Sicard et al. v. Sendziak, 2008 ABQB 690

• Judge: Verville, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 07, 2008
• Citations: 2008 ABQB 690;(2008), 458 A.R. 145 (QB)

Sicard v. Sendziak (2008), 458 A.R. 145 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. NO.047

Arthur Sicard and Her Majesty The Queen in Right of Alberta (plaintiffs) v. Joseph Sendziak (defendant)

(0103-09931; 2008 ABQB 690)

Indexed As: Sicard et al. v. Sendziak

Alberta Court of Queen's Bench

Judicial District of Edmonton

Verville, J.

November 7, 2008.

Summary:

The defendant orthopaedic surgeon performed surgery (L4 laminectomy and bilateral discectomy) on the plaintiff for a back injury. The plaintiff alleged that complications from the surgery (long thoracic nerve injury) resulted in shoulder discomfort. The plaintiff brought a negligence action for damages against the surgeon, submitting that surgery was the wrong procedure (proper procedure was fusion). The surgeon submitted that the procedure was appropriate to address the sciatica suffered by the plaintiff and, in any event, the failure to perform fusion, if appropriate, would at most be an error in clinical judgment that was not actionable.

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

Medicine - Topic 3045

Relation with patient - Consent to treatment - What constitutes informed consent - [See first Medicine - Topic 4248 ].

Medicine - Topic 3052

Relation with patient - Consent to treatment - Standard of disclosure by doctor - The Alberta Court of Queen's Bench stated that a doctor "was under a duty to advise the [patient] of the diagnosis and the material, special or unusual risks associated with the proposed procedure ... Material risks include those which, although extremely rare, represent very serious consequences for the patient. A study of the case law indicates that it is not possible to predict whether a risk is considered material solely on the basis of statistics, as courts have occasionally found extremely remote risks, based on statistical occurrence, to be material ... and less remote risks to be immaterial." - See paragraphs 112.

Medicine - Topic 4241.1

Liability of practitioners - Negligence or fault - Negligence distinguished from errors in judgment - The Alberta Court of Queen's Bench distinguished between a doctor's negligence and errors of judgment - See paragraphs 108 to 110.

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - [See first Medicine - Topic 4248 ].

Medicine - Topic 4248

Liability of practitioners - Negligence or fault - Failure to inform or disclose (incl. treatment choices) - In 1998, the 45 year old plaintiff suffered a work-related back injury - Conservative treatments did not resolve his low back pain and he developed increasingly painful leg pain (sciatica) - The plaintiff was referred to the defendant orthopaedic surgeon - Tests conducted over several months indicated sciatica and a disc problem - The surgeon recommended decompression surgery - Neither fusion nor less drastic conservative procedures were considered - Following surgery the plaintiff suffered from a long thoracic nerve injury, which caused shoulder discomfort - The plaintiff brought a negligence action for damages, submitting that the surgeon mis-diagnosed his condition, that fusion was the appropriate procedure, and that although the decompression procedure was not negligently performed and the material risks were adequately explained, his informed consent was not obtained where he was not advised of the option of alternative conservative procedures - The Alberta Court of Queen's Bench dismissed the plaintiff's action - The surgeon took reasonable care in diagnosing the plaintiff's condition through multiple tests and observations over some months - Decompression surgery was the appropriate treatment for sciatica - The court was satisfied that the surgeon, as was his usual practice, advised the plaintiff of the option of continuing the conservative treatment which had not resolved the problem in the previous 11 months - The surgeon met the standard of care in diagnosing the plaintiff, in recommending surgery, and in obtaining the plaintiff's informed consent - Even if the plaintiff was not adequately informed, on the basis of a modified objective test, a reasonable person would have undergone the recommended surgery - Although unnecessary to decide, the court opined that the plaintiff failed to prove that if the surgeon was negligent, there was a causal connection between his negligence and the injury suffered.

Medicine - Topic 4248

Liability of practitioners - Negligence or fault - Failure to inform or disclose (incl. treatment choices) - The Alberta Court of Queen's Bench stated that "the duty to inform the patient of available alternatives to the treatment being proposed is now well established ... This duty extends to informing of alternatives and their material risks assuming a reasonable person in the patient's circumstances would want to be so informed, and assuming the alternative offers some prospect of therapeutic benefit. This is especially true where there are more conservative, less risky treatments available ... The physician has a duty not only to present the alternatives, but to provide a recommendation." - See paragraph 111.

Medicine - Topic 4250

Liability of practitioners - Negligence or fault - Failure to diagnose an illness or condition (incl. wrong diagnosis) - [See first Medicine - Topic 4248 ].

Cases Noticed:

Haughian v. Paine (1987), 55 Sask.R. 99; 37 D.L.R.(4th) 624 (C.A.), refd to. [para. 44].

Seney v. Crooks et al. (1998), 223 A.R. 145; 183 W.A.C. 145; 1998 ABCA 316, refd to. [para. 45].

Nattrass et al. v. Weber et al. (2008), 444 A.R. 303; 2008 ABQB 259, refd to. [para. 46].

