Semeniuk v. Cox et al., (2000) 258 A.R. 73 (QB)

JudgeActon, J.
CourtCourt of Queen's Bench of Alberta (Canada)
Case DateJanuary 20, 2000
Citations(2000), 258 A.R. 73 (QB)

Semeniuk v. Cox (2000), 258 A.R. 73 (QB)

MLB headnote and full text

Temp. Cite: [2000] A.R. TBEd. FE.048

Debbie Semeniuk and Darcy Semeniuk (plaintiffs) v. Samuel Cox and the Royal Alexandra Hospitals (defendants)

(9403 18243)

Indexed As: Semeniuk v. Cox et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Acton, J.

January 20, 2000.

Summary:

A woman had a vertical banded gastro­plasty in 1990. A surgeon performed revision surgery. The woman sued the sur­geon in negligence.

The Alberta Court of Queen's Bench allowed the woman's action and awarded damages.

Damage Awards - Topic 55

Injury and death - Body injuries - Abdo­men - Semeniuk sued a surgeon in negli­gence for severe complications of her revision surgery regarding her previous vertical banded gastroplasty - She was hospitalized for over 50 days, requiring four further surgeries - Close to death at least once - After her discharge, her ab­dominal wound remained open for several months due to severe infection - Semeniuk participated in some activities six months after the surgery - She had a deep, con­stricted and cosmetically "horrendous" abdominal scar from the base of her breasts to the top of the pubic bone, flanked by unattractive round scars - After the surgery she had more severe vomiting and more difficulties with intestinal gas, diarrhoea and constipation - Activities restricted - Unable to conceive children although wanted to extend family unit - The Alberta Court of Queen's Bench awarded $100,000 in general damages - See paragraphs 51 to 81.

Damage Awards - Topic 64

Injury and death - Body injuries - Genitals or reproductive system - Semeniuk sued a surgeon in negligence for severe complica­tions of her revision surgery regarding her previous vertical banded gastroplasty - She was hospitalized for over 50 days, requir­ing four further surgeries - Close to death at least once - After her discharge, her abdominal wound remained open for sev­eral months due to severe infection - She had a deep, constricted and cosmetically "horrendous" abdominal scar from the base of her breasts to the top of the pubic bone, flanked by unattractive round scars - Se­meniuk had two children and wanted to extend her family unit - However, she was unable to conceive children - The Alberta Court of Queen's Bench awarded $70,000 for Semeniuk's infertility - See paragraphs 73 to 81.

Damage Awards - Topic 73.1

Injury and death - Body injuries - Scarring - [See Damage Awards - Topic 55 ].

Damage Awards - Topic 498

Injury and death - General damage awards - Pain and suffering, loss of amenities and other nonpecuniary damages - [See Dam­age Awards - Topic 55 ].

Damage Awards - Topic 585

Torts - Injury to third parties - Loss of consortium - Semeniuk sued a surgeon in negligence for severe complications of her revision surgery regarding her previous vertical banded gastroplasty - Semeniuk's husband sued for loss of consortium - Semeniuk was hospitalized for over 50 days, requiring four further surgeries - After her discharge, her abdominal wound remained open for several months due to severe infection - Her husband had to tend to the wound regularly - The husband took a stress leave from his employment - He assumed all the additional household and child care responsibilities during Seme­niuk's hospitalization and recovery - He provided nursing care to Semeniuk - They had difficulties in their marriage and the activities that they used to do together were restricted - The Alberta Court of Queen's Bench awarded the husband $20,000 - See paragraphs 86 to 88.

Damage Awards - Topic 634

Torts - Injury to the person - Medical or dental malpractice - [See Damage Awards - Topic 55 ].

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - [See first Medicine - Topic 4242 ].

Medicine - Topic 4242

Liability of practitioners - Negligence or fault - Standard of care - Semeniuk suf­fered severe complications from her revision surgery regarding her previous vertical banded gastroplasty - Semeniuk sued the surgeon in negligence - At issue, inter alia, was whether the surgeon met the required standard of care and whether a breach, if proven, caused the injuries - The Alberta Court of Queen's Bench held that the surgeon breached his standard of care by not performing the standard air bubbles test or the methylene blue test, safety checks necessary to detect potential leaks, resulting in his negligence - This failure resulted in an undetected intra-operative perforation which allowed the seepage of stomach contents into the abdomen and set in motion the infection, resulting in subse­quent injuries and damages - See para­graphs 26 to 50.

