Nattrass et al. v. Weber et al., 2008 ABQB 259

• Judge: Greckol, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 10, 2007
• Citations: 2008 ABQB 259;(2008), 444 A.R. 303 (QB)

Nattrass v. Weber (2008), 444 A.R. 303 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. MY.061

John L. Nattrass, Corinne E. Nattrass and Her Majesty the Queen in Right of Alberta (plaintiffs) v. Dr. Donald W. Weber, Dr. Brian Harley, Dr. Eisa Al-Hemrani, Dr. Zbigniew P. Chrzanowski, Dr. G. Gordon Russell, Dr. Nelson Greidanus, Dr. Sevcik, Dr. Martin Bouliane, Dr. Neesh Pannu, Dr. Loree Mary Larratt, Dr. Pauline Lysak, Dr. Hamilton, Dr. A. Sobey, Dr. Noel Gibney, Dr. M. Mysuka, University of Alberta Hospitals, University Hospitals Board, the Governors of the University of Alberta, Capital Health Authority #10, Capital Health Authority #10 operating as University of Alberta Hospitals, Capital Health Authority #10 operating as the Capital Care Group, Capital Health Authority #10 operating as Capital Care Grandview Orthopaedic Sub-Acute Unit, the Capital Care Group, Capital Care Grandview Orthopaedic Sub-Acute Unit, and the Capital Care Group operating as the Capital Care Grandview Orthopaedic Sub-Acute Unit (defendants)

(9903 12329; 2008 ABQB 259)

Indexed As: Nattrass et al. v. Weber et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Greckol, J.

April 28, 2008.

Summary:

After a fall on July 3, 1998, the plaintiff had two surgeries to repair a compound fracture of the right tibia and fibula. Both surgeries were done by Dr. Weber, an orthopedic surgeon, with the assistance of Dr. Harley, an orthopedic resident. As part of his treatment, Dr. Harley prescribed prophylactic doses of an anticoagulant, unfractionated Heparin, to prevent blood clots. A week later, the plaintiff was sent to a separate orthopedic sub-acute unit because he was not mobilizing, and was placed under the care of Dr. Chrzanowski, a family medicine physician. Dr. Chrzanowski increased the dose of Heparin. The plaintiff complained of pain in both legs. He was transferred back to the emergency room at the hospital. Dr. Sevcik, an emergency room physician, decided to Heparinize aggressively; however, the Heparin was discontinued when a specialist was consulted. The plaintiff's condition worsened and on July 15 both his legs were amputated as a result of complications secondary to Heparin-Induced Thrombocytopenia (HIT) with Thrombosis. The plaintiff sued the treating physicians et al.

The Alberta Court of Queen's Bench found that: (1) Drs. Weber and Harley breached the standard of care by failing to monitor the plaintiff's platelet count every two days while on Heparin which materially contributed to his injuries. They also failed in their duty to inform him of the risks associated with taking Heparin; however, a reasonable patient in the plaintiff's circumstances would have opted to receive an anticoagulant and, therefore, their breach was not causative of the plaintiff's injuries; (2) Dr. Chrzanowski was acting within the standard of care in ordering the Heparin. However, he breached the appropriate standard of care in failing to order platelet count testing; but this was not causative of the plaintiff's injuries because he was transferred back to hospital before any such testing could be done. Dr. Chrzanowski was not remiss in his duties of disclosure and informed consent; and (3) Dr. Sevcik was negligent in failing to form a differential diagnosis of HIT when the plaintiff was returned to the emergency room, and in aggressively Heparinizing the plaintiff without waiting for a platelet count report. The plaintiff was in extremis at that point, thus ameliorating the doctor's duty to inform, so he was not negligent in that regard. Damages were agreed upon.

Medicine - Topic 3041

Relation with patient - Consent to treatment - The Alberta Court of Queen's Bench reviewed the legal principles applicable to informed consent and disclosure - See paragraphs 385 to 401.

Medicine - Topic 3045

Relation with patient - Consent to treatment - What constitutes informed consent - [See Medicine - Topic 3041 and second, third and fourth Medicine - Topic 4241.2 ].

Medicine - Topic 3048

Relation with patient - Consent to treatment - Negligence or fault - Duty of the treating doctor to inform patient - [See Medicine - Topic 3041 and second, third and fourth Medicine - Topic 4241.2 ].

Medicine - Topic 3052

Relation with patient - Consent to treatment - Standard of disclosure by doctor - [See Medicine - Topic 3041 and second, third and fourth Medicine - Topic 4241.2 ].

Medicine - Topic 4241

Liability of practitioners - Negligence or fault - General - The Alberta Court of Queen's Bench referred to the elements of negligence in a medical malpractice suit - The plaintiffs would have to establish on a balance of probabilities that: "(1) The doctor owed them a duty of care; (2) The doctor breached the standard of care established by law; (3) The plaintiffs suffered an injury or loss; and (4) The doctor's conduct was the actual and legal cause of the plaintiffs' injury or loss" - See paragraph 174.

