Kainth v. Capital Health Authority et al., 2006 ABQB 401

JudgeActon, J.
CourtCourt of Queen's Bench of Alberta (Canada)
Case DateApril 24, 2006
Citations2006 ABQB 401;(2006), 402 A.R. 211 (QB)

Kainth v. Capital Health Authority (2006), 402 A.R. 211 (QB)

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. JN.074

Hakam Singh Kainth (plaintiff) v. Capital Health Authority, Capital Health Authority operating as the Royal Alexandra Hospital, the Governors of the University of Alberta, Dr. David R. Mador, Dr. Eric P. Estey, Dr. Someshwar S. Nakai, Dr. Timothy A. Wollin, Dr. Gregory Allan Houle, Dr. Boris Petriw, Sandra Davies, D.J. Woodward, Margaret A. Hayne, Sandra Davies, Kathy Lambert, Laura McGale, D. Shirly, G. Kophn, A. Traub, M. Husieff, Jane Doe No. 1, Jane Doe No. 2 and Jane Doe No. 3 (defendants)

(9703 09690; 2006 ABQB 401)

Indexed As: Kainth v. Capital Health Authority et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Acton, J.

June 1, 2006.

Summary:

In 1996, Kainth underwent extensive surgery for bladder cancer after more conservative treatment failed. He was told that without surgery he would die within a year or two. Kainth brought an action in negligence against the defendants, alleging that post-surgery problems resulted from his improper positioning for the surgery, an artery laceration during surgery and foreign objects left in his body. Kainth also asserted that the defendants had failed to obtain his informed consent to the surgery. During the trial, Kainth raised allegations of conspiracy by the defendants and submitted that the defendants had defamed him. At the close of Kainth's case, the defendants applied for a nonsuit on the basis of no evidence.

The Alberta Court of Queen's Bench allowed the application. Kainth's action was dismissed.

Libel and Slander - Topic 684

The statement - What constitutes defamatory statements - Libel - What constitutes a defamatory statement - In 1996, Kainth underwent extensive surgery for bladder cancer after more conservative treatment failed - He was told that without surgery he would die within a year or two - During the surgery, Kainth's iliac artery was cut - A vascular surgeon successfully repaired the artery - After the surgery, it was noted that the atraumatic needle and Weck clips counts were incorrect - A routine X-ray prior to closure reported no unusual findings -  During the trial of Kainth's negligence action against the defendants, Kainth submitted that the defendants' allegation that he had a psychological, rather than physical, problem was defamatory - The defendants applied for a nonsuit - The Alberta Court of Queen's Bench allowed the application - There was no defamation - Kainth's own physician described his problems as "psycho-social" - Kainth's action was dismissed - See paragraph 87.

Medicine - Topic 3045

Relation with patient - Consent to treatment - What constitutes informed consent - In 1996, Kainth underwent extensive surgery for bladder cancer after more conservative treatment failed - He was told that without surgery he would die within a year or two - Kainth brought an action in negligence against the defendants, alleging that post-surgery problems resulted from his improper positioning for the surgery, an artery laceration during surgery and foreign objects left in his body - Kainth asserted that the defendants had failed to obtain his informed consent to the surgery - The defendant surgeons acknowledged that Kainth was not told about potential injury to blood vessels or problems he might experience with his rectum - The defendants applied for a nonsuit - The Alberta Court of Queen's Bench allowed the application, dismissing Kainth's action - Regarding informed consent, the court was satisfied that Kainth was advised of all material risks of which he ought to have been told - Had he been told of the additional risks, a reasonable person in Kainth's position would have proceeded with the surgery - He had no alternative - According to his testimony, he knew it was lifesaving surgery - See paragraphs 100 to 103.

Medicine - Topic 4257

Liability of practitioners - Negligence or fault - Evidence and burden of proof - In 1996, Kainth underwent extensive surgery for bladder cancer after more conservative treatment failed - He was told that without surgery he would die within a year or two - During the surgery, Kainth's iliac artery was cut - A vascular surgeon successfully repaired the artery - After the surgery, it was noted that the atraumatic needle and Weck clips counts were incorrect - An X-ray reported no unusual findings - Kainth brought an action in negligence against the defendants, alleging that post-surgery problems resulted from the artery laceration, foreign objects left in his body and improper positioning during surgery - At trial, the defendants applied for a nonsuit - The Alberta Court of Queen's Bench allowed the application - While Kainth had suffered greatly, nothing indicated that any of the defendants had committed a tort against him - The lacerated artery was properly responded to - While the evidence indicated that no needles or clips had been left in Kainth's body, there was also no evidence that such objects would have caused or contributed to Kainth's complaints - While one expert speculated that Kainth's right arm problems might have resulted from improper positioning, there was no evidence as to standards of care nor clear evidence of causation - Kainth's action was dismissed - See paragraphs 89 to 99.

