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HEALTH CARE PROFESSIONALS - Liability (malpractice) - Negligence - Causation - Failure to inform

Friday, September 11, 2020 @ 5:53 AM  

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Appeal by the plaintiff, the litigation representative of the estate of his son, P, from a trial decision dismissing his claim against the respondent physician for medical negligence leading to P’s quadriplegia. P, 41 at the time of his death, died of unrelated causes five years after having become a quadriplegic due to severe cervical myelopathy and prior to trial. P saw the respondent family physician twice in 2012 complaining of numbness in his fingers and legs. Although the respondent’s chart expressly stated that P’s symptoms were suspicious of cervical myelopathy, a relatively rare condition, and prescribed several tests, the respondent never expressly advised P of the concern that he might be suffering from cervical myelopathy or that bladder and bowel dysfunction would be indicative of such a condition and that it could lead to paralysis if left untreated. P further developed bladder and bowel incontinence by the end of 2012. P failed to attend for requested lab work, to forgo chiropractic treatment on his neck, to attend the emergency department when he experienced significant symptom changes and failed to obtain prompt treatment at an emergency department when advised to do so by a chiropractor. P also chose not to see a physician between August and December 2012 in the face of significantly worsening medical symptoms. His post-operative diagnosis was severe myelopathy. The trial judge found the respondent failed to meet the required standard of care in failing to advise that if he developed bowel and bladder control issues, this might be a red flag of myelopathy which, if left untreated, could lead to paralysis. She dismissed the appellant’s claim because he failed to prove factual causation. She concluded that even if the respondent gave P this red flag information during one of his two medical visits with him, P would still not have sought prompt medical help once he developed bladder and bowel control issues. By the time he did so, the circumstances that led to his quadriplegia were irreversible. The appellant argued the trial judge engaged in reviewable error in concluding that the doctor’s conduct was not the actual and legal cause of P’s injury and loss by drawing the inference that P would not have sought medical help earlier even if he had been told that bowel and bladder control issues might be a red flag of possibly impending paralysis.

HELD: Appeal dismissed. The trial judge’s conclusion on causation arose from her factual findings that the appellant did not establish that P would have sought medical care any sooner than December 2012, even if the respondent told him to seek medical attention should bladder and bowel symptoms develop as they might signal a condition that could lead to paralysis. That finding was available to her on the evidence. She made no palpable or overriding error in her factual findings or in her causation analysis, both of which were owed deference. Even if the trial judge had found that the respondent breached his duty of care by failing to advise P of the worse-case diagnosis or of the possibility of a rare but life-threatening potential diagnosis, the appellant did not prove that this failure caused P’s loss, given her causation conclusions. These conclusions were very fact-specific, and the appellant did not establish that the trial judge engaged in palpable and overriding error in arriving at her findings of fact on causation.

Peppler Estate v. Lee, [2020] A.J. No. 796, Alberta Court of Appeal, J. Watson, M.B. Bielby and K.P. Feehan JJ.A., July 28, 2020. Digest No. TLD-September72020009