Baum Lawsuit

QUEENS BENCH FOR SASKATCHEWAN
Citation: 2011 SKQB 357 Date: Docket: Judicial Centre: 2011 09 29 Q.B.G. 10/2007 Swift Current
2011 SKQB 357 (CanLII)
BETWEEN: MELINDA BAUM PLAINTIFF - and NASEEM MALLECK DEFENDANT
INDEX TO JUDGMENT DATED SEPTEMBER 29, 2011 PAGE INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 EVIDENCE AT TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 A. The Plaintiffs Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Melinda Baum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Sandra Mahaffy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Crystal Hope. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Diane Dermody. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Georgie Schryver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Rod Baum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Dr. Christopher Klingele . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Carol Wells . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24 Heather Koellemel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Jane McLeod. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25 Dr. Arthur Zilbert. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26 B. The Defendants Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Dr. Naseem Malleck . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32 Dr. Annette Epp . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 C. The Plaintiffs Rebuttal Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Dr. Mohamed Arwini . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Marianne Woods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Carol Dyck . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47 ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47 LAW AND ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 A. B. C. Did the defendant owe a duty of care to the plaintiff? . . . . . . . . . . . . . . . . 48 What is the standard of care expected of the defendant?. . . . . . . . . . . . . . . 49 Did the defendant breach the standard of care? . . . . . . . . . . . . . . . . . . . . . . .50 (1) The defendant was not adequately trained in the SPARC procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 The defendant perforated the plaintiffs bladder and the urethra in the course of the surgery. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
(2)
(3)
The two cystoscopies that the defendant performed were done in such a way that she did not see the obvious perforation of the bladder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
(4)
The defendant was unaware of the presence of blood in the plaintiffs urine at the conclusion of the surgery and during the plaintiffs time in the hospital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 The defendant did not review the plaintiffs medical records and charts in her post-operative care and assessment of the plaintiff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
(5)
D.
Did the defendants breach of the standard of care cause the injury or damage to the plaintiff?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 (1) But for the inexperience of the defendant in performing the operation, would the plaintiff have suffered the injuries, damages or loss that occurred? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 But for the failure of Dr. Malleck to observe the blood in the urine during the surgery, would the plaintiff have suffered the injuries, damages or loss that occurred?. . . . . . . . . . . . . . . . . . . . . . . . 73 But for the failure of Dr. Malleck to provide proper postoperative care to the plaintiff, would the plaintiff have suffered the injuries, damages or loss that occurred?. . . . . . . . . . . . . . . . . . . . . 74
(2)
(3)
BREACH OF CONTRACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 E. If the defendant breached the standard of care, and if the breach caused injury or damage, what damages is the plaintiff entitled to? . . .. . . 78 (1) Pecuniary Loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 (a) Pre-Trial Loss of Leave Entitlement . . . . . . . . . . . . . . . . . . . 78 (i) (ii) (iii) (b) Sick Leave. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 Time Off in Lieu of Overtime . . . . . . . . . . . . . . . . . . . 85 Vacation Leave and Earned Days Off. . . . . . . . . . . . 87
Costs of Local Trips . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
(c)
Pre-Trial Cost of Health Care/Value of Voluntary Services by Third Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 Pre-Trial Costs of Homemaking Services . . . . . . . . . . . . . . . 93
(d) (e) (2)
Subrogated Claim of Saskatchewan Health. . . . . . . . . . . . . 93
Pre-Trial Non-Pecuniary Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 (a) General Non-Pecuniary Damages . . . . . . . . . . . . . . . . . . . . . . 94 Loss of Homemaking Capacity. . . . . . . . . . . . . . . . . . . . . . . . 95
(b)
QUEENS BENCH FOR SASKATCHEWAN

