Nattrass et al. v. Weber et al.,

• Judge: McFadyen,Slatter,Sulyma
• Neutral Citation: 2010 ABCA 64
• Citation: (2010), 477 A.R. 292 (CA),2010 ABCA 64,477 AR 292,(2010), 477 AR 292 (CA),477 A.R. 292
• Date: 30 October 2009
• Court: Court of Appeal (Alberta)

Nattrass v. Weber (2010), 477 A.R. 292 (CA);

      483 W.A.C. 292

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. MR.036

John L. Nattrass, Corinne E. Nattrass and Her Majesty the Queen in Right of Alberta (respondents/plaintiffs) v. Dr. Donald W. Weber, Dr. Brian Harley, Dr. Sevcik (appellants/defendants) and Dr. Eisa Al-Hemrani, Dr. Zgibniew, P. Chrzanowski, Dr. G. Gordon Russell, Dr. Nelson Greidanus, Dr. Martin Bouliane, Dr. Neesh Pannu, Dr. Loree Mary Larratt, Dr. Pauline Lysak, Dr. Hamilton, Dr. A. Sobey, Dr. Noel Gibey, Dr. Mysuka, University of Alberta Hospitals, University of Alberta Hospital 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 (not parties to the appeal/defendants)

(0803-0311-AC; 2010 ABCA 64)

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

Alberta Court of Appeal

McFadyen and Slatter, JJ.A., and Sulyma, J.(ad hoc)

February 26, 2010.

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 orthopaedic surgeon, with the assistance of Dr. Harley, an orthopaedic 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 orthopaedic 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 (an unusual adverse reaction to Heparin). The plaintiff sued the treating physicians et al.

The Alberta Court of Queen's Bench, in a decision reported 444 A.R. 303, 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. Dr. Weber, Dr. Harley and Dr. Sevcik appealed, arguing that the trial judge erred in finding them negligent even though in their treatment of the plaintiff they followed the practices routinely followed by their profession and the judge applied the wrong legal test for causation.

The Alberta Court of Appeal, Sulyma, J.(ad hoc), dissenting, held that the standard of care set for Dr. Weber and Dr. Harley by the trial judge was in error. Having followed the standard practice prevailing for orthopaedic surgeons in 1998, their conduct was not negligent. Their appeals were allowed, and the action dismissed as against them. The wrong test for causation was applied to the conduct of Dr. Sevcik, and the standard of care required of him would have to be revisited. Therefore, his appeal was allowed, and a new trial directed, because it was not possible to resolve his liability on the record.

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - In 1998, the plaintiff had two surgeries by an orthopaedic surgeons to repair a broken leg - Prophylactic doses of an anticoagulant, unfractionated Heparin, were prescribed to prevent blood clots - A week later, the plaintiff was sent to a separate orthopaedic sub-acute unit because he was not mobilizing, and placed under the care of a family medicine physician who increased the dose of Heparin - The plaintiff developed pain in his legs and was transferred back to the hospital emergency room - 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 both his legs were amputated as a result of complications secondary to Heparin-Induced Thrombocytopenia (HIT) with Thrombosis (an unusual adverse reaction to Heparin) - The plaintiff sued the emergency room physician - The trial judge found that Dr. Sevcik was negligent in diagnosing and treating the plaintiff - Causation was established because the conduct of Dr. Sevcik "materially contributed" to the plaintiff's injury - Dr. Sevcik appealed - The Alberta Court of Appeal allowed the appeal because the trial judge erred in law in applying the wrong test for causation (an issue reviewable on the standard of correctness) - The judge never attempted to apply the "but for" test, nor to analyze why it was impossible to apply that test - The preconditions to applying the "materially contributed" test were never established - The standard of care required of Dr. Sevcik would have to be revisited - Further, it was impossible to determine causation from the record and a new trial was ordered - See paragraphs 43 to 58.

