K.G. et al. v. Wong et al., 2008 ABQB 638

• Judge: Ross, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 14, 2008
• Citations: 2008 ABQB 638;(2008), 463 A.R. 289 (QB)

K.G. v. Wong (2008), 463 A.R. 289 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. JA.076

K.G., P.G., an infant by his next friend K.G., and Her Majesty the Queen in Right of Alberta (plaintiffs) v. B. Wong, Capital Health Authority, operating hospitals known as Sturgeon Community Hospital and Health Centre and the Royal Alexandra Hospital, and the Governors of the University of Alberta (defendants)

(0203 05667; 2008 ABQB 638)

Indexed As: K.G. et al. v. Wong et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Ross, J.

October 14, 2008.

Summary:

In September 1997, the mother was admitted to the hospital with premature labour. She was given medication to prevent premature birth. During the overnight hours, the mother experienced discomfort and was unable to sleep. Dr. Wong ordered 15 mg of morphine. A boy (P.G.) was born the next day. P.G. suffered developmental difficulties and in November 1998, underwent a magnetic resonance imaging (MRI). The MRI showed lesions consistent with periventricular leukomalacia (PVL) which could occur from respiratory distress sometime at birth or in utero. In March 2002, a pediatric neurologist confirmed the diagnosis of PVL and expressed the opinion that the morphine played a major role in P.G.'s injury. The plaintiffs (mother and son) brought an action against Dr. Wong and the Capital Health Authority (the defendants).

The Alberta Court of Queen's Bench dismissed the action. The plaintiffs' action was brought within the applicable limitation period. However, they failed to meet their onus to prove negligence on the part of either Dr. Wong or the Capital Health Authority. They failed to prove that either defendant breached the standard of care, and they further failed to prove that the defendants' conduct was the actual cause of P.G.'s injury.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Hospitals - Topic 2101

Liability of hospitals - For acts of others - For acts of doctors - In September 1997, the mother was admitted to the hospital with premature labour - She was given medication to prevent premature birth - During the overnight hours, the mother experienced discomfort and was unable to sleep - Dr. Wong ordered 15 mg of morphine - A boy (P.G.) was born the next day - P.G. suffered developmental difficulties and in November 1998, underwent a magnetic resonance imaging (MRI) - The MRI showed lesions consistent with periventricular leukomalacia (PVL) which could occur from respiratory distress sometime at birth or in utero - In March 2002, a pediatric neurologist confirmed the diagnosis of PVL and expressed the opinion that the morphine played a major role in P.G.'s injury - The plaintiffs (mother and son) brought an action against Dr. Wong and the Capital Health Authority (the defendants) - The Alberta Court of Queen's Bench dismissed the action - Dr. Wong was not liable in negligence - Had he been found negligent, the Capital Health Authority would have been found vicariously liable for that negligence - Dr. Wong's situation fit the description in cases in which hospitals had been found vicariously liable - The mother had not chosen him, he was provided by the hospital as part of the service that the public would expect in a hospital - His role included providing round-the-clock physician's services to obstetrics patients at times when their own physicians were not at the hospital - This was certainly "an integral part of the hospital organization" and not a mere "accessory" to it - Despite the lack of a written contract of employment, Dr. Wong was an employee of the Capital Health Authority - The Capital Health Authority administered the payment of his salary and controlled the performance of his day-to-day duties within the hospital - The nature of those duties made Dr. Wong an integral part of the hospital organization - See paragraphs 120 to 149.