Citation: 2011 SKQB 357
Date: Docket: Judicial Centre:
2011 09 29 Q.B.G. 10/2007 Swift Current
BETWEEN: MELINDA BAUM PLAINTIFF - and NASEEM MALLECK DEFENDANT Counsel: Reginald A. Watson, Q.C. and Heather L. Nord Richard W. Elson, Q.C. and Anita G. Wandzura for the plaintiff for the defendant
JUDGMENT September 29, 2011
WHITMORE J.
INTRODUCTION
[1]
The plaintiff has commenced this action against the defendant as a result of
injuries and damages she claims to have suffered as a result of surgery performed on her by the defendant, which surgery was, the plaintiff states, performed improperly and beneath the standard of care that the plaintiff is entitled to expect of the defendant.
BACKGROUND
-2-
[2]
The plaintiff has resided in Swift Current, Saskatchewan at all times relevant
to this action. At the time of the procedure complained of, April, 2005, she was 43 years of age.
[3]
The plaintiff was referred to the defendant on October 24, 2004 by her family
doctors, Dr. H. S. Deklerk and Dr. T. Offert, to surgically resolve the plaintiffs concern with stress incontinence, a bladder condition that resulted in the plaintiff involuntarily urinating from time to time.
[4]
The plaintiff attended Dr. Mallecks office on February 8, 2005, and Dr.
Malleck prescribed a tension-free vaginal tape procedure (sling procedure) to resolve Ms. Baums complaint. (The procedure is sometimes also referred to as a TVT procedure, although I understand that TVT is also a brand name of a kit manufactured for such a procedure.)
[5]
A brief description of the surgical procedure under review will assist in
dealing with the case before me. The following extract from the defendants brief provides such a description:
11. At this point, it may be useful to provide a brief description of the SPARC sling procedure, as recommended by the kits manufacturer [Exhibit D-3]. After general anesthesia is induced, the patients bladder is emptied. A vaginal incision is then made between the urethra and the vagina. There are then two incisions made in the supra-pubic area of the lower abdomen. Following these incisions, a needle passer from the surgical kit is passed through one of the supra-pubic incisions and threaded down towards the vaginal incision where it is ultimately pulled through. Another needle passer is then inserted in the other supra-pubic incision and threaded down towards the vaginal incision in the same way. After both needle passers have been threaded through, the surgeon performs a cystoscopy. Under this procedure, normal saline is infused into the bladder
-3and a device, known as a cystoscope, is inserted in order to allow the surgeon to visualize the inside of the bladder and the urethra. In this way, the surgeon is able to determine whether the bladder is intact and also to conduct a brief examination of the urethral orifice. 12. After the cystoscopy has been completed, the sling, consisting of a strip of polypropylene mesh (also described as a tape), is attached to both connections protruding from the vaginal incision. The needle passers are then pulled back directly from the supra-pubic incisions, thereby allowing the sling to be positioned beneath the urethra, but without tension. There is a plastic sheath around the sling at the time it is connected. The sheath is removed after the needle passers are pulled back through the supra-pubic incisions.
[6]
Dr. Malleck performed the procedure on April 8, 2005. Ms. Baum
complained of pain and cramping immediately after the surgery and underwent two further surgeries in Saskatchewan to attempt to resolve her persistent pain.
[7]
Finally, in 2009, Ms. Baum was assessed by Dr. Klingele, Medical Director,
Urogynaecology Incontinence and Pelvic Organ Prolapse Clinic at the Mayo Clinic in Rochester, Minnesota. He operated on the plaintiff on February 10, 2009 and removed the tape which was embedded in Ms. Baums bladder and urethra which was the cause of her pain and suffering.
[8]
The plaintiff claims that in inserting the tape, the defendant negligently
perforated the plaintiffs bladder and urethra and negligently failed to diagnose this event, causing the plaintiff pain and suffering for four years.
[9]
The defendant claims that she followed the recommended procedure for the
surgery that she performed and that her performance of the surgery fell within the standard of care required of a reasonable surgeon. The defendant states that bladder
-4-
perforation is a known risk of this procedure and that the defendant advised the plaintiff of the risk of injury to the plaintiffs organs prior to the procedure.
[10]
Dr. Malleck also states that her post-operative care of the plaintiff fell within
the standard of practice of a reasonably competent surgeon and that while the plaintiffs injuries are unfortunate, the defendants actions were not the cause of the plaintiffs injuries.
THE EVIDENCE AT TRIAL
A.
The Plaintiffs Evidence
Melinda Baum
[11]
The plaintiff was born in 1961. She is a social worker and has been employed
with the Provincial Department of Corrections of the Province of Saskatchewan commencing prior to the events leading up to this action and remained so employed to the time of trial.
[12]
She has two sons, ages 28 and 25, at the date of trial and has been married
for 32 years.
[13]
Prior to the surgery, she was an active person, playing squash, running and
walking. She was involved in her sons activities, often billeting other team players as part of their sports activities, in addition to the demands of her job. She was also a traditional homemaker. She cooked, cleaned and looked after the house. She had the help of a housekeeper who came once every two weeks to help clean the house.
-5-
[14]
She testified that she developed symptoms of stress incontinence, essentially
urinating in small amounts, during sports activities. She had seen a prescription on
television for this problem and went to see her family doctor, Dr. Deklerk, to discuss this. Dr. Tara Offert, Dr. Deklerks associate, suggested the plaintiff see a gynaecologist. As a result, the plaintiff was referred to Dr. Malleck.
[15]
Ms. Baums first appointment with Dr. Malleck was on February 8, 2005. Dr.
Malleck advised her that the prescription she had heard about on television would not assist her and recommended a sling procedure. At that time, Ms. Baum did not suffer from any pain. Her only problem was incontinence. Ms. Baum testified that she left the appointment thinking that she was going to have a small surgical procedure, rather like a tonsillectomy. She testified that there was no discussion about the procedure or the risks involved or Dr. Mallecks previous experience with the proposed procedure. There was no discussion about the time she would have to take off work to recuperate.
[16]
Ms. Baum testified that she signed the consent form to have the procedure
on February 8, 2005, but did not receive any diagrams, literature or any other information about the procedure.
[17] 2005.
The surgery was scheduled for April 6, 2005, but was delayed until April 8,
[18]
Ms. Baum testified that on April 8, 2005, she attended at the hospital in Swift
Current. She testified that she was given a general anaesthetic, which she had never had before. She could not recall if she saw Dr. Malleck before the operation and remembered little of what occurred prior to surgery. She testified that she recalled nothing of the
-6-
recovery room, but was violently ill in the ward, vomiting from the after affects of the anaesthesia, as she later learned.
[19]
She testified that she vomited several times and pressed the call button to
alert the nurse but no one came as the call button did not function. Eventually she threw a bed pan to get the nurses attention. She was given Demerol for the pain and Gravol for her nausea.
[20]
Ms. Baum testified that she was shocked at the amount of pain she was
suffering, which she described as a sawing pain inside her. She asked both the nurse and Dr. Malleck why there was so much pain. She testified that she was afraid to go home as she was in such pain.
[21]
Ms. Baum testified that she was in so much pain that she needed help to stand
up. Her mother, who was present in the ward after Ms. Baums surgery, helped her get to the bathroom to vomit as she was unable to walk on her own.
[22]
Ms. Baum testified that Dr. Malleck was focussed on Ms. Baums reaction
to the anaesthetic and brushed off any concern about the pain. Ms. Baum testified that Dr. Malleck told her the pain was simply the result of the surgery.
[23]
Ms. Baum noticed her urine was red and contained clots but did not know if
that was unusual.
[24]
Ms. Baum testified that on April 9, 2005, the day after the surgery, the pain
was excruciating in her pelvic area. She recalled the nurse, Carol, telling Dr. Malleck about her pain.
-7-
[25]
On April 10, 2005, Ms. Baum was discharged and went home. She was still
in a great deal of pain and on April 13, 2005, she called Dr. Malleck at her office but Dr.
Malleck was not in. Although Ms. Baum tried to leave a message to have Dr. Malleck call her back, she was nevertheless told to call around 10:00 a.m. the following day. As a consequence, Ms. Baum called her family physician, Dr. Deklerk, who told her to come in immediately. She was in such pain she was unable to drive and had a friend drive her to the doctors office. Dr. Deklerk conducted a urine test and discovered an infection for which he prescribed medication.
[26]
Ms. Baums scheduled appointment with Dr. Malleck was not until April 18,
2005, and by that time she was feeling only slightly better. Ms. Baum testified that Dr. Malleck only frowned when told that she could not be reached on April 13, 2005. Dr. Malleck checked Ms. Baums stitches.
[27]
On Ms. Baums next appointment with Dr. Malleck on April 28, 2005, she
advised the pain was improving slightly. Ms. Baum said it was a very brief appointment. There was no discussion of laboratory reports although Dr. Malleck did check her stitches.
[28]
There was no follow-up plan. This was Ms. Baums last appointment with
Dr. Malleck.
[29]
Ms. Baum thought she was on the mend but was disappointed that Dr.
Malleck did not appear concerned about her pain.
-8-
[30]
Ms. Baum testified that she tried to get back to exercising and running but
continued to suffer from the sawing pain in her abdomen. She went back to see Dr.
Deklerk on May 31, 2005.
[31]
Dr. Deklerk conducted a further urine test and detected blood in her urine.
Dr. Deklerk then referred her to Dr. El Kelani, a gynaecologist. By this time, Ms. Baum did not have confidence in Dr. Malleck.
[32]
When Ms. Baum attended Dr. El Kelanis office in June, 2005, he arranged
for her to see a urologist, Dr. M. Arwini. Dr. Arwini saw Ms. Baum on July 21, 2005 and made an appointment to perform a cystoscopy on August 4, 2005.
[33]
When Dr. Arwini performed the cystoscopy on August 4, 2005, he became
concerned and called in Dr. El Kelani immediately. After discussing what they saw in the course of the cystoscopy in her presence, Ms. Baum became aware that a portion of the tape from the sling procedure was in her bladder.
[34]
Dr. Arwini told her he would have to refer the matter to a urologist in
Saskatoon as the tape would have to be removed. He told her there was severe inflammation where the tape had perforated the bladder.
[35]
As a result of the referral, Ms. Baum saw Dr. Barrett, a urologist, in
Saskatoon who performed a cystoscopy on August 22, 2005. As a result of the cystoscopy, Dr. Barrett noted a crusting material inside the bladder and immediately performed surgery laparoscopically to remove approximately one inch of tape from Ms. Baums bladder. The surgery was performed through the urethra under local anaesthetic. In other words, there was no incision or entry through the abdomen.
-9-
[36]
At this time, the plaintiff was again hopeful that her problems had been
resolved and that she would be able to recover her life. However, once again, the more
physical activity she undertook, the more pain she continued to suffer.
[37]
As a result of the pain, the plaintiff had to take time off work. She testified
that she used sick days, vacation days, time in lieu of overtime, earned days off and worked at home whenever she was able. She testified that she felt that she had to retain a certain level of sick days in reserve in the event she suffered a serious illness.
[38]
She saw Dr. Deklerk in September and October of 2005, complaining of
fatigue and pain. In January, 2006, she complained to Dr. Deklerk of severe sharp and cutting pain when she exercised and told him that she could not continue to cope with the pain.
[39]
She then saw Dr. Barrett again on May 9, 2006. Dr. Barrett observed through
a cystoscopy procedure that there was still some tape remaining in her bladder. As his report stated: this lady had undergone a TVT tape procedure elsewhere and unfortunately the tape had been placed right through her bladder.
[40]
Dr. Barrett then operated on Ms. Baum to remove more of the tape. This
time, rather than performing laser surgery through the urethra, Dr. Barrett operated by opening up Ms. Baums abdomen and then opening up the bladder.
[41]
A second piece of tape was removed from inside Ms. Baums bladder. Dr.
Barrett left intact the remaining tape outside the bladder that went around the urethra in the hope that it would maintain Ms. Baums continence.
-10-
[42]
The surgery was much more invasive than the previous tape removal and Ms.
Baum remained in hospital for approximately one week and was discharged on June 29,
2006.
[43]
After this third surgery, Ms. Baum testified that she was again hopeful that
she would improve. However, as before, when she started physical activity, the sawing pain returned.
[44]
Dr. Deklerk had Ms. Baum undergo an ultrasound on January 30, 2008, at
which time something was noticed in her bladder. To determine whether the unknown mass was scar tissue, and to attempt to resolve the source of Ms. Baums ongoing pain, Ms. Baum was referred for a further cystoscopy on March 3, 2008. This was performed by Dr. Taranger, a urologist and associate of Dr. Barrett.
[45]
Dr. Taranger reported that the cystoscopy revealed no intra urethral foreign
body and the bladder appeared normal.
[46]
Dr. Taranger suggested a further gynaecological review. As a result, Ms.
Baum obtained an appointment with Dr. Epp, a gynaecologist in Saskatoon, for May 5, 2008.
[47]
On May 5, 2008, Dr. Epp examined Ms. Baum and during the examination,
Dr. Epp realized that she had been asked by Dr. Mallecks counsel to review the case and was thus unable to assist Ms. Baum any further.
[48]
The pain continued to be unbearable for Ms. Baum. She wished to be referred
to a urogynaecologist, a sub-speciality of both gynaecology and urology but there was a
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two year waiting period for such an appointment in Canada. She asked Dr. Epp for a referral to a urogynaecologist but because of her involvement with the defence of this
action, she was unable to assist. Dr. Deklerk then referred her to a pain management clinic in Alberta as there seemed to be no other solution.
[49]
Ms. Baum, on her own, called the Mayo Clinic in Rochester, Minnesota, and
talked to Dr. Christopher Klingele, a urogynaecologist. He agreed to see her and she went to see him in early January, 2009. Dr. Klingele performed a cystoscopy and saw that there was tape located in her bladder and also in her urethra which had not been noticed before. Ms. Baum testified that she was relieved as she knew that something was wrong and that there was a reason for her discomfort. Dr. Klingele advised her fully of her options. He explained carefully the surgery that he could perform that should help her. He drew diagrams and in Ms. Baums words, she was brutally informed. He advised her if nothing was done, her life would remain the same and told her the tape needed to be removed.
[50]
Dr. Klingele advised Ms. Baum that he would not perform the surgery unless
she agreed to remain in the Mayo Clinic area for a period of time after the surgery so that he could follow up with her properly. He advised her that the surgery would cost approximately $50,000.00 and he could do it right away.
[51]
Ms. Baum testified that she advised Dr. Klingele she needed the approval of
Saskatchewan Health for the surgery which she received shortly thereafter.
[52]
On February 10, 2009, Dr. Klingele performed the surgery on Ms. Baum at
the Mayo Clinic. She testified that it was a difficult surgery. She was discharged on February 15, 2009 and went to stay with her cousins in Rochester. Her mother and father
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came from Arizona and her husband came from Swift Current to assist her in her recovery. When she was discharged from the hospital, she had three catheters. Her
mother and her husband were trained in cleaning the catheters, administering medication and changing the drainage bags and managing her recovery.
[53]
Dr. Klingele gave her a thorough examination on February 19, 2009. Dr.
Klingele advised it was safe for her to go home and her husband then drove her home on February 25, 2009.
[54]
Her husband managed her catheter, her pain medication and removed her
final catheter at the end of March, 2009.
[55]
She had been prescribed OxyContin as a pain medication after her final
surgery and had to wean herself off it.
[56]
As a result of the final surgery, Ms. Baum has been free of infection for six
months at the time of the trial. She has some minimal incontinence, but is pain free.
[57]
Ms. Baum testified as to the pecuniary loss that she claims as follows:
Pre-trial loss of leave entitlements Local travel to medical appointments Cost of homemaking assistance Pre-trial cost of attending to out of town appointments in Saskatoon, Calgary and Rochester, Minnesota
$ 58,763.03 $ $ 360.00 4,144.00
$ 27,186.75
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Value of special care aid services from mother Subrogated claim of Saskatchewan Health Sub total $163,052.32 $ 69,453.58 $ 3,144.96
Non-pecuniary general damages Loss of home making capacity Subtotal $161,500.00
$150,000.00 $ 11,500.00
TOTAL Plus pre-judgment interests and costs.
$324,552.32
Sandra Mahaffy
[58]
Sandra Mahaffy testified on behalf of the plaintiff. Ms. Mahaffy is a
registered nurse and has been such since 1969. She was working in the recovery room of the Swift Current hospital when Ms. Baum had her first operation on April 8, 2005. Ms. Baum was under her care.
[59]
Ms. Mahaffy referred to the Needs Assessment and Record of Care Post -
anaesthetic which was tendered as an exhibit to review Ms. Baums condition in the recovery room. Ms. Mahaffy testified that she received Ms. Baum when Ms. Baum was delivered to the recovery room from the operating room at 10:48 a.m. on April 8, 2005. She testified that on receiving her in the recovery room, Ms. Baum came in with a catheter and that her urine was described as sang in the Needs Assessment. Ms.
-14-
Mahaffy explained that this term meant bloody. When she saw blood in the urine, she did not consider it so significant so as to notify Dr. Malleck but it alerted her to keep an
eye on it.
[60]
She noted that the urine was clearing. At 11:55 a.m., Ms. Baum was
transferred to the ward. Ms. Mahaffy testified that the Flow Sheet for each patient is completed by the nurse on duty and records the patients condition, medications and vital information for the first 24 hours after surgery. When the patient has recovered sufficiently, the patient is returned to the ward. At the time the patient is returned, the recovery room nurse will discuss the patients condition with the ward nurse.
[61]
Ms. Mahaffy testified that if she saw a problem, she would have reported it
to Dr. Malleck. Ms. Mahaffy testified that when the doctor is on rounds, he or she will discuss with the ward nurse the condition of the patients and will review the Clinical Records or at least inquire about the records. She could not recall if Dr. Malleck, as a rule, read the Clinical Records.
Crystal Hope
[62]
Crystal Hope then testified for the plaintiff. Ms. Hope graduated from nursing
in 1995 and at the time of the trial was the operating room manager at the hospital in Swift Current. In 2005, she was a staff nurse at the Swift Current hospital and was on duty on April 8, 2005 as a scrub nurse and supervisor. As scrub nurse, she assisted Dr. Malleck in the plaintiffs surgery.
[63]
Ms. Hope explained some of the procedures in the operating room. She
testified that during the operation, the bladder is emptied with a catheter and usually a
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cystoscopy is performed to view inside the bladder. Usually the surgeon is the only one who views the cystoscopy.
[64]
An assistant is present as well as an anaesthetist, a scrub nurse and two
circulating nurses.
[65]
She explained the Operating Room Nurses Report. This report is not written
until the end of the surgery. The items in red are important items and are brought to the attention of the recovery room nurse. The following was written in red in the report: catheter #16-10cc inserted per Dr. Malleck inter-op - returned sang to straight drainage.
[66]
Ms. Hope explained that the word sang in the Operating Room Nurses
Report meant the appearance of straight blood or dark red blood. She testified that it was unusual to have blood in the urine in this type of surgery from what she has observed.
[67]
She explained sang tinge means slight pink, while urine described as
sang was thicker and darker. One would be unable to see through sang. She testified that she had no independent recollection of Ms. Baum or this operation. She stated that the drainage from the catheter would be monitored in the recovery room and if the urine was clearing, it would be significant in the patients recovery.
Diane Dermody
[68]
Diane Dermody then testified for the plaintiff. Ms. Dermody is a licensed
practical nurse and was on duty in the ward at the Swift Current hospital onto which Ms. Baum was taken on April 9, 2005. She has no independent recollection of the events of April 8 and 9, 2005 or Ms. Baum. She noted that the Progress Notes of the ward nurse
-16-
for April 9, 2005 described Ms. Baums pain as severe, being the highest descriptor of pain she would use. The Progress Notes are a review of the patients condition
commencing 24 hours after the surgery. Entries are made by the nurse on duty as to pain, discharges, etc. As a licensed practical nurse, she would report a patients pain or other abnormalities to the registered nurse on duty in the ward who would decide on whether or not to report the matter to a doctor.
[69]
A decrease in the level of pain suffered by Ms. Baum was noted on the Flow
Sheet. Demerol was prescribed for Ms. Baum for pain.
Georgie Schryver
[70]
Georgie Schryver then testified on behalf of the plaintiff. Ms. Schryver is the
mother of the plaintiff and has been a nurses aid in the past, last working as such in 1972. Prior to that, she worked on an intermittent basis as an aide in hospitals, nursing homes and as a ward clerk in the course of her employment history. She has changed and cleaned catheters and assisted nurses in the removal of catheters for patients.
[71]
Ms. Schryver was at the hospital in Swift Current frequently after Ms.
Baums initial surgery to visit her and help her.
[72]
She testified that after the surgery, Ms. Baum was ill and vomited a number
of times. Ms. Schryver contacted the nurses to clean up Ms. Baum.
[73]
She testified that Ms. Baum was in pain after surgery and that Ms. Baums
drainage bag for urine contained bright red fluid.
-17-
[74]
The drainage bag was in plain view.
needed help to get to the bathroom.
[76]
Ms. Schryver testified that Ms. Baum was doubled over holding her abdomen
while Ms. Schryver was assisting her in getting to the washroom. Ms. Baum collapsed from the pain and Ms. Schryver had to get a nurse to help Ms. Baum get into bed.
[77]
Ms. Schryver was not present after the Saskatoon surgeries but went to
Rochester, Minnesota along with her husband to assist after Ms. Baums surgery at the Mayo Clinic.
[78]
She testified that after the initial surgery in Swift Current and before the final
surgery in Minnesota, Ms. Baums lifestyle was significantly curtailed. She was unable to participate to any extent in a family reunion held several years ago and in 2008, she was sick all of Christmas Day when Ms. Baum had the family over for dinner.
[79]
Ms. Schryver testified that there were many occasions over the years that Ms.
Schryver saw her daughter and that her daughters disposition had altered significantly since the first surgery. She was always in pain, and was not the talkative, outgoing person she used to be.
[80]
Ms. Schryver testified that Ms. Baum called her in Arizona where Ms.
Schryver and her husband spent the winter and advised her that she was going in for surgery at the Mayo Clinic and needed someone to help her. Therefore, Ms. Schryver and her husband flew from Arizona to Minnesota and stayed from February 8, 2009 to
[75]
Ms. Schryver was concerned because Ms. Baum was unable to walk and
-18-
February 22, 2009. She went to a session at the Mayo Clinic to learn how to handle drainage bags and catheters. When Ms. Baum was discharged, she had three catheters and
three drainage bags that Ms. Schryver was to manage.
[81]
Ms. Schryver testified that Ms. Baum was completely helpless after this last
surgery. Ms. Schryver bathed her, gave her medication, changed her and emptied her drainage bags. Her husband also assisted her. She and Ms. Baums husband, Rod, learned how to manage the drainage bags and medicate Ms. Baum. On February 22, 2009, Ms. Schryver and her husband flew back to Arizona.
[82]
Ms. Schryver and her husband got home to Swift Current at the end of
March, 2009. She noticed a great change in Ms. Baum. She was no longer in pain and was in a much better frame of mind. She had become withdrawn over the time that she was suffering from pain and was now coming back to normal.
Rod Baum
[83]
Rod Baum, the plaintiffs husband, testified on behalf of the plaintiff. He
testified that prior to April, 2005, Ms. Baum did all the housework and cooked all the meals for themselves and their two sons.
[84]
She attended the boys hockey and baseball games, played squash and slow
pitch and ran for exercise.
[85]
After the plaintiffs first surgery, Mr. Baum had to start helping around the
house by cooking, washing dishes, doing laundry, vacuuming, etc. as the plaintiff was unable to do so.
-19-
[86]
Mr. Baum drove his wife to surgery in Saskatoon and stayed while she was
in the hospital. In addition, he assisted her after her surgery at the Mayo Clinic by
changing her drainage bags, managing her medications and managing her catheter until he removed the final catheter. He also had to help her get out of bed, bathe her and care for her.
[87]
He calculated his wage loss as a result of caring for Ms. Baum. He based it
upon $450.00 per day, being the average gross income of his company on the days the company was open. He testified in cross-examination that he paid himself his usual salary from his company even though he was away from work. He testified that his company earns no money when he is away. He is the sole shareholder and sole money-generating employee of his company.
Dr. Christopher Klingele
[88]
Dr. Christopher Klingele then testified on behalf of the plaintiff. He was
tendered as an expert in urogynaecology and reconstructive pelvic surgery. Dr. Klingele graduated from the University of Illinois, College of Medicine with a medical degree in 1996. He took his residency at the University of Missouri in Kansas City, St. Lukes Hospital from 1996 to 2000, and the Trueman Medical Centre where he completed his residency in urology and gynaecology. From 2000 to 2003 he obtained his fellowship in the Urogynaecology/Pelvic Reconstructive Surgery Division of the Department of Oncology and Obstetrics and Gynaecology at the Mayo Clinic and in 2005, he completed his training at the Mayo Graduate School of Medicine, College of Medicine, Mayo Clinic, obtaining his Masters in Urogynaecology and Reconstructive Pelvic Surgery.
-20-
[89]
He was at the time of trial the assistant professor in obstetrics and
gynaecology at the College of Medicine, Mayo Clinic and a consultant in the division of
Gynaecologic Surgery Department of Obstetrics and Gynaecology, Mayo Clinic. He also has Masters Faculty privileges in obstetrics gynaecology at the Mayo Graduate School, College of Medicine, Mayo Clinic.
[90]
There was no objection to Dr. Klingele being declared an expert and he was
declared an expert in the field of urogynaecology and reconstructive pelvic surgery.
[91]
Dr. Klingele testified that he received a request from Ms. Baum to see her in
early 2009. He talked to her over the telephone, reviewed her records and was told by her that she still had pain and difficulty voiding her bladder. Dr. Klingele agreed to see her.
[92]
Dr. Klingele testified that Ms. Baum then attended at the Mayo Clinic in
Rochester. Upon examining her, Dr. Klingele performed a cystoscopy and noted that there was nylon mesh or tape in her urethra and in her bladder. Dr. Klingele testified that the tape in Ms. Baums urethra was plainly visible and the cystoscopy procedure he used is a fairly standard procedure. Dr. Klingele testified the tape entered into the urethra and exited out the urethra. Dr. Klingele was of the opinion that the tape was placed in the urethra when the polypropylene sling was placed in Ms. Baums abdomen, not when the attempts to remove the tape from her bladder were made. Dr. Klingele also noted a portion of tape in Ms. Baums bladder. He testified that the tape in the bladder and urethra had to be removed. The removal from the urethra was a delicate surgery in which the urethra had to be opened and then repaired.
[93]
Dr. Klingele testified that it is easiest to remove the tape if it is discovered
at the time of the original surgery. If mesh or tape is discovered in the bladder or the
-21-
urethra at the time of placement, one would simply remove the trocar or needle and the sling and let the patient heal for a few days, then re-attempt the surgery.
[94]
Dr. Klingele testified that a problem such as Ms. Baums should be addressed
in the first week as it becomes more difficult to remove the tape as the body starts to heal around the tape.
[95]
On Ms. Baums first visit Dr. Klingele performed a cystoscopy and
developed a plan to remove the tape. The plan involved an abdominal and vaginal approach to remove the mesh sling. This would result in incontinence, so Dr. Klingele would fashion a new sling made with body tissue.
[96]
In accordance with the plan, Dr. Klingele operated on Ms. Baum on February
10, 2009. He made an incision in her abdomen, located and removed the mesh from the bladder and closed the bladder. He then inserted a catheter which exited her abdomen. He then approached the tape enmeshed in Ms. Baums urethra by making an incision in the urethra and excised the tape from the urethra. He then repaired the urethra.
[97]
Ms. Baum was discharged from the hospital on February 15, 2009. She came
back to the clinic for an appointment on February 19, 2009 and left for home on February 25, 2009. Dr. Klingele has not seen Ms. Baum since. Dr. Klingele stated in crossexamination that polypropylene tape or mesh is used in these procedures because the body adapts well to the tape and tape adds durability to the repair. Dr. Klingele testified that if there is adequate coverage of tissue around the tape at the time of installation, the body will incorporate the tape and will heal properly.
-22-
[98]
He explained that erosion of the mesh or tape occurs when there is not
enough tissue over the mesh. As a result, there is not sufficient blood supply around the
mesh to heal. Exposure of the mesh occurs when the tissue over the mesh does not heal because the tape is incorrectly placed. The mesh does not become exposed due to wear and tear.
[99]
In Ms. Baums case, it was Dr. Klingeles opinion that the tape was placed
through Ms. Baums bladder and urethra and did not erode through the bladder and urethra. Dr. Klingele indicated that it is a known complication associated with sling procedures using tape that the bladder can be perforated.
[100]
Dr. Klingele, in being asked about Dr. Arwinis cystoscopy of the patient,
testified that there was no comment on Dr. Arwinis notes on the urethra so he could not tell if Dr. Arwini examined the urethra.
[101]
Dr. Klingele was asked to comment on the fact that Dr. Barrett reported, in
his operative report of August 22, 2005, that Ms. Baums urethra appeared normal. Dr. Klingele testified that it was possible to miss the mesh in the urethra although he saw it very plainly. He testified that a reasonably qualified surgeon could miss noticing the tape.
[102]
In asking to comment on Dr. Barretts surgery, Dr. Klingele said that
performing the initial surgery intravesically (without opening the bladder) was not unreasonable.
[103]
He testified that the indication of blood in the patients discharge at the time
of surgery is considered to be a bladder perforation until proven otherwise.
-23-
[104]
Carol Wells then testified for the plaintiff. Ms. Wells has been a registered
nurse since 1984 and was working in post-operative care on April 8, 2005 and attended on the plaintiff in the hospital in Swift Current.
[105]
She had no recollection of Ms. Baum independent of the records.
[106]
The records indicate that Ms. Wells gave Gravol to the plaintiff at 17:00
hours on April 8, 2005 for nausea and at 17:15 gave her 100 mg of Demerol for pain.
[107]
Ms. Wells explained that she would inform the doctor of any concerns she
had about patients when the doctor was on rounds, and when she ended her shift, she would report concerns about patients to the nurse who was coming on duty.
[108]
She testified that she administered Tylenol 3 to Ms. Baum at 1:35 a.m. on
April 9, 2005 for pain and again gave her Demerol on April 10, 2005 at 9:45 a.m. The Demerol was administered upon Dr. Mallecks orders.
[109]
Ms. Wells testified that the records indicated Ms. Baum was suffering from
pain which she described as close to a 10 on a scale of 1 to 10.
[110]
Ms. Wells said that Ms. Baum was in a great deal of pain which was not the
norm prior to discharge. She testified that sang or sang tinge meaning bloody or slightly bloody urine merited disclosure to the doctor.
Carol Wells
-24-
[111]
Ms. Wells testified that some doctors will look at the Clinical Records and
that some doctors look at the Flow Sheets as well.