Medicine - Topic 4242

Liability of practitioners - Negligence or fault - Standard of care - Semeniuk suf­fered severe complications from her revision surgery regarding her previous vertical banded gastroplasty - Semeniuk sued the surgeon in negligence - At issue, inter alia, was whether the surgeon met the required standard of care for a bariatric surgeon operating in Edmonton, perform­ing a revision surgery of an earlier vertical banded gastroplasty procedure (a) regard­ing the placement of the gastric window, and (b) in performing the safety checks necessary to detect potential leaks - The Alberta Court of Queen's Bench discussed the appropriate standard of care - See paragraphs 26 to 39.

Medicine - Topic 4245

Liability of practitioners - Negligence or fault - Surgical operations by doctors - [See both Medicine - Topic 4242 and Medicine - Topic 4248.1 ].

Medicine - Topic 4248

Liability of practitioners - Negligence or fault - Failure to inform or disclose - [See Medicine - Topic 4248.1 ].

Medicine - Topic 4248.1

Liability of practitioners - Negligence or fault - Consent of patient - Semeniuk suffered severe complications from her revision surgery regarding her previous vertical banded gastroplasty - The sur­geon's wife met with a group of people, including Semeniuk, answering questions regarding the revision surgery - Semeniuk sued the surgeon in negligence - At issue, inter alia, was whether the surgeon obtained Semeniuk's informed consent - The Alberta Court of Queen's Bench held that the surgeon failed to meet the standard of care regarding informed consent which was causally relevant to Semeniuk's injuries and damages - The surgeon failed to do the following; advise Semeniuk of the alternative conservative treatment and take her previous history before and after the first surgery; advise Semeniuk of the threefold risks of revision surgery, which was a significant and material risk; and order or perform a relevant procedure, that would help him to advise of the risks involved - See paragraphs 12 to 25.

Medicine - Topic 4260.1

Liability of practitioners - Negligence or fault - Taking of medical history - [See Medicine - Topic 4248.1 ].

Torts - Topic 35

Negligence - Standard of care - Particular persons and relationships - Medical doctors and medical personnel - [See both Medi­cine - Topic 4242 and Medicine - Topic 4248.1 ].

Cases Noticed:

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. 12].

Zimmer and Zimmer v. Ringrose (1981), 28 A.R. 69; 124 D.L.R.(3d) 215 (C.A.), refd to. [para. 15].

Anderson v. Chasney et al., [1949] 2 W.W.R. 337; 57 Man.R. 343; [1949] 4 D.L.R. 71 (C.A.), affd. [1950] 4 D.L.R. 223 (S.C.C.), refd to. [para. 36].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; 83 D.L.R.(3d) 452; [1978] 1 W.W.R. 577; 3 C.C.L.T. 225, refd to. [para. 62].

Webb et al. v. Motta et al. (1998), 233 A.R. 9 (Q.B.), refd to. [para. 74].

Lindsay v. Freeman, [1995] O.J. No. 541 (Gen. Div.), consd. [para. 75].

Hagan v. Dalkon Shield Claimants Trust (1998), 231 A.R. 153; 43 C.C.L.T.(2d) 11 (Q.B.), refd to. [para. 76].

Authors and Works Noticed:

Mervyn & Deitel, Surgery for the Morbid­ly Obese Patient (1989), generally [para. 27].

Counsel:

Joseph V. Miller and Sheila J. Torrance (Weir Bowen), for the plaintiffs;

Donald R. Cranston, Q.C., and Tracey L. Howell (Bennet Jones), Edmonton, Alberta, for the defendants.

This matter was heard on October 18-29, 1999, by Acton, J., of the Alberta Court of Queen's Bench, Judicial District of Edmon­ton, who delivered the following decision on January 20, 2000.

