A.T.-B. et al. v. Mah, (2012) 554 A.R. 272 (QB)

• Judge: Graesser, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 18, 2012
• Citations: (2012), 554 A.R. 272 (QB);2012 ABQB 777

A.T.-B. v. Mah (2012), 554 A.R. 272 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. AP.027

A.T.-B., an Infant by Her Next Friend, A.-L.T.-B., A.-L.T.-B., A.B., and Her Majesty the Queen in Right of Alberta (plaintiffs) v. Dr. May Sue Mah (defendant)

(0303 10430; 2012 ABQB 777)

Indexed As: A.T.-B. et al. v. Mah

Alberta Court of Queen's Bench

Judicial District of Edmonton

Graesser, J.

December 18, 2012.

Summary:

A child born by caesarian section in 2001 suffered severe, permanent brain damage resulting from a period of reduced oxygen supply. The child and her parents brought an action for damages against the defendant obstetrician/gynecologist for negligence in both prenatal care and in delivering the child. A number of other defendants were named (nurses and hospital), but those claims were settled prior to trial. The defendant denied negligence and causation.

The Alberta Court of Queen's Bench found the defendant negligent. But for the defendant's negligence, the catastrophic brain injury to the child could have been avoided. The now 11 year old child would require 24 hour care for the remaining estimated 50 years of her life. General damages for nonpecuniary loss were set at the 1978 trilogy maximum ($100,000), adjusted for inflation (approximately $350,000 in current dollars). Damages were assessed for loss of future income (child) and the cost of future care and treatment. The mother was awarded monies for lost past and future income.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Damage Awards - Topic 102

Injury and death - Head injuries - Brain damage - A child born in 2001 suffered severe, permanent brain damage due to a period of reduced oxygen supply - The now 11 year old child would require 24 hour care for the remaining 50 years of her life expectancy - She had impaired operation of all four limbs (spastic muscular hypertonia) as a consequence of cerebral palsy, requiring anticonvulsant drugs for her entire life - Her condition would worsen - She exhibited global and significant developmental delay - Her ability to communicate through sounds and hand signals was impaired, requiring interpretation (particularly her mother) - She had an impaired ability to sense her environment and simple tasks such as getting dressed or brushing her teeth, became long processes where the child often exhibited negative emotional reactions and refused to cooperate - She often became highly emotional, fell down, cried and hit and kicked - Her outbursts made her a safety risk to caregivers and others - The child rarely slept through the night, as she would wake up in distress and stay awake for several hours - Supervision and intervention were required in dressing, eating, toilet activities, hygiene and grooming - She needed assistance with stairs and getting in and out of chairs - The child would never become independent - She functioned at a low, virtually infantile level - The child would suffer from pain throughout her life, would never marry or work - Further surgeries would be required and her physical capacity would decline rather than improve - The child had the capacity to recognize some degree of loss of enjoyment of life - The Alberta Court of Queen's Bench held that "the Grand & Toy ceiling is wholly inadequate to compensate [the child] in dollar terms for her losses. She is ... one of those seriously injured plaintiffs whose injuries and their effect on her life entitle her to the maximum possible award of non-pecuniary damages" - General damages for nonpecuniary loss were set at the 1978 trilogy maximum ($100,000), adjusted for inflation (approximately $350,000 in current dollars) - See paragraphs 422 to 569.

Damage Awards - Topic 123

Injury and death - Head injuries - Cerebral palsy - [See Damage Awards - Topic 102 ].

Damage Awards - Topic 489

Injury and death - General damage awards - Cost of future care - In 2001, a child was born with severe, permanent brain damage caused by oxygen deprivation shortly before birth - The now 11 year old child had a life expectancy of a further 50 years and would require 24 hour a day care for the rest of her life - The Alberta Court of Queen's Bench held that damages for future care should focus on "physical activities that maintain her mobility and weight control, and [the child] learning skills that optimize her social interaction and cooperation with her primary caregivers" - Claims relating to the costs of formal education were not allowed, as the child would receive no tangible benefit from a formal education (i.e., no provision for educational services beyond those provided in public schools) - The court assessed damages for speech language pathology services and support, occupational therapy, psychological counselling and services, rehabilitation and care management, bathing, personal care and daily living resources, pharmaceuticals, transportation costs, orthotics and crutches, adapted bicycles, walkers, wheelchairs, household furniture and supplies, housing, 24 hour a day in home care - See paragraphs 574 to 731.

