Webb et al. v. Motta et al., (1998) 233 A.R. 9 (QB)

• Judge: Sullivan, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 07, 1998
• Citations: (1998), 233 A.R. 9 (QB)

Webb v. Motta (1998), 233 A.R. 9 (QB)

MLB headnote and full text

Temp. Cite: [1998] A.R. TBEd. DE.092

Carol Lynn Webb and Randall John Harnack (plaintiffs) v. Dr. James A.T. Motta, Resident Dr. F. Black, Resident Dr. L. Prysunka, Resident Dr. John Doe, Dr. J.F. (Ted) Thaell, Dr. J.G. Watterson, Dr. John Does 1 to 4, Dr. Jane Does 1 to 4, Clinic Clerk, Dr. John Doe, Nurses Jane Doe 1 to 10 and the Calgary General Hospital Peter Lougheed Centre (defendants)

(Action No. 9501-00973)

Indexed As: Webb et al. v. Motta et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Sullivan, J.

December 7, 1998.

Summary:

The plaintiff's cecum was perforated during a cesarian section. She was diagnosed late and had significant problems with intra-abdominal abscesses requiring emergency surgery and numerous other operations. She brought a medical malpractice suit against her gynaecologist.

The Alberta Court of Queen's Bench held that the gynaecologist was negligent with respect to his post operative care and his failure to diagnose. The court awarded Webb, inter alia, $100,000 general damages.

Damage Awards - Topic 55

Injury and death - Body injuries - Abdo­men - The plaintiff sued her gynaecologist for medical malpractice - Her cecum was perforated during a cesarian section - She was diagnosed late and had significant problems with intra-abdominal abscesses requiring emergency surgery and numerous other operations - She was rendered totally incapacitated and was hospitalized for seven weeks - Her abdomen was permanently scarred - She could no longer exercise her stomach or abdominal area for fear of doing injury and because of the pain - She was now a prime candi­date for a hernia - Her sexual relationship with her husband had ceased - She lost weight to the extent that at one point, she weighed 75 pounds - She could only do minor chores to help her husband in his farming operation - The Alberta Court of Queen's Bench awarded the plaintiff $100,000 general damages - See para­graphs 103 to 107.

Damage Awards - Topic 63

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

Damage Awards - Topic 205

Injury and death - Psychological injuries -Mental distress (incl. nervous shock) - The plaintiff's cecum was perforated dur­ing a cesarian section - She was diagnosed late and had significant problems requiring emergency surgery and numerous other operations - She was totally incapacitated and hospitalized for seven weeks - The plaintiff and her husband brought a medi­cal malpractice suit against the gynae­cologist - The husband claimed nervous shock - The Alberta Court of Queen's Bench allowed the claim where the hus­band would be expected to suffer stress having just become a father of a new-born baby and finding that the mother would be unable to accompany their child home because she was undergoing serious and extreme medical complications - The court awarded the husband $10,000 - See para­graph 101.

Damages - Topic 2542

Torts affecting the person - Particular damage claims - Nervous shock - [See Damage Awards - Topic 205 ].

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - The plaintiff's cecum was perforated during a cesarian section - She was diagnosed late and had significant problems with intra-abdominal abscesses requiring emergency surgery and numerous other operations - She brought a medical practice suit against her gynaecologist - The Alberta Court of Queen's Bench held that the gynaecologist's negligence in failing to establish a diagnosis during post-operative care caused the plaintiff's subsequent injuries - But for the gynae­cologist's negligence, the plaintiff would have been diagnosed earlier and early treatment and intervention would have remedied the situation - See paragraphs 91 to 95.

Medicine - Topic 4242

Liability of practitioners - Negligence or fault - Standard of care - The 39 year old plain­tiff was preg­nant with her first child -She underwent a cesarian section - Her cecum was per­forated during surgery - She was diag­nosed late and had significant prob­lems with intra-abdominal abscesses requiring emergency surgery and numerous other operations - She brought a medical mal­prac­tice suit against her gynaecologist -The gynaecologist was a specialist who only took the number of patients to whom he could provide adequate and proper service - The Alberta Court of Queen's Bench held that the standard of care was high in these kind of cases because the plaintiff was a very particular kind of patient with special problems that required the atten­tion of the gynaecologist in his capacity as a specialist - See paragraph 83.

Medicine - Topic 4251

Liability of practitioners - Negligence or fault - Failure to diagnose an injury - The plaintiff's cecum was perforated during a cesarian section - She was diagnosed late and had significant problems with intra-abdominal abscesses requiring emergency surgery and numerous other operations - She brought a medical malpractice suit against her gynaecologist - The Alberta Court of Queen's Bench held that the gynaecologist was negligent in failing to make a diag­nosis during post-operative care - His post-operative examinations of the plain­tiff were cursory - He failed to properly diagnose, to employ reasonable and avail­able aids to diagnose and simply did not give sufficient care or attention to the plaintiff - Simple tools such as x-rays and detailed consultation and analysis with fellow physicians and specialists were not employed - Moreover, he failed to heed the warning of a doctor to watch for infection - See paragraphs 84 to 95.

Medicine - Topic 4252.2

Liability of practitioners - Negligence or fault - Obstetrical or gynaecological care - [See Medicine - Topic 4251 ].

Medicine - Topic 4254

Liability of practitioners - Negligence or fault - Post-operative care - [See Medi­cine - Topic 4251 ].

Medicine - Topic 4260.2

Liability of practitioners - Negligence or fault - Medical records - Following sur­gery, a gynaecologist failed to make nota­tions on hospitals charts or records or communicate in writing his thoughts, plan or diagnosis to any nurse, resident or other professional - The Alberta Court of Queen's Bench noted that in some circum­stances, failure to take, make and preserve adequate, reasonable, complete and legible notes could in itself constitute negligence -See paragraphs 108 to 111.

Cases Noticed:

Hygaard v. Gailiunas (1997), 202 A.R. 161 (Q.B.), refd to. [para. 82].

Guy v. Grosfield, [1994] O.J. No. 1965 (Gen. Div.), refd to. [para. 84].

Rose v. Dugon et al. (1990), 108 A.R. 352 (Q.B.), refd to. [para. 88].

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; [1996] 1 W.W.R. 97, refd to. [para. 92].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94; 72 D.L.R.(4th) 289; 4 C.C.L.T.(2d) 229, refd to. [para. 95].

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. 110].

Brant (Joseph) Memorial Hospital v. Koziol - see Kolesar Estate v. Brant (Joseph) Memorial Hospital and Malette.

Kolesar v. Jeffries - see Kolesar Estate v. Brant (Joseph) Memorial Hospital and Malette.

Authors and Works Noticed:

Meagher, Arthur J., Meagher, Ronald A., and Marr, Peter J., Doctors in Hospitals: Legal Duties, p. 281 [para. 108].

Counsel:

Virginia M. May, Q.C., for the plaintiffs;

Valerie Prather, for the defendant, Dr. J. Motta.

This action was heard before Sullivan, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on December 7, 1998.