Timlick v. Heywood, 2015 MBQB 148

• Judge: Hanssen, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: September 04, 2015
• Jurisdiction: Manitoba
• Citations: 2015 MBQB 148;(2015), 320 Man.R.(2d) 277 (QB)

Timlick v. Heywood (2015), 320 Man.R.(2d) 277 (QB)

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. SE.011

Jason Timlick (plaintiff) v. Neil Heywood (defendant)

(CI 11-01-71962; 2015 MBQB 148)

Indexed As: Timlick v. Heywood

Manitoba Court of Queen's Bench

Winnipeg Centre

Hanssen, J.

September 4, 2015.

Summary:

Timlick was born in 1983 with a very large head. For most of his life, Timlick suffered from psychological, cognitive, executive functioning and neurological problems. In 2007, Timlick was diagnosed with and treated for a hydrocephalic condition that had been present since birth. Heywood was Timlick's family doctor and the doctor who delivered Timlick. Timlick sued Heywood, alleging that he was negligent in failing to refer Timlick to a neurologist or for a head ultrasound as an infant and seeking damages due to the delay in treatment.

The Manitoba Court of Queen's Bench, having found that Heywood breached the duty of care, awarded Timlick general damages of $25,000, arising from the delay in diagnosis. The court rejected Timlick's claims for recovery of his Manitoba Health Services Commission account of $8,167.80 and for loss of income.

Damage Awards - Topic 459

Injury and death - Special damage awards - Medical and hospital costs - Timlick was born in 1983 with a very large head - For most of his life, Timlick suffered from psychological, cognitive, executive functioning and neurological problems - In 2007, Timlick was diagnosed with and treated for a hydrocephalic condition that had been present since birth - Heywood was Timlick's family doctor and the doctor who delivered Timlick - Timlick sued Heywood, alleging that he was negligent in failing to refer Timlick to a neurologist or for a head ultrasound as an infant and seeking damages due to the delay in treatment - The Manitoba Court of Queen's Bench, having found that Heywood breached the duty of care, awarded Timlick general damages of $25,000, arising from the delay in diagnosis - The court rejected Timlick's claim for recovery of his Manitoba Health Services Commission account of $8,167.80, which was incurred for hospital and medical claims between 1992 and 2008 - Those expenses were not attributable to Heywood's negligence and were unrelated to any delay in the diagnosis - See paragraph 49.

Damage Awards - Topic 492.1

Injury and death - General damage awards - Pretrial income loss - Timlick was born in 1983 with a very large head - For most of his life, Timlick suffered from psychological, cognitive, executive functioning and neurological problems - In 2007, Timlick was diagnosed with and treated for a hydrocephalic condition that had been present since birth - Heywood was Timlick's family doctor and the doctor who delivered Timlick - Timlick sued Heywood, alleging that he was negligent in failing to refer Timlick to a neurologist or for a head ultrasound as an infant and seeking damages due to the delay in treatment -The Manitoba Court of Queen's Bench, having found that Heywood breached the duty of care, awarded Timlick general damages of $25,000, arising from the delay in diagnosis - The court rejected Timlick's claim for loss of income - Timlick was not employed due to his executive functioning deficits - These were caused by his hydrocephalic condition and not by the failure to diagnose it - See paragraph 50.

Damage Awards - Topic 493

Injury and death - General damage awards - Loss of prospective earnings - [See Damage Awards - Topic 492.1 ].

Damage Awards - Topic 634

Torts - Injury to the person - Medical or dental malpractice - [See first Medicine - Topic 4241.2 ].

Damages - Topic 530

Limits of compensatory damages - Remoteness - Torts - Recoverable damages - Direct consequences of fault - [See Damage Awards - Topic 459 , Damage Awards - Topic 492.1 and first Medicine - Topic 4241.2 ].

Damages - Topic 1410

Special damages - Loss of wages/income - General - [See Damage Awards - Topic 492.1 ].