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - The Alberta Court of Queen's Bench discussed what a plaintiff had to prove to establish causation in a medical malpractice suit - See paragraphs 186 to 191.

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - After a fall on July 3, 1998, the plaintiff had two surgeries by Drs. Weber and Harley, orthopedic surgeons, to repair a compound fracture of the right tibia and fibula - As part of his treatment, Dr. Harley prescribed prophylactic doses of an anticoagulant, unfractionated Heparin, to prevent blood clots - A week later, the plaintiff was sent to a separate orthopedic sub-acute unit because he was not mobilizing - The plaintiff complained of pain in both legs - He was transferred back to the emergency room at the hospital - The plaintiff's condition worsened and on July 15 both his legs were amputated as a result of complications secondary to Heparin-Induced Thrombocytopenia with Thrombosis (HITT) - The plaintiff sued the orthopedic surgeons - The Alberta Court of Queen's Bench found that Drs. Weber and Harley met the standard of care in prescribing unfractionated Heparin as opposed to Low Molecular Weight (LMW) Heparin - However, they breached the standard of care by failing to monitor the plaintiff's platelet count every two days while on Heparin which materially contributed to his injuries - They also failed in their duty to inform him of the risks associated with taking Heparin and of the alternative treatments available - However, a reasonable patient in the plaintiff's circumstances would have opted to receive an anticoagulant and, therefore, the doctors' breach was not causative of the plaintiff's injuries - See paragraphs 194 to 292 and 437 to 441.

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - After a fall on July 3, 1998, the plaintiff had two surgeries by Drs. Weber and Harley, orthopedic surgeons, to repair a compound fracture of the right tibia and fibula - As part of his treatment, Dr. Harley prescribed prophylactic doses of an anticoagulant, unfractionated Heparin, to prevent blood clots - A week later, the plaintiff was sent to a separate orthopedic sub-acute unit because he was not mobilizing, and placed under the care of Dr. Chrzanowski, a family medicine physician - Dr. Chrzanowski increased the dose of Heparin - The plaintiff complained of pain in both legs - He was transferred back to the emergency room at the hospital - The plaintiff's condition worsened and on July 15 both his legs were amputated as a result of complications secondary to Heparin-Induced Thrombocytopenia with Thrombosis (HITT) - The plaintiff sued Dr. Chrzanowski - The Alberta Court of Queen's Bench found that Dr. Chrzanowski was acting within the standard of care in ordering the Heparin - However, he breached the appropriate standard of care in failing to order platelet count testing; but this was not causative of the plaintiff's injuries because he was transferred back to hospital before any such testing could be done - He was not remiss in his duties of disclosure and informed consent as the course of treatment had been established by the orthopedic surgeons - See paragraphs 293 to 303 and 443 to 445.

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - After a fall on July 3, 1998, the plaintiff had two surgeries by Drs. Weber and Harley, orthopedic surgeons, to repair a compound fracture of the right tibia and fibula - As part of his treatment, Dr. Harley prescribed prophylactic doses of an anticoagulant, unfractionated Heparin, to prevent blood clots - A week later, the plaintiff was sent to a separate orthopedic sub-acute unit because he was not mobilizing, and placed under the care of Dr. Chrzanowski, a family medicine physician - Dr. Chrzanowski increased the dose of Heparin - The plaintiff complained of pain in both legs - He was transferred back to the emergency room at the hospital - Dr. Sevcki, an emergency room physician, decided to Heparinize aggressively; however, the Heparin was discontinued when a specialist was consulted - The plaintiff's condition worsened and on July 15 both his legs were amputated as a result of complications secondary to Heparin-Induced Thrombocytopenia (HIT) with Thrombosis - The plaintiff sued the treating physicians - The Alberta Court of Queen's Bench found that Dr. Sevcik was negligent in failing to form a differential diagnosis of HIT when the plaintiff was returned to the emergency room, and in aggressively Heparinizing the plaintiff without waiting for a platelet count report - Causation was established - The plaintiff was in extremis and not in a condition to intelligently make any choice in the matter when he returned to the emergency room, thus ameliorating the doctor's duty to inform, so he was not negligent in that regard - See paragraphs 304 to 384 and 446 to 451.

Medicine - Topic 4242

Liability of practitioners - Negligence or fault - Standard of care - The Alberta Court of Queen's Bench discussed the standard of care in a medical malpractice suit - See paragraphs 177 to 185.

Medicine - Topic 4242

Liability of practitioners - Negligence or fault - Standard of care - [See second, third and fourth Medicine - Topic 4241.2 ].

