Pozdzik v. Wilson et al., (2002) 311 A.R. 258 (QB)

• Judge: Bielby, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 05, 2002
• Citations: (2002), 311 A.R. 258 (QB);2002 ABQB 351

Pozdzik v. Wilson (2002), 311 A.R. 258 (QB)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. AP.081

Kayleigh Pozdzik an infant by her next friend Richard Pozdzik (plaintiff) v. Arthur F. Wilson and Glenrose Rehabilitation Hospital (defendants)

(Action No. 9303 01105; 2002 ABQB 351)

Indexed As: Pozdzik v. Wilson et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Bielby, J.

April 4, 2002.

Summary:

The defendant neurologist admitted that anticonvulsant medication that he prescribed to the plaintiff's epileptic mother during pregnancy resulted in the plaintiff being born with severe physical and mental handicaps. The plaintiff sued the neurologist for damages.

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

Medicine - Topic 4248

Liability of practitioners - Negligence or fault - Failure to inform or disclose - Treatment choices - The defendant neurologist admitted that anticonvulsant medication that he prescribed to the plaintiff's epileptic mother during pregnancy resulted in the plaintiff being born with physical and mental handicaps - The Alberta Court of Queen's Bench held that the defendant was not liable for the handicaps - There was no reasonable alternate treatment option - The mother was not a good candidate for brain surgery although it was subsequently undertaken with mixed results - In light of the mother's history of noncompliance with physicians' recommendations and lack of self-discipline, it was unlikely that she would have agreed to undertake or complete the prolonged, heavily structured program of medication compliance and supervision prerequisite to an attempt to reduce or eliminate anticonvulsants in advance of conception - This was particularly so where the risk of bearing a deformed child was only 10% and she had previously given birth to triplets who were, although premature, not deformed - See paragraphs 64 to 128.

Medicine - Topic 4255.1

Liability of practitioners - Negligence or fault - Prenatal care - [See Medicine - Topic 4248 ].

Medicine - Topic 4255.1

Liability of practitioners - Negligence or fault - Prenatal care - The defendant neurologist prescribed anticonvulsant medication to the plaintiff's epileptic mother during pregnancy which resulted in the plaintiff being born with handicaps - The neurologist admitted that he owed a duty of care to the plaintiff as a foetus being carried by one of his pregnant patients - The Alberta Court of Queen's Bench stated that there was no authority to suggest that where the risk conflicted with a physician's duty to the mother, the conflict should be resolved in favour of the foetus -Further, any step which increased the risks to the mother by allowing her to seizure without medication also increased the risk to the foetus - The neurologist had to balance the risk of possible harm to both the mother and foetus against the risk of deformity to the foetus - The neurologist's obligation to the foetus did not supercede his obligations to the mother and the foetus together - Therefore, the defendant's administration of the anticonvulsants in the face of knowledge that they might cause deformity to the foetus did not support a finding of negligence - See paragraphs 129 to 132.

Medicine - Topic 4260.7

Liability of practitioners - Negligence or fault - Duty of care to foetus - [See Medicine - Topic 4248 and second Medicine - Topic 4255.1 ].

Cases Noticed:

Seney v. Crooks (1998), 223 A.R. 145; 183 W.A.C. 145; 166 D.L.R.(4th) 337 (C.A.), refd to. [para. 65].

Arndt et al. v. Smith (1997), 213 N.R. 243; 92 B.C.A.C. 185; 150 W.A.C. 185; 148 D.L.R.(4th) 48 (S.C.C.), refd to. [para. 67].

Lacroix v. Dominique, [1999] 12 W.W.R. 38; 141 Man.R.(2d) 1 (Q.B.), affd., [2001] 9 W.W.R. 261; 156 Man.R.(2d) 262; 246 W.A.C. 262 (C.A.), leave to appeal refused (2002), 289 N.R. 202; 156 Man.R.(2d) 262; 246 W.A.C. 262 (S.C.C.), refd to. [para. 68].

Wilson v. Swanson, [1956] S.C.R. 804; 5 D.L.R.(2d) 113, refd to. [para. 115].

Lapointe v. Hôpital le Gardeur, [1992] 1 S.C.R. 382; 133 N.R. 153; 45 Q.A.C. 299, refd to. [para. 115].

Pittman Estate v. Bain (1994), 112 D.L.R.(4th) 257 (Ont. Gen. Div.), refd to. [para. 120].

Reibl v. Hughes, [1980] 2 S.C.R. 880; 33 N.R. 361; 114 D.L.R.(3d) 1, refd to. [para. 126].

Keys v. Mistahia Regional Health Authority et al., [2001] 8 W.W.R. 689; 291 A.R. 97 (Q.B.), refd to. [para. 129].

Cherry v. Borsman (1992), 16 B.C.A.C. 93; 28 W.A.C. 93; 12 C.C.L.T.(2d) 137 (C.A.), refd to. [para. 129].

Campbell Estate v. Fang (1994), 155 A.R. 270; 73 W.A.C. 270 (C.A.), refd to. [para. 138].

Authors and Works Noticed:

Picard, Ellen I., and Robertson, G., Legal Liability of Doctors and Hospitals in Canada (3rd Ed. 1966), pp. 129, 130 [para. 65]; 280 [para. 115].

Counsel:

Joe Miller and Sheila J. Torrance, for the plaintiff;

Rose M. Carter and Tara S. Mah, for the defendant, Dr. Arthur F. Wilson.

Bielby, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, heard this action on February 5, 2002, and delivered the following reasons for judgment on April 4, 2002.