Damages - Topic 1440

Special damages - Medical and hospital - [See Damage Awards - Topic 459 ].

Medicine - Topic 4241.2

Liability of practitioners - Negligence - Causation - Timlick was born in 1983 with a very large head - For most of his life, Timlick suffered from psychological, cognitive, executive functioning and neurological problems - In 2007, Timlick was diagnosed with and treated for a hydrocephalic condition that had been present since birth - Heywood was Timlick's family doctor and the doctor who delivered Timlick - Timlick sued Heywood, alleging that he was negligent in failing to refer Timlick to a neurologist or for a head ultrasound as an infant and seeking damages due to the delay in treatment - The Manitoba Court of Queen's Bench, having found that Heywood breached the duty of care, awarded Timlick general damages of $25,000, arising from the delay in diagnosis - Most of the damage to Timlick's brain had taken place by the time Timlick was six months old - However, at that point, Timlick did not have the clinical findings that would have justified the insertion of a shunt - An earlier diagnosis would not have affected Timlick's psychological and executive functioning problems - However, there was improvement in Timlick's cognitive and neurological problems following his surgical treatment in 2007 - If surgery had been performed earlier, Timlick would have experienced an earlier improvement in his neurological and cognitive conditions - See paragraphs 22 to 48.

Medicine - Topic 4241.2

Liability of practitioners - Negligence - Causation - [See Torts - Topic 54 ].

Medicine - Topic 4242

Liability of practitioners - Negligence or fault - Standard of care - [See Medicine - Topic 4250 ].

Medicine - Topic 4249

Liability of practitioners - Negligence or fault - Referrals (incl. failure to refer) - [See Medicine - Topic 4250 ].

Medicine - Topic 4250

Liability of practitioners - Negligence or fault - Failure to diagnose an illness or condition (incl. wrong diagnosis) - Timlick was born in 1983 with a very large head - For most of his life, Timlick suffered from psychological, cognitive, executive functioning and neurological problems - In 2007, Timlick was diagnosed with and treated for a hydrocephalic condition that had been present since birth - Heywood was Timlick's family doctor and the doctor who delivered Timlick - Timlick sued Heywood, alleging that he was negligent in failing to refer Timlick to a neurologist or for a head ultrasound as an infant and seeking damages due to the delay in treatment - The Manitoba Court of Queen's Bench found that Heywood breached his duty of care to Timlick by not appreciating the significance of the head measurements that Heywood had charted and by failing to undertake further investigation - Heywood had never considered the possibility that Timlick was suffering from hydrocephalus - See paragraphs 12 to 21.

Torts - Topic 54

Negligence - Causation - Test for (incl. "but for" test and "material contribution" test) - Timlick was born in 1983 with a very large head - For most of his life, Timlick suffered from psychological, cognitive, executive functioning and neurological problems - In 2007, Timlick was diagnosed with and treated for a hydrocephalic condition that had been present since birth - Heywood was Timlick's family doctor and the doctor who delivered Timlick - Timlick sued Heywood, alleging that he was negligent in failing to refer Timlick to a neurologist or for a head ultrasound as an infant and seeking damages due to the delay in treatment - Timlick asserted that this was one of the exceptional cases where he should be able to recover on the basis of "material contribution to risk of injury" without having to show factual "but for" causation - The Manitoba Court of Queen's Bench rejected the argument - This was a simple single defendant case - There were no special circumstances that justified disregarding the "but for" test - Applying a "but for" approach did not offend the basic notions of fairness and justice - See paragraph 27.

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, refd to. [para. 13].

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. 24].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 24].

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. 25].

Clements v. Clements, [2012] 2 S.C.R. 181; 431 N.R. 198; 2012 SCC 32, refd to. [para. 26].

Counsel:

Robert L. Tapper, Q.C., and Shauna McCarthy, for the plaintiff;

G. Todd Campbell, Nicole M. Watson and William Haight, for the defendant.

This action was heard by Hanssen, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on September 4, 2015.