Medicine - Topic 4242

Liability of practitioners - Negligence or fault - Standard of care - In a medical malpractice case, the trial judge agreed that the standard of care relative to administration of medication should be standard across medical specialities; i.e., if a physician prescribed a particular medication he or she had to have an understanding of the potential side effects and adverse reactions to that medication, and be aware of any monitoring that should be done to identify such adverse reactions as soon as possible - The Alberta Court of Appeal stated that "This is not a correct statement of the law. A medical practitioner is not required to know everything about medication being prescribed, but is only required to have the knowledge of the average competent practitioner. Further, the practitioner is only required to have the knowledge of the average practitioner in the same specialty. For example, an orthopaedic surgeon is not required to have the same knowledge of Heparin as a haematologist, contrary to the conclusion of the trial judge ... The standard of care does not change with respect to any particular course of treatment when or because the doctor selects it" - See paragraph 26.

Medicine - Topic 4242

Liability of practitioners - Negligence or fault - Standard of care - [See second Medicine - Topic 4260 ].

Medicine - Topic 4244.2

Liability of practitioners - Negligence or fault - Treatment with or withdrawal from drugs (incl. side effects) - [See Medicine - Topic 4241.2 , first Medicine - Topic 4242 and second Medicine - Topic 4260 ].

Medicine - Topic 4248.2

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

Medicine - Topic 4252.4

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

Medicine - Topic 4260

Liability of practitioners - Negligence or fault - Defences - Approved practice - The Alberta Court of Appeal noted that in ter Neuzen v. Korn (SCC 1995), the court established that as a general rule following approved common practice negated negligence; however, there was an exception to the general rule if a standard practice failed to adopt obvious and reasonable precautions which were readily apparent to the ordinary finder of fact - The court discussed the ter Neuzen exception, noting that the standard set in ter Neuzen for a finding that an accepted standard was nevertheless negligent was high - The question whether the trier of fact could find that a standard practice was itself negligent was a question of law reviewable on the standard of correctness - The court noted also that the cases applying the ter Neuzen exception were rare - The ter Neuzen exception anticipated the trier of fact dealing with matters within common experience - The exception did not apply when resort had to be had to expert medical evidence to identify the risk, or to set the standard of care to be met - See paragraphs 26 to 40.

Medicine - Topic 4260

Liability of practitioners - Negligence or fault - Defences - Approved practice - In 1998, the plaintiff had two surgeries by Drs. Weber and Harley, an orthopaedic surgeon and resident, to repair a broken leg - As part of his treatment, Dr. Harley prescribed prophylactic doses of an anticoagulant, unfractionated Heparin, to prevent blood clots - Both the plaintiff's legs were amputated because of complications secondary to Heparin-Induced Thrombocytopenia (HIT) with Thrombosis (an unusual adverse reaction to Heparin) - The plaintiff sued - The trial judge found the doctors negligent in failing to monitor the plaintiff's platelet count, notwithstanding that it was the standard practice at the time for orthopaedic surgeons not to do such monitoring (i.e., the court applied the ter Neuzen (SCC 1995) exception to the approved practice defence) - The doctors appealed - The Alberta Court of Appeal allowed the appeal holding that the standard of care set for the doctors by the trial judge was in error of law - Having followed the standard practice prevailing for orthopaedic surgeons in 1998, their conduct was not negligent - The trial judge partly engaged in hindsight in concluding that the doctors should have known in 1998, that doing regular platelet counts would detect HIT and that such tests were an obvious, simple and inexpensive precaution - The analysis performed by the trial judge delved into "difficult or uncertain questions of medical treatment or complex, scientific or highly technical matters that are beyond the ordinary experience and understanding of a judge or jury", an inquiry specifically prohibited by ter Neuzen - Here the risk of HIT was not obvious to the ordinary trier of fact, and only became apparent because of the expert testimony - See paragraphs 26 to 42.

Practice - Topic 8800

Appeals - General principles - Duty of appellate court regarding findings of fact - The Alberta Court of Appeal stated that "The standard of review for questions of law is correctness. The findings of fact of the trial judge will only be reversed on appeal if they disclose palpable and overriding error ... Findings of credibility are a part of the fact finding process, and are subject to the same standard of review" - See paragraph 22.

