M.Y. v. Boutros et al., 2002 ABQB 362

• Judge: Rawlins, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 01, 2002
• Citations: 2002 ABQB 362;(2002), 313 A.R. 1 (QB)

M.Y. v. Boutros (2002), 313 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. AP.144

M.Y. (plaintiff) v. Dr. Samih Boutros and S.H. Boutros Professional Corporation (defendants)

(Action No. 9901-06573; 2002 ABQB 362)

Indexed As: M.Y. v. Boutros et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Rawlins, J.

April 10, 2002.

Summary:

The defendant obstetrician and gynaecologist performed a laparoscopic tubal ligation using Filshie clips on the plaintiff. The plaintiff subsequently became pregnant and gave birth to her fifth child. The plaintiff sued the defendant alleging that he was negligent in performing the tubal ligation. The plaintiff sought general damages, damages for the costs she incurred from the pregnancy and damages for the ongoing costs of raising the child.

The Alberta Court of Queen's Bench dismissed the action. The plaintiff failed to demonstrate that the defendant was negligent. Had liability been found, the court would have awarded the plaintiff damages for the pain and suffering arising from the pregnancy and a second tubal ligation and damages for the plaintiff's loss of income during the pregnancy and a reasonable period after the birth. No damages for the costs of raising the child would have been awarded.

Damages - Topic 1765

Deductions for payments or assistance by third parties - By statute or government - Social welfare payments - The defendant performed a tubal ligation on the plaintiff -The plaintiff subsequently became pregnant and gave birth to her fifth child - The Alberta Court of Queen's Bench dismissed the plaintiff's negligence action against the defendant, but went on to consider damages and the assessment of the incremental cost of a child to a family - The plaintiff's counsel argued that government benefits should not be added to the plaintiff's income as there was no guarantee that those benefits would continue - The court held that the government benefits should be included in the assessment of the incremental cost of raising the child - There was no evidence that the government benefits would be eliminated in the future - Given the lengthy history of government support for low income families, there was a strong likelihood that those benefits would continue - See paragraphs 192 to 199.

Damages - Topic 2543

Torts affecting the person - Particular damage claims - Wrongful pregnancy, birth or life - The defendant performed a tubal ligation on the plaintiff - The plaintiff subsequently became pregnant and gave birth to her fifth child - The plaintiff sued the defendant for negligence, seeking general damages, damages for the costs incurred from the pregnancy and damages for the costs of raising the child - The Alberta Court of Queen's Bench dismissed the action, finding that the defendant was not negligent - Had liability been found, the court would have awarded the plaintiff damages for the pain and suffering arising from the pregnancy and a second tubal ligation and damages for the plaintiff's loss of income during the pregnancy and a reasonable period after the birth - No damages for the costs of raising the child would have been awarded - If the court was wrong, and damages for child rearing costs should be awarded, then it preferred the approach taken by the defendant's expert to assessing the incremental cost of a child to a family - See paragraphs 127 to 203.

Medicine - Topic 4245

Liability of practitioners - Negligence or fault - Surgical operations by doctors - [See Medicine - Topic 4255.2 ].

Medicine - Topic 4252.2

Liability of practitioners - Negligence or fault - Obstetrical or gynaecological care - [See Medicine - Topic 4255.2 ].

Medicine - Topic 4255.2

Liability of practitioners - Negligence or fault - Wrongful birth - The defendant obstetrician and gynaecologist performed a laparoscopic tubal ligation using Filshie clips on the plaintiff - The plaintiff subsequently became pregnant and gave birth to her fifth child - The plaintiff sued the defendant alleging that he was negligent in performing the tubal ligation - The Alberta Court of Queen's Bench dismissed the action - The defendant met the standard of care of an ordinary obstetrician and gynaecologist and was not negligent - There was a sufficient evidentiary basis for the defendant's explanations of non-negligent causes of the pregnancy which could not be dismissed - The defendant's explanations for the pregnancy were more probable and negated any inference of negligence that the plaintiff urged the court to draw - See paragraphs 119 to 126.

Medicine - Topic 4257

Liability of practitioners - Negligence or fault - Evidence and burden of proof - [See Medicine - Topic 4255.2 ].

Cases Noticed:

M.S. et al. v. Baker (2001), 309 A.R. 1 (Q.B.), refd to. [para. 38].

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. 39].

Fontaine v. Loewen Estate, [1998] 1 S.C.R. 424; 223 N.R. 161; 103 B.C.A.C. 118; 169 W.A.C. 118, refd to. [para. 41].

Neuzen v. Korn, [1995] 3 S.C.R. 674; 188 N.R. 161; 64 B.C.A.C. 241; 105 W.A.C. 241; [1995] 10 W.W.R. 1; 127 D.L.R.(4th) 577, refd to. [para. 45].

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

Kealey v. Berezowski (1996), 9 O.T.C. 1; 30 O.R.(3d) 37; 136 D.L.R.(4th) 708 (Gen. Div.), consd. [para. 128].

McFarlane et al. v. Tayside Health Board, [2000] 2 A.C. 59; 250 N.R. 252 (H.L.), consd. [para. 128].

Joshi v. Woolley (1995), 4 B.C.L.R.(3d) 208 (S.C.), consd. [para. 131].

Parkinson v. St. James and Seacroft University Hospital NHS Trust, [2001] E.W.J. No. 1761 (C.A.), refd to. [para. 140].

Caparo Industries v. Dickman et al., [1990] 2 A.C. 605; 108 N.R. 81 (H.L.), refd to. [para. 141].

Mummery v. Olsson, [2001] O.T.C. 43 (Sup. Ct.), refd to. [para. 147].

Duncan Estate v. Baddeley (1999), 231 A.R. 330 (Q.B.), affd. (2000), 266 A.R. 323; 228 W.A.C. 323; 192 D.L.R.(4th) 53 (C.A.), refd to. [para. 176].

O'Connor v. Mahabir et al. (1999), 243 A.R. 11 (Q.B.), revd. (2001), 293 A.R. 352; 257 W.A.C. 352 (C.A.), refd to. [para. 192].

Ratych v. Bloomer, [1990] 1 S.C.R. 940; 107 N.R. 335; 39 O.A.C. 103; 69 D.L.R.(4th) 25; 30 C.C.E.L. 161; 3 C.C.L.T.(2d) 1, refd to. [para. 196].

Krangle v. Brisco et al. (2002), 281 N.R. 88; 161 B.C.A.C. 283; 263 W.A.C. 283 (S.C.C.), refd to. [para. 196].

Authors and Works Noticed:

Alberta Law Reform Institute, Non-Pecuniary Damages in Wrongful Death Actions -A Review of Section 8 of the Fatal Accidents Act (1991), generally [para. 153].

Counsel:

G.S. Solomon and K.M. Nelson, for the plaintiff;

V.R.M. Prather and A.L. Neufeld, for the defendants.

This action was heard between February 19 and March 1, 2002, before Rawlins, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on April 10, 2002.