[112]
The first 24 hours is not recorded on the Clinical Records but is reported on
the Flow Sheets.
Heather Koellemel
[113]
Heather Koellemel then testified. She graduated from nursing in 1979 and
provided care to Ms. Baum on April 9, 2005 at the Swift Current Hospital.
[114]
Her notes on the Flow Sheet indicated that she described Ms. Baums urine
as dark amber with small clots at 6:00 a.m. on April 9, 2005.
Jane McLeod
[115]
Jane McLeod then testified for the plaintiff. She has been a registered nurse
since 1979 and on April 9 and 10, 2005, she provided care to the plaintiff at the Swift Current Hospital. Her notes on April 10, 2005 at 3:00 a.m. indicated the plaintiff was suffering from lower pelvic burning pain and was therefore administered Demerol.
[116]
At 3:30 a.m. on April 10, 2005, she inserted a catheter to assist the plaintiff
to urinate, then removed the catheter. At that time the urine was clear.
Dr. Arthur Zilbert
-25-
[117]
Dr. Arthur Zilbert was called for the plaintiff. Dr. Zilbert graduated from
McGill University with a Bachelor of Science in 1970 and from Dalhousie University in
1974 with a degree in medicine.
[118]
He completed his residency in obstetrics and gynaecology at Dalhousie in
1981 and followed with a six month fellowship in gynaecologic oncology at St. Josephs Hospital in Atlanta, Georgia.
[119]
He is an assistant professor in the Department of Obstetrics and
Gynaecology, Dalhousie University and is an active and consulting staff member at health centres and hospitals in Nova Scotia.
[120]
He testified that urogynaecology is a relatively new sub-specialty of urology
and gynaecology having been developed over the last several decades. There is no separate board certification available in Canada for urogynaecology at the time of trial.
[121]
He was admitted as an expert in obstetrics and gynaecology including post-
operative management of TVT or mesh complications in a 60 day period following surgery.
[122]
Dr. Zilbert has never removed tape from a bladder as was done in Ms.
Baums situation but has done so from the urethra and the vaginal wall.
[123]
He described the sling procedure in issue and suggested that a cystoscopy be
done after each trocar or needle has been placed to see if any injury has occurred. A saline solution is placed into the bladder to expand it so that the bladder can be more completely examined.
-26-
[124]
He recommended a 70 degree lens on the cystoscopy to ensure that a good
view of the bladder and urethra is available.

[125]
He testified that a doctor should inspect the fluid placed into the bladder and
that fluid should look like it did when it was put into the bladder.
[126]
If blood is present, a doctor should be worried. A doctor could perform
another cystoscopy or put blue dye or pure milk in the bladder to see if any leaks or perforations are present.
[127]
He testified the description of return sang in the Operating Room Nurses
Report should make one concerned that there has been some damage.
[128]
If he was in that situation and saw blood, he would perform another
cystoscopy to check for injuries.
[129]
He has performed the sling procedure numerous times and in the course of
such surgery, has punctured the bladder. As a result of this, he has changed procedures.
[130]
Dr. Zilbert testified that the standard of care requires one or two cystoscopies.
He recommends two cystoscopies, one after each trocar or needle is passed.
[131]
He has observed a trocar in a bladder but has never seen a tape inside a
bladder. He testified that the bladder is a resilient organ and can survive minimal trauma.
-27-
[132]
The only option, if a tape is found in the bladder, is to remove it. There is no
other option. It is not difficult to remove the tape if it is noticed at the time it is found in
the bladder.
[133]
Post-operatively, the doctor should check the patient to see that he or she is
voiding properly or if there are any leaks.
[134]
If the patient is having difficulty passing urine, that is an indication of a
problem. The tape may be too tight and the doctor would have to pull the tape back to reduce the tension around the urethra.
[135]
He testified that there are little barbs on the tape to help it adhere to tissue.
When the tape is passed through the abdomen, under the bladder and behind the urethra, it is covered in plastic. Once the tape is properly in place and the bladder and urethra have been checked for perforation, the plastic is peeled off the tape.
[136]
Referring to Dr. Mallecks operating record, Dr. Zilbert said that the
statement in the report that the needles or trocars had not gone through the bladder was inconsistent with a finding of sang or blood in the urine.
[137]
Blood would not be expected, so the presence of blood should cause the
doctor some anxiety. Dr. Zilbert testified that if he were performing this operation, he would be concerned with the presence of blood and would perform another cystoscopy upon the patient.
[138]
Dr. Zilbert testified that in the operating room, the surgeon is responsible for
what takes place.
-28-
[139]
Dr. Zilbert explained that a team approach is used where the surgeon is in
charge of performing the surgery properly and explaining the post-operative care.
[140]
The surgeon should write down post-operative orders for the hospital staff
and should check on the patient.
[141]
Dr. Zilbert testified that the presence of blood in the patients urine had to be
evaluated by the surgeon. This did not appear to have been done in this case.
[142]
In referring to the Flow Sheet under output, Dr. Zilbert testified the word
sang means blood. References to light sang, sang tinge and dark amber with clots should cause concern, in the opinion of Dr. Zilbert.
[143]
Dr. Zilbert testified that the person who wrote these notes is responsible to
bring these matters to the attention of the doctor but at the end of the day, the doctor is responsible for finding out how the patient is doing.
[144]
Dr. Zilbert testified that he would not expect to see the notation dark amber
with clots in reference to the urine at the stage it was noted. Dr. Zilbert testified that a reasonable gynaecologist would ask why blood is present. Performing another cystoscopy and filling the bladder with fluid to see if there is a leak would be the appropriate procedure.
[145]
Dr. Zilbert testified that upon reviewing the hospital records, which includes
the indication of the pain that Ms. Baum was in, her difficulty voiding and the indications of bladder spasms also reported in the Progress Notes, it was not appropriate to discharge her. Dr. Zilbert also indicated that the reflection on the Physicians Progress Notes on
-29-
April 10, 2005 of spasms and severe cramps are unusual and unexpected two days after surgery and the day she was discharged.
[146]
Dr. Zilbert testified that the laboratory report ordered by Dr. Deklerk on April
13, 2005, showed blood in the urine which was not normal. This laboratory report was provided to Dr. Malleck prior to Ms. Baums first post-operative appointment on April 18, 2005.
[147]
Dr. Zilbert testified that a reasonable gynaecologist would be worried about
the urinalysis and would arrange a cystoscopy.
[148]
Dr. Zilbert testified that a day or so after the surgery, the tape could be
removed quite easily. One would then let the patient heal and attempt the surgery again. Dr. Zilbert testified that there were two options available upon noticing the tape. One would be to remove the tape and operate again later or secondly, to try and reset the tape. Dr. Zilbert preferred the first option.
[149]
The laboratory report ordered by Dr. Malleck on April 28, 2005, indicated
red and white blood cells in the urine with no infection, which also should be a concern to a reasonable gynaecologist, in the opinion of Dr. Zilbert.
[150]
Dr. Zilbert testified that there are several different sling procedures, among
them the TVT tape and the SPARC procedure. Dr. Zilbert testified that a doctor should take training on a new procedure prior to using the new procedure in an operation. A doctor expecting to use a new procedure should attend the operating room with a doctor who is familiar with the procedure and who has used it before, to receive some exposure to the procedure. The doctor should then use the new procedure under supervision from
-30-
a surgeon experienced with the procedure before trying it on his or her own. A reasonable gynaecologist would not use a new procedure without some direction.
[151]
Dr. Zilbert testified that finding tape in the bladder is not unusual. Dr. Zilbert
acknowledged that some doctors do only one cystoscopy in the course of a procedure such as this but stated that performing two cystoscopies is a more cautious approach. Dr. Zilbert acknowledged that under the SPARC procedure instructions, one cystoscopy is recommended.
[152]
Dr. Zilbert acknowledged it is possible to fail to notice tape in the bladder
while performing a cystoscopy and acknowledged that it is also possible to fail to observe a needle or trocar in the bladder while performing a cystoscopy.
[153]
Dr. Zilbert felt that it was probably still feasible on April 18, 2005, some 10
days after the surgery and on the date of Ms. Baums first appointment with Dr. Malleck, to remove the tape although that would be nearing the limit when it would be possible to remove the tape without too much difficulty.
[154]
Dr. Zilbert acknowledged that the doctor should follow the step by step
procedure contained in the instructions for use of the SPARC kit, wherein one cystoscopy was recommended.
[155]
Dr. Zilbert testified that although a nurse could have inserted the catheter at
the conclusion of the surgery, there was no reason for the nurse to do so. It would be much easier for the doctor to do it as she is in a better position to do so. Dr. Zilbert testified that it is not clear from Dr. Mallecks Operation Record on the Operating Room Nurses Report who actually inserted the catheter.
-31-
[156]
The notation on the Operating Room Nurses Report #16-10 cc inserted per
Dr. Malleck inter-op - returned sang indicates that a number 16 catheter was inserted and
blood was present in the urine. Dr. Zilbert expected that the nurse would bring this concern to the attention of Dr. Malleck, if the nurse inserted the catheter, but it is ultimately the doctors responsibility to observe this. Dr. Zilbert acknowledged that it appears that the steps for the SPARC procedure, as outlined in the instructions for use of the kit, were followed from Dr. Mallecks Operation Record.
B.
The Defendants Evidence
Dr. Naseem Malleck
[157]
Dr. Malleck testified on her own behalf.
[158]
Dr. Malleck completed her medical degree in India in 1981. She then took
a two month internship in Social and Preventative Medicine. In 1981 she moved to Port Louis, Mauritius, where she accepted another internship for approximately one year. From January, 1983 until December, 1988, she was in private practice as a general practitioner in Port Louis and then took a senior internship position in a hospital in Dakar, Senegal.
[159]
In 1992, Dr. Malleck moved to Durban, South Africa where she enrolled in
obstetrics and gynaecology, obtained her fellowship in 1996, and was certified as a specialist in 1997. From that time until December, 2003, when she moved to Swift Current, she worked as a consultant, private practitioner and medical teacher.
-32-
[160]
In late December, 2003, she moved to Swift Current where she has been ever
since practising as an obstetrician and gynaecologist on a limited basis until she received
her Canadian Fellowship in 2007. She is currently the head of obstetrics and gynaecology at the Cypress Regional Hospital in Swift Current.
[161]
Dr. Malleck testified that she saw Ms. Baum in her office on February 8,
2005, as a result of a referral from Ms. Baums family doctor due to urinary stress incontinence, and upon examining Ms. Baum, Dr. Malleck suggested a sling procedure.
[162]
Dr. Malleck testified that she had experience with the sling procedure, having
performed approximately 50 such procedures in South Africa, although she used a different kit or procedure than was used in Swift Current. She had also performed some 300 cystoscopies in her practice prior to April, 2005.
[163]
Dr. Malleck testified that she was not familiar with the SPARC procedure
when she came to Swift Current so she did some research on this procedure. She observed Dr. Arwini (another obstetrician and gynaecologist in Swift Current) for several procedures and asked Dr. Arwini to observe her performing several procedures, all using the SPARC procedure, prior to April 8, 2005. She did not read the instructions for the SPARC procedure prior to the surgery as she had read them earlier and remembered them.
[164]
Dr. Malleck testified that she explained the risks and benefits of the surgery
to Ms. Baum at her initial interview.
-33-
[165]
The notes on Dr. Mallecks chart relating to Ms. Baum identified that the
risks are bladder, bowel injury, injury to the blood vessels, etc. and the benefits are
relief of symptoms.
[166]
Dr. Malleck testified that she had added this note to Ms. Baums chart after
she received a letter from Ms. Baums lawyer requesting records and advising that there may be a claim against her.
[167]
Dr. Malleck testified that she also added the following to the chart under the
April 28, 2005 appointment: advised if pain persists will require cystoscopy and probable removal of the tape ! moving to Saskatoon, said will contact a doctor there if necessary. Dr. Malleck testified that upon receiving the letter from Ms. Baums lawyer, she retrieved the chart and recollected some matters that were missing and inserted them on the chart. She advised her counsel upon his being retained and the additions to the chart were disclosed to the plaintiff. The following entry was then added to the chart: *14/11/06 Addendum. This was added on to the existing record of the patient from the recollection of the conversation with the patient. (Signed) Dr. Malleck - 15/11/06".
[168]
Dr. Malleck testified she recalled Ms. Baum quite well. She admitted she
might be mistaken in recalling that Ms. Baum told her she was moving to Saskatoon. She took no issue with the fact that the plaintiff testified that she said nothing to Dr. Malleck about moving to Saskatoon and in fact did not move to Saskatoon or had any intention of moving to Saskatoon.
[169]
Dr. Malleck testified that she performed the sling procedure on the plaintiff
on April 8, 2005 and dictated the Operation Record immediately after surgery. She testified that there were two errors in the Operation Record that she did not bother to
-34-
correct. First, where the report states the urine was clear after the surgery, the report should state the saline was clear. This refers to the saline introduced into the bladder
after the surgery in the course of the cystoscopy. Secondly, Dr. Malleck testified that the report, as tendered in evidence, refers to one cystoscopy only and that she performed two cystoscopies, one after each needle or trocar was passed.
[170]
She testified that she had perforated a bladder six or seven times in the past
but she has always noticed it at the time.
[171]
Dr. Malleck testified that she performed two cystoscopies in the course of
Ms. Baums surgery but did not see the needle in the bladder. She accepted that she perforated the plaintiffs bladder on the right side but did not notice it.
[172]
Dr. Malleck stated that the nurse re-inserted the catheter on Dr. Mallecks
instructions after the surgery and after the vaginal pack was applied. Dr. Malleck stated that the phrase Foleys catheter was left in situ was entered in the Operation Record by her because she instructed the nurse to reinsert it. The catheter was, in fact, not left in situ. It was removed and then replaced.
[173]
Ms. Baum was not discharged for two days, which was unusual, but Dr.
Malleck stated she had concerns about Ms. Baums pain and vomiting. She thought the vomiting was a reaction to the anaesthetic.
[174]
Dr. Malleck testified that when she does rounds, she asks the nurse about
concerns and reviews the Clinical Record. In 2005, she did not look at the Flow Sheet or the Progress Notes but relied on discussions with the nurses. She testified that she also looks at laboratory report results and then sees the patient. Dr. Malleck testified that she
-35-
specifically asked the nurse how Ms. Baum was doing. She testified she saw Ms. Baum on April 9, 2005 and again on April 10, 2005 in the hospital. She recalled a nurse told her
on April 9, 2005 that Ms. Baum was exaggerating her pain although this was not in any of the records or documents. Dr. Malleck testified that she was not told there was any blood in Ms. Baums urine and, in fact, was told there was no blood in her urine and that she was improving. Therefore Ms. Baum was discharged on April 10, 2005.
[175]
Dr. Malleck testified that blood in the plaintiffs urine can occur in surgery
as a result of manipulation of the bladder.
[176]
When asked, Dr. Malleck testified that the reference to lighter sang at
12:10 and sang tinge at 18:30 on April 9, 2005 on the Flow Sheet is an indication of very little blood and that the patient was improving. She added that in her view, the patient was improving. She further testified that she was not told about the entry dark amber with small clots at 6:00 p.m. on April 9, 2005, also on the Flow Sheet. She testified that this would be abnormal.
[177]
Dr. Malleck stated that if she was told about the dark amber with small
clots reference, she would not have discharged the patient and may have performed another cystoscopy.
[178]
Dr. Malleck testified that she had no recollection that Ms. Baum had
attempted to contact her on April 13, 2005. She testified that the clinic that she was working in at that time was having trouble with the receptionist. Dr. Malleck testified she recalled the appointment of April 18, 2005. She was aware that Ms. Baum had an infection as a result of receiving the laboratory report requested by Dr. Deklerk.
-36-
[179]
She agreed with Dr. Zilberts observation that the laboratory report indicating
the presence of blood in the urine was of concern but she did not think to order another
cystoscopy as she thought the presence of blood was due to the bladder infection.
[180]
Dr. Malleck testified that she recalled the appointment of April 28, 2005 with
Ms. Baum but testified that she could be mistaken about Ms. Baum telling her she was moving to Saskatoon.
[181]
Dr. Mallecks notes of that date indicate the stitches were healing properly
and the comment thank God was written in her native language. There was no evidence of infection.
[182]
Dr. Malleck testified the surgery and subsequent appointments took place a
little after one year after she came to Swift Current from Africa and that there were significant cultural differences in the practices of taking and reviewing notes and records as well as the relationship among doctors and nursing staff in Swift Current from what she was used to in Africa.
[183]
As the years have gone by, she is now more familiar with Canadian practice
and has changed her practice to conform with the Canadian practice.
[184]
Again, although the laboratory report of April 13, 2005 ordered by Dr.
Deklerk showed blood in the urine, Dr. Malleck noted that there was less blood. She thought the infection was resolving and that the patient was feeling better so she did not consider performing another cystoscopy. She testified that if she had seen the mesh in the bladder, she would have referred the matter to a urologist. She would not regard herself as competent to deal with this eventuality.
-37-
[185]
She testified she did her best and offered an apology to the plaintiff.
Baum was exaggerating her pain was Ms. Dyck.
[187]
Dr. Malleck testified that she knew at the follow up appointment on April 18,
2005 that Ms. Baum had an e-coli infection and stated she had read the laboratory report of April 13, 2005 ordered by Dr. Deklerk and sent to her on April 14, 2005.
[188]
Dr. Malleck admitted that she was in charge of the patient and that it was her
responsibility to look at the whole of the patients information and to decide what information to review.
[189]
She admitted that at the time she was not familiar with the Flow Chart which
showed the patients vital signs and any notations on the patients condition for the first 24 hours after surgery.
[190]
She acknowledged that she did not review the Flow Chart for Ms. Baum.
Since then, she has changed her practice and now reviews the Flow Chart.
[191]
Dr. Malleck also admitted that she did not review the Progress Notes,
containing information on the patients medications and condition on the Flow Sheet but would rather ask the nurse on duty about the patient even though the nurse who made the entries may not have been on duty when Dr. Malleck was present at the ward.
[192]
Dr. Malleck could not recall visiting the ward on April 9, 2005, although she
did state she ordered the removal of Ms. Baums catheter on that date. The Physicians
[186]
In cross-examination, Dr. Malleck testified that the nurse who told her Ms.
-38-
Progress Notes do not make it clear whether Dr. Malleck visited Ms. Baum or whether she merely received a report on her or just reviewed the clinical record.
[193]
Dr. Malleck testified she was not present in the operating room when the
catheter was reinserted in Ms. Baums urethra and did not see the Operating Room Nurses Report until the examination for discovery. Accordingly, she stated she was unaware that the saline discharge contained blood.
[194]
Dr. Malleck further admitted that she did not know about blood in Ms.
Baums urine while Ms. Baum was in the hospital.
[195]
When she was asked about a culture report or a vaginal swab at her April 28,
2005 appointment with Ms. Baum, she admitted she did not have the reports. Ms. Baum testified that there were no culture or vaginal swabs taken at that appointment.
[196]
Dr. Malleck admitted there was no follow-up to the culture reports and
admitted it would have been a good thing to follow up and see what had happened to the reports and see if there were any matters of concern.
[197]
Dr. Malleck testified that she told Ms. Baum about bladder perforation being
a risk of the surgery but did not advise that leaving tape in the bladder is a complication. She stated that she now tells her patients that this is a potential complication of such surgery. Dr. Malleck advised that she sees some 2,000 patients per year and that she remembered Ms. Baum because she recalls all the patients on whom she performs vaginal sling procedures.
Dr. Annette Epp
-39-
[198]
Dr. Annette Epp then testified for the plaintiff. Dr. Epp was admitted as an
expert in gynaecology and urogynaecology qualified to provide expert opinion evidence