Zaiffdeen v. Chua et al. (2005), 380 A.R. 200; 363 W.A.C. 200; 2005 ABCA 290, refd to. [para. 47].

van Mol et al. v. Ashmore (1999), 116 B.C.A.C. 161; 190 W.A.C. 161; 1999 BCCA 6, leave to appeal denied (2000), 252 N.R. 393; 138 B.C.A.C. 269; 226 W.A.C. 269 (S.C.C.), refd to. [para. 47].

Harris v. Kuntz, [1993] B.C.T.C. Uned. 953 (S.C.), refd to. [para. 47].

Skeels Estate et al. v. Iwashkiw et al., [2006] A.R. Uned. 344; 63 Alta. L.R.(4th) 26; 2006 ABQB 335, refd to. [para. 48].

Williamson v. Kozak et al. (2003), 345 A.R. 274; 2003 ABQB 953, refd to. [para. 48].

Tetterington v. Wiens et al. (1995), 165 A.R. 6; 89 W.A.C. 6 (C.A.), leave to appeal refused (1995) 195 N.R. 400; 181 A.R. 80; 116 W.A.C. 80 (S.C.C.), refd to. [para. 51].

Wilson v. Swanson, [1956] S.C.R. 804, refd to. [para. 52].

Keller v. Penkoske et al. (1999), 256 A.R. 1; 1999 ABQB 912, affd. (2004), 348 A.R. 54; 321 W.A.C. 54 (C.A.), refd to. [para. 52].

Neuzen v. Korn, [1995] 3 S.C.R. 674; 188 N.R. 161; 64 B.C.A.C. 241; 105 W.A.C. 241, refd to. [para. 75].

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

Goodwin v. Brady [1991] B.C.T.C. Uned. 883; 7 C.C.L.T.(2d) 319 (S.C.), affd. (1994), 41 B.C.A.C. 147; 66 W.A.C. 147 (C.A.), refd to. [para. 52].

Kaban v. Sett and Salvation Army Grace General Hospital (1993), 90 Man.R.(2d) 26 (Q.B.), affd. [1994] 10 W.W.R. 620; 97 Man.R.(2d) 185; 79 W.A.C. 185 (C.A.), leave to appeal denied (1995), 189 N.R. 240; 102 Man.R.(2d) 320; 93 W.A.C. 320 (S.C.C.), refd to. [para. 52].

Mang Estate et al. v. Moscovitz, Estep, Hesson, Tulloch and Calgary General Hospital (1982), 37 A.R. 221 (Q.B.), refd to. [para. 53].

Halkyard et al. v. Mathew et al. (2001), 277 A.R. 373; 242 W.A.C. 373; 2001 ABCA 67, refd to. [para. 54].

Reibl v. Hughes, [1980] 2 S.C.R. 880; 33 N.R. 361, refd to. [para. 54].

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. 55].

McArdle Estate v. Cox et al. (2003), 327 A.R. 129; 296 W.A.C. 129; 2003 ABCA 106, refd to. [para. 55].

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. [para. 55].

Aristorenas v. Comcare Health Services et al. (2006), 216 O.A.C. 161; 274 D.L.R.(4th) 304 (C.A.), leave to appeal refused (2007), 368 N.R. 394; 233 O.A.C. 398 (S.C.C.), refd to. [para. 55].

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 (C.A.), leave to appeal denied (1999), 252 N.R. 194; 255 A.R. 397; 220 W.A.C. 397 (S.C.C.), refd to. [para. 105].

Felix v. Red Deer Regional Hospital Centre, 2001 ABQB 545, refd to. [para. 108].

Hajgato v. London Health Association et al. (1982), 36 O.R.(2d) 669 (H.C.), affd. (1983), 44 O.R.(2d) 264 (C.A.), refd to. [para. 109].

Brock v. Anderson et al., [2003] B.C.T.C. 1359; 2003 BCSC 1349, refd to. [para. 111].

Bauer v. Seager et al. (2000), 147 Man.R.(2d) 1; 2000 MBQB 113, refd to. [para. 111].

Laferrière v. Lawson, [1991] 1 S.C.R. 541; 123 N.R. 325; 38 Q.A.C. 161, refd to. [para. 112].

Leung v. Campbell (1995), 24 C.C.L.T.(2d) 63 (Ont. Gen. Div.), refd to. [para. 112].

Rose v. Dugon et al. (1990), 108 A.R. 352 (Q.B.), refd to. [para. 113].

Authors and Works Noticed:

Picard, Ellen I., and Robertson, Gerald B., Legal Liability of Doctors and Hospitals in Canada (3rd Ed. 1996), p. 184 [para. 51].

Picard, Ellen I., and Robertson, Gerald B., Legal Liability of Doctors and Hospitals in Canada (4th Ed. 2007), pp. 301 to 304 [para. 107].

Counsel:

David De Vere (Weir Bowen LLP), for the plaintiffs;

Rose Carter, Q.C. (Bennett Jones LLP), for the defendant.

This action was heard on September 15 and 24, 2008, before Verville, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on November 7, 2008.