Koch v. Brydon, (2008) 327 Sask.R. 35 (QB)

• Judge: McLellan, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: November 14, 2008
• Jurisdiction: Saskatchewan
• Citations: (2008), 327 Sask.R. 35 (QB);2008 SKQB 464

Koch v. Brydon (2008), 327 Sask.R. 35 (QB)

MLB headnote and full text

Temp. Cite: [2008] Sask.R. TBEd. DE.035

Donna Koch (plaintiff) v. Lizabeth Brydon (defendant)

(2005 Q.B. No. 1780; 2008 SKQB 464)

Indexed As: Koch v. Brydon

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

McLellan, J.

November 14, 2008.

Summary:

The defendant performed a laparoscopic assisted vaginal hysterectomy and bilateral salpingo oophorectomy to remove the plaintiff's uterus and ovaries without administering prophylactic antibiotics as recommended by the Society of Obstetricians and Gynecologists of Canada. The plaintiff brought an action, alleging negligence.

The Saskatchewan Court of Queen's Bench dismissed the action.

Damage Awards - Topic 55

Injury and death - Body injuries - Abdomen - [See Medicine - Topic 4241.1 ].

Damage Awards - Topic 65

Injury and death - Body injuries - Bladder or bowels - [See Medicine - Topic 4241.1 ].

Damage Awards - Topic 495

Injury and death - General damage awards - Loss of housekeeping capacity - [See Medicine - Topic 4241.1 ].

Damage Awards - Topic 498

Injury and death - General damage awards - Pain and suffering, loss of amenities and other nonpecuniary damages - [See Medicine - Topic 4241.1 ].

Medicine - Topic 4241.1

Liability of practitioners - Negligence or fault - Negligence distinguished from errors in judgment - The Saskatchewan Court of Queen's Bench held that a physician who performed a laparoscopic assisted vaginal hysterectomy and bilateral salpingo oophorectomy to remove the plaintiff's uterus and ovaries without administering prophylactic antibiotics as recommended by the Society of Obstetricians and Gynecologists of Canada had not breached the standard of care - Although the failure to comply with the recommended standards of governing professional associations might strengthen the evidence of negligence, it was just one factor to be considered - The court had to distinguish between an error in judgment and a negligent act - Sometimes clinical judgment might be wrong, but that did not necessarily equate to negligence - The law required reasonable care, not infallibility - An abscess found in the plaintiff's pelvic area following surgery was caused by a perforation of her bowel - Such an injury was a common complication of the procedure conducted by the defendant without any negligence on her part - The surgery was performed in December 2003 - The plaintiff returned to her teaching position in September 2004 and felt 85% efficient - She had abdominal scarring and some bowel pain from time to time - She retired in June 2005 - The court provisionally assessed general damages for pain and suffering and loss of amenities of $35,000, $2,500 for loss of homemaking capacity and $1,500 for yard work.

Medicine - Topic 4242

Liability of practitioners - Negligence or fault - Standard of care - [See Medicine - Topic 4241.1 ].

Medicine - Topic 4245

Liability of practitioners - Negligence or fault - Surgical operations by doctors - [See Medicine - Topic 4241.1 ].

Medicine - Topic 4252.2

Liability of practitioners - Negligence or fault - Obstetrical or gynaecological care - [See Medicine - Topic 4241.1 ].

Torts - Topic 35

Negligence - Standard of care - Particular persons and relationships - Medical doctors and medical personnel - [See Medicine - Topic 4241.1 ].

Cases Noticed:

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. 15].

ter Neuzen v. Korn - see Neuzen v. Korn.

Bear v. Lambos (2005), 263 Sask.R. 271; 2005 SKQB 148, refd to. [para. 15].

Gent v. Wilson, [1956] O.R. 257 (C.A.), refd to. [para. 16].

Ferguson v. Steel et al. (2007), 427 A.R. 1; 2007 ABQB 596, refd to. [para. 16].

Spillane v. Wasserman (1992), 13 C.C.L.T.(2d) 267 (Ont. Gen. Div.), refd to. [para. 22].

Keller v. Penkoske (1999), 256 A.R. 1 (Q.B.), refd to. [para. 24].

Morrison v.  Hicks - see Morrison v. Coulter et al.

Morrison v. Coulter et al., [1989] B.C.J. No. 1169 (S.C.), varied (1991), 1 B.C.A.C. 48; 1 W.A.C. 48 (C.A.), refd to. [para. 24].

Authors and Works Noticed:

Campion, John A., and Dimmer, Diana W., Professional Liability in Canada (1994) (Looseleaf), p. 9-33 [para. 21].

Picard, Ellen I., and Robertson, Gerald B., Legal Liability of Doctors and Hospitals in Canada (3rd Ed. 1996), generally [para. 24].

Counsel:

W.T. Stodalka, for the plaintiff;

D.E. Thera and K.D. Jordan, for the defendant.

This action was heard by McLellan, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on November 14, 2008.