with respect to: a) pre-operative, intra-operative and post-operative standard of care associated with the conduct and management of the artificial sling (or TVT) procedure designed to treat women presented with urinary stress incontinence which procedure includes the SPARC procedure; b) the complications that can arise inter-operatively and post-operatively which are associated with the artificial sling procedure as well as the methods available for the detection of such complications; and c) the post-operative repair and treatment options available in the event of a mesh transection or a mesh erosion into either the bladder or the urethra following the conduct of an artificial sling procedure.
[199]
Dr. Epp is a graduate of medicine of the University of Saskatchewan from
1989. From 1993 to 1994, she took her residency in obstetrics and gynaecology at the University of Saskatchewan then took a fellowship training in urogynaecology at the Foot Hills Hospital in Calgary, Alberta. Dr. Epp is currently in private practice in Saskatoon and also teaches undergraduate and residence gynaecology at the University of Saskatchewan.
[200]
Dr. Epp advised the court that the plaintiff was first referred to one of her
associates who had ceased practising gynaecology and thus the plaintiff was referred to her. In the course of examining the plaintiff on May 5, 2005, she became aware that the factual background was familiar to her and realized she had been contacted by Dr. Mallecks counsel about this very case. She did not think it appropriate to advise Ms. Baum during the examination or to discontinue the examination so she continued the examination of Ms. Baum. Although the evidence disclosed that the plaintiff contacted
-40-
Dr. Epp for a reference to the Mayo Clinic, Dr. Epp did not recall advising Ms. Baum that she could not help her as she was advising Dr. Mallecks counsel.
[201]
Dr. Epp described the risks of the surgery performed on Ms. Baum. Such
risks include injury to the bladder and urethra and infection.
[202]
Dr. Epp reviewed the Operation Record dictated by Dr. Malleck and found
the surgery described to be in accordance with accepted standards of practice.
[203]
Dr. Epp advised the court that the bladder had folds or pleats in it and it is
necessary to insert fluid in the bladder to expand it to be able to view the bladder properly with a cystoscopy.
[204]
Dr. Epp stated it is possible to miss seeing a needle in the bladder and has
observed students and even teachers fail to notice a needle that has punctured a bladder. She stated the tape is also easy to miss, noting in fact that the tape is now blue rather than white as it was in the past, presumably because blue is more visible.
[205]
Dr. Epp advised that the evidence of sang coming from the catheter is
evidence of trauma to the lower urinary tract but that if a doctor was confident in the cystoscopy that he or she performed earlier in the surgery, another cystoscopy would not be necessary.
[206]
In reviewing the Flow Sheet, Dr. Epp was unable to comment on the
significance of the term sang recorded at 11:45 a.m. on April 9, 2005. She was unsure if it referred to urine in the discharge bag or in the tube to the discharge bag.
-41-
[207]
Dr. Epp testified that in her own practice, she relies heavily on nurses to
advise her of a patients condition and does not refer to the Progress Notes herself.
[208]
Dr. Epp was unable to comment on the reference to lighter sang at 12:10
or sang tinge at 18:30 or the reference to dark amber with small clots at 6:00 a.m. on April 9, 2005. As to the reference to the description of pain in the Progress Notes, Dr. Epp testified that pain is relative and that it is therefore difficult to be satisfied how much pain Ms. Baum was in. Dr. Epp stated that she herself relies on the nurses to tell her if they have any concerns.
[209]
Dr. Epp did say she reviews the Flow Sheet and Progress Notes if she is
seeing someone elses patient or if it is the first time she is seeing a patient.
[210]
If a patient is discharged under normal conditions, she would schedule a
follow-up appointment up to six weeks later. She felt that Dr. Mallecks appointment to see Ms. Baum some two weeks after discharge initially, then finally one week after discharge, was reasonable.
[211]
Dr. Epp testified it was a judgment call to release Ms. Baum from the hospital
on April 10, 2005 and it would also be a matter of judgment to perform a further cystoscopy during the time Ms. Baum was in the hospital.
[212]
She advised that Dr. Mallecks plan was not unreasonable and that she herself
had never performed a cystoscopy on anyone immediately after surgery.
-42-
[213]
With respect to the plaintiffs appointment on April 18, 2005, Dr. Epp stated
that the plaintiffs symptoms were explainable by the presence of infection and that it was
reasonable at that point not to do a further cystoscopy.
[214]
With respect to the April 28, 2005 follow up appointment, Dr. Epp agreed
that there should have been a follow-up to the urinalysis and the culture report and the results of such a follow-up could lead a doctor to perform a further cystoscopy.
[215]
Dr. Epp stated that she would not admit this patient for a further cystoscopy
on an urgent basis.
[216]
Dr. Epp testified that if the transection of the bladder by the tape was noticed
immediately upon perforating the bladder, the tape could be pulled out rather easily, but after 10 days it would become very difficult to remove the tape. After the plastic sheath is removed from the tape, the tape becomes very sticky and adheres to the body tissue.
[217]
Dr. Epp has removed tape some two years after it was inserted and it is a very
difficult procedure. Dr. Epp was unable to say how much easier it would be after only 10 days.
[218]
Dr. Epp viewed the video of the cystoscopy performed by Dr. Klingele at the
Mayo Clinic and noticed the tape. She said it was difficult to say that it was a transection of the bladder and could also be an erosion of the mesh into the bladder.
[219]
Dr. Epp stated that if it were indeed a placement issue, it would be unwise
for Dr. Malleck to attempt to repair it. She would be advised to call a urologist.
-43-
[220]
She testified that the perforation of a bladder in the course of performing a
sling procedure is a foreseeable risk.

[221]
If two cystoscopies are performed during the course of such a procedure, then
Dr. Epp would expect a reasonably competent surgeon would see if there is a needle or tape in the bladder.
[222]
However, Dr. Epp testified, it is possible to miss a bladder perforation, but
the more experience one has, the less likely one is to miss such a perforation. Dr. Epp testified that the perforation rate is approximately two percent. She agreed that a bladder perforation is one of the most significant risks of performing such a surgery and a prudent practitioner should be aware of this.
[223]
Dr. Epp advised the court that if there was blood in the catheter at the high
end of the spectrum, it would point to a bladder perforation. If she had any doubts about her cystoscopy, she would do another cystoscopy if she saw fresh blood. Whether or not to perform another cystoscopy depends on the clinical skill and judgment of the doctor performing the operation, but blood is unexpected.
[224]
She testified that it is not an option to leave tape in the bladder but that it
must be removed.
[225]
She testified that if a new kit or procedure is introduced, a new doctor should
do at least five procedures under the tutelage of an experienced surgeon.
[226]
Dr. Epp advised that the pain suffered by Ms. Baum, the blood and the other
symptoms all point to a high level of suspicion.
-44-
Dr. Mohamed Arwini
[227]
Dr. Mohamed Arwini, a urologist in Swift Current, was called as a rebuttal
witness by the plaintiff. He was asked what training he had given to Dr. Malleck in late 2003 and before April, 2005 with respect to sling procedures and cystoscopies. He was advised that there were no operating room records that indicated both he and Dr. Malleck were both in the same operating room at the same time on such a procedure prior to April, 2005.
[228]
Dr. Arwini testified that Dr. Malleck had called him to do a cystoscopy
several times and he came into observe after she had performed a sling procedure but could not remember when. He testified under cross- examination that when asked if he recalled Dr. Malleck observing him perform a sling procedure that he thought so, but could not remember when. He stated he observed her from outside the sterile field performing a sling procedure.
[229]
Dr. Arwini testified that he performed a cystoscopy on Ms. Baum on August
4, 2005, and noticed the tape in the bladder immediately. Dr. Arwini testified that if ever a doctor finds blood in the urine in such a procedure, he must investigate further.
Marianne Woods
[230]
Marianne Woods was also called as a rebuttal witness by the plaintiff.
C.
The Plaintiffs Rebuttal Evidence
-45-
[231]
Ms. Woods is a regional health information manager and privacy officer with
the Saskatchewan Department of Health and preserves the operating room records. Ms.
Woods presented records of the operating room sling procedures in Swift Current Hospital between December, 2003 and April, 2005. She testified, and the record revealed, that there was no record of Dr. Arwini and Dr. Malleck being in the operating room at the same time performing a sling procedure, although if a doctor is observing but not assisting or participating in an operation, then the doctors presence may not appear in the records.
Carol Dyck
[232]
Carol Dyck was then called as a rebuttal witness by the plaintiff. Ms. Dyck
is a registered nurse and was on duty at Swift Current Hospital on April 8, 9 and 10, 2005. She did not recall the plaintiff. She testified that she had never passed on to a doctor an observation that a patient was exaggerating the pain he or she was suffering and would never do such a thing.
ISSUES
A.
Did the defendant owe a duty of care to the plaintiff?
B.
What is the standard of care expected of the defendant?
C.
If so, did the defendant breach the standard of care?
-46-
D.
If the defendant breached the standard of care, did the breach cause injury or damage?
E.
If the defendant breaches the standard of care, and if the breach caused injury or damage to the plaintiff, what damages is the plaintiff entitled to?
LAW AND ANALYSIS
A.
Did the defendant owe a duty of care to the plaintiff?
[233]
It is agreed by the parties to the action and it is well established that a doctor
owes a duty of care to his or her patients. As stated by the defendant Dr. Malleck was required to exercise reasonable care so as to avoid acts which could be reasonably foreseen as likely to injure Ms. Baum, and to take reasonable precautions commensurate with the risks inherent in the circumstances. [para. 52 of defendants brief] See Donoghue v. Stevenson [1932] A.C. 562 (H.L.).
B.
What is the standard of care expected of the defendant?
-47-
[234]
Again, the parties agree on the enunciation of the standard of care expressed
in Wilson v. Swanson, [1956] S.C.R. 804 at para. 812, 5 D.L.R. (2d) 113:
... That test can be no more than this: was the decision the result of the exercise of the surgical intelligence professed? Or was what was done such that, disregarding it may be the exceptional case or individual, in all the circumstances, at least the preponderant opinion of the group would have been against it? If a substantial opinion confirms it, there is no breach or failure. ...
[235]
This was confirmed by the Supreme Court of Canada in the decision in ter
Neuzen v. Korn, [1995] 3 S.C.R. 674, 127 D.L.R. (4th) 577:
33 It is well settled that physicians have a duty to conduct their practice in accordance with the conduct of a prudent and diligent doctor in the same circumstances. In the case of a specialist, such as a gynaecologist and obstetrician, the doctor's behaviour must be assessed in light of the conduct of other ordinary specialists, who possess a reasonable level of knowledge, competence and skill expected of professionals in Canada, in that field. A specialist, such as the respondent, who holds himself out as possessing a special degree of skill and knowledge, must exercise the degree of skill of an average specialist in his field: see Wilson v. Swanson, [1956] S.C.R. 804, at p. 817, Lapointe v. Hpital Le Gardeur, [1992] 1 S.C.R. 351, at p. 361, and McCormick v. Marcotte, [1972] S.C.R. 18.
[236]
The Supreme Court of Canada noted in Wilson v. Swanson, supra, that An
error in judgment has long been distinguished from an act of unskilfulness or carelessness or due to lack of knowledge.
[237]
The courts should also be cognizant that medical practitioners are not
guarantors of the results of any given diagnosis, procedure or treatment. Unforeseeable accidents may occur for which nobody can be held responsible. (Cardin v. Montral (Cit), [1961] S.C.R. 655, 29 D.L.R. (2d) 492 at 494.
-48-
C.
Did the defendant breach the standard of care?
as all other obstetricians and gynaecologists in the Province of Saskatchewan and that she breached that duty in the following ways:
(1)
The defendant was not adequately trained in the SPARC procedure;
(2)
The defendant perforated the plaintiffs bladder and the urethra in the course of the surgery;
(3)
The two cystoscopies that the defendant performed were done in such a way that she did not see the obvious perforation of the bladder;
(4)
The defendant was unaware of the presence of blood in the plaintiffs urine at the conclusion of the surgery and during the plaintiffs time in the hospital; and
(5)
The defendant did not review the plaintiffs medical records and charts in her post-operative care and assessment of the plaintiff.
[239]
I will deal with these allegations in the same order.
[238]
The plaintiff states that the defendant must meet the same standard of care
-49-
(1)
The defendant was not adequately trained in the SPARC procedure.

