Young v. Regina District Health Board et al., (2010) 356 Sask.R. 1 (QB)

• Judge: Gunn, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: July 07, 2010
• Jurisdiction: Saskatchewan
• Citations: (2010), 356 Sask.R. 1 (QB);2010 SKQB 242

Young v. Health Bd. (2010), 356 Sask.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2010] Sask.R. TBEd. JL.023

Heather Young (plaintiff) v. The Regina District Health Board, operating as the Regina General Hospital and Dr. J. Peter Urbanski (defendants)

(2000 Q.B.G. No. 3361; 2010 SKQB 242)

Indexed As: Young v. Regina District Health Board et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Gunn, J.

July 7, 2010.

Summary:

A doctor, while conducting an investigative laparoscopy, removed an ovarian cyst from the plaintiff and negligently removed a portion of her ureter. The plaintiff required emergency surgery two days later and subsequent surgical procedures involving stents in her ureter. The plaintiff suffered 31 months of pain and discomfort and eventually one of her kidneys had to be removed. The plaintiff sued the doctor in negligence for damages. The plaintiff claimed that notwithstanding her pre-existing debilitating condition which disabled her from working from 1994 to date of surgery in 2000, the negligence caused further and significant loss. The plaintiff claimed that, at the time of the 2000 surgery, her pre-existing health problems had improved to the point that there was a possibility of her returning to employment. The plaintiff alleged that the negligent surgery foreclosed that future possibility. The doctor admitted negligence, but denied that his negligence caused or contributed to the injuries and damages claimed (i.e., her post-surgery health and prospects of future employment were no different that her pre-surgery situation).

The Saskatchewan Court of Queen's Bench allowed the action. For the lost kidney and ureter (and the multiple surgeries, 31 months of pain and discomfort, etc., involved), the court awarded $175,000 general damages for non-pecuniary loss, being 50% of the present trilogy limit of $300,000. Although the health effects of the negligence were significant, the "crumbling skull" rule applied, making the doctor not liable for the pre-existing debilitating health conditions that the plaintiff suffered from, and would continue to suffer from, even absent the negligent surgery. The claim for pretrial loss of income and loss of future earning capacity was denied, as the plaintiff failed to prove that she had a realistic chance of ever returning to work even if the negligent surgery had never occurred. The plaintiff was awarded, inter alia, $10,000 for pretrial housekeeping costs, $273,874.26 for the cost of future care and personal assistance and $35,070 and $42,084 respectively for the cost of personal services provided by two neighbours between the date of surgery and the date of trial.

Damage Awards - Topic 59

Injury and death - Body injuries - Pelvis and pubic bones (incl. hip and urinary tract) - [See Damage Awards - Topic 61 ].

Damage Awards - Topic 61

Injury and death - Body injuries - Kidney - In 2000, a doctor conducting an investigative laparoscopy removed an ovarian cyst from the plaintiff and removed a portion of her ureter - The plaintiff required emergency surgery two days later and subsequent surgical procedures involving stents in her ureter - The plaintiff suffered 31 months of pain and discomfort - One of her kidneys was later removed - The plaintiff claimed that notwithstanding her pre-existing debilitating condition which disabled her from working from 1994 to date of surgery in 2000, the negligence caused further and significant loss - The plaintiff claimed that, at the time of the 2000 surgery, her pre-existing condition had improved to the point that there was a possibility of her returning to employment - The plaintiff alleged that the negligent surgery foreclosed that future possibility - The doctor admitted negligence, but denied that his negligence caused or contributed to the injuries and damages claimed (i.e., her post-surgery health and prospects of future employment were no different that her pre-surgery situation) - The Saskatchewan Court of Queen's Bench awarded $175,000 general damages for non-pecuniary loss for the lost kidney and damaged ureter (multiple surgeries, 31 months of pain and discomfort, etc.), being 50% of the present trilogy limit of $300,000 - Although the health effects of the negligence were significant, the "crumbling skull" rule applied, making the doctor not liable for the pre-existing debilitating health conditions that the plaintiff suffered from, and would continue to suffer from, even absent the negligent surgery - See paragraphs 184 to 232.