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - In September 1997, the mother was admitted to the hospital with premature labour - She was given medication to prevent premature birth - During the overnight hours, the mother experienced discomfort and was unable to sleep - Dr. Wong ordered 15 mg of morphine - A boy (P.G.) was born the next day - P.G. suffered developmental difficulties and in November 1998, underwent a magnetic resonance imaging (MRI) - The MRI showed lesions consistent with periventricular leukomalacia (PVL) which could occur from respiratory distress sometime at birth or in utero - In March 2002, a pediatric neurologist confirmed the diagnosis of PVL and expressed the opinion that the morphine played a major role in P.G.'s injury - The plaintiffs (mother and son) brought an action against Dr. Wong and the Capital Health Authority (the defendants) - The defendants argued that the action was statute barred - The Alberta Court of Queen's Bench held that the plaintiffs' action was brought within the applicable limitation period - Section 3(1)(a) of the Limitations Act provided that the limitation period commenced to run when the "claimant first knew, or in the circumstances ought to have known" of the matters specified in the section - The "claimant" was "the person who seeks a remedial order" (s.1(b)); in other words, P.G., not his parent or guardian - P.G. was only four years old when the action was commenced - Obviously, he did not have and could not have had the knowledge, unless his parents' knowledge was attributed to him - The court held that "the interpretation of s. 3(1)(a) which best reflects the words and scheme of the [Act] and which best balances both Plaintiffs' and Defendants' interests as protected by the [Act], is that the minor claimant's personal circumstances and knowledge must be considered when assessing the time at which a claim becomes discoverable. This interpretation promotes consideration for a minor plaintiff's own circumstances in determining the applicable limitation period. At the same time, a defendant's interest in being free from ancient claims is protected because the operation of s. 3(1)(b) is not suspended, except in the limited circumstances covered by ss. 5(1) and (2). I therefore agree with the Plaintiffs that the limitation period in s. 3(1)(a) of the [Act] had not even commenced to run as against P.G. when his action was commenced, as he did not possess and could not in the circumstances have been expected to possess the knowledge that s. 3(1)(a) requires of a claimant" - See paragraphs 45 to 63.

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - In September 1997, the mother was admitted to the hospital with premature labour - She was given medication to prevent premature birth - During the overnight hours, the mother experienced discomfort and was unable to sleep - Dr. Wong ordered 15 mg of morphine - A boy (P.G.) was born the next day - P.G. suffered developmental difficulties and in November 1998, underwent a magnetic resonance imaging (MRI) - The MRI showed lesions consistent with periventricular leukomalacia (PVL) which could occur from respiratory distress sometime at birth or in utero - In March 2002, a pediatric neurologist confirmed the diagnosis of PVL and expressed the opinion that the morphine played a major role in P.G.'s injury - The plaintiffs (mother and son) brought an action against Dr. Wong and the Capital Health Authority (the defendants) - The defendants argued that the action was statute barred - The Alberta Court of Queen's Bench held that the plaintiffs' action was brought within the applicable limitation period - The court discussed the issue of discoverability - As to the first required element, the mother knew or ought to have been reasonably able to discover that P.G. had suffered an injury on or about November 20, 1998, when P.G. underwent an MRI of the head showing the injury to his brain - Regarding the third element, given the nature of P.G.'s difficulties, it was clear that the injury warranted bringing an action - The question that had to be answered related to the second element: when the mother knew or ought to have been reasonably able to discover that the injury P.G. suffered was attributable to the defendants - The issue was whether or not the opinion of a medical expert was needed to support a lay person's suspicion of medical negligence so as to commence the running of the limitation period - Injuries that manifested themselves immediately were more likely to not require an expert opinion, for causation could be easily inferred - Cases where the injury did not manifest itself until much later and had more than one potential cause would likely require an expert opinion to trigger the running of the limitation period - In this case, the injury was not discovered until November 1998, more than a year after P.G.'s birth and the medical procedures associated with it - There were multiple potential causes for the injury - The mother suspected, at least by June 1999, that the injury was related to the administration of morphine during labour - However, her mere suspicion was not sufficient to trigger the limitation period - Support for her suspicion was required - The mother diligently raised her suspicion with every expert who provided treatment to P.G., and received no support for it until March 2002 - The mother did not know and could not have reasonably discovered that the injury was attributable to conduct of the defendants until her suspicions were supported by a medical expert in March 2002 - The statement of claim was therefore filed well within the two year limitation period - See paragraphs 64 to 82.

Limitation of Actions - Topic 3010

Actions in tort - General principles - When time begins to run - [See second Limitation of Actions - Topic 15 ].

