Liability of practitioners - Negligence or fault - Evidence and burden of proof (incl. expert evidence) - [See first Medicine - Topic 4242] .

Medicine - Topic 4259

Liability of practitioners - Negligence or fault - Residents or interns - [See second and third Medicine - Topic 4242] .

Cases Noticed:

Crits v. Sylvester (1956), 1 D.L.R.(2d) 502 (Ont. C.A.), affd. [1956] S.C.R. 991, refd to. [para. 106].

Wilson v. Swanson, [1956] S.C.R. 804, refd to. [para. 107].

Ter Neuzen v. Korn - see Neuzen v. Korn.

Neuzen v. Korn, [1995] 3 S.C.R. 674; 188 N.R. 161; 64 B.C.A.C. 241; 105 W.A.C. 241, refd to. [para. 108].

Fraser v. Vancouver General Hospital, [1952] 2 S.C.R. 36, refd to. [para. 110].

Tiesmaki v. Wilson, [1974] 4 W.W.R. 19 (Alta. T.D.), affd. [1975] 6 W.W.R. 639 (Alta. C.A.), refd to. [para. 112].

Clare v. Ostolosky et al. (2001), 300 A.R. 341 (Q.B.), refd to. [para. 112].

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] 1 S.C.R. x; 101 N.R. 231; 95 A.R. 236, refd to. [para. 112].

Roe v. Minister of Health, [1954] 2 Q.B. 66 (C.A.), refd to. [para. 113].

Carlsen v. Southerland (2006), 225 B.C.A.C. 150; 371 W.A.C. 150; 2006 BCCA 214, refd to. [para. 113].

Hocaluk v. Gittens, [1996] B.C.T.C. Uned. H64 (S.C.), refd to. [para. 114].

Hocaluk v. Gittens, [1999] B.C.J. No. 414 (C.A.), refd to. [para. 114].

Kaban v. Sett and Salvation Army Grace General Hospital (1994), 90 Man.R.(2d) 26 (Q.B.), affd. (1994), 97 Man.R.(2d) 185; 79 W.A.C. 185 (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. 115].

Belknap v. Meakes (1989), 64 D.L.R.(4th) 452 (B.C.C.A.), refd to. [para. 116].

Carlsen v. Southerland, [2008] B.C.T.C. Uned. F94; 2008 BCSC 1772, dist. [para. 117].

Ostby v. Bondar et al. (1998), 218 A.R. 132 (Q.B.), dist. [para. 117].

Nemetchuk v. University Hospitals Board et al. (2000), 265 A.R. 264 (Q.B.), dist. [para. 117].

Rogers v. Grympa et al. (2001), 304 A.R. 201; 2001 ABQB 958, refd to. [para. 117].

Kenyon v. Gehrig (2008), 183 N.C. App. 455, refd to. [para. 128].

Sharp v. Hurlburt et al., [2007] A.R. Uned. 210; 76 Alta. L.R.(4th) 142; 2007 ABQB 221, refd to. [para. 151].

Teno et al. v. Arnold et al., [1978] 2 S.C.R. 287; 19 N.R. 1, dist. [para. 159].

Lindal v. Lindal, [1981] 2 S.C.R. 629; 39 N.R. 361, dist. [para. 160].

O'Connor v. Mahabir et al. (2001), 293 A.R. 352; 257 W.A.C. 352; 2002 ABCA 13, dist. [para. 161].

Doka v. Desai et al., [1994] B.C.T.C. Uned. 383 (S.C.), refd to. [para. 162].

Zaiffdeen v. Chua et al. (2005), 380 A.R. 200; 363 W.A.C. 200; 2005 ABCA 290, refd to. [para. 163].

Madge v. Meyer et al. (2002), 303 A.R. 41; 273 W.A.C. 41 (C.A.), refd to. [para. 164].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al. (1978), 19 N.R. 50; 8 A.R. 182; 83 D.L.R.(3d) 452 (S.C.C.), refd to. [para. 177].

Authors and Works Noticed:

Picard, Ellen I., and Robertson, Gerald B., Legal Liability of Doctors and Hospitals in Canada (3rd Ed. 1996), p. 174 [para. 104].

Counsel:

Barry Steinfeld and Loretta Murphy, for the plaintiffs;

Anthony L. Friend, Q.C., and Andrea Froese, for the defendants.

This action was heard on March 9, 2009, by Kenny, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on July 10, 2009.