Martin v. Inglis, 2002 SKQB 157

• Judge: Hrabinsky, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: April 17, 2002
• Jurisdiction: Saskatchewan
• Citations: 2002 SKQB 157;(2002), 218 Sask.R. 1 (QB)

Martin v. Inglis (2002), 218 Sask.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2002] Sask.R. TBEd. AP.093

Todd Martin, on his own behalf, as Executor of the Estate of the late Linda Martin, deceased, and as Father and litigation guardian of Cody Todd Martin and Sarah Blair Martin (plaintiff) v. Frederic Inglis (defendant)

(1997 Q.B. No. 1451; 2002 SKQB 157)

Indexed As: Martin v. Inglis

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Hrabinsky, J.

April 17, 2002.

Summary:

The defendant doctor performed gastroplasty surgery on Martin in April 1997. Following the surgery, a perforation was found in Martin's stomach. Martin was in and out of the hospital for the next year and she died in June 1998. Before her death, Martin had commenced an action against the defendant for personal injuries she allegedly suffered as a result of his medical treatment of her. After Martin's death, her husband, on his own behalf, as executor of Martin's estate and as father and litigation guardian of Martin's two children, sought to maintain the action brought by Martin by amending it to include claims for damages under the Fatal Accidents Act and the Survival of Actions Act.

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

Damages - Topic 528

Limits of compensatory damages - Remoteness - Torts - Foreseeability - [See Medicine - Topic 4245 ].

Damages - Topic 1746

Deductions for payments or assistance by third parties - Contractually - Insurance - Accident and sickness benefits (incl. disability) - The deceased received disability benefits from Sun Life before her death - Contributions for the Sun Life coverage had been deducted from her pay cheques - The Saskatchewan Court of Queen's Bench held that the disability benefits received by the deceased before her death were not deductible from damages for the deceased's pre-death loss of income because they fell within the private insurance exception - See paragraph 162.

Evidence - Topic 7002

Opinion evidence - Expert evidence - General - Acceptance, rejection and weight to be given to expert opinion - Dr. Leitman was qualified as an expert in the field of bariatric surgery and was called by the plaintiff in a medical negligence action - With respect to Leitman's credibility, the Saskatchewan Court of Queen's Bench stated that "[h]e admitted that he was involved in, or had been associated with a number of professional expert witness organizations and that he had been approached for this case through one of these organizations. He admitted that he primarily testifies on behalf of plaintiffs in cases involving allegations of medical negligence. I do not find his expert evidence to be an independent product uninfluenced by the demands of litigation. I am of the view that he assumed the role of an advocate advocating the plaintiff's case" - See paragraph 122.

Medicine - Topic 3048

Relation with patient - Consent to treatment - Negligence or fault - Duty of the treating doctor to inform patient - Following gastroplasty surgery, a perforation was found in Martin's stomach - Martin was in and out of the hospital for the next year and then died - Martin had commenced an action against the defendant doctor for personal injuries suffered as a result of his medical treatment - After Martin's death, her husband, on his own behalf, as executor of Martin's estate and as litigation guardian of Martin's two children, amended the action to include claims for damages under the Fatal Accidents Act and the Survival of Actions Act - The Saskatchewan Court of Queen's Bench dismissed the action - The court found, inter alia, that although the risks of perforation to the stomach and death were material risks which should have been disclosed, a reasonable person in Martin's position would have elected to have the surgery even if she had been told of those risks - See paragraphs 90 to 107.

Medicine - Topic 3050

Relation with patient - Consent to treatment - Negligence - Causation - [See Medicine - Topic 3048 ].

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - [See Medicine - Topic 4245 ].

Medicine - Topic 4245

Liability of practitioners - Negligence or fault - Surgical operations by doctors - Following gastroplasty surgery, a perforation was found in Martin's stomach - Martin was in and out of the hospital for the next year and then died - Martin had commenced an action against the defendant doctor for personal injuries suffered as a result of his medical treatment - After Martin's death, her husband, on his own behalf, as executor of Martin's estate and as litigation guardian of Martin's two children, amended the action to include claims for damages under the Fatal Accidents Act and the Survival of Actions Act - The Saskatchewan Court of Queen's Bench dismissed the action - The court found that the defendant was not negligent in his treatment of Martin - If the court had found the defendant negligent, it would have found that the plaintiff did not meet the burden of proof to show that the defendant's negligence caused the loss - The court further found that the damage fell outside of that which was reasonably foreseeable and was too remote and the defendant therefore could not be held liable for it - See paragraph 137.

Practice - Topic 50

Actions - Commencement of - Continuation of action v. separate action - Martin underwent surgery in April 1997 - In July 1997, Martin sued the defendant doctor for personal injuries suffered as a result of his medical treatment - Martin died in June 1998 - Her husband, on his own behalf, as executor of Martin's estate and as father and litigation guardian of Martin's children, amended the action in December 1999 to include claims for damages under the Fatal Accidents Act and the Survival of Actions Act - The defendant argued that because the husband amended Martin's statement of claim rather than issuing a separate statement of claim within the two year limitation period under the Fatal Accidents Act, he could not claim damages under that Act - The Saskatchewan Court of Queen's Bench held that the husband was entitled to claim damages under the Fatal Accidents Act and the Survival of Actions Act - The defendant was not prejudiced by the procedure taken - If the husband had commenced a new action it would no doubt have been consolidated with the action commenced by Martin - The amendment was made well within the statutory limitation period - The Fatal Accidents Act did not establish a new cause of action - See paragraphs 68 to 88.