[240]
Dr. Mallecks testimony was that she had performed some 50 sling
procedures in South Africa prior to coming to Canada, but had used a different kit or procedure than the SPARC procedure used in Swift Current. She testified that she had done some research on the SPARC procedure and observed Dr. Arwani do a SPARC procedure and asked Dr. Arwini to observe her performing several such procedures prior to April, 2005.
[241]
Dr. Epp, who testified on behalf of Dr. Malleck, testified that if a new kit or
procedure such as this is introduced, a doctor should do at least five such procedures under the tutelage of a surgeon experienced in performing such procedures before attempting one on his or her own.
[242]
Dr. Arwini testified that Dr. Malleck had called him to do a cystoscopy and
he came into check on Dr. Malleck after she had performed a SPARC procedure but was unsure when this occurred. Dr. Arwini was at best equivocal when asked if Dr. Malleck observed him performing a sling procedure.
[243]
Neither the evidence of Dr. Malleck nor the evidence of Dr. Arwini suggests
that she had nearly the practice suggested by Dr. Mallecks expert witness, Dr. Epp.
[244]
Dr. Malleck testified that she was not familiar with the Swift Current
operating and hospital procedures and had changed her practice in a number of ways since the incident that gave rise to this action.
-50-
[245]
This is not a simple matter of an error in judgment. She was admittedly not
experienced in the SPARC procedure and testified she did not read the instructions that
came with the SPARC kit immediately prior to the surgery. She testified that she remembered these instructions from reading them some time earlier. Yet Dr. Malleck testified that she followed the SPARC procedure as outlined in the SPARC kit. In fact, she testified that she did two cystoscopies, one after each trocar or needle was passed rather than the one cystoscopy suggested by the SPARC kit although this is not stated in her report of the operation.
[246]
This inexperience increased the opportunity for mishap, or to put it another
way, increased the risk of an occurrence of which the defendant was aware, namely perforation of the bladder.
[247]
In my view, undertaking this surgery without the proper training, which the
defendants expert and the plaintiffs expert states was necessary, did not meet the standard of care which the defendant owed to the plaintiff.
(2)
The defendant perforated the plaintiffs bladder and the urethra in the course of the surgery.
[248]
I find that Dr. Malleck did indeed perforate Ms. Baums bladder and urethra
in the course of the surgery. Dr. Klingele testified that in his opinion, the tape in the urethra was placed there at the time of the surgery and did not erode into the bladder and urethra, as suggested by Dr. Epp. Dr. Malleck in her evidence admitted she must have perforated the plaintiffs bladder.
-51-
[249]
Dr. Zilbert, an expert called by the plaintiff, Dr. Klingele, the doctor who
performed Ms. Baums ultimate surgery and was also accepted by this Court as an expert,
and Dr. Epp all testified that perforation of the bladder is a known risk of this type of surgical procedure. Dr. Zilbert and Dr. Epp both testified that they have themselves perforated a bladder in the course of such surgery. In the face of the evidence of both the plaintiffs witness, Dr. Zilbert, and the defendants witness, Dr. Epp, both called as experts in the standard of care of a doctor under this type of surgical procedure, I find that perforation of the bladder is not in and of itself, negligent.
[250]
There was evidence presented by Dr. Epp that perforation of the urethra is
also a known risk of this surgical procedure. Accordingly I do not find that perforation of the plaintiffs urethra was negligent.
(3)
The two cystoscopies that the defendant performed were done in such a way that she did not see the obvious perforation of the bladder.
[251]
Dr. Zilbert testified that it is possible to miss the presence of mesh or a trocar
(or needle) in a cystoscopy. Dr. Epps testimony was to the same affect. On the other hand, Dr. Arwini, Dr. Barrett and Dr. Klingele all noticed the mesh in the course of the cystoscopies that they performed. It is uncertain how or why Dr. Malleck did not notice the presence of mesh in the course of the cystoscopy or cystoscopies that she performed but faced with the testimony of Dr. Zilbert and Dr. Epp, I am not satisfied on a balance of probabilities that the failure to notice that the presence of the mesh tape in the bladder is negligent in and of itself or is a breach of the duty of care owed to Ms. Baum.
-52-
[252]
I will deal with the final two allegations of negligence together as they both
refer to Dr. Mallecks care of Ms. Baum inter-operatively and postoperatively.