Damage Awards - Topic 489.3

Injury and death - General damage awards - Increased housing costs - In 2001, a child was born with severe, permanent brain damage caused by oxygen deprivation shortly before birth - The now 11 year old child had a life expectancy of a further 50 years and would require 24 hour a day care for the rest of her life - It was determined that it was best for the child to be cared for by her parents, rather than being institutionalized or sent to a group home - The family's present 840 sq. ft. bungalow was not sufficient to meet the child's future needs respecting safety and emotional health - The Alberta Court of Queen's Bench held that a substantially larger home was appropriate (1500 sq. ft.) - The court assessed damages to fund the building of a new, suitable residence to be $675,570 - From that amount was to be deducted the appraised market value of the family's present residence - See paragraphs 682 to 702.

Damage Awards - Topic 499

Injury and death - General damage awards - Transportation - [See Damage Awards - Topic 489 ].

Damages - Topic 1543

General damages - General damages for personal injury - Pain and suffering, loss of amenities and other non-pecuniary damages - The Alberta Court of Queen's Bench stated that "in reviewing the jurisprudence since the trilogy of cases in 1978, Grand & Toy et al., I have always been struck by the unfortunate extent to which many cases view the $100,000 inflation-adjusted maximum award as being an amount to be awarded only to those plaintiffs with the most devastating imaginable injuries. Often a general damages analysis hinges on whether counsel or the court can think of or invent a plaintiff whose injuries might be considered worse than those of the plaintiff in question. ... In personal injury cases, looking for the worst harm in the worst circumstances to the most vulnerable victim is an unfortunate and hopeless analysis. Is it worse to be blind or deaf? Quadriplegic or without much cognitive functioning? Is it worse to be conscious of your loss, or oblivious to it? These arguments are more philosophical thought experiments than legal analysis, and therefore a poor foundation on which to base useful jurisprudence. ... Further, the imposition in Grand & Toy of a cap or ceiling on non-pecuniary general damages was not a principled one, but rather a policy decision. It represented a quasi-legislated upper limit for catastrophic injuries. ... There were and remain valid reasons for doing so. However, there is no logical correlation between the dollar amount prescribed and appropriate compensation for the loss. ... the Grand & Toy general damages claim limit is a policy-based 'cap' rather than the 'award for the worst-case comparator' ... In my view, there is a range of situations where the impact of the catastrophic injuries on the particular plaintiff attracts the maximum possible award for non-pecuniary general damages." - See paragraphs 540 to 553.

Damages - Topic 1543.1

General damages - General damages for personal injury - Loss of future interdependent relationship - In 2001, a child was born with severe, permanent brain damage caused by oxygen deprivation shortly before birth - The now 11 year old child had a life expectancy of a further 50 years and would require 24 hour a day care for the rest of her life - At issue was whether the child should be awarded damages for the loss of an opportunity to marry or have an adult interdependent relationship - The claim was based on the rationale that a person entering marriage or such relationship who receive a benefit from the sharing of expenses by a two person household - The Alberta Court of Queen's Bench rejected the claim - The loss of opportunity to marry was best described as an incapacity to enter into a social structure of permanent financial interdependence - To obtain damages, the plaintiff had to establish that (1) the opportunity was lost and (2) that the lost opportunity would have offered economic advantage - The plaintiffs failed to satisfy the second requirement - The court held that it was not sufficient to merely present expert evidence showing that statistically, 72% of a husband's income was spent on shared expenses during a marriage - The evidence did not address the potential cost of this hypothetical marriage to the child - The court noted complications with the claim, being the frequency of divorce, the adverse economic consequences divorce (particularly to women), the increasing frequency of non-marriage relationship and their shorter duration, and the fact that marriage increased the probability of children, with the attendant significant economic cost - See paragraphs 751 to 756.

Damages - Topic 1548

General damages - For personal injury - Management of fund fee (investment counselling) - An infant born with catastrophic brain damage received a large lump sum damage award to be supervised by her parents - The monies would need to be invested - The parents, although both professionals, lacked the financial expertise to manage a fund of that size - Accordingly, it was appropriate to retain a professional financial manager to invest the funds - The parents sought a management fee of $482,883 to $630,444, with the range reflecting a number of variables including life expectancy and institution fees - The defendant opposed a fee, where an investment manager ought to be able to increase the fund's return to a point that management results in a "net profit" - The Alberta Court of Queen's Bench held that a management fee was not appropriate - Using a professional financial manager would result in a greater return (even after the fund paid management fees) than the return the parents could obtain by themselves - See paragraphs 655 to 658.

Medicine - Topic 4241.2

Liability of practitioners - Negligence - Causation - [See Medicine - Topic 4252.2 ].

Medicine - Topic 4251.3

Liability of practitioners - Negligence or fault - Failure to follow up (incl. missed appointments) - An expectant mother had her initial visit with the defendant obstetrician/gynecologist on May 22 - The defendant's standard procedure was to see the mother again in two weeks (June 5) - The defendant's receptionist negligently told the mother her appointment was June 15 - When the mother did not appear June 5, the defendant and her staff followed their standard procedure of not contacting the patient to see why she missed her scheduled appointment - The Alberta Court of Queen's Bench held that the "responsibilities of a doctor includes an investigation into the reason why a patient missed a scheduled appointment. ... A doctor should note a patient's failure to appear, review that patient's file and attempt to contract that patient. ... A forgetful patient or miscommunication can have serious consequences for that patient and their health and that of their fetus" - The doctor, as employer, was vicariously liable for the receptionist's negligence - See paragraphs 272 to 273.