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - In September 1997, the mother was admitted to the hospital with premature labour - She was given medication to prevent premature birth - During the overnight hours, the mother experienced discomfort and was unable to sleep - Dr. Wong ordered 15 mg of morphine - A boy (P.G.) was born the next day - P.G. suffered developmental difficulties and in November 1998, underwent a magnetic resonance imaging (MRI) - The MRI showed lesions consistent with periventricular leukomalacia (PVL) which could occur from respiratory distress sometime at birth or in utero - In March 2002, a pediatric neurologist confirmed the diagnosis of PVL and expressed the opinion that the morphine played a major role in P.G.'s injury - The plaintiffs (mother and son) brought an action against Dr. Wong and the Capital Health Authority (the defendants) - The Alberta Court of Queen's Bench dismissed the action - Dr. Wong was not liable in negligence - Causation was not proven - PVL was a neurological disorder that affected preterm infants - The cause of cellular damage that produced the PVL condition was related to the circulation of blood in the immature brain - To give rise to PVL injury, there had to be a disruption in the flow of oxygen rich blood into blood vessels that fed the white matter of the brain - The plaintiffs failed to prove beyond a balance of probabilities that P.G.'s PVL resulted from a morphine induced selective reduction in blood flow to the fetal brain - None of the proposed alternative causes for P.G.'s condition had been established on anything approaching a balance of probabilities - But the evidence of these other possible causes suggested that it would be inappropriate to infer negligence in this case, or alternatively, that any inference of negligence had been rebutted - See paragraphs 159 to 250.

Medicine - Topic 4242

Liability of practitioners - Negligence or fault - Standard of care - In September 1997, the mother was admitted to the hospital with premature labour - She was given medication to prevent premature birth - During the overnight hours, the mother experienced discomfort and was unable to sleep - Dr. Wong ordered 15 mg of morphine - A boy (P.G.) was born the next day - P.G. suffered developmental difficulties and in November 1998, underwent a magnetic resonance imaging (MRI) - The MRI showed lesions consistent with periventricular leukomalacia (PVL) which could occur from respiratory distress sometime at birth or in utero - In March 2002, a pediatric neurologist confirmed the diagnosis of PVL and expressed the opinion that the morphine played a major role in P.G.'s injury - The plaintiffs (mother and son) brought an action against Dr. Wong and the Capital Health Authority (the defendants) - The plaintiffs argued that firstly, Dr. Wong was negligent in the way he made his treatment decision; secondly, the dose was excessive; and thirdly, the mother did not have informed consent where Dr. Wong failed to meet the standard of disclosure - The Alberta Court of Queen's Bench dismissed the action - Dr. Wong was not liable in negligence - It had not been proven that Dr. Wong breached the standard of care relating to his decision to prescribe 15 mg of morphine administered intramuscularly - While it had been proven that he did not comply with the standard of disclosure, it had not been proven that a reasonable person in the mother's position, faced with adequate disclosure, would have declined treatment - See paragraphs 83 to 119.

Medicine - Topic 4252.2

Liability of practitioners - Negligence or fault - Obstetrical or gynaecological care - [See Medicine - Topic 4242 ].

Medicine - Topic 6864

Nurses - Negligence - Patient care - Standard of care - In September 1997, the mother was admitted to the hospital with premature labour - She was given medication to prevent premature birth - During the overnight hours, the mother experienced discomfort and was unable to sleep - Dr. Wong ordered 15 mg of morphine - A boy (P.G.) was born the next day - P.G. suffered developmental difficulties and in November 1998, underwent a magnetic resonance imaging (MRI) - The MRI showed lesions consistent with periventricular leukomalacia (PVL) which could occur from respiratory distress sometime at birth or in utero - In March 2002, a pediatric neurologist confirmed the diagnosis of PVL and expressed the opinion that the morphine played a major role in P.G.'s injury - The plaintiffs (mother and son) brought an action against Dr. Wong and the Capital Health Authority (the defendants) - The plaintiffs argued that the hospital nursing staff breached the standard of care in four ways: "1. in advising Dr. Wong to use morphine at 15 milligrams; 2. in failing to advise Dr. Wong of Dr. Coe's preference card; 3. in failing to advise Dr. Wong or Dr. Coe of the non-reassuring fetal heart rate strips after the morphine was administered; and 4. in failing to follow the hospital protocol for magnesium sulfate, in particular, failing to perform/record vital signs and deep tendon reflexes as required by the protocol and failing to notify Dr. Wong or Dr. Coe when contractions continued after the maximum infusion was reached." - The Alberta Court of Queen's Bench dismissed the action - The plaintiffs had not proven a breach of the nursing standard of care in any way connected to P.G.'s injuries - See paragraphs 150 to 158.