Practice - Topic 5390

Dismissal of action - Application or motion for dismissal - Nonsuit - At close of plaintiff's case - Evidence and proof - [See Medicine - Topic 4257 ].

Practice - Topic 5390

Dismissal of action - Application or motion for dismissal - Nonsuit - At close of plaintiff's case - Evidence and proof - In 1996, Kainth underwent extensive surgery for bladder cancer after more conservative treatment failed - He was told that without surgery he would die within a year or two - During the surgery, Kainth's iliac artery was cut - A vascular surgeon successfully repaired the artery - After the surgery, it was noted that the atraumatic needle and Weck clips counts were incorrect - A routine X-ray prior to closure reported no unusual findings -  During the trial of Kainth's negligence action against the defendants, Kainth alleged a conspiracy by the defendants in falsifying medical records regarding the needle and clip counts and maintaining a "code of silence" - The defendants applied for a nonsuit - The Alberta Court of Queen's Bench allowed the application - Nothing was withheld from Kainth that was producible - The defendants were not involved in a coverup nor had they acted with the intent of injuring Kainth - In fact, the opposite was true - They were attempting to save his life - Kainth's action was dismissed - See paragraphs 62 to 67, 82 to 88 and 104 to 105.

Practice - Topic 5390.1

Dismissal of action - Application or motion for dismissal - Nonsuit - At close of plaintiff's case - When available (incl. grounds) - [See Medicine - Topic 4257 and second Practice - Topic 5390 ].

Torts - Topic 35

Negligence - Standard of care - Particular persons and relationships - Medical doctors and medical personnel - [See Medicine - Topic 4257 ].

Torts - Topic 39

Negligence - Standard of care - Particular persons and relationships - Hospitals - [See Medicine - Topic 4257 ].

Torts - Topic 65

Negligence - Causation - Evidence and proof - [See Medicine - Topic 4257 ].

Torts - Topic 5706

Conspiracy - General - Conspiracy - What constitutes - [See second Practice - Topic 5390 ].

Cases Noticed:

Belzil v. Bain et al. (2001), 300 A.R. 72; 2001 ABQB 890, refd to. [para. 2].

G.A. et al. v. D.R.M. et al. (2003), 347 A.R. 376; 2003 ABQB 960, refd to. [para. 2].

Re/Max Real Estate (Edmonton) Ltd. v. Alberta Social Housing Corp. (2005), 388 A.R. 354; 2005 ABQB 779, refd to. [para. 3].

Foley v. Administrator, Motor Vehicle Accident Claims Act (Alta.) et al. (2002), 330 A.R. 1; 299 W.A.C. 1; 2002 ABCA 297, refd to. [para. 3].

Mallet v. Administrator, Motor Vehicle Accident Claims Act (Alta.) - see Foley v. Administrator, Motor Vehicle Accident Claims Act (Alta.) et al.

Holtslag v. Alberta (2004), 350 A.R. 161; 2004 ABQB 268, affd. (2006), 380 A.R. 133; 363 W.A.C. 133; 2006 ABCA 51, refd to. [para. 4].

Wilson v. Swanson, [1956] S.C.R. 804, refd to. [para. 69].

Challand v. Bell (1959), 18 D.L.R.(2d) 150 (Alta. S.C.), refd to. [para. 69].

Schanczl v. Singh (1987), 56 Alta. L.R.(2d) 303 (Q.B.), refd to. [para. 71].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94, refd to. [para. 74].

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, refd to. [para. 76].

Tree Savers International Ltd. et al. v. Savoy et al. (1991), 81 Alta. L.R.(2d) 325 (Q.B.), varied (1992), 120 A.R. 368; 8 W.A.C. 368 (C.A.), refd to. [para. 85].

Patterson v. Canadian Pacific Railway, [1918] 1 W.W.R. 40 (Alta. C.A.), refd to. [para. 86].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 87].

Reibl v. Hughes, [1980] 2 S.C.R. 880; 33 N.R. 361, refd to. [para. 100].

Authors and Works Noticed:

Klar, Lewis N., Linden, Allan M., Cherniak, Earl A., and Kryworuk, Peter W., Remedies in Tort (2004) (Looseleaf Supp.), vol. 1, c. 3, para. 13 [para. 63].