Damage Awards - Topic 460

Injury and death - Special damage awards - Loss of housekeeping capacity - In 2000, a doctor conducting an investigative laparoscopy removed an ovarian cyst from the plaintiff and removed a portion of her ureter - The plaintiff required emergency surgery two days later and subsequent surgical procedures involving stents in her ureter - The plaintiff suffered 31 months of pain and discomfort - One of her kidneys was later removed - The plaintiff claimed that notwithstanding her pre-existing debilitating condition which disabled her from working from 1994 to date of surgery in 2000, the negligence caused further and significant loss, including the cost of hiring someone to clean her house between the date of the surgery and the date of trial - The doctor objected to paying for the cost of a service the plaintiff already incurred prior to the surgery - The Saskatchewan Court of Queen's Bench awarded a $10,000 global amount for pretrial cleaning costs incurred - Notwithstanding that the plaintiff did pay for some housekeeping services prior to her surgery, she needed and paid for additional help after surgery, particularly in the three year period immediately following the surgery - See paragraphs 301 to 303.

Damage Awards - Topic 487.1

Injury and death - General damage awards - Necessary services provided by family members or neighbours - In 2000, a doctor conducting an investigative laparoscopy removed an ovarian cyst from the plaintiff and removed a portion of her ureter - The plaintiff required emergency surgery two days later and subsequent surgical procedures involving stents in her ureter - The plaintiff suffered 31 months of pain and discomfort - One of her kidneys was later removed - The plaintiff claimed that notwithstanding her pre-existing debilitating condition which disabled her from working from 1994 to date of surgery in 2000, the negligence caused further and significant loss - The plaintiff claimed $82,035 and $88,776 respectively, for the personal assistance provided by two neighbours (driving her around, feeding her, checking on her, assisting her to the bathroom, etc.) - There was no contract and no monies actually paid - The doctor argued that the neighbours had provided the plaintiff with personal assistance prior to the surgery because of her pre-existing condition, so any post-surgery assistance was not related to the surgery - The Saskatchewan Court of Queen's Bench allowed the claim in part - Although the neighbours assisted the plaintiff prior to her surgery, the surgery diminished what little the plaintiff was able to do for herself - The extra services provided by the neighbours, particularly in the three years following the surgery, went beyond the limits of friendship - The court awarded $35,070 for one neighbour and $42,084 for the other - See paragraphs 316 to 339.

Damage Awards - Topic 489

Injury and death - General damage awards - Cost of future care and treatment - In 2000, a doctor conducting an investigative laparoscopy removed an ovarian cyst from the plaintiff and removed a portion of her ureter - The plaintiff required emergency surgery two days later and subsequent surgical procedures involving stents in her ureter - The plaintiff suffered 31 months of pain and discomfort - One of her kidneys was later removed - The plaintiff claimed that notwithstanding her pre-existing debilitating condition which disabled her from working from 1994 to date of surgery in 2000, the negligence caused further and significant loss - The Saskatchewan Court of Queen's Bench awarded the plaintiff $273,874.26 for the cost of future care and personal assistance - Although the plaintiff required the assistance of others for house cleaning, yard work, home maintenance, etc., prior to the surgery because of her pre-existing condition, the surgery diminished what little she could still do for herself, which necessitated additional services beyond what she was already receiving - See paragraphs 344 to 362.

Damages - Topic 591

Limits of compensatory damages - Predisposition to damage (thin skull or crumbling skull rule) - ''Thin skull'' or ''crumbling skull'' - [See Damage Awards - Topic 61 ].

Damages - Topic 1418

Special damages - pretrial loss of earning capacity - [See Damages - Topic 1549 ].

Damages - Topic 1440

Special damages - Medical and hospital - In 2000, a doctor conducting an investigative laparoscopy removed an ovarian cyst from the plaintiff and removed a portion of her ureter - The plaintiff required emergency surgery two days later and subsequent surgical procedures involving stents in her ureter - The plaintiff suffered 31 months of pain and discomfort - One of her kidneys was later removed - The plaintiff claimed, without authority to obtain out of province treatment, made numerous trips to the Mayo Clinic at a cost of almost $19,000 - The plaintiff claimed that cost - The Saskatchewan Court of Queen's Bench rejected the claim, finding that "I am not satisfied that it was medically necessary for [the plaintiff] to attend the Mayo Clinic and she received no treatment there" - See paragraphs 308 to 311.

Damages - Topic 1501

General damages - General principles - General (incl. cap or ceiling on) - [See Damage Awards - Topic 61 ].