(4)
The defendant was unaware of the presence of blood in the plaintiffs urine at the conclusion of the surgery and during the plaintiffs time in the hospital.
(5)
The defendant did not review the plaintiffs medical records and charts in her post-operative care and assessment of the plaintiff.
[253]
Dr. Malleck, by her own admission, was unaware of the presence of blood
in the plaintiffs urine after the surgery and during the time of the plaintiffs stay in the hospital.
[254]
Dr. Malleck testified that she did not know that the operating room nurse
observed blood in the plaintiffs bladder discharge at the conclusion of the surgery as it was her custom to have the nurse insert the catheter into the patient to void the bladder after completing the cystoscopy and the nurse, according to Dr. Malleck, did not disclose to Dr. Malleck the presence of blood in the discharge. Dr. Malleck was unsure if she was even in the operating room at the time the catheter was re-inserted into the plaintiffs bladder.
[255]
Likewise, Dr. Malleck testified that it was never reported to her by the
recovery room nurse or the ward nurses or any of the nurses on duty that there were reports of blood in the plaintiffs urine during the time Ms. Baum was in the hospital. In
-53-
fact, Dr. Malleck testified she was told by the nurses that there was no blood in the patients urine.
[256]
Dr. Mallecks evidence was that it was her custom to review only the Clinical
Record and therefore she did not read the Flow Sheet which covers April 8 to April 9, 2005. The Flow Sheet contains three more references to blood in the urine. Nor did she read the Operating Room Nurses Report which also referred to blood in the discharge at the conclusion of the surgery.
[257]
The Flow Sheet and Progress Notes also refer to the extreme pain Ms. Baum
was suffering, the cramps she was enduring, her vomiting and her difficulty in urinating.
[258]
Several nurses testified that it was their custom to report any concerns to the
doctor but Dr. Malleck testified that no one brought the plaintiffs condition to her attention.
[259]
Dr. Zilbert testified that the presence of blood in the saline after the
cystoscopy is a matter of concern and points to a bladder perforation.
[260]
Dr. Epp testified that if one is confident in a cystoscopy one performs, one
may not feel it is necessary to perform another cystoscopy but acknowledged that blood in the discharge is an indication of a bladder perforation.
[261]
Yet both parties expert witnesses testified that perforation of the bladder is
a known risk of such surgery. Therefore, if blood is present, it is most obvious that one of the most likely causes would be a perforation of the bladder.
-54-
[262]
Because a perforation of the bladder is a known risk, it is only prudent to
observe the discharge after the nurse has inserted the catheter to see if there is blood. As
Dr. Klingele stated, the presence of blood in the discharge at the time of surgery is considered to be a bladder perforation until proven otherwise.
[263]
A reasonable surgeon would take the time to observe if there was blood in
the discharge. The Operating Room Nurses Report made it clear there was blood in the patients discharge. Dr. Malleck did not take the time to make this observation. In failing to do so, she did not meet the standard of care to which Ms. Baum was entitled.
[264]
Dr. Malleck acknowledges that she was the person in charge of the operating
room at the time of surgery and that the responsibility for what occurred or did not occur in the operating room rests on her shoulders. This view was also shared by Dr. Zilbert and Dr. Epp. Therefore, whether the nurse reported the presence of blood in the discharge to Dr. Malleck or not, Dr. Malleck was responsible for knowing that there was blood in the urine.
[265]
Dr. Malleck testified that she did not review the medical charts and records
in her post-operative care and assessment of the plaintiff.
[266]
In addition to the Operating Room Nurses Report, which states opposite the
heading catheter - number 16-10CC inserted per Dr. Malleck interop - return sang, the presence of blood in Ms. Baums urine was mentioned in the Flow Sheet as follows:
April 8 11:45 a.m. output sang 12:10 output lighter sang 18:30 sang tinged
-55-
April 9 6:00 a.m. output dark amber with small clots
pain, nausea and cramping that Ms. Baum was undergoing. Dr. Malleck was not aware of the contents of any of these reports. In fact, she testified she was not familiar with the Flow Sheet. She stated that none of the nurses brought to her attention the fact that there was blood in Ms. Baums urine while at the hospital.
[268]
Several nurses testified that if there was a concern with a patient, they would
bring that concern to the attention of the doctor in charge. I do not accept that all of the nurses failed to bring Ms. Baums plight to Dr. Mallecks attention. I then must conclude that some or all of them did advise Dr. Malleck of Ms. Baums condition, including blood in her urine, but Dr. Malleck failed to grasp the significance of it. However, even if the nurses all failed to bring Ms. Baums condition to Dr. Mallecks attention, she was still responsible for knowing the condition of her patient.
[269]
Dr. Zilbert testified that a doctor should check to see if a patient is voiding
properly or if there are any leaks. Dr. Malleck did not do so.
[270]
The plaintiffs counsel referred to the following extract from McCann v.
Hyndman 2003 ABQB 693, [2004] 2 W.W.R. 353 with respect to the matter of postoperative care:
58 Dr. Hyndman was not only Mr. McCann's surgeon. He was his treating urologist. The extent of post-operative care was described in Tacknyk v. Lake of the Woods and Brown, [1982] O.J. No. 170 (Ont. C.A.): The obligation of a surgeon to his patient cannot and does not stop with the successful completion of the
[267]
The Flow Sheet and Progress Notes also make numerous references to the
-56operation itself. A continuing duty rests upon the surgeon to provide adequate post-operative care or to give adequate advice and direction as to such care. The extent of that duty will vary widely. It is now clear that the standard of care is a matter for the Court and not for medical experts although their view will be taken into consideration in setting the appropriate standard. The degree of care the surgeon must provide and the extent of the advice he must give will depend on a long list of variables. They may include the gravity of the operation, the age and general health of the patient, the particular problems of the patient, the nature of the post-operative medication and treatment required, the degree of isolation of the patient, the availability and proximity of medical care and hospital facilities and the degree of risk to which the patient is susceptible either from post-operative complications or subsequent medications and treatment. 59 I find that Dr. Hyndman's post operative care did not meet this standard in two respects. First, I have found that he did not advise Mr. McCann of the risk of a bowel obstruction. Secondly, the failure to monitor Mr. McCann's situation by X-ray, ultrasound, CT scan or MRI does not meet the standard of care required. This is particularly so when the device had been detected by earlier ultrasounds. All three medical witnesses testified that a CT scan or MRI would have detected the balloon and tubing. I also find that Dr. Hyndman's failure to follow-up in any meaningful way constitutes a breach of the standard of care. He suspected that Mr. McCann did not have a family physician but he did not even verify this with Mr. McCann. He gave no instructions to Mr. McCann as to what follow-up might be necessary. He did not suggest any further checkups despite the ongoing doctor patient relationship and the telephone prescriptions. Dr. Metcalfe, the defendant's expert on the standard of care would not have taken these steps. If that was the standard in Calgary in 1995, it is a standard which the plaintiff challenges. The court, as the trier of fact, can find this standard itself to be negligent (ter Neuzen v. Korn, [1995] 3 S.C.R. 674). 60 The standard of care is determined in reference to three factors: the likelihood of injury, the gravity of that injury and the cost of avoidance. Here the likelihood of injury was small. Dr. Metcalfe testified as to instances of missing parts resulting in bowel obstruction as rare. However, the gravity of potential injury was high. The known risks included bowel obstruction, adhesions on the bowel, and bowel perforation all requiring serious bowel surgery. Any infection could result in peritonitis or even death. The cost of avoidance was minimal in the circumstances. A regular check-up and monitoring by CT scan or MRI would have revealed the
-57location of the balloon and tubing. Mr. McCann could have been told of his options and assessed the risks if properly informed. 61 In the circumstances the standard of post-operative care required monitoring and follow-up with the patient. Dr. Hyndman did not do so. His conduct was negligent.
[271]
The defendant argues, correctly, that the court must not view a physicians
actions with 20/20 hindsight and referred to Lapointe v. Hpital Le Gardeur, [1992] 1 S.C.R. 351, 90 D.L.R. (4th) 7 wherein it is stated at para. 28:
28 See also: Tremblay v. Claveau, [1990] R.R.A. 268 (C.A.), at p. 271; Cloutier v. Hpital le Centre hospitalier de l'Universit Laval (CHUL), [1990] R.J.Q. 717 (C.A.), at p. 721; and Vigneault v. Mathieu, [1991] R.J.Q. 1607 (C.A.), at pp. 1614-15. As the judgment from Hpital gnral de la rgion de l'Amiante indicates, courts should [page363] be careful not to rely upon the perfect vision afforded by hindsight. In order to evaluate a particular exercise of judgment fairly, the doctor's limited ability to foresee future events when determining a course of conduct must be borne in mind. Otherwise, the doctor will not be assessed according to the norms of the average doctor of reasonable ability in the same circumstances, but rather will be held accountable for mistakes that are apparent only after the fact.
[272]
Dr. Epp testified that she does not review the Progress Notes but relies
heavily on nurses to advise her of a patients condition.
[273]
As the defendant argued at paras. 87 and 88 of the defendants brief:
87.
Dr. Mallecks practice with regards to conducting rounds is consistent with the standard of practice maintained by Dr. Epp. Dr. Epp testified that she does review the nurses notes when conducting post-operative rounds in relation to her own patients. Dr. Epp indicated that she reviews a document similar to the Clinical Record, which records vitals and urine output. As with Dr. Malleck, Dr. Epp relies on the nurses to contact her by telephone if they have any concerns, or alternatively, document their concerns on the document equivalent of the Clinical Record.
-5888. The only arguable criticism in this respect came from Dr. Zilbert. The extent of this criticism was limited to saying that it would be reasonable for a gynaecologist to review all the nursing records. Dr. Zilbert stopped conspicuously short of saying that it would be unreasonable not to review all the nursing notes. It must further be mentioned that Dr. Zilbert practices in a different jurisdiction and very little evidence was given as to the charting practices in Nova Scotia.
[274]
In the case of Lewgood v. Cuddington 2011 SKQB 175, [2011] S.J. No. 319,
referred to me by the defendant, Chicoine J. said at paras. 178-181:
178 The standard practice will also be pertinent in assessing whether there has been a breach in the standard of care. If a defendant can show that he acted in accordance with the standard recognized medical practice it would be unusual to find him negligent. In Gent v. Wilson, [1956] O.R. 257, 2 D.L.R. (2d) 160, Schroeder, J.A. stated at para. 13: 13 Each case must, of course, depend upon its own particular facts. If a physician has rendered treatment in a manner which is in conformity with the standard and recognized practice followed by the members of his profession, unless that practice is demonstrably unsafe or dangerous, that fact affords cogent evidence that he has exercised that reasonable degree of care and skill which may be required of him. ... 179 It is also possible that there may be more than one method of diagnosing or treating a particular medical problem. Assuming that each method conforms with the standard of practice recognized at the time and that it is not fraught with obvious risks which are obviously negligent, then it is not for the court to decide that one method is preferable to another. 180 In Quintal v. Datta, [1988] 6 W.W.R. 481, 68 Sask. R. 104, the Saskatchewan Court of Appeal confirmed this principle in the following terms (at para. Xx): ... Learned counsel for the appellants correctly submitted that where there is more than one recognized method of diagnosis or treatment, and no one of them is used exclusively and uniformly by all practitioners of good standing, a physician is not negligent if, in exercising his best judgment, he selects one of the approved methods, which later turns out to
-59be a wrong selection, or one not favoured by certain other practitioners: See: Whitehouse v. Jordan and another [1981] 1 All ER 267 (H.L.) and Maynard v. West Midlands Regional Health Authority [1985] 1 All ER 635 (H.L.)). 181 More recently, Sopinka J. in ter Neuzen v. Korn (supra) described the principle in this fashion at paras. 38 to 41: 38 It is generally accepted that when a doctor acts in accordance with a recognized and respectable practice of the profession, he or she will not be found to be negligent. This is because courts do not ordinarily have the expertise to tell professionals that they are not behaving appropriately in their field. In a sense, the medical profession as a whole is assumed to have adopted procedures which are in the best interests of patients and are not inherently negligent. As L'Heureux-Dub J. stated in [Lapointe v. Hopital le Gardeur, [1992] 1 S.C.R. 351] in the context of the Quebec Civil Code (at pp. 363-64): Given the number of available methods of treatment from which medical professionals must at times choose, and the distinction between error and fault, a doctor will not be found liable if the diagnosis and treatment given to a patient correspond to those recognized by medical science at the time, even in the face of competing theories. As expressed more eloquently by Andr Nadeau in "La responsabilit mdicale" (1946), 6 R. du B. 153, at p. 155: [Translation] The courts do not have jurisdiction to settle scientific disputes or to choose among divergent opinions of physicians on certain subjects. They may only make a finding of fault where a violation of universally accepted rules of medicine has occurred. The courts should not involve themselves in controversial questions of assessment
-60having to do with diagnosis or the treatment of preference. [Emphasis added.] 39 In The Law of Torts (7th ed. 1987), Professor Fleming observed the following with respect to the role of standard practice, at p. 109: Conformity with general practice, on the other hand, usually dispels a charge of negligence. It tends to show what others in the same "business" considered sufficient, that the defendant could not have learnt how to avoid the accident by the example of others, that most probably no other practical precautions could have been taken, and that the impact of an adverse judgment (especially in cases involving industry or a profession) will be industry-wide and thus assume the function of a "test case". Finally, it underlines the need for caution against passing too cavalierly upon the conduct and decision of experts. All the same, even a common practice may itself be condemned as negligent if fraught with obvious risks. [Emphasis added.] 40 With respect to the medical profession in particular, Professor Fleming noted, at p. 110: Common practice plays its most conspicuous role in medical negligence actions. Conscious at once of the layman's ignorance of medical science and apprehensive of the impact of jury bias on a peculiarly vulnerable profession, courts have resorted to the safeguard of insisting that negligence in diagnosis and treatment (including disclosure of risks) cannot ordinarily be established without the aid of expert testimony or
-61in the teeth of conformity with accepted medical practice. However there is no categorical rule. Thus an accepted practice is open to censure by a jury (nor expert testimony required) at any rate in matters not involving diagnostic or clinical skills, on which an ordinary person may presume to pass judgment sensibly, like omission to inform the patient of risks, failure to remove a sponge, an explosion set-off by an admixture of ether vapour and oxygen or injury to a patient's body outside the area of treatment. [Emphasis added. Footnotes omitted.] 41 It is evident from the foregoing passage that while conformity with common practice will generally exonerate physicians of any complaint of negligence, there are certain situations where the standard practice itself may be found to be negligent. However, this will only be where the standard practice is "fraught with obvious risks" such that anyone is capable of finding it negligent, without the necessity of judging matters requiring diagnostic or clinical expertise.
[275]
In light of Dr. Epps testimony that not reviewing the Flow Sheet and
Progress Notes is a standard practice in Saskatchewan, I am not able to conclude that Dr. Mallecks failure to review those records was negligent.
[276]
Dr. Malleck, however, admitted she was not even familiar with the Flow
Sheet. If she has not acquainted herself with the records available, how can she adequately assess her patients?
[277]
Dr. Malleck testified that since this incident, she has changed her practice.
She now reviews the Flow Sheet and the Progress Notes of patients under her care.
-62-
[278]
At this point, it is important to mention a number of discrepancies.
fact. She added the notation to the chart that she advised Ms. Baum of the risks of such surgery.
[280]
Ms. Baum stated in evidence that she was not advised of any such risks and
assumed that she was merely going in for a routine surgery, similar in gravity to a tonsillectomy.
[281]
Dr. Malleck testified that she added advised if pain persists will require
cystoscopy and probable removal of the tape ! moving to Saskatoon said she will contact a doctor there if necessary. Both this clause and the clause referred to above were added after she received a letter from Ms. Baums lawyer requesting Ms. Baums chart and advising that a claim may be made against her.
[282]
Ms. Baum denied that she advised Dr. Malleck that she was moving to
Saskatoon. There was no evidence, other than the late additions to the plaintiffs chart, that Dr. Malleck advised Ms. Baum that the tape might have to be removed. If indeed Dr. Malleck said that, why was that option not looked at?
[283]
Although Dr. Malleck stated she added these items from her recollection of
Ms. Baum, she acknowledges that she could have been mistaken. I accept the evidence of the plaintiff in these matters and find that the defendant did not advise the plaintiff of the risk of the surgery and did not advise the plaintiff that the tape might have to be removed. This failure to advise on the risks of surgery and the failure to advise the
[279]
Dr. Malleck admitted that she made notations in the plaintiffs chart after the
-63-
plaintiff that another surgery may be necessary add to the already unacceptable care of the plaintiff by the defendant.
[284]
The defendant testified that she performed two cystoscopies during the course
of the surgery although her Operating Report states that only one was performed. The Operating Report also stated that the catheter was left in in situ when the operating nurses report clearly shows that a catheter was inserted at the end of the surgery. Dr. Malleck testified that she did not re-insert the catheter. She may not have even been in the operating room when the catheter returned blood. Dr. Mallecks operating report also stated that the urine was clear. She corrected that statement to state that the saline was clear. I find Dr. Mallecks operating report to be of no assistance or value at all.
[285]
If she perforated the bladder, which she admits, and if the catheter discharged
the bladder contents which contained blood, how could the saline possibly be clear?
[286]
After Ms. Baum was discharged from the hospital, she attempted to see Dr.
Malleck on April 13, 2005 but did not see her until her scheduled appointment on April 18, 2005.
[287]
I do not find the fact that Ms. Baum was unable to contact Dr. Malleck on
April 13, 2005 to be an instance of substandard care. Dr. Malleck was out of her office for some unknown reason. Dr. Malleck gave evidence which was uncontradicted that she became aware that the receptionist had failed in the past to notify her of calls or to forward calls to another doctor when she was unavailable. As a result, Dr. Malleck testified that she changed clinics.
-64-
[288]
Dr. Malleck also testified she remembered the plaintiff well but did not recall
the plaintiff telling her about the plaintiffs inability to contact her. Her memory of the
plaintiff is admittedly faulty. I do not believe Dr. Malleck recalled the witness and do not give any credence to her reason for adding notes to Ms. Baums chart some years later.
[289]
The final inconsistency worth mentioning is the contradiction between Ms.
Dyck and Dr. Malleck. Dr. Malleck stated that Ms. Dyck told her Ms. Baum was exaggerating her pain. Ms. Dyck denies ever saying such a thing. I accept without hesitation the testimony of Ms. Dyck over that of Dr. Malleck.
[290]
I found Dr. Mallecks testimony to be extremely self-serving as to why this
operation went badly. She attempted to shift blame to the nurses and even to Ms. Baum, indicating that she was moving away so Dr. Malleck could have an excuse not to follow up. Where Dr. Mallecks testimony conflicts with the testimony of the plaintiff or the nurses, I accept the testimony of the plaintiff and the nurses. She is not a credible witness.
[291]
Dr. Zilbert testified the defendant should have evaluated the presence of
blood in the plaintiffs urine. Dr. Zilbert testified that the laboratory reports ordered by Dr. Malleck on April 28, 2005 indicated red and white blood cells in Ms. Baums urine with no infection. This should have concerned her. Dr. Mallecks evidence is that she was told by the nurses at the hospital that there was no blood in the plaintiffs urine. I do not believe Dr. Malleck on this point.
[292]
In conclusion, Dr. Malleck either failed to observe blood in the patients
discharge at the conclusion of the operation and during the patients stay in the hospital, or ignored the presence of blood or failed to grasp its significance. I accept that the nurses would have told her about it. In failing to observe the blood, or in ignoring the blood or
-65-
in failing to grasp the significance of the blood, the defendant did not meet the standard of care to which the plaintiff was entitled. Her failure to evaluate the presence of blood
in the patients urine was a failure to meet the standard of care which she owed the plaintiff.
D.
Did the defendants breach of the standard of care cause the injury or damages to the plaintiff?
[293]
The defendant denies that the urinary tract infections and/or urethral erosion
or placement of the tape were caused by any negligence of the defendant in providing post-operative care.
[294]
The onus is on the plaintiff, on a balance of probabilities, to prove that Dr.
Mallecks negligent conduct caused the plaintiff damage for which she seeks to be compensated: Snell v. Farrell, [1990] 2 S.C.R. 311, 72 D.L.R. (4th) 289.
[295]
The plaintiff referred to Scharnagl v. Stimpson et al. 2009 SKQB 474, 351
Sask. R. 1, a decision of this Court that sets out the law of causation in medical malpractice cases at paras. 59-63:
59 Assuming an affirmative finding of negligence by error or omission relating to the diagnosis and treatment of the plaintiff, for the plaintiff to succeed it must be proven on a balance of probabilities that a specific act or omission caused or contributed to the injuries sustained by the plaintiff. All parties presented detailed submissions as to the law relating to causation. The law as to causation is complex. Guidance is to be found in three decisions of the Supreme Court of Canada: Snell v. Farrell, [1990] 2 S.C.R. 311, per Sopinka J.; Athey v. Leonati, [1996] 3 S.C.R. 458, per Major J.; and Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333, per McLachlin C.J.
-6660 Snell v. Farrell deals specifically with causation in medical malpractice cases. In that case the court held that although the plaintiff has as in all cases the onus of proving causation, the causation test is not to be applied too rigidly. A plaintiff who is unable to strictly prove causation may be able to adduce such evidence as will allow the court to rule out the defendant's position and to infer that but for the conduct of the defendant the injury complained of would not have occurred. This proposition, often applied, has come to be known as the "but for" test. Sopinka J. goes on (at page 330): 33 The legal or ultimate burden remains with the plaintiff, but in the absence of evidence to the contrary adduced by the defendant, an inference of causation may be drawn although positive or scientific proof of causation has not been adduced. If some evidence to the contrary is adduced by the defendant, the trial judge is entitled to take account of Lord Mansfield's famous precept. This is, I believe, what Lord Bridge had in mind in Wilsher [[1988] 2 W.L.R. 557, rev'g [1987] 2 W.L.R. 425] when he referred to a "robust and pragmatic approach to the ... facts" (p. 569). [Lord Mansfield's famous preceipt: "It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted." (Blatch v. Archer (1774), 98 E.R. 969 at 970.) 61 A robust and pragmatic approach to the assessment of the facts does not mean that the court can draw an inference on minimal evidence. Obviously the robust and pragmatic approach is intended to enable the court to assess the plaintiff's evidence in a less circumspect and more liberal way. But it is still essential that for the plaintiff to be granted relief the evidence must be of sufficient weight to meet the ultimate burden of demonstrating on a balance of probabilities that the defendant's want of care caused the loss. 62 In Athey, although the facts are materially different, Major J. in delivering the judgment of the court commented: 14 The general, but not conclusive, test for causation is the "but for" test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant: Horsley v. MacLaren, [1972] S.C.R. 441. 15 The "but for" test is unworkable in some circumstances, so the courts have recognized that causation is established where the defendant's
-67negligence "materially contributed" to the occurrence of the injury: Myers v. Peel County Board of Education, [1981] 2 S.C.R. 21; Bonnington Castings, Ltd. v. Wardlaw, [1956] 1 All E.R. 615 (H.L.); McGhee v. National Coal Board, [1972] 3 All E.R. 1008, supra. A contributing factor is material if it falls outside the de minimis range: Bonnington Castings, Ltd. v. Wardlaw, supra; see also R. v. Pinske (1988), 30 B.C.L.R. (2d) 114 (B.C.C.A.), aff'd [1989] 2 S.C.R. 979. 16 In Snell v. Farrell, supra, this Court recently confirmed that the plaintiff must prove that the defendant's tortious conduct caused or contributed to the plaintiff's injury. The causation test is not to be applied too rigidly. Causation need not be determined by scientific precision; as Lord Salmon stated in Alphacell Ltd. v. Woodward, [1972] 2 All E.R. 475, at p. 490, and as was quoted by Sopinka J. at p. 328, it is "essentially a practical question of fact which can best be answered by ordinary common sense". Although the burden of proof remains with the plaintiff, in some circumstances an inference of causation may be drawn from the evidence without positive scientific proof. 17 It is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant's negligence was the sole cause of the injury. There will frequently be a myriad of other background events which were necessary preconditions to the injury occurring. ... [Emphasis in original] 63 In the judgment of the Supreme Court of Canada delivered by McLachlin C.J. for the Court in Resurfice, supra, also a case involving facts much different than the present, the court reaffirmed the "but for" test and asserted that the fundamental rule as stated by Major J. in Athey continues to apply. McLachlin C.J. points out that the "but for" test recognizes that compensation for negligent conduct should only be made where there is a substantial connection between the injury and the defendant's conduct, so that the defendant is not held liable for injuries to a plaintiff that may be due to factors unconnected to the defendant and not the fault of anyone (Snell v. Farrell). The court in Resurfice however went on to identify the material contribution test as a recognized exception to the "but for" test where two requirements are met. First, it must be impossible for the plaintiff to prove that the defendant's negligence caused the plaintiff's injury using the "but for" test due to factors outside of the plaintiff's control such as current limits of scientific knowledge. Secondly, it must be clear that the defendant
-68breached a duty of care owed to the plaintiff thereby exposing the plaintiff to an unreasonable risk of injury and the plaintiff must have suffered that form of injury. McLachlin C.J. went on to state: 25 ... In other words, the plaintiff's injury must fall within the ambit of the risk created by the defendant's breach. In those exceptional cases where these two requirements are satisfied, liability may be imposed, even though the "but for" test is not satisfied, because it would offend basic notions of fairness and justice to deny liability by applying a "but for" approach.
[296]
The plaintiff claims that the constant pain and numerous infections which she
suffered were a result of the improper placement of the tape in her bladder and urethra and, but for the defendants negligence, the resultant injuries to her bladder and urethra and the infections would not have occurred.
[297]
The plaintiffs evidence was that she had no such history of bladder or
infections prior to the operation.
[298]
Dr. Zilbert testified that the continuing bladder infections and urinary tract
infections and pain were caused by the tape being left in the bladder and urethra.
[299]
Dr. Klingele testified that if the tape was not removed, she would continue
to have pain and infection.
[300]
The defendant argues the but for test is the appropriate test and that the
robust and pragmatic approach suggested by the plaintiff is not a test of causation but is an approach to enable the court to assess the plaintiffs evidence in a less circumspect and more liberal way. But it is still essential that for the plaintiff to be granted relief, the evidence must be of sufficient weight to meet the ultimate burden of demonstrating, on
-69-
a balance of probabilities, that the defendants want of care caused the loss. (Koch J. para. 61 of Scharnagl v. Stimpson, supra).
[301]
The but for test is the appropriate test under these circumstances. To apply
the test to the case before me, I must ask the following questions in relation to each area where I have found the actions of the defendant to be negligent.
(1)
But for the inexperience of the defendant in performing the operation, would the plaintiff have suffered the injuries, damages or loss that occurred?
(2)
But for the failure of Dr. Malleck to observe the blood in the urine during the surgery, would the plaintiff have suffered the injuries, damages or loss that occurred?
(3)
But for the failure of Dr. Malleck to provide proper post-operative care to the plaintiff, would the plaintiff have suffered the injuries, damages or loss that occurred?
(1)
But for the inexperience of the defendant in performing the operation, would the plaintiff have suffered the injuries, damages or loss that occurred?
[302]
Perforation of the bladder is a known risk of the surgical procedure, and as
I have found, perforation of the bladder is and of itself not negligence. There is no
-70-
evidence before me on which I can find that the defendants lack of experience with the SPARC procedure contributed to the plaintiffs loss.
(2)B.
But for the failure of Dr. Malleck to observe the blood in the urine during the surgery, would the plaintiff have suffered the injuries, damages or loss that occurred?
[303]
All three of the expert witnesses testified that the only solution, if one finds
in the course of surgery that a trocar or needle has transected the bladder to the extent that the tape is placed in the bladder, is to remove the tape.
[304]
Dr. Zilbert testified that there is a short window of time after the operation
is complete in which the tape can be removed without excessive difficulty.
[305]
Dr. Epp testified that it would be difficult to remove the tape after surgery
primarily due to the healing and scarring which would necessarily arise from the adherence of the mesh to the plaintiffs tissue. In her opinion, removal of the tape, even if it were detected early, would not be done much differently than the surgery performed by Dr. Barrett on August 31, 2005.
[306]
Dr. Klingele testified that it is easier to remove the tape if it is discovered at
the time of the original surgery. At that time, the sling could be removed and the patient be allowed to heal. The surgery would then be attempted again later.
[307]
Counsel for the defence admits that if the plaintiff can establish a lack of
proper care in the surgical procedure such that the transection of the mesh through the
-71-
bladder and urethra would have been avoided, causation will have been established (p. 136 of the defendants brief).
[308]
While the negligence I have found was not the cause of the perforation of the
bladder and the urethra, the defendant was negligent during the surgery and postoperatively in failing to observe blood in the plaintiffs discharge or ignoring the blood in the discharge and its significance and thus lost the opportunity to rectify the problem at that time. In my view, Dr. Mallecks failure to observe the indicia of bladder perforation, or her disregard of the blood in the discharge and its significance caused the ongoing pain and suffering of the plaintiff.
(3)
But for the failure of Dr. Malleck to provide proper post-operative care to the plaintiff, would the plaintiff have suffered the injuries, damages or loss that occurred?
[309]
Both Dr. Epp and Dr. Klingele testified that after ten days it would be most
difficult to remove the mesh tape from Ms. Baums abdomen. Dr. Zilbert also offered his opinion that there is a very short window in which the tape can be removed easily.
[310]
If Dr. Malleck had observed the blood in the discharge of the plaintiff or
heeded the concerns of the nurses, other procedures such as a cystoscopy could have been performed to locate the transection, much as it was done on August 4, 2005, when Dr. Arwini discovered the tape. If the tape had been discovered on April 8 or 9, or even as late as April 18th, according to Dr. Zilbert, Ms. Baums problems could have been resolved at that time. Dr. Klingele testified that the removal could be done up to approximately one week after the initial surgery without undue difficulty.
-72-
[311]
Although the next two surgeries by Dr. Barrett did not solve the plaintiffs
problems, if her problems had been discovered while she was still in the hospital, the
complications could have been resolved immediately by surgery. This failure to observe the patients condition meant that the patients surgery was not corrected, leaving her in pain and discomfort for years.
BREACH OF CONTRACT
[312]
The plaintiff has also claimed against the defendant for breach of contract on
the basis that there is a contract between the parties in which the defendant agreed to treat the patient in a reasonable and confident manner using her best skill and judgment.
[313]
There have been a number of cases on the nature of contractual relationship
between a doctor and a patient. The plaintiff referred to Arthur Joseph Meagher, Peter J. Marr & Ronald Arthur Meagher, Doctors and Hospitals - Legal Duties (Toronto Canada: Butterworth, 1991). At page 1 of that book the formal relationship is described:
Usually, an informal agreement arises that imposes a duty upon the doctor to attend upon the patient, possibly to consult or refer a patient to a specialist, diagnose the illness and inform the patient about the diagnosis, care and/or treatment, provide care or treatment, assume liability for the acts or omissions of his staff, nurses, doctors and others under his control, keep records and perform other services. On assuming this relationship, a doctor exposes himself to a number of possible malpractice claims, not only in the field of contract when the duties have been established by contract, but in the field of tort law, such as negligence, assault and battery, false imprisonment or defamation, where the duties are imposed by law.
[314]
The plaintiff also referred to Martin v. Inglis 2002 SKQB 157, 218 Sask. R.
1 in which Hrabinsky J. considered Houghston v. Jost [1943] O.W.N. 3, [1943] C.C.S. No. 727 (QL) and summarized the findings of that court as follows:
-73108 In Hughston v. Jost, [1943] 1 D.L.R. 402, at p. 409, Hope J. of the Ontario High Court dealt with the law to be applied when considering whether a physician has committed a breach of contract as follows: A medical man undertakes and contracts that he will use reasonable and ordinary care and diligence in the exercise and application of his skill and knowledge to accomplish the purpose for which he is employed. As I understand it, extraordinary care or extraordinary diligence is no more to be required of him than extraordinary skill, unless he so contracts. What shall be deemed ordinary diligence or care must have reference to the particular facts in any case. What would be ordinary care in certain circumstances would be negligence in others. The general rule applies here, as in other contracts, that the physician or surgeon shall be held accountable for the exercise of such care and diligence in his employment, as common-sense men, of common care and prudence, usually exert where they are interested in business of a similar kind and importance. He agrees to be responsible for the want of such care and diligence, and he stipulates, in no event without express contract for that purpose, for any greater liability. 109 At p. 408 Hope J. set out the nature of a contract between a physician and a surgeon as follows: The nature of the contract between a physician and a patient is the same as that between a solicitor and his client. Neither class is a warrantor or insurer unless there be an express contract to that effect. Nothing unreasonable or oppressive should characterize the rule of law in its application to the conduct of the professional man, thus making a different rule from that applicable to other men. The professional man does not agree, or stipulate, to carry a case through to a successful issue at all events, and notwithstanding contingencies; he is not to be tried by the result. The principle was originally enunciated by Lord Chief Justice Tindal in Lanphier v. Phipos, 8 Car. & P. 475 at p. 479, 173 E.R. 581 namely: "Every person who enters into a learned profession undertakes to bring to the exercise of it a reasonable degree of care and skill. He does not
-74undertake, if he is an attorney, that at all events you shall gain your case, nor does a surgeon undertake that he will perform a cure; nor does he undertake to use the highest possible degree of skill." 110 I find that Dr. Inglis had a contract with Linda Martin to use ordinary care and diligence in the exercise and application of his skill and knowledge. However, for reasons which I will set forth in due course, I find that Dr. Inglis used reasonable and ordinary care and diligence in the application of his skill and knowledge to accomplish the purpose for which he was employed. He was not in breach of his contract.
[315]
In Martin v. Inglis, supra, the court found that the defendant doctor did not
breach the implied contract but ... used reasonable and ordinary care and diligence in the application of his skill and knowledge ....
[316]
In this case for the reasons as set out, I find the defendant did not use the
required reasonable and ordinary care and diligence in the application of her skill. In failing to use the required reasonable and ordinary care in the application of her skill, Dr. Malleck breached her contract with the plaintiff.
E.
What damages is the plaintiff entitled to?
(1)
Pecuniary Loss
-75-
[317]
I accept the position of the plaintiff as set out at para. 87 of her counsels
brief as follows:
87.
Once the Court has established that Melindas injuries, losses or damages have been caused by the Defendants negligence, the court must then determine what sum should be awarded to her in compensation. The underlying principle is that the plaintiff must be restored to the position she was in before the negligence of the defendant caused her harm, as stated by the Supreme Court of Canada in the trilogy of personal injury cases of Andrews v. Grand & Toy (Alberta) Limited (1978), 83 D.L.R. (3d) 452, (S.C.C.); Thornton v. Prince George Board of Education, [1978] 2 S.C.R. 267 (S.C.C.) and Arnold v. Teno, [1978] 2 S.C.R. 287 (S.C.C.)
(a)
Pre-Trial Loss of Leave Entitlement
(i)
Sick Leave
[318]
Ms. Baum has claimed for the loss of leave entitlements including sick leave,
vacation leave, statutory days off and time in lieu of overtime that she used to cope with the injuries she suffered caused by Dr. Malleck.
[319]
The defendant argues that for these claims to be successful, they must fall
within the insurance exception and therefore the plaintiff must show that she has paid in some way for these benefits under her collective bargaining agreement or employment contract. The defendant argues that the plaintiff has not established this.
[320]
This issue has been canvassed in Cunningham v. Wheeler; Cooper v. Miller;
Shanks v. McNee, [1994] 1 S.C.R. 359, 113 D.L.R. (4th ) 1, where Cory J. illustrated the differences between the insurance exception and the case before me where Ms. Baum
-76-
continued to receive a salary while off work but claimed to have given up some other benefits in exchange. Justice Cory said at p. 404:
90 On the facts of Ratych v. Bloomer McLachlin J. found that it could not be established that the plaintiff in that case had paid for the benefits at issue, thus making them in the nature of private insurance. However, she held that if there were evidence that the plaintiff had paid for the benefits, they might not be deductible. At page 972, she stated: I accept that if an employee can establish that he or she has suffered a loss in exchange for obtaining wages during the time he or she could not work, the employee should be compensated for that loss. Thus in Lavigne v. Doucet the New Brunswick Court of Appeal quite rightly allowed damages for loss of accumulated sick benefits. I also accept that if an employee can establish that he or she directly paid for a policy in the nature of insurance against unemployment, equivalent to a private insurance, he or she may be able to recover the benefits of that policy, although I would leave resolution of this question for another case. These are two different exceptions. The first has nothing to do with the insurance exception, but covers a situation where although the employee continues to receive a salary while off work, he or she has to give up something else to receive it. An example of such a loss, provided by McLachlin J., is sick leave. The employee continues to receive wages, but gives up sick days, which he or she could have used at some other time. In such a situation the insurance exception does not arise, because there is in fact no double compensation problem. The employee who uses up his sick leave to get wages while he or she is off work loses the sick benefits, and so should be compensated for them. Or alternatively, the employee could decide not to use his or her sick days, and not get paid. There is also a loss in such a case.
[321]
In Ken Cooper-Stephenson and Iwan B. Saunders Personal Injury Damages
in Canada, 2nd ed. (Scarborough, ON: Carswell, 1996) at p. 612, he states that pursuant to the above quotation:
-77So it is quite clear that the plaintiff gets one or the other the lost wages, or the lost sick leave entitlements. The dictum in Ratych suggests that it is the latter, but that in Cunningham might suggest an ex post facto election. A problem arises only if as is frequently the case the sick leave entitlements lost were not worth as much as the substituted pay (perhaps because they expired and were not payable in cash, only kind). It then has to be decided whether the salary continuation which the plaintiff was actually paid is itself a collateral benefit in the form of insurance, or whether the plaintiff should merely be awarded the value of the lost sick leave entitlements. Once again, this depends on a point of characterization. If any form of salary continuation plan (to which it can be said an employee in some manner contributed) is considered to be a form of private insurance, then the plaintiff should be awarded the full value of lost salary while he or she was not working, and can keep the salary actually paid as well but does not get the value of the lost sick leave entitlements, since that was what the plaintiff paid (albeit retrospectively) for the benefit received. If, however, salary continuation is treated as the payment of actual wages so that the plaintiff cannot claim lost earnings then the value of the lost sick leave entitlement should be the measure of the loss. Whether the former or the latter should be the solution may depend on whether the sick leave scheme was part of the wage package or otherwise contributed to by the plaintiff. If so, the wages themselves are the non-deductible benefit a benefit diminished in overall value by the fact that the plaintiff him or herself is giving up something to receive it.
[322]
In the case before me, Ms. Baum continued to be paid her salary during the
time after her surgery. She has not claimed for lost earnings. Therefore it would appear that she should be awarded the value of her lost sick leave entitlements.
[323]
In the alternative, in the event the insurance exception is applicable, the
question arises is whether the plaintiff has met the evidentiary burden. The defendant submits that Following Ratych, supra and Cunningham, supra, the court cannot simply infer that a unionized employee has paid for any benefits through wages foregone. (defendants brief, para. 170)
[324]
In the case of Adam v. Johnson Estate (1994), 121 Sask. R. 283, [1994] 8
W.W.R. 438, Armstrong J. held pursuant to Cunningham that the plaintiff had paid for
-78-
his long term disability benefits by his work for the company and there is accordingly not simply a gratuitous benefit bestowed on him. In the same vein, I find the plaintiff has
met the evidentiary burden of establishing that she has received these benefits as a result of contractual arrangements between her employer and her union.
[325]
The defendant then goes on to argue that in the event the plaintiff has
satisfied this burden, the sick leave benefits are not a compensable asset. The defendant relies on Vincent v. Abu-Bakare 2003 NBCA 42, 259 N.B.R. (2d) 66, where the New Brunswick Court of Appeal stated at paras. 80 and 81:
80 In my respectful judgment, the question as framed by Justice Glennie improperly inverses the burden of proof. The proper question is: Did Mr. Vincent establish by admissible evidence that there is a real and substantial possibility that his bank of sick leave benefits will not be sufficiently plentiful to cover absences from work unrelated to the accident? This is not a situation where a reversal of the traditional burden of proof is required in the interests of justice. See Rainbow Industrial Caterers Ltd. v. Canadian National Railway Co., [1991] 3 S.C.R. 3, at pp. 15-16 and Gauthier v. Canada (Attorney General) (2000), 225 N.B.R. (2d) 211 (C.A.), at paragraph 21. The standard of proof is not high and the means of proof are at the plaintiff's disposal. 81 At the time of trial, Mr. Vincent's sick leave bank stood at more than 50 days. Mr. Vincent testified that he was able to cope with his job demands so long as he followed the physical therapy program recommended by his physician. The trial judge awarded $5,000 to cover the cost of future care, which includes the cost of any physical therapy that might be required to cope with flare-ups. Aside from his accident-related problems, Mr. Vincent is in good health. There is no evidence that his general health is at risk of significant deterioration in the foreseeable future. In my view, Mr. Vincent has not proven a real and substantial possibility that the credits in his sick leave bank will be insufficient to cover any absences from work arising from causes unrelated to the accident of October 16, 1998. The possibility that this situation might materialize is speculative at best. It is, accordingly, not compensable.
[326]
I have not found any case where this issue has been considered by the courts
in Saskatchewan. However, the issue of whether sick leave benefits are a compensable
-79-
asset has been recently dealt with by the British Columbia Supreme Court in Rizzolo v. Brett, 2009 BCSC 732, [2009] B.C.J. No. 1098 (QL) and Bjarnason v. Parks, 2009
BCSC 48, [2009] B.C.J. No. 75 (QL). Both of those decisions acknowledge that the court has long recognized the loss of sick leave trust credits as a compensable loss. The Court acknowledged that a contingency factor may be applied quantifying that loss. In the Bjarnason decision, the Court seemed to adopt a more flexible approach to considering the plaintiffs claim with regard to whether there was a real possibility that her sick leave bank would cover off any absences from work in the future unrelated to the negligence. I find that the plaintiffs loss of sick leave benefits is compensable.
[327]
The plaintiff claims the following sick leave credits:
Fiscal Year
Average Hourly Rate
Entitlement Hours Used
Total Value
2005-06 2006-07
Feb. 6, 2005: 29.59 Feb. 7, 2006: 30.79 Oct. 1, 2006: 32.69
SL: 382
$11,303.38
SL: 344 SL: 23 SL: 304
$11,245.36 $782.00 $10,801.12
2007-08 2008-09 2009-10
Oct. 14, 2007: 34.00 Oct. 12, 2008: 35.53 Oct. 11, 2009: 36.06 Nov. 22, 2009: 38:949
SL: 160 SL: 1213
$6,231.84 $40,363.70
Total
[328]
The defendant states that this number is inflated and argues that a maximum
of 1,109.91 hours of sick leave could have been used in relation to the surgical procedure,
-80-
for a total of $37,512.10, as the sick leave claimed by the plaintiff was not all used in relation to the surgery or its after effects.
[329]
Throughout the plaintiffs claim for damages, I have been met with a lack of
evidence. In the case of Penvidic Contracting Co. v. International Nickel Co. of Canada, [1976] 1 S.C.R. 267, 53 D.L.R. (3d) 748, the Supreme Court of Canada made the following reference to the trial judges comments about the evidence:
... As Wilson J. points out in his reasons for judgment, despite the length of the trial, "the evidence was not as helpful as one would have expected and more records giving more particulars of when and where different types of work were being done would have been very useful". ...
[330]
The Supreme Court then went on to discuss the difficulty in assessing
damages and referred to Wood v. Grand Valley Railway Company (1913), 30 O.L.R. 44, 16 D.L.R. 361 and stated:
The difficulty in fixing an amount of damages was dealt with in the well known English case of Chaplin v. Hicks [[1911] 2 K.B. 786], which had been adopted in the Appellate Division of the Supreme Court of Ontario in Wood v. Grand Valley Railway Company [(1913), 30 O.L.R. 44], where at pp. 49-50, Meredith C.J.O. said: There are, no doubt, cases in which it is impossible to say that there is any loss assessable as damages resulting from the breach of a contract, but the Courts have gone a long way in holding that difficulty in ascertaining the amount of the loss is no reason for not giving substantial damages, and perhaps the furthest they have gone in that direction is in Chaplin v. Hicks, [1911] 2 K.B. 786. In that case the plaintiff, owing, as was found by the jury, to a breach by the defendant of his contract, had lost the chance of being selected by him out of fifty young ladies as one of twelve to whom, if selected, he had promised to give engagements as actresses for a stated period and at stated wages, and the action was brought to recover
-81damages for the breach of the contract, and the damages were assessed by the jury at 100 pounds [Sterling]. The defendant contended that the damages were too remote and that they were unassessable. The first contention was rejected by the Court as not arguable, and with regard to the second it was held that "where it is clear that there has been actual loss resulting from the breach of contract, which it is difficult to estimate in money, it is for the jury to do their best to estimate; it is not necessary that there should be an absolute measure of damages in each case": per Fletcher Moulton, L.J. at p. 795. When Wood v. Grand Valley Railway Company, supra, reached the Supreme Court of Canada, judgment was given by Davies J. and was reported in 51 S.C.R. 283, where the learned justice said at p. 289: It was clearly impossible under the facts of that case to estimate with anything approaching to mathematical accuracy the damages sustained by the plaintiffs, but it seems to me to be clearly laid down there by the learned judges that such an impossibility cannot "relieve the wrongdoer of the necessity of paying damages for his breach of contract" and that on the other hand the tribunal to estimate them whether jury or judge must under such circumstances do "the best it can" and its conclusion will not be set aside even if the amount of the verdict is a matter of guess work. I can see no objection whatsoever to the learned trial judge using the method suggested by the plaintiff of assessing the damages in the form of additional compensation per ton rather than attempting to reach it by ascertaining items of expense from records which, by the very nature of the contract, had to be fragmentary and probably mere estimations. ...
[331]
Throughout this portion of the judgment, I will do the best I can in
assessing damages where the evidence was not sufficient to precisely determine the actual loss.
[332]
There is insufficient evidence to precisely assess the plaintiffs claim for loss
of sick leave and I will therefore adjust the plaintiffs claim for used sick leave entitlement by 20% and allow a claim of $32,300.00.
-82-
(ii)
Time Off in Lieu of Overtime
she submits she was forced to take in order to cope with her injuries. The plaintiff relies on Zalameda v. Pigozzo et al. (1976), 14 O.R. (2d) 716, 74 D.L.R. (3d) 522 (Ont. H. Ct. J.), in which the plaintiff claimed for lost overtime which he could have earned but for the accident. The court found that the claim was valid and awarded 200 hours of overtime for the 238 hours claimed.
[334]
A claim for overtime was also allowed by Justice Klebuc, as he then was, in
Cisecki v. Nipawin (Town), 2000 SKQB 119, 192 Sask.R. 161.
[335]
The plaintiffs claim in the case before me is slightly different than the
authorities cited above in that Ms. Baum is claiming compensation for the value of time off in lieu of overtime which has enabled her to take time off instead of being paid out for the overtime she had already worked while the usual claim is for loss of earnings based on the plaintiffs inability to work overtime. I do not believe that this distinction is significant. The plaintiff should be entitled to loss of benefits as a result of the injury no matter what form it takes.
[336]
The plaintiff claims the following for loss of time off in lieu of overtime:
Fiscal Year
Average Hourly Rate
Total Value
2006-07
Feb. 7, 2006: 30.79 Oct. 1, 2006: 32.69 TIL: 30.5 $ 997.05
[333]
The plaintiff also claims the value of the time off in lieu of overtime which
-83-
2007-08 2008-09 Total
Oct. 14, 2007: 34.00 Oct. 12, 2008: 35.53
TIL: 7 TIL: 84 TIL: 121.5
$ 238.00 $2,984.52 $4,219.57