Medicine - Topic 4244.2

Liability of practitioners - Negligence or fault - Treatment with or withdrawal from drugs (incl. side effects) - [See second, third and fourth Medicine - Topic 4241.2 ].

Medicine - Topic 4248.1

Liability of practitioners - Negligence or fault - Consent of patient - [See second, third and fourth Medicine - Topic 4241.2 ].

Medicine - Topic 4248.2

Liability of practitioners - Negligence or fault - Whether accepted treatment appropriate -[See Medicine - Topic 4260 ].

Medicine - Topic 4252.3

Liability of practitioners - Negligence or fault - Orthopedic surgeons - [See second Medicine - Topic 4241.2 ].

Medicine - Topic 4252.4

Liability of practitioners - Negligence or fault - Emergency room treatment - [See fourth Medicine - Topic 4241.2 ].

Medicine - Topic 4260

Liability of practitioners - Negligence or fault - Defences - Approved practice - After a fall on July 3, 1998, the plaintiff had two surgeries by Drs. Weber and Harley, orthopedic surgeons, to repair a compound fracture of the right tibia and fibula - As part of his treatment, Dr. Harley prescribed prophylactic doses of an anticoagulant, unfractionated Heparin, to prevent blood clots - A week later, the plaintiff was sent to a separate orthopedic sub-acute unit because he was not mobilizing - The plaintiff complained of pain in both legs - He was transferred back to the emergency room at the hospital - The plaintiff's condition worsened and on July 15 both his legs were amputated as a result of complications secondary to Heparin-Induced Thrombocytopenia with Thrombosis (HITT) - The plaintiff sued the orthopedic surgeons - The Alberta Court of Queen's Bench found that Drs. Weber and Harley met the standard of care in prescribing unfractionated Heparin - However, they breached the standard of care by failing to monitor the plaintiff's platelet count every two days while on Heparin which materially contributed to his injuries - The court rejected the doctors' argument that they could rely on the standard practice at the time (i.e., not monitoring platelets when a patient was on unfractionated Heparin prophylactically) - The court stated that where the standard practice failed to adopt obvious precautions which were readily apparent to the trier of fact, then it was no excuse for the doctors to claim that they were merely conforming to such a negligent common practice - See paragraphs 259 to 261 and 439.

Torts - Topic 35

Negligence - Standard of care - Medical doctors - [See second, third and fourth Medicine - Topic 4241.2 and first Medicine - Topic 4242 ].

Cases Noticed:

Tailleur et al. v. Grande Prairie General and Auxiliary Hospital and Nursing Home District No. 14 (1999), 228 A.R. 274; 188 W.A.C. 274; 1999 ABCA 2, leave to appeal dismissed (1999), 252 N.R. 194 (S.C.C.), refd to. [para. 174].

Cranwill v. James et al. (1994), 164 A.R. 241 (Q.B.), affd. (1997), 193 A.R. 204; 135 W.A.C. 204 (C.A.), leave to appeal refused (1997), 223 N.R. 227; 212 A.R. 235; 168 W.A.C. 235 (S.C.C.), refd to. [para. 176].

McArdle Estate v. Cox et al., [2001] A.R. Uned. 111; 2001 ABQB 246, affd. (2003), 327 A.R. 129; 296 W.A.C. 129; 2003 ABCA 106, refd to. [para. 176].

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; 11 B.C.L.R.(3d) 201; 127 D.L.R.(4th) 577, refd to. [para. 177].

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

Lapointe v. Chevrette, [1992] 1 S.C.R. 351; 133 N.R. 116; 45 Q.A.C. 262; 90 D.L.R.(4th) 7; 10 C.C.L.T.(2d) 101; 9 C.P.C.(3d) 78, refd to. [para. 177].

Lapointe v. Hopital le Gardeur - see Lapointe v. Chevrette.

Roe and Woolley v. Minister of Health et al., [1954] 2 All E.R. 131; [1954] 2 Q.B. 66 (C.A.), refd to. [para. 178].

Kehler v. Myles and Foothills Provincial General Hospital (1986), 74 A.R. 259 (Q.B.), affd. (1988), 92 A.R. 345; 64 Alta. L.R.(2d) 97 (C.A.), leave to appeal refused (1989), 95 A.R. 236 (S.C.C.), refd to. [para. 178].

St-Jean v. Mercier, [2002] 1 S.C.R. 491; 282 N.R. 310; 2002 SCC 15, refd to. [para. 179].

Hancock Estate v. Hanton (2003), 344 A.R. 221 (Q.B.), refd to. [para. 180].

Wilson v. Swanson, [1956] S.C.R. 804, refd to. [para. 181].

Keller v. Penkoske et al. (1999), 256 A.R. 1; 1999 ABQB 912, affd. (2004), 348 A.R. 54; 321 W.A.C. 54; 2004 ABCA 4, refd to. [para. 182].