Damages - Topic 1549

General damages - General damages for personal injury - Impairment of earning capacity - In 2000, a doctor conducting an investigative laparoscopy removed an ovarian cyst from the plaintiff and removed a portion of her ureter - The plaintiff required emergency surgery two days later and subsequent surgical procedures involving stents in her ureter - The plaintiff suffered 31 months of pain and discomfort - One of her kidneys was later removed - The plaintiff claimed that notwithstanding her pre-existing debilitating condition which disabled her from working from 1994 to date of surgery in 2000, the negligence caused further and significant loss - The plaintiff claimed that, at the time of the 2000 surgery, her pre-existing condition had improved to the point that there was a possibility of her returning to employment - The plaintiff alleged that the negligent surgery foreclosed that future possibility - The doctor admitted negligence, but denied that his negligence caused or contributed to the injuries and damages claimed (i.e., her post-surgery health and prospects of future employment were no different that her pre-surgery situation) - The Saskatchewan Court of Queen's Bench declined to award damages for pretrial loss of wages or loss of future earning capacity - At the time of the 2000 surgery, the plaintiff continued to suffer from chronic fatigue syndrome, fibromyalgia and multiple chemical sensitivies - She had debilitating fatigue, cognitive dysfunction, muscle and joint pain, weakness and debilitating migraines - The plaintiff failed to establish that but for the surgery her pre-existing condition would have proved to the point of her realistically being able to return to work - See paragraphs 233 to 262.

Cases Noticed:

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. 185].

Saskatchewan Government Insurance v. Steinhauer (2006), 275 Sask.R. 59; 365 W.A.C. 59; 2006 SKCA 1, refd to. [para. 186].

Albion et al. v. Cochrane et al., [1969] 2 O.R. 184 (Co. Ct.), refd to. [para. 208].

Ryan et al. v. Hickson et al. (1975), 7 O.R.(2d) 352 (H.C.), refd to. [para. 209].

Urbanski et al. v. Patel et al.; Firman et al. v. Patel (1978), 84 D.L.R.(3d) 650 (Man. Q.B.), refd to. [para. 210].

Maidment v. Klim, [1981] B.C.J. No. 867 (S.C.), refd to. [para. 212].

Peterson et al. v. Phillips et al. (1983), 23 A.C.W.S.(2d) 122 (B.C.S.C.), refd to. [para. 213].

McGeough v. Don Enterprises Ltd. et al., [1984] 1 W.W.R. 256; 28 Sask.R. 126 (Q.B.), refd to. [para. 214].

Horton, Horton and Horton v. Peachey and Smith (1984), 63 N.S.R.(2d) 140; 141 A.P.R. 140 (T.D.), refd to. [para. 215].

Chattu v. Pankratz, [1980] B.C.J. No. 704 (S.C.), refd to. [para. 216].

Mushta v. Best et al., [1998] B.C.T.C. Uned. 686; 79 A.C.W.S.(3d) 1284 (S.C.), refd to. [para. 217].

Trites v. White, [1988] B.C.J. No. 1123 (S.C.), refd to. [para. 219].

Murphy v. Langlois (1999), 90 O.T.C. 252; 85 A.C.W.S.(3d) 702 (Gen. Div.), refd to. [para. 222].

Santos v. Traff et al. (1999), 251 A.R. 223; 1999 ABQB 630, refd to. [para. 223].

Knight v. Sloan - see Knight et al. v. St. Thomas Elgin General Hospital et al.

Knight et al. v. St. Thomas Elgin General Hospital et al., [2003] O.J. No. 3453 (Sup. Ct.), affd. (2005), 194 O.A.C. 62 (C.A.), refd to. [para. 224].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182, refd to. [para. 225].

Lindal v. Lindal, [1981] 2 S.C.R. 629; 39 N.R. 361, refd to. [para. 225].

Laferrière v. Lawson, [1991] 1 S.C.R. 541; 123 N.R. 325; 38 Q.A.C. 161, refd to. [para. 236].

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. 237].

Cottrelle et al. v. Gerrard et al. (2003), 178 O.A.C. 142; 233 D.L.R.(4th) 45 (C.A.), refd to. [para. 238].

Parypa et al. v. Wickware et al. (1999), 119 B.C.A.C. 32; 194 W.A.C. 32; 169 D.L.R.(4th) 661; 1999 BCCA 88, refd to. [para. 240].

Dagenais v. Glombowski (1987), 56 Sask.R. 60 (Q.B.), refd to. [para. 242].

Fancy v. Canada (Minister of Social Development), [2008] F.T.R. Uned. A30; 2008 FC 1414, refd to. [para. 261]. Counsel:

Kenneth A. Ready, Q.C., and Audrey Lewens, for the plaintiff;

Brad D. Hunter and David J. McCashin, for the defendant.

This action was heard before Gunn, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on July 7, 2010.