Practice - Topic 8800.1

Appeals - Duty of appellate court regarding findings of mixed law and fact by a trial judge - The Alberta Court of Appeal stated that "Whether a particular set of facts meets a legal standard is a question of mixed fact and law. If a legal test or standard can be isolated from the question of mixed fact and law, then findings on that issue are reviewed for correctness. Such issues are sometimes referred to as 'extricable errors of law' ... The standard of care required by law is a question of law, but whether that standard has been met is a mixed question of fact and law. Deciding if a particular set of facts meets a legal standard calls for the drawing of a legal inference from those facts, which in turn calls for a 'higher standard' of review ... Setting that standard is a nuanced process, because 'matters of mixed law and fact fall along a spectrum of particularity' ... In Housen [SCC 2002] the Court held that deciding whether a set of facts meets the legal standard for 'negligence' is a mixed question of fact and law that should only be interfered with on appeal if it discloses 'palpable and overriding error'" - See paragraphs 24 and 25.

Practice - Topic 8800.2

Appeals - General principles - Duty of appellate court regarding findings of law - [See Practice - Topic 8800 ].

Practice - Topic 8820

Appeals - General principles - Duty of appellate court re findings of credibility by trial judge - The Alberta Court of Appeal stated that "Where evidence is presented by two experts, both found to be credible, the trial judge's preference of one over the other is reviewed on the standard of reasonableness ..." - See paragraph 23.

Practice - Topic 8820

Appeals - General principles - Duty of appellate court re findings of credibility by trial judge - [See Practice - Topic 8800 ].

Cases Noticed:

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

Neuzen v. Korn, [1995] 3 S.C.R. 674; 188 N.R. 161; 64 B.C.A.C. 241; 105 W.A.C. 241; 11 B.C.L.R.(3d) 201; 1995 CarswellBC 593, refd to. [paras. 20, 73].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 22].

Freyberg v. Fletcher Challenge Oil and Gas Inc. et al. (2005), 363 A.R. 35; 343 W.A.C. 35; 42 Alta. L.R.(4th) 41; 2005 ABCA 46, refd to. [para. 23].

Labbee et al. v. Peters et al. (1999), 237 A.R. 382; 197 W.A.C. 382; 1999 ABCA 246, refd to. [para. 23].

Nova, An Alberta Corp. v. Guelph Engineering Co. and Daniel Valve Co. et al. (1989), 100 A.R. 241; 70 Alta. L.R.(2d) 97 (C.A.), refd to. [para. 23].

St-Jean v. Mercier, [2002] 1 S.C.R. 491; 282 N.R. 310; 2002 SCC 15, refd to. [para. 26].

Anderson v. Chasney, [1949] 2 W.W.R. 337; [1949] 4 D.L.R. 71 (Man. C.A.), refd to. [para. 37].

McCann v. Hyndman (2004), 354 A.R. 35; 329 W.A.C. 35; 28 Alta. L.R.(4th) 214; 2004 ABCA 191, refd to. [para. 37].

Tailleur et al. v. Grande Prairie General and Auxiliary Hospital and Nursing Home District No. 14 et al. (1999), 228 A.R. 274; 188 W.A.C. 274; 74 Alta. L.R.(3d) 20; 1999 ABCA 2, refd to. [para. 40].

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. [paras. 43, 80].

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. 43].

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. [paras. 44, 80].

Meyers v. Moscovitz - see Meyers v. Stanley et al.

Meyers v. Stanley et al. (2005), 363 A.R. 262; 343 W.A.C. 262; 2005 ABCA 114, leave to appeal refused (2005), 348 N.R. 198; 401 A.R. 396; 391 W.A.C. 396 (S.C.C.), refd to. [para. 44].

Wilson v. Swanson, [1956] S.C.R. 804, refd to. [para. 61].

Grennan Estate v. Reddoch et al. (2002), 176 B.C.A.C. 90; 290 W.A.C. 90; 2002 YKCA 17, refd to. [para. 61].

Authors and Works Noticed:

Canadian Pharmaceutical Association, Compendium of Pharmaceuticals and Specialties (33rd Ed. 1998), generally [para. 34].

Counsel:

E.R. Feehan and J.V. Miller, for the respondents;

J.J. Heelan, Q.C., for the appellants.

These appeals were heard on October 30, 2009, by McFadyen and Slatter, JJ.A., and Sulyma, J.(ad hoc), of the Alberta Court of Appeal. The following opinions of memorandum of judgment of the court were filed at Edmonton, Alberta, on February 26, 2010:

McFadyen and Slatter, JJ.A. - see paragraphs 1 to 65;

Sulyma, J.(ad hoc), dissenting - see paragraphs 66 to 84.