[337]
The defendant disputes this claim on the same basis that the claim for sick
leave entitlement is disputed and argues that a maximum of 115.89 hours is possibly related to the negligence.
[338]
As there is no further evidence on this item, I will allow the claim of the
plaintiff but apply a contingency factor of 20% as well. The plaintiff may well have used some of this time for personal reasons.
[339]
I therefore allow $3,375.00 for this aspect of the claim.
(iii)
Vacation Leave and Earned Days Off
[340]
The plaintiff also claims loss of vacation leave and earned days off on the
basis that she should be compensated because she used her annual and accumulated entitlements in order to take time to recover. Ms. Baum acknowledged that she has been paid out for these benefits but is claiming that she should be compensated for their value because she had to use these entitlements to deal with her injuries.
-84-
[341]
Ms. Baum claims she used 126 hours of vacation leave as a result of her
injuries in 2007-2008 when her hourly rate was $34.00 and 206.5 hours in the same fiscal
period when her hourly rate was $35.53 for a total of $11,620.95.
[342]
Ms. Baum claims the following amount of earned days off were used to cope
with her injuries:
Fiscal Year
Average Hourly Rate
Total Value
2005-06 2006-07
Feb. 6, 2005: 29.59 Feb. 7, 2006: 30.79 Oct. 1, 2006: 32.69
EDO: 24
$ 710.16
EDO: 32 EDO: 8 EDO: 40
$1,046.08 $ 272.00 $1,421.20
2007-08 2008-09 2009-10
Oct. 14, 2007: 34.00 Oct. 12, 2008: 35.53 Oct. 11, 2009: 36.06 Nov. 22, 2009: 38:949
EDO: 16 EDO: 120
$ 623.18 $4,072.62
Total
[343]
Again, the defendant disputes this claim on the same basis as the above
claims are disputed and states that a maximum of 179.5 hours of vacation time and earned days off are even possibly related to the negligence.
[344]
In Reynoldson v. Simmons (1982), 14 Sask. R. 257, [1982] S.J. No. 130 (QL),
this Court did not award any amount for holidays that the plaintiff had to take due to her injuries. In Patterson v. Hryciuk 2004 ABQB 934, 45 Alta. L.R. (4th) 219, Justice Macklin found the plaintiff was entitled to be compensated for her vacation hours but not
-85-
entitled to her earned hours. Although the plaintiff said that she could have used the earned hours for vacation, there was no evidence to suggest she would have done so.
[345]
In the face of the paucity of legal authority on this matter, it appears to me
that the benefits paid to Ms. Baum while she was off work as a result of her injuries were lost to her. She was not on a holiday during the time she received her holiday pay. There is therefore a loss suffered by her being the benefit of the lost holidays and she should be compensated for that loss.
[346]
Similarly earned days off are time that she would have taken for something
other than her injuries and is likewise a loss to her. I would award those losses and apply a contingency of 20% with respect to the earned days off and the vacation days as she may well have used some of these days for personal or other matters, or may not have used them all. Accordingly I award the sum of $9,300.00 for loss of vacation benefits and $3,260.00 for loss of earned days off.
(b)
Costs of Local Trips
[347]
The plaintiff has claimed compensation for 60 local medical appointments
to deal with her medical problems as a result of the surgery at the rate of $3.00 per trip each way for a total of $360.00. There is no evidence to support either the number of appointments or the cost per trip. It is incontrovertible that she attended numerous appointments and 60 trips is a reasonable estimate over four years. In addition, $3.00 per trip is a minimal amount and in the end result, I allow this claim at $360.00.
-86-
(c)
Pre-Trial Cost of Health Care/Value of Voluntary Services by Third Parties

