Kelly v. Lundgard: obligations of physicians in medical legal reports.

• Author: Cranston, Donald R.
• Position: Alberta

1. Introduction

   Kelly v. Lundgard (1) is a recent decision of the Alberta Court of Appeal which reestablishes, not without some confusion, the principles applicable to rare claims against physicians arising from alleged misstatements in medical legal reports concerning prognosis.

   Ms. Kelly was a 37 year old single woman when she was injured in a motor vehicle accident in 1990. She sustained intestinal injuries from wearing a seatbelt. She was seen by a family physician who identified the severity of her injuries and had Ms. Kelly rushed to Edmonton by air ambulance for surgery. A general surgeon performed surgery and found that Ms. Kelly had severe peritonitis. He cleaned the infection and performed a resection and ileostomy. Ms. Kelly was discharged and made a fine recovery. She returned to the surgeon later in 1990 for a reconnection of the small intestine and closure of the ileostomy. It was agreed by all that the care she received was exemplary, and in fact, the physicians saved her life.

   In late 1990, Ms. Kelly retained a lawyer to represent her in a claim against the driver of the car in the motor vehicle accident.

   There were two requests made by Ms. Kelly's lawyer to the family physician, and two responses.

   January 7, 1991 Request

   The Plaintiff's lawyer wrote a letter to the family physician dated January 7, 1991. The relevant parts read:

   The information which we wish is a chronological history in brief form, the present situation and the prognosis.

   It may be that a copy of the discharge summary with respect to the first hospitalization period plus a few notes from you concerning any visits prior to the first hospitalization and the following treatment from the second operation is all that is required.

   The family physician's response was dated January 15, 1991. After describing the course of treatment and the discharge on September 12, 1990, the family physician said:

   I have not seen Pacita since that time. I understand that she has had her ileostomy closed and is making a good recovery.

   I do not expect any long term sequelae to this injury and her prognosis for full recovery is excellent.

   June 17, 1991 Request

   The lawyer wrote a further letter to the family physician dated June 17, 1991. The relevant parts are:

   ... we had Pacita in to see us on June 14,1991, with a view to seeing if the healing process was such that it was probably a good time for a final report. Pacita told us that she was unable to see you on this date and was complaining about pains in her stomach and diarrhea and was going to see Mr. [sic] Mayer about this problem.

   We would request at this time that, in consultation with Dr. Mayer, you arrange to see Pacita and when you feel that you can make a realistic prediction about the future we would be obliged for your further report.

   So long as Pacita has problems that are related to the original accident we will not approach the insurance with a view to settlement.

   The family physician replied by letter of July 15, 1991. The relevant parts of this short letter are:

   Pacita denies having any residual disability from her injuries. Her bowels are working normally and she does not seem to have any ongoing pain....Her abdomen is healed and was non tender.

   Pacita seems to have made a full recovery from her perforated bowel and peritonitis and I do not foresee any long term sequelae.

   At trial, the Plaintiff also alleged oral representations made by the surgeon while she was in hospital. Ms. Kelly told her lawyer that she had spoken to the surgeon about her ability to conceive a child and was given assurances. The trial Judge found as a fact that Ms. Kelly had not established her conversation with the surgeon as she recalled it.

   A settlement in the motor vehicle case occurred, without accounting for infertility.

   Prior to making that settlement, Ms. Kelly and her lawyer discussed Ms. Kelly's concerns about possible infertility. The lawyer made no specific inquiries of either doctor with respect to that issue. The lawyer was not joined as a third party in this litigation, and accordingly any question of the lawyer's negligence was not decided. Nonetheless, there is an interesting discussion of that question in the dissenting opinion of Justice Fruman. She raises the question, in this author's respectful view correctly, whether all of this might not have been avoided if the lawyer had been more specific in his inquiries, particularly in view of the evidence from the family physician and surgeon that had they been made aware of Ms. Kelly's concerns about infertility they would have arranged consultation with a gynecologist. The majority decision leaves open the prospect that in future cases, that issue may still be an important one for consideration.

2. The Trial Judgment

   1. Standard of care in providing medical legal reports dealing with prognosis

      Veit J. concluded that the informed consent standard applies to statements made by a physician in a medical legal report dealing with prognosis. This meant that when preparing a medical legal report including a prognosis, a...