Counsel:

Hakam Singh Kainth, on his own behalf;

James J. Heelan, Q.C., and Jason W.J. Woycheshyn (Bennett Jones LLP), for the defendants, Dr. David R. Mador, Dr. Eric P. Estey, Dr. Someshwar S. Nakai, Dr. Timothy A. Wollin and Dr. Boris Petriw;

Dino M. McLaughlin and Tim R. Outerbridge (Field LLP), for the defendants, Capital Health Authority, the Governors of the University of Alberta, Sandra Davies, D.J. Woodward, Margaret A. Hayne, Kathy Lambert, Laura McGale, D. Shirly, G. Kophn, A. Traub and M. Husieff.

This application was heard on April 24, 2006, by Acton, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on June 1, 2006.

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5 practice notes
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    • Court of Queen's Bench of Alberta (Canada)
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    ...[para. 15]. Belzil v. Bain et al. (2001), 300 A.R. 72; 2001 ABQB 890, refd to. [para. 16]. Kainth v. Capital Health Authority et al. (2006), 402 A.R. 211; 2006 ABQB 401, refd to. [para. Foley v. Administrator, Motor Vehicle Accident Claims Act (Alta.) et al. (2002), 330 A.R. 1; 299 W.A.C. 1......
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    ...(Ministre de la Citoyenneté et de l'Immigration) , 2006 CF 133; Robinson c Canada (Ministre de la Citoyenneté et de l'Immigration) , 2006 CF 402; Simpson c Canada (Ministre de la Citoyenneté et de l'Immigration) , 2006 CF 970; Wisdom-Hall c Canada (Ministre de la Citoyenneté et de l'Immigra......
  • German v. Alberta et al., [2009] A.R. Uned. 669 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • September 25, 2009
    ...to evaluate whether evidence has been adduced by the Plaintiff in relation to those causes of action, Kainth v Capital Health Authority , 2006 ABQB 401 at para. 4 and Holstag v. Alberta , (2004), 350 A.R. 161, 2004 ABQB 268 at para. 36, aff'd [2006] A.J. No. 150, 2006 ABCA 51. In the case a......
  • Nattrass et al. v. Weber et al., [2007] A.R. Uned. 666 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • September 21, 2007
    ...v. Penkoske , 2004 ABCA 4, 348 A.R. 54 at paras. 33-34. [42] In Kainth v. Capital Health Authority (c.o.b. Royal Alexandra Hospital) , 2006 ABQB 401, 402 A.R. 211, the Court granted an application for a non-suit on the basis that the patient was advised of all material risks of which he oug......
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5 cases
  • Condominium Corp. No. 9813678 et al. v. Statesman Corp. et al., 2009 ABQB 148
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • March 4, 2009
    ...[para. 15]. Belzil v. Bain et al. (2001), 300 A.R. 72; 2001 ABQB 890, refd to. [para. 16]. Kainth v. Capital Health Authority et al. (2006), 402 A.R. 211; 2006 ABQB 401, refd to. [para. Foley v. Administrator, Motor Vehicle Accident Claims Act (Alta.) et al. (2002), 330 A.R. 1; 299 W.A.C. 1......
  • Clarke v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 603 (FC)
    • Canada
    • Federal Court (Canada)
    • October 19, 2012
    ...(Ministre de la Citoyenneté et de l'Immigration) , 2006 CF 133; Robinson c Canada (Ministre de la Citoyenneté et de l'Immigration) , 2006 CF 402; Simpson c Canada (Ministre de la Citoyenneté et de l'Immigration) , 2006 CF 970; Wisdom-Hall c Canada (Ministre de la Citoyenneté et de l'Immigra......
  • German v. Alberta et al., [2009] A.R. Uned. 669 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • September 25, 2009
    ...to evaluate whether evidence has been adduced by the Plaintiff in relation to those causes of action, Kainth v Capital Health Authority , 2006 ABQB 401 at para. 4 and Holstag v. Alberta , (2004), 350 A.R. 161, 2004 ABQB 268 at para. 36, aff'd [2006] A.J. No. 150, 2006 ABCA 51. In the case a......
  • Nattrass et al. v. Weber et al., [2007] A.R. Uned. 666 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • September 21, 2007
    ...v. Penkoske , 2004 ABCA 4, 348 A.R. 54 at paras. 33-34. [42] In Kainth v. Capital Health Authority (c.o.b. Royal Alexandra Hospital) , 2006 ABQB 401, 402 A.R. 211, the Court granted an application for a non-suit on the basis that the patient was advised of all material risks of which he oug......
  • Request a trial to view additional results

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