Practice - Topic 2120

Pleadings - Amendment of pleadings - Statement of claim - General - [See Practice - Topic 50 ].

Torts - Topic 7684

Fatal accidents - Practice - Pleading - [See Practice - Topic 50 ].

Cases Noticed:

Landry and Landry v. Perez, [1955] O.W.N. 28 (H.C.), refd to. [para. 68].

Duhamel et al. v. Matic et al. (2000), 262 A.R. 109 (Q.B. Master), refd to. [para. 70].

Shtitz v. C.N.R., [1927] 1 D.L.R. 951 (Sask. C.A.), refd to. [para. 72].

Basarsky v. Quinlan, [1972] S.C.R. 380; [1972] 1 W.W.R. 303; 24 D.L.R.(3d) 720, refd to. [para. 75].

Onishenko Estate v. Quinlan - see Basarsky v. Quinlan.

Weldon v. Neale (1887), 56 L.J.Q.B. 621; 19 Q.B.D. 394, refd to. [para. 76].

Carreck v. VLB Resource Corp. (2001), 16 M.V.R.(4th) 33 (Yuk. Terr. C.A.), refd to. [para. 77].

Clark Estate et al. v. Lee (1997), 214 A.R. 109; 26 C.P.C.(4th) 304 (Q.B.), consd. [para. 78].

Cos v. West Gwillimbury (Township) (1986), 56 O.R.(2d) 659 (Dist. Ct.), consd. [para. 79].

Murray v. Heise et al. (1986), 54 O.R.(2d) 27 (Dist. Ct.), consd. [para. 80].

Cunningham v. Irvine-Adams (1999), 249 A.R. 268 (Q.B.), consd. [para. 80].

Murray v. Heise et al. (1986), 56 O.R.(2d) 121 (H.C.), consd. [para. 82].

Duncan Estate v. Baddeley et al. (1997), 196 A.R. 161; 141 W.A.C. 161; 50 Alta. L.R.(3d) 202; 145 D.L.R.(4th) 708 (C.A.), refd to. [para. 83].

Cunningham v. Irvine-Adams (2001), 277 A.R. 115; 242 W.A.C. 115 (C.A.), refd to. [para. 84].

Reibl v. Hughes, [1980] 2 S.C.R. 880; 33 N.R. 361; 114 D.L.R.(3d) 1, refd to. [para. 90].

Lepp v. Hopp, [1980] 2 S.C.R. 192; 32 N.R. 145, refd to. [para. 91].

Videto et al. v. Kennedy (1981), 125 D.L.R.(3d) 127 (Ont. C.A.), refd to. [para. 91].

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. 93].

Ferguson v. Hamilton Civic Hospitals et al. (1983), 23 C.C.L.T. 254 (Ont. H.C.), affd. (1985), 33 C.C.L.T. 56 (Ont. C.A.), refd to. [para. 102].

Hughston v. Jost, [1943] 1 D.L.R. 402 (Ont. H.C.), refd to. [para. 108].

Naeth v. Warburton (1992), 103 Sask.R. 130 (Q.B.), affd. (1993), 116 Sask.R. 11; 59 W.A.C. 11 (C.A.), refd to. [para. 111].

Roe v. Ministry of Health, [1954] 2 All E.R. 131, refd to. [para. 117].

Kozak v. Funk, [1996] 1 W.W.R. 107; 136 Sask.R. 12 (Q.B.), refd to. [para. 118].

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. 125].

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. 129].

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; 156 D.L.R.(4th) 577, refd to. [para. 131].

Cardin v. Montreal (City) (1961), 29 D.L.R.(2d) 492 (S.C.C.), refd to. [para. 135].

Sharp v. MacFarlane (1999), 213 N.B.R.(2d) 94; 545 A.P.R. 94 (T.D.), refd to. [para. 149].

Laboucan v. Cox (1985), 66 A.R. 59; 42 Alta. L.R.(2d) 72 (Q.B.), refd to. [para. 149].

Stewart et al. v. Pearson (1988), 92 A.R. 243; 63 Alta. L.R.(2d) 183 (Q.B.), refd to. [para. 149].

Vana v. Tosta (1967), 66 D.L.R.(2d) 97 (S.C.C.), refd to. [para. 153].

St. Lawrence & Ottawa Railway Co. v. Lett (1888), 11 S.C.R. 422, refd to. [para. 153].

Redlick-Lynn et al. v. Halfe et al. (1994), 156 A.R. 210 (Q.B.), refd to. [para. 153].

Cooper v. Miller (No. 1), [1994] 1 S.C.R. 359; 164 N.R. 81; 41 B.C.A.C. 1; 66 W.A.C. 1; [1994] 4 W.W.R. 153; 113 D.L.R.(4th) 1; 88 B.C.L.R.(2d) 273; 20 C.C.L.T.(2d) 1, refd to. [para. 162].

Cunningham v. Wheeler - see Cooper v. Miller (No. 1).

Authors and Works Noticed:

Cooper-Stephenson, Personal Injury Damages in Canada (2nd Ed. 1996), pp. 686 [para. 150]; 728 [paras. 159, 160].

Picard, Ellen I., and Robertson, Gerald B., Legal Liability of Doctors and Hospitals in Canada (3rd Ed. 1996), p. 228 [para. 134].

Counsel:

H.P.V. Chabanole, for the plaintiff;

R.W. Elson and S.E. Caston, for the defendant.

This action was heard before Hrabinsky, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on April 17, 2002.