[348]
Under this heading, the plaintiff is claiming for her out-of-country medical
attendances and for compensation on behalf of friends and family members who accompanied her to her appointments. The plaintiff is also claiming for the value of voluntary services providers.
[349]
The defendant claims that the plaintiff has failed to prove her claim on a
balance of probabilities, and alleges the claims are inflated and excessive. The defendant states there are no receipts and insufficient financial information to substantiate the loss.
[350]
In the case of Bendel v. Danylchuk, [1952] 6 W.W.R. (N.S.) 625, [1952] S.J.
No. 28 (QL), this Court considered a claim for costs of out-of-country medical care and awarded costs of $593.00 claimed by the plaintiff.
[351]
The issue of out-of-country medical care was also considered by this Court
in Young v. Regina District Health et al., 2010 SKQB 242, 356 Sask.R. 1. Justice Gunn said at para. 284:
284 In terms of the Mayo Clinic, I am not satisfied that it was medically necessary for Ms. Young to travel there for a consultation. There is no evidence that her treatment was being delayed in Canada. People have the right to seek assistance wherever they wish, but I am not satisfied that it would be appropriate in these circumstances to force Dr. Urbanski to pay for this choice in the circumstances in which it was made.
-87-
[352]
Justice Gunn also found that Ms. Young required significant assistance when
travelling and accepted the travel expense claims incurred as a result of the plaintiff
having someone drive her to her medical appointments.
[353]
There is no doubt in my mind that the trip to the Mayo Clinic was necessary.
Ms. Baum suffered for nearly four years as a result of the defendants negligence and found no relief in Canada despite her continuous efforts to solve her problems. It was only by travelling to the Mayo Clinic that she was able to obtain relief. There is no doubt she required assistance from family and friends from time to time.
[354]
In the case before me, the plaintiff has failed to provide the court with any
receipts with respect to meals, hotel, travel and phone expenses incurred by her and her family and friends. Instead she has relied on information from a Government of Canada website to arrive at the amounts claimed. I am of the opinion that these amounts as set out in the website are not appropriate.
[355]
Ms. Baum claims a total of $16,239.83 for travel, meals, hotel and phone
charges for herself and her family. While I am aware some expenses were incurred, I am reluctant to allow the unsubstantiated expenses or claims in the amount claimed.
[356]
I think it is reasonable to award $10,000.00 for these costs and I so order.
[357]
In Young, supra, referred to above, Justice Gunn allowed a claim by the
plaintiff for the time spent by her two neighbours and friends in caring for her after her surgery at the rate of $15.00 and $18.00 per hour on finding that the services provided to the plaintiff went beyond the limits of simple friendship.
-88-
[358]
Accordingly, in the case at hand, the claim for $18.72 per hour by the
plaintiffs mother seems reasonable, considering that at least a portion of her mothers
care involved bedside nursing. Further, Dr. Klingele advised the plaintiff that he would not perform the surgery unless she remained in the Mayo Clinic area after the operation so that he could monitor her properly post-surgery. I therefore allow the claim for Ms. Schryver in the amount of $3,144.96.
[359]
With respect to the $450.00 per day that the plaintiff claims on behalf of her
husband, Mr. Baum testified that he owns his own welding company and calculated his loss of $450.00 per day by dividing his yearly earnings by 325 days per year, although he paid himself his usual salary while away and contended that his company earns no money while he is away.
[360]
In the case of MacKinlay v. MacEachern (1983), 58 N.S.R. (2d) 175, [1983]
N.S.J. No. 430 (QL) as referred to in Cooper-Stephensons Personal Injury Damages in Canada, supra, at pps. 186 and 187, the judge quantified a loss for the plaintiffs husband for the time he took away from his business to care for his wife on a quantum meruit basis, partly because the business losses were difficult to determine.
[361]
The following analysis is also particularly relevant (Cooper-Stephenson at
186 and 187):
Obviously a plaintiff cannot claim both opportunity cost and replacement cost, as concluded by Clarke J. in MacKinlay v. MacEachern, where the plaintiffs husband took extensive time away from his business to care for his wife almost full-time, and claimed business losses as well as quantum meruit for his work. The judge held as follows: [He] had two options available. One was to attend his business and employ a housekeeper to care for his
-89wife. The second was to care for his wife and let his business suffer some measure of inattention. He chose the latter. For that choice I am preparedto provide a measure of compensation. Had he chosen the first option, then I would have been prepared to make an appropriate award to compensate for the resulting loss. The judge quantified by quantum meruit, partly because the business losses were difficult to determine. However, the larger they were, the greater the responsibility on the plaintiff to mitigate by hiring a substitute helper. It will also have to be shown that it was indeed necessary for the third party to absent him or herself from paid employment.
[362]
In Bear v. Lambos 2005 SKQB 148, 263 Sask. R. 271, Justice Baynton
disallowed a claim as there was nothing exhibited to substantiate past income or income loss so that the court was unable to assess the quantum of the alleged lost.
[363]
Again, I am not satisfied with the evidence submitted, and am not inclined
to allow the entire amount claimed. However, rather that the $8,710.00 claimed, I allow the sum of $3,000.00 as a reasonable estimate of Rod Baums loss. I do not allow the claim for Shane Baums loss of a class, nor the cost of Sherri Gusikoskis estimate of lost wages.
(d)
Pre-Trial Costs of Homemaking Services
[364]
The plaintiff claims that from 2005 to 2009, she required housekeeping
services to help her with some of the heavy housecleaning tasks. She claims she spent an extra $35.00 - $45.00 every two weeks for paid cleaning services for a total of $4,144.00. She also claims general loss of housekeeping capacity to be assessed at $2,875.00 per year for the years of her injury, totalling $11,500.00 under non-pecuniary loss of homemaking capacity.
-90-
[365]
Ms. Baums claim for $4,144.00 for the costs she incurred in hiring a part-
time housekeeper is unsubstantial without any receipts. As before, I will discount the
claim by 20% and allow $3,315.00 for housekeeping expenses and I allow the claim at that amount. I will consider Ms. Baums claim for general loss of housekeeping capacity below.
(e)
Subrogated Claim of Saskatchewan Health
[366]
I will allow the subrogated claim of Saskatchewan Health in the amount of
$69,453.58 plus accrued interest from April 8, 2011 to the date of payment.
(2)
Pre-Trial Non-Pecuniary Damages
(a)
General Non-Pecuniary Damages
[367]
The plaintiff has referred to Andrews v. Grand & Toy Alberta Ltd., [1978]
2 S.C.R. 229, 83 D.L.R. (3d) 452 which limited non-pecuniary damages to $100,000.00. In taking inflation into account and using the annual average index of the Consumer Price Index compiled by Stats Canada for the period 1978 to 2010, the current value of $100,000.00 is $318,306.00. Ken Cooper-Stephenson, in Personal Injury Damages in Canada, supra, outlines the following factors relevant to the quantification of nonpecuniary damages at p. 512:
-91... (1) judicial awards in comparable cases, (2) the plaintiffs particular need for solace, including primarily the extent and duration of the loss but also the utility of damages ... (3) the impact of inflation, and (4) concerns about overlap and reduced need.
[368]
The plaintiff contends that in regard to the extreme and unusual
circumstances, non-pecuniary damages in the amount of $150,000.00 would be reasonable. The defendant, on the other hand, argues that the range should be between $75,000.00 to $95,000.00. Cases cited by both parties allowed damages in the range of $28,500.00 to $139,105.00. In the Young case referred to above, Justice Gunn ordered $175,000.00 and found at paras. 229 and 230:
229 The fact that Ms. Young now has only one kidney is a permanent and serious consequence of Dr. Urbanski's surgery. That is not the only issue to be considered, however, in arriving at an appropriate award for nonpecuniary damages. I consider the following to be particularly relevant: Ms. Young underwent four additional surgeries after Dr. Urbanski's surgery. She had constant and extremely painful bladder and kidney spasms for 31 months. She was unable to stand or sit for 31 months because it was too painful. She carried a stent for 31 months which had to be replaced 14 times in a procedure which she found to be painful and uncomfortable. Ms. Young experienced numerous and painful migraines prior to the surgery, but these increased to a level of pain she could hardly imagine with each stent change. Nine and one-half years post surgery, Ms. Young has to wear a belt because of ongoing abdominal issues flowing from the subsequent surgeries and experiences daily pain which she attributes to the Urbanski surgery. 230 The effects of the surgery on Ms. Young were profound and long lasting. I am not of the view that these damages should be at the maximum level possible. However, they should be significant.
[369]
Although Ms. Baum has suffered considerably because of Dr. Mallecks
negligence, I do not find her case as severe as that in Young and would award general damages of $125,000.00.
(b)
Loss of Homemaking Capacity
-92-
[370]
As stated above, I found that Ms. Baum was a traditional housewife and the
principal homemaker of her family. The plaintiff relies on Olson v. General Accident
Assurance Co. of Canada, 1998 ABQB 405, 218 A.R. 310. In that case, damages were awarded on the basis of the plaintiffs loss of homemaking capacity based on 230 hours per year at $10.00 per hour. Allowing for inflation, the plaintiff sets that sum of $2,875.00 per year claiming $11,500.00 for the years of her injury. I do not find this to be a reasonable assessment but will award the plaintiff the sum of $8,000.00 under the heading of loss of homemaking capacity.
[371]
In summary, the plaintiff is awarded damages in the following amounts:
A.
Pecuniary Damages, Pre-Trial Loss of Leave Entitlements Local travel Pre-trial cost of health care including husbands loss of income Value of special care services for mother Cost of housekeeping assistance Subrogated claim of Saskatchewan Health Subtotal Non-pecuniary damages Loss of homemaking capacity TOTAL $137,508.54
$ 48,235.00 $ 360.00
$ 13,000.00 $ $ 3,144.96 3,315.00
$ 69,453.58
$125,000.00 $ 8,000.00
$270,508.54
[372]
The plaintiff is entitled to prejudgment interest from the date of the claim
until the date of judgment.
-93-
[373] counsel.
The plaintiff is entitled to her costs under Column IV and costs for extra
[374]
I would like to express my gratitude to all counsel for the professional and
courteous manner in which they presented their respective positions and for their well prepared and thorough briefs, all of which were of great assistance to me in the trial and in the preparation of this judgment.
J. P.A. WHITMORE

Baum Lawsuit

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QUEENS BENCH FOR SASKATCHEWAN

BETWEEN: MELINDA BAUM PLAINTIFF - and NASEEM MALLECK DEFENDANT

Georgie Schryver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Rod Baum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Costs of Local Trips . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

(d) (e) (2)

Subrogated Claim of Saskatchewan Health. . . . . . . . . . . . . 93

QUEENS BENCH FOR SASKATCHEWAN

Date: Docket: Judicial Centre:

2011 09 29 Q.B.G. 10/2007 Swift Current

JUDGMENT September 29, 2011

A brief description of the surgical procedure under review will assist in

Dr. Malleck performed the procedure on April 8, 2005. Ms. Baum

THE EVIDENCE AT TRIAL

The Plaintiffs Evidence

She testified that she developed symptoms of stress incontinence, essentially

that was unusual.

Malleck did not appear concerned about her pain.

Deklerk on May 31, 2005.

When Dr. Arwini performed the cystoscopy on August 4, 2005, he became

As a result of the referral, Ms. Baum saw Dr. Barrett, a urologist, in

She saw Dr. Deklerk in September and October of 2005, complaining of

body and the bladder appeared normal.

Dr. Taranger suggested a further gynaecological review. As a result, Ms.

to a urogynaecologist, a sub-speciality of both gynaecology and urology but there was a

final catheter at the end of March, 2009.

surgery and had to wean herself off it.

$ 58,763.03 $ $ 360.00 4,144.00

Non-pecuniary general damages Loss of home making capacity Subtotal $161,500.00

TOTAL Plus pre-judgment interests and costs.

Sandra Mahaffy testified on behalf of the plaintiff. Ms. Mahaffy is a

An assistant is present as well as an anaesthetist, a scrub nurse and two

Sheet. Demerol was prescribed for Ms. Baum for pain.

Baums initial surgery to visit her and help her.

of times. Ms. Schryver contacted the nurses to clean up Ms. Baum.

drainage bag for urine contained bright red fluid.

The drainage bag was in plain view.

needed help to get to the bathroom.

2011 SKQB 357 (CanLII)

three drainage bags that Ms. Schryver was to manage.

Rod Baum, the plaintiffs husband, testified on behalf of the plaintiff. He

pitch and ran for exercise.

Dr. Christopher Klingele

Dr. Christopher Klingele then testified on behalf of the plaintiff. He was

He was at the time of trial the assistant professor in obstetrics and

declared an expert in the field of urogynaecology and reconstructive pelvic surgery.

Dr. Klingele testified that it is easiest to remove the tape if it is discovered

On Ms. Baums first visit Dr. Klingele performed a cystoscopy and

In asking to comment on Dr. Barretts surgery, Dr. Klingele said that

of surgery is considered to be a bladder perforation until proven otherwise.

She had no recollection of Ms. Baum independent of the records.

pain which she described as close to a 10 on a scale of 1 to 10.

2011 SKQB 357 (CanLII)

that some doctors look at the Flow Sheets