Phillip v. Bablitz, (2010) 495 A.R. 205 (QB)

• Judge: Clackson, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 28, 2009
• Citations: (2010), 495 A.R. 205 (QB);2010 ABQB 566

Phillip v. Bablitz (2010), 495 A.R. 205 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. SE.057

Montana Niketa Phillip, a Minor by Her Next Friend Yvonne Bertha Phillip, Yvonne Bertha Phillip and Jay Bernard Phillip (respondents/plaintiffs) v. Harvey A. Bablitz (applicant/defendant)

(9603 01800; 2010 ABQB 566)

Indexed As: Phillip v. Bablitz

Alberta Court of Queen's Bench

Judicial District of Edmonton

Clackson, J.

September 7, 2010.

Summary:

In 1995, a two day old plaintiff, Montana, was taken to hospital for eating and sleeping concerns and seen by Dr. Bablitz, who failed to treat or further investigate her hypoglycemia and decided not to admit her. The next day the infant had a hypoglycemic crisis and became critically ill. She was admitted to hospital for extensive medical treatment between January 26 and February 18, 1995. The discharge summary indicated septic shock, hypoxic ischemic encepalopathy, recurrent seizures, etc. Montana was developmentally delayed and blind and was seen by a number of doctors, who believed her condition was because of sepsis and the hypoglycemic crisis. Montana and her parents sued Dr. Bablitz, claiming that his initial failure to treat her hypoglycemia sidetracked doctors who subsequently saw Montana from properly diagnosing that her problems were actually caused by congenital endocrine problems. Dr. Bablitz claimed that his admitted negligence was not the cause of all her injuries. The trial was limited to the causation issue only.

The Alberta Court of Queen's Bench agreed that Dr. Bablitz's initial failure to treat Montana shielded her underlying condition from discovery until March 1997, when doctors at a follow-up clinic realized that Montana's growth was below the charts and an alternative explanation should have been sought. That failure to seek such an explanation broke the chain of causation set in motion by Dr. Bablitz's negligence. The court concluded that Dr. Bablitz was liable for the injury suffered by Montana during and as a result of the hypoglycemic crisis. In addition, he was liable for any brain damage suffered by her from approximately mid-April 1995, when her endocrine condition likely would have been diagnosed but for his negligence, up to 1997, when the chain of causation was broken and the true cause of her deficits should have been discovered.

Editor's Note: This case arose as a result of a new trial ordered by the Alberta Court of Appeal in this matter which was confined to a causation issue and if necessary a fresh assessment of damages (see M.N.P. v. Whitecourt General Hospital et al. (2006), 397 A.R. 333; 384 W.A.C. 333). The headnote for the Court of Appeal decision contains a complete procedural history of the proceedings.

Damages - Topic 528

Limits of compensatory damages - Remoteness - Torts - Foreseeability - [See first Medicine - Topic 4241.2 ].

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - The infant plaintiff, Montana, was developmentally delayed and blind - In 1995, when she was two days old, she had been taken to hospital for eating and sleeping concerns and seen by Dr. Bablitz, who failed to treat or further investigate her hypoglycemia and decided not to admit her - The next day the infant had a hypoglycemic crisis and became critically ill - She was then admitted to hospital for extensive medical treatment - The discharge summary listed sepsis as possible, but made no mention of possible endocrine problems - She was subsequently seen by a number of doctors, who believed her condition was because of sepsis/hypoglycemic crisis - In 1997, she was assessed by a pediatrician at a hospital clinic, who noticed that she was below growth chart expectations, but did not refer her to an endocrinologist or recommend a referral to her family physician - In 1998, it was discovered that the infant had congenital endocrine problems that developed before birth, which should have been treated earlier - The infant sued Dr. Bablitz, alleging that his failure to treat her properly initially delayed other physicians from diagnosing her problems - The Alberta Court of Queen's Bench discussed the applicability of the concepts of foreseeability, proximate cause and novus actus interveniens in this situation - The court found that Dr. Bablitz's negligence in failing to treat Montana led to her near fatal collapse and ensuing health crisis - The health crisis and resulting hospital discharge summary cloaked the true condition from discovery until she attended the hospital clinic in 1997, when an alternative explanation should have been sought - The failure to seek such an explanation broke the chain of causation set in motion by Dr. Bablitz's negligence - Therefore, Dr. Bablitz was liable for the injury suffered by Montana during and as a result of the hypoglycemic crisis and any brain damage suffered between when her condition likely would have been diagnosed but for his negligence, up to 1997 when the chain of causation was broken - See paragraphs 1 to 335.