Medicine - Topic 4252.2

Liability of practitioners - Negligence or fault - Obstetrical or gynaecological care - An expectant mother's initial May 22 visit to the defendant obstetrician/gynecologist left her dissatisfied, as she was concerned with the child's small size and reduced fetal movement - The mother alleged that the defendant failed to detect fetal growth restriction and stress - The defendant's receptionist negligently scheduled a second appointment for June 15 rather than the customary two weeks (June 5) - When the mother did not show on June 5, she was not called - On June 12, after experiencing vaginal bleeding, the mother was told to go to the hospital, where she was prepared for a caesarian section - However, the defendant first induced the mother to see if a vaginal delivery was possible - When that failed, a caesarian section was performed - The child was born with severe, permanent brain damage (cerebral palsy) caused by a period of oxygen deprivation - The child would require 24 hour care for the rest of her estimated life (61 years) - The Alberta Court of Queen's Bench found the defendant negligent - Causation was established where, but for the negligence, the brain damage would not have happened - As of May 22, the child was experiencing reduced growth and development due to intrauterine growth restriction - This created a high risk pregnancy requiring an immediate caesarian section upon admission on June 12 - But for the receptionist's negligence (defendant vicariously liable), the defendant would have detected the risk on June 5 and arranged an earlier caesarian section (around June 10) - On June 12, as the foetus was clearly in distress, the doctor was negligent in attempting to induce a vaginal delivery without first investigating the health and condition of the child - The result was a 2.5 hour delay in the caesarian section - The court accepted that the interrupted oxygen supply that caused the brain damage occurred during the period of induced labour due to the contractions associated with the attempt to induce vaginal delivery - But for that decision, the brain damage could have been avoided - See paragraphs 1 to 408.

Cases Noticed:

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

Neuzen v. Korn, [1995] 3 S.C.R. 674; 188 N.R. 161; 64 B.C.A.C. 241; 105 W.A.C. 241; 127 D.L.R.(4th) 577, refd to. [para. 84].

St-Jean v. Mercier, [2002] 1 S.C.R. 491; 282 N.R. 310; 2002 SCC 15, refd to. [para. 84].

Stoddard v. Montague et al. (2006), 412 A.R. 88; 404 W.A.C. 88; 2006 ABCA 109, refd to. [para. 86].

Ares v. Venner, [1970] S.C.R. 608, refd to. [para. 88].

R. v. O'Neil (B.) (2012), 524 A.R. 351; 545 W.A.C. 351; 2012 ABCA 162, refd to. [para. 88].

Kolesar Estate v. Brant (Joseph) Memorial Hospital and Malette, [1978] 1 S.C.R. 491; 15 N.R. 302; 77 D.L.R.(3d) 161, refd to. [para. 88].

Waap v. Alberta et al., [2008] A.R. Uned. 604; 95 Alta. L.R.(4th) 167; 2008 ABQB 544, refd to. [para. 89].

671122 Ontario Ltd. v. Sagaz Industries Canada Inc. et al., [2001] 2 S.C.R. 983; 274 N.R. 366; 150 O.A.C. 12; 2001 SCC 59, refd to. [para. 272].

Guest v. Bonderove & Co. et al. (1988), 88 A.R. 277; 1988 ABCA 105, refd to. [para. 316].

Blackwater et al. v. Plint et al., [2001] B.C.T.C. 997; 93 B.C.L.R.(3d) 228; 2001 BCSC 997, varied (2003), 192 B.C.A.C. 1; 315 W.A.C. 1; 235 D.L.R.(4th) 60; 2003 BCCA 671, affd. [2005] 3 S.C.R. 3; 339 N.R. 355; 216 B.C.A.C. 24; 356 W.A.C. 24; 2005 SCC 58, refd to. [para. 317].

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; 2005 SCC 48, refd to. [para. 318].

Clements v. Clements (2012), 431 N.R. 198; 331 B.C.A.C. 1; 565 W.A.C. 1; 346 D.L.R.(4th) 577; 2012 SCC 32, refd to. [para. 320].

Admiralty Commissioners v. S.S. Susquehanna, [1926] A.C. 655, refd to. [para. 538].

West & Son Ltd. v. Shephard, [1964] A.C. 326, refd to. [para. 538].

Andrews et al. v. Grand and 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, refd to. [para. 538].

