Phillip v. Bablitz,

• Judge: Berger,Martin,Read
• Neutral Citation: 2011 ABCA 383
• Citation: (2011), 515 A.R. 395,2011 ABCA 383,515 AR 395,(2011), 515 AR 395,515 A.R. 395
• Date: 03 November 2011
• Court: Court of Appeal (Alberta)

Phillip v. Bablitz (2011), 515 A.R. 395; 532 W.A.C. 395 (CA)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. DE.164

Montana Niketa Phillip, a minor by her next friend Yvonne Bertha Phillip, Yvonne Bertha Phillip and Jay Bernard Phillip (respondents/cross-appellants/plaintiffs) v. Harvey A. Bablitz (appellant/cross-respondent/defendant)

(1003-0303-A; 2011 ABCA 383)

Indexed As: Phillip v. Bablitz

Alberta Court of Appeal

Berger and Martin, JJ.A., and Read, J.(ad hoc)

December 20, 2011.

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, in a decision reported at 495 A.R. 205, 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 May 1997, when the chain of causation was broken and the true cause of her deficits should have been discovered. Dr. Bablitz appealed the finding of negligent treatment and Montana's parents cross-appealed in relation to the time period for which damages were awarded.

The Alberta Court of Appeal dismissed the appeal and cross-appeal.

Editor's Note: This appeal arose following 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 both Medicine - Topic 4241.2 ].

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - A doctor appealed a finding that he was negligent in failing to properly diagnose a child's (plaintiff's) congenital endocrine problems after she suffered a hypoglycemic crisis - The doctor argued that the trial judge erred in law by holding that the plaintiff had no obligation to prove foreseeability of the chain of causation as long as the type of injury suffered was foreseeable as a real risk of the physician's breach of the standard of care - He argued that the legal test for causation required that the sequence of events had to be reasonably foreseen and not just the nature of the injury - The Alberta Court of Appeal disagreed - The court stated that properly interpreted, the case law made it clear that as long as the type or kind of injury was foreseeable, a plaintiff need not establish foreseeability of the extent of the injury or the precise manner of its occurrence - See paragraphs 9 to 13.

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - In 1995, Dr. Bablitz failed to properly treat and diagnose a child who attended the emergency room, after which she suffered a hypoglycemic crisis and became developmentally delayed and blind - 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 child had congenital endocrine problems that developed before birth, which should have been treated earlier - The child sued Dr. Bablitz, alleging that his failure to treat her properly initially delayed other physicians from diagnosing her problems - The trial judge, after discussing the applicability of the concepts of foreseeability, proximate cause and novus actus interveniens, determined that Dr. Bablitz's negligence in failing to treat the child 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 the child 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 - The Alberta Court of Appeal refused to disturb the decision.

Medicine - Topic 4250

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

Torts - Topic 60

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

Torts - Topic 62

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

Cases Noticed:

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. 10].

Hughes v. Lord Advocate, [1963] A.C. 837, refd to. [para. 13].

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. 13].

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

Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. (Wagon Mound No. 2), [1967] 1 A.C. 617 (H.L.), refd to. [para. 29].

Wagon Mound No. 2 - see Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co.

Mustapha v. Culligan of Canada Ltd. (2008), 375 N.R. 81; 238 O.A.C. 130; 2008 SCC 27, refd to. [para. 29].

Counsel:

S.D. Johnson and L.A. Goldbach, for the appellant/cross-respondent;

H.W. Veale, Q.C., and R.J. Wasylyshyn, for the respondents/cross-appellants.

This appeal was heard on November 3, 2011, before Berger and Martin, JJ.A., and Read, J.(ad hoc), of the Alberta Court of Appeal. The following memorandum was file by the court in Edmonton, Alberta, on December 20, 2011.