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9 practice notes
  • Ferraiuolo Estate v. Olson, 2004 ABCA 281
    • Canada
    • Court of Appeal (Alberta)
    • March 3, 2004
    ...Kelly v. Lundgard et al. (2001), 286 A.R. 1; 253 W.A.C. 1; 2001 ABCA 185, refd to. [para. 99, footnote 88]. Semeniuk v. Cox et al. (2000), 258 A.R. 73; 2000 ABQB 18, refd to. [para. 99, footnote Bowlby v. Oosterhuis et al., [2003] O.T.C. 225; 63 O.R.(3d) 748 (Sup. Ct.), refd to. [para. 99, ......
  • Best et al. v. Hoskins et al., 2006 ABQB 58
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • January 20, 2006
    ...[para. 93]. Aristorenas v. Comcare Health Services et al., [2004] O.T.C. 778 (Sup. Ct.), refd to. [para. 103]. Semeniuk v. Cox et al. (2000), 258 A.R. 73; 76 Alta. L.R.(3d) 30 (Q.B.), refd to. [para. Webb et al. v. Motta et al. (1998), 233 A.R. 9 (Q.B.), refd to. [para. 110]. Larter v. Frei......
  • Dickson et al. v. Pinder et al., 2010 ABQB 269
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • December 11, 2009
    ...Gallant v. Brake-Patten (2010), 292 Nfld. & P.E.I.R. 279; 902 A.P.R. 279; 2010 NLTD 1, refd to. [para. 77]. Semeniuk v. Cox et al. (2000), 258 A.R. 73; 2000 ABQB 18, refd to. [para. 78]. Seney v. Crooks et al. (1998), 223 A.R. 145; 183 W.A.C. 145; 1998 ABCA 316, refd to. [para. 79]. Buc......
  • Chae v. Min et al., 2001 ABQB 1107
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • December 7, 2001
    ...No. 1232, refd to. [para. 11]. Pettipas v. Klingbeil et al. (2000), 260 A.R. 1 (Q.B.), refd to. [para. 11]. Semeniuk v. Cox et al. (2000), 258 A.R. 73 (Q.B.), refd to. [para. R. v. Zundel (1987), 18 O.A.C. 161; 58 O.R.(2d) 129 (C.A.), refd to. [para. 11]. Sugden v. Lord St. Leonards, [1876]......
  • Request a trial to view additional results
9 cases
  • Ferraiuolo Estate v. Olson, 2004 ABCA 281
    • Canada
    • Court of Appeal (Alberta)
    • March 3, 2004
    ...Kelly v. Lundgard et al. (2001), 286 A.R. 1; 253 W.A.C. 1; 2001 ABCA 185, refd to. [para. 99, footnote 88]. Semeniuk v. Cox et al. (2000), 258 A.R. 73; 2000 ABQB 18, refd to. [para. 99, footnote Bowlby v. Oosterhuis et al., [2003] O.T.C. 225; 63 O.R.(3d) 748 (Sup. Ct.), refd to. [para. 99, ......
  • Best et al. v. Hoskins et al., 2006 ABQB 58
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • January 20, 2006
    ...[para. 93]. Aristorenas v. Comcare Health Services et al., [2004] O.T.C. 778 (Sup. Ct.), refd to. [para. 103]. Semeniuk v. Cox et al. (2000), 258 A.R. 73; 76 Alta. L.R.(3d) 30 (Q.B.), refd to. [para. Webb et al. v. Motta et al. (1998), 233 A.R. 9 (Q.B.), refd to. [para. 110]. Larter v. Frei......
  • Dickson et al. v. Pinder et al., 2010 ABQB 269
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • December 11, 2009
    ...Gallant v. Brake-Patten (2010), 292 Nfld. & P.E.I.R. 279; 902 A.P.R. 279; 2010 NLTD 1, refd to. [para. 77]. Semeniuk v. Cox et al. (2000), 258 A.R. 73; 2000 ABQB 18, refd to. [para. 78]. Seney v. Crooks et al. (1998), 223 A.R. 145; 183 W.A.C. 145; 1998 ABCA 316, refd to. [para. 79]. Buc......
  • Chae v. Min et al., 2001 ABQB 1107
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • December 7, 2001
    ...No. 1232, refd to. [para. 11]. Pettipas v. Klingbeil et al. (2000), 260 A.R. 1 (Q.B.), refd to. [para. 11]. Semeniuk v. Cox et al. (2000), 258 A.R. 73 (Q.B.), refd to. [para. R. v. Zundel (1987), 18 O.A.C. 161; 58 O.R.(2d) 129 (C.A.), refd to. [para. 11]. Sugden v. Lord St. Leonards, [1876]......
  • Request a trial to view additional results

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