Krangle v. Brisco et al., [2002] 1 S.C.R. 205; 281 N.R. 88; 161 B.C.A.C. 283; 263 W.A.C. 283; 2002 SCC 9, refd to. [para. 539].

Milina v. Bartsh (1985), 49 B.C.L.R.(2d) 33; 33 A.C.W.S.(2d) 257 (S.C.), affd. (1987), 49 B.C.L.R.(2d) 99; 6 A.C.W.S.(3d) 233 (C.A.), refd to. [para. 539].

Penner v. Silk et al., [2011] B.C.A.C. Uned. 50; 17 B.C.L.R.(5th) 244; 2011 BCCA 135, refd to. [para. 539].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1; 126 D.L.R.(4th) 129, refd to. [para. 545].

Walker and Walker Brothers Quarries Ltd. v. CFTO Ltd. (1987), 19 O.A.C. 10; 59 O.R.(2d) 104; 37 D.L.R.(4th) 224 (C.A.), refd to. [para. 545].

R. v. W. (2003), 22 Alta. L.R.(4th) 178; 2003 ABQB 50, refd to. [para. 550].

Whiten v. Pilot Insurance Co. et al., [2002] 1 S.C.R. 595; 283 N.R. 1; 156 O.A.C. 201; 2002 SCC 18, refd to. [para. 551].

Sandhu v. Wellington Place Apartments et al. (2008), 234 O.A.C. 200; 2008 ONCA 215; 291 D.L.R.(4th) 220, refd to. [para. 552].

Steinebach v. Fraser Health Authority et al., [2010] B.C.T.C. Uned. 832; 2010 BCSC 832, varied (2011), 310 B.C.A.C. 142; 526 W.A.C. 142; 2011 BCCA 302, leave to appeal denied (2012), 434 N.R. 394 (S.C.C.), refd to. [para. 558].

Phillip v. Whitecourt General Hospital et al. (2004), 359 A.R. 259; 2004 ABQB 761, dist. [para. 560].

Gordon v. Harmon (1999), 246 A.R. 305; 1999 ABQB 354, dist. [para. 561].

MacCabe v. Board of Education of Westlock Roman Catholic Separate School District No. 110 et al. (1998), 226 A.R. 1; 69 Alta. L.R.(3d) 1 (Q.B.), varied (2001), 293 A.R. 41; 257 W.A.C. 41; 2001 ABCA 257, refd to. [para. 573].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 174 D.L.R.(4th) 193, refd to. [para. 576].

D.B.S. v. S.R.G., [2006] 2 S.C.R. 231; 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 2006 SCC 37, refd to. [para. 577].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 578].

Jarmson v. Jacobsen, [2012] B.C.T.C. Uned. 64; 2012 BCSC 64, refd to. [para. 617].

Moore v. British Columbia (Education) - see British Columbia (Minister of Education) v. Moore et al.

British Columbia (Minister of Education) v. Moore et al. (2012), 436 N.R. 152; 328 B.C.A.C. 1; 558 W.A.C. 1; 2012 SCC 61, refd to. [para. 625].

Labrecque v. Heimbeckner et al. (2007), 434 A.R. 181; 2007 ABQB 501, refd to. [para. 628].

Fullerton v. Delair et al. (2006), 228 B.C.A.C. 291; 376 W.A.C. 291; 2006 BCCA 339, refd to. [para. 629].

Chernetz Estate et al. v. Eagle Copters Maintenance Ltd. et al. (2008), 437 A.R. 104; 433 W.A.C. 104; 2008 ABCA 265, refd to. [para. 657].

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.739].

Ediger v. Johnston et al., [2009] B.C.T.C. Uned. 386; 65 C.C.L.T.(3d) 1; 2009 BCSC 386, revd. (2011), 305 B.C.A.C. 271; 515 W.A.C. 271; 333 D.L.R.(4th) 633; 2011 BCCA 253, leave to appeal granted (2012), 433 N.R. 392 (S.C.C.), refd to. [para. 739].

Reekie v. Messervey (1989), 59 D.L.R.(4th) 481; 36 B.C.L.R.(2d) 316 (C.A.), varied [1990] 1 S.C.R. 219; 104 N.R. 387; 66 D.L.R.(4th) 765, refd to. [para. 755].

Belyea v. Hammond (2000), 231 N.B.R.(2d) 305; 597 A.P.R. 305; 193 D.L.R.(4th) 476; 2000 NBCA 41, refd to. [para. 755].

Hartwick v. Simser, [2004] O.T.C. 917; 134 A.C.W.S.(3d) 825 (Sup. Ct.), refd to. [para. 757].

Counsel:

Joseph V. Miller, Q.C., and Paulette M. DeKelver (Weir Bowen LLP), for the plaintiffs;

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

This action was heard on April 16 to May 18, 2012, before Graesser, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on December 18, 2012.