Goodwin v. Brady (1991), 7 C.C.L.T.(2d) 319; 1991 CarswellBC 803 (S.C.), affd. (1994), 41 B.C.A.C. 147; 66 W.A.C. 147; 89 B.C.L.R.(2d) 27; 1994 CarswellBC 130 (C.A.), refd to. [para. 183].

Maynard v. West Midlands Regional Health Authority, [1985] 1 All E.R. 635 (H.L.), refd to. [para. 183].

Kaban v. Sett and Salvation Army Grace General Hospital, [1994] 1 W.W.R. 476; 90 Man.R.(2d) 26 (Q.B.), affd. [1994] 10 W.W.R. 620; 97 Man.R.(2d) 185; 79 W.A.C. 185 (C.A.), leave to appeal refused (1995), 189 N.R. 240; 102 Man.R.(2d) 320; 93 W.A.C. 320 (S.C.C.), refd to. [para. 183].

Kelly v. Lundgard et al. (2001), 286 A.R. 1; 253 W.A.C. 1; 2001 ABCA 185, refd to. [para. 185].

Hanke v. Resurfice Corp. et al., [2007] 1 S.C.R. 333; 357 N.R. 175; 404 A.R. 333; 394 W.A.C. 333; 2007 SCC 7, refd to. [para. 188].

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. 188].

Bow Valley Husky (Bermuda) Ltd. et al. v. Saint John Shipbuilding Ltd. et al., [1997] 3 S.C.R. 1210; 221 N.R. 1; 158 Nfld. & P.E.I.R. 269; 490 A.P.R. 269; 153 D.L.R.(4th) 385, refd to. [para. 191].

Harris v. Beck Estate (2007), 263 Nfld. & P.E.I.R. 211; 798 A.P.R. 211 (P.E.I.T.D.), refd to. [para. 386].

Videto v. Kennedy (1981), 33 O.R.(2d) 497 (C.A.), refd to. [para. 387].

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. 388].

Zimmer and Zimmer v. Ringrose (1981), 28 A.R. 69; 124 D.L.R.(3d) 215 (C.A.), leave to appeal dismissed (1982), 37 N.R. 289 (S.C.C.), refd to. [para. 389].

Reibl v. Hughes, [1980] 2 S.C.R. 880; 33 N.R. 361; 114 D.L.R.(3d) 1, refd to. [paras. 16, 389].

Lepp v. Hopp, [1980] 2 S.C.R. 192; 32 N.R. 145; 22 A.R. 361; 112 D.L.R.(3d) 67, refd to. [para. 389].

Mang Estate et al. v. Moscovitz, Estep, Hesson, Tulloch and Calgary General Hospital (1982), 37 A.R. 221 (Q.B.), refd to. [para. 390].

Seney v. Crooks et al. (1998), 223 A.R. 145; 183 W.A.C. 145; 166 D.L.R.(4th) 337; 1998 ABCA 316, refd to. [para. 391].

Bucknam v. Kostiuk (1983), 44 O.R.(2d) 102 (H.C.), affd. (1986), 55 O.R.(2d) 187 (C.A.), refd to. [para. 393].

Arndt et al. v. Smith, [1997] 2 S.C.R. 539; 213 N.R. 243; 92 B.C.A.C. 185; 150 W.A.C. 185; 148 D.L.R.(4th) 48, refd to. [para. 395].

Tetterington v. Wiens et al. (1995), 165 A.R. 6; 89 W.A.C. 6 (C.A.), leave to appeal denied (1995), 195 N.R. 400; 181 A.R. 80; 116 W.A.C 80 (S.C.C.), refd to. [para. 397].

Male v. Hopkins, [1967] 2 O.R. 457 (C.A.), refd to. [para. 398].

Malette v. Shulman (1990), 37 O.A.C. 281; 2 C.C.L.T.(2d) 1 (C.A.), refd to. [para. 399].

Authors and Works Noticed:

Picard, Ellen I., and Robertson, Gerald B., Legal Liability of Doctors and Hospitals in Canada (3rd Ed. 1996), pp. 54 [para. 401]; 60, 64 [para. 400]; 129, 130 [para. 391]; 185 [para 182]; 228 [para. 191].

Prosser and Keeton, The Law of Torts (5th Ed. 1984), pp. 117, 118 [para. 399].

Counsel:

Edward R. Feehan (Duncan & Craig LLP), and Joseph V. Miller (Weir Bowen LLP), for the plaintiffs, John and Corinne Nattrass;

James J. Heelan, Q.C., and Peter S. Wong (Bennett Jones LLP), for the defendant physicians;

Jay M. Guthrie and Leah D.Wintermute (Field LLP), for the defendant Hospitals and Capital Health Authority.

This case was heard on September 10, 2007, before Greckol, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on April 28, 2008.