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - In a medical malpractice action, the defendant physician claimed that the negligence of another doctor broke the chain of causation, such that the defendant was not responsible for all the plaintiff's damages - The plaintiff, relying on an English Court of Appeal case (Webb v. Barclay's Bank (2001)), argued that for the negligence of the other doctor to be a true intervening act, her conduct would have to have amounted to gross negligence - The plaintiff offered no Canadian authority for her proposition - The Alberta Court of Queen's Bench agreed with the defendant that following the reasoning in the Webb case would represent a shift in the law - The court stated that "The issue is what is the strength of the alleged intervening cause, not the degree of negligence by which it was created. Muddling around in the categorization of negligence by degree does not assist with the question and may lead to unfair results. For example, a conclusion might be reached that the intervening negligence was gross but not particularly causative. Nonetheless, the original tortfeasor would escape liability at the expense of one who was far less blameworthy. In my [i.e., Clackson, J.'s] view, it is the impact or force of the intervening act which determines whether the chain is broken, not how ill advised the act may have been" - See paragraphs 336 to 339.

Medicine - Topic 4250

Liability of practitioners - Negligence or fault - Failure to diagnose an illness or condition - [See first Medicine - Topic 4241.2 ].

Torts - Topic 60

Negligence - Causation - Foreseeability - [See first Medicine - Topic 4241.2 ].

Torts - Topic 62

Negligence - Causation - Intervening causes (novus actus interveniens) - [See both Medicine - Topic 4241.2 ].

Cases Noticed:

N.M. v. Drew Estate (2003), 330 A.R. 233; 299 W.A.C. 233; 2003 ABCA 231, refd to. [para. 113].

C.A.H. v. M.W.S. (2008), 439 A.R. 379; 87 Alta. L.R.(4th) 340; 2008 ABQB 34, refd to. [para. 115].

McArdle Estate v. Cox et al. (2003), 327 A.R. 129; 296 W.A.C. 129; 2003 ABCA 106, refd to. [para. 133].

Kalogeropoulos and Millette v. Cote, Minister of Highways and the Ontario Provincial Police Force, [1976] 1 S.C.R. 595; 3 N.R. 341, refd to. [para. 309].

R. v. Coté - see Kalogeropoulos and Millette v. Cote, Minister of Highways and the Ontario Provincial Police Force.

Board of Education of Assiniboine South School Division and Hoffer et al. v. Greater Winnipeg Gas Co., [1971] 4 W.W.R. 746 (Man. C.A.), refd to. [para. 310].

Overseas Tankship (U.K.) Ltd. v. Mort's Dock and Engineering Co. (The Wagon Mound (No. 1)), [1961] 1 All E.R. 404, refd to. [para. 311].

Hughes v. Lord Advocate, [1963] 1 All E.R. 705 (H.L.), refd to. [para. 311].

Abbott v. Kasza (1976), 71 D.L.R.(3d) 581 (Alta. C.A.), refd to. [para. 314].

Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114; 375 N.R. 81; 238 O.A.C. 130; 2008 SCC 27, refd to. [para. 315].

Duwyn v. Kaprielian (1978), 22 O.R.(2d) 736 (C.A.), refd to. [para. 325].

Robinson v. Post Office et al., [1974] 2 All E.R. 737 (C.A.), refd to. [para. 325].

Thompson v. Toorenburgh (1972), 29 D.L.R.(3d) 608 (B.C.S.C.), affd. (1973), 50 D.L.R.(3d) 717 (B.C.C.A.), leave to appeal refused (1973), 50 D.L.R.(3d) 717 (S.C.C.), refd to. [para. 325].

Price v. Milawski (1977), 18 O.R.(2d) 113 (C.A.), refd to. [para. 326].

Chesher v. Monaghan et al. (1999), 92 O.T.C. 369 (Gen. Div.), refd to. [para. 326].

Papp v. Leclerc (1977), 77 D.L.R.(3d) 536 (Ont. C.A.), refd to. [para. 330].

Webb v. Barclays Bank plc et al., [2001] E.W.J. No. 3722 (C.A.), refd to. [para. 336].

Authors and Works Noticed:

Wigmore, John Henry, Evidence in Trials at Common Law (1979) (4th Revised Ed.), vol. 2, p. 192 [para. 115].

Counsel:

Harold W. Veale, Q.C., Rod J. Wasylyshyn, and Lara M. Levesque (Ogilvie LLP), for the respondents/plaintiffs;

Simon Johnson, Laurie A. Goldbach and Laura Inglis-Chubb (Bennett Jones LLP), for the applicant/defendant.

This application was heard on September 28, 2009, by Clackson, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on September 7, 2010.