Cases Noticed:

Stuffco v. Stuffco et al. (2006), 397 A.R. 111; 384 W.A.C. 111; 2006 ABCA 317, dist. [para. 48].

Van Dijk et al. v. Wescott et al., [2007] A.R. Uned. 249; 76 Alta. L.R.(4th) 181; 2007 ABQB 281, refd to. [para. 52].

Righthand v. Spotted Eagle et al. (2006), 394 A.R. 206; 2006 ABQB 36, refd to. [para. 54].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1; 154 D.L.R.(4th) 193, refd to. [para. 56].

Novak et al. v. Bond, [1999] 1 S.C.R. 808; 239 N.R. 134; 122 B.C.A.C. 161; 200 W.A.C. 161; 172 D.L.R.(4th) 385, refd to. [para. 57].

Thomas v. Radvak (1997), 200 A.R. 123; 146 W.A.C. 123; 51 Alta. L.R.(3d) 327 (C.A.), refd to. [para. 60].

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. 66].

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. 66].

Peixeiro v. Haberman, [1997] 3 S.C.R. 549; 217 N.R. 371; 103 O.A.C. 161; 151 D.L.R.(4th) 429, refd to. [para. 67].

De Shazo v. Nations Energy Co. et al. (2005), 367 A.R. 267; 346 W.A.C. 267; 2005 ABCA 241, refd to. [para. 68].

Karim (Nasrin) Professional Corp. v. Bank of Nova Scotia (2007), 404 A.R. 303; 394 W.A.C. 303; 2007 ABCA 10, refd to. [para. 71].

Findlay v. Holmes (1998), 111 O.A.C. 319; 80 A.C.W.S.(3d) 1109 (C.A.), refd to. [para. 73].

Gaudet et al. v. Levy et al. (1984), 47 O.R.(2d) 577; 11 D.L.R.(4th) 721 (H.C.), refd to. [para. 74].

Soper et al. v. Southcott et al. (1998), 111 O.A.C. 339; 39 O.R.(3d) 737 (C.A.), refd to. [para. 75].

Urquhart et al. v. Jacklin et al. (1999), 124 O.A.C. 11; 90 A.C.W.S.(3d) 635 (C.A.), refd to. [para. 77].

Morton v. Cowan (2003), 175 O.A.C. 9; 66 O.R.(3d) 321; 229 D.L.R.(4th) 193 (C.A.), refd to. [para. 78].

McSween v. Louis et al. (2000), 132 O.A.C. 304; 187 D.L.R.(4th) 446 (C.A.), refd to. [para. 78].

Crits v. Sylvester, [1956] O.R. 132; 1 D.L.R.(2d) 502 (C.A.), affd. [1956] S.C.R. 991; 5 D.L.R.(2d) 601, refd to. [para. 84].

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. 106].

Seney v. Crooks et al. (1998), 223 A.R. 145; 183 W.A.C. 145; 1998 ABCA 316, refd to. [para. 106].

Reibl v. Hughes, [1980] 2 S.C.R. 880; 33 N.R. 361; 114 D.L.R.(3d) 1, refd to. [para. 108].

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. 108].

Yepremian et al. v. Scarborough General Hospital et al. (1980), 28 O.R.(2d) 494; 110 D.L.R.(3d) 513 (C.A.), reving. (1978), 20 O.R.(2d) 510; 88 D.L.R.(3d) 161 (H.C.), refd to. [para. 131].

Yepremian v. Scarborough General Hospital (1981), 31 O.R.(2d) 384; 120 D.L.R.(3d) 341 (H.C.), refd to. [para. 132].

Considine v. Camp Hill Hospital, Mack and Nova Scotia (1982), 50 N.S.R.(2d) 631; 98 A.P.R. 631; 133 D.L.R.(3d) 11 (T.D.), refd to. [para. 133].

P.A.B. v. Children's Foundation et al., [1999] 2 S.C.R. 534; 241 N.R. 266; 124 B.C.A.C. 119; 203 W.A.C. 119; 174 D.L.R.(4th) 45, refd to. [para. 134].

P.A.B. v. Curry - see P.A.B. v. Children's Foundation et al.

John Doe v. Bennett et al., [2004] 1 S.C.R. 436; 318 N.R. 146; 236 Nfld. & P.E.I.R. 215; 700 A.P.R. 215; 2004 SCC 17, refd to. [para. 136].

Comeau v. Saint John Regional Hospital et al. (2001), 244 N.B.R.(2d) 201; 634 A.P.R. 201; 2001 NBCA 113, dist. [para. 139].

Aynsley v. Toronto General Hospital, [1972] S.C.R. 435; 25 D.L.R.(3d) 241, refd to. [para. 141].

Kielley v. General Hospital Corp. et al. (1997), 150 Nfld. & P.E.I.R. 163; 470 A.P.R. 163; 71 A.C.W.S.(3d) 779 (Nfld. C.A.), refd to. [para. 142].

Ferguson v. Hamilton Civic Hospitals (1983), 40 O.R.(2d) 577; 144 D.L.R.(3d) 214 (H.C.), affd. (1985), 50 O.R.(2d) 754; 18 D.L.R.(4th) 638 (C.A.), refd to. [para. 144].

McArdle Estate v. Cox et al. (2003), 327 A.R. 129; 296 W.A.C. 129; 2003 ABCA 106, refd to. [para. 160].

Hanke v. Resurfice Corp. et al., [2007] 1 S.C.R. 333; 357 N.R. 175; 404 A.R. 333; 394 W.A.C. 333; 2007 SCC 7, refd to. [para. 162].

St-Jean v. Mercier, [2002] 1 S.C.R. 491; 282 N.R. 310; 2002 SCC 15, refd to. [para. 162].

Bohun v. Sennewald et al. (2008), 250 B.C.A.C. 231; 416 W.A.C. 231; 2008 BCCA 23, refd to. [para. 164].

Bohun v. Segal - see Bohun v. Sennewald et al.

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. 165].

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, refd to. [para. 166].

Jackson v. Kelowna General Hospital et al. (2007), 237 B.C.A.C. 269; 392 W.A.C. 269; 277 D.L.R.(4th) 385; 2007 BCCA 129, leave to appeal refused (2007), 376 N.R. 396; 256 B.C.A.C. 320; 431 W.A.C. 320 (S.C.C.), refd to. [para. 169].

Bow Valley Husky (Bermuda) Ltd. et al. v. Saint John Shipbuilding Ltd. et al., [1997] 3 S.C.R. 1210; 221 N.R. 1; 158 Nfld. & P.E.I.R. 269; 490 A.P.R. 269; 153 D.L.R.(4th) 385, refd to. [para. 170].

Nattrass et al. v. Weber et al. (2008), 444 A.R. 303; 167 A.C.W.S.(3d) 81; 2008 ABQB 259, refd to. [para. 170].

Authors and Works Noticed:

Alberta, Hansard, Legislative Assembly Debates (March 20, 1996), p. 707 [para. 60].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 56].

Hansard (Alta.) - see Alberta, Hansard, Legislative Assembly Debates.

Kopecky, Ernest A., et al., Fetal response to maternally administered morphine (2000), 183 Am. J. Obstet. Gynecol. 424, generally [para. 200].

Picard, Ellen I., and Robertson, Gerald B., Legal Liability of Doctors and Hospitals in Canada (4th Ed. 2007), pp. 212 [para. 83]; 478, 479 [para. 129]; 481 [para. 130].

Counsel:

Joe Miller and Sheila Torrance (Weir Bowen LLP), for the plaintiffs;

Donald Cranston, Q.C., and Daniel Morrow (Bennett Jones LLP), for the defendant, B. Wong;

J. Mark Raven-Jackson and Jennifer H. Janz (Field LLP), for the defendant, Capital Health Authority.

This action was heard between June 9 and 27, 2008, by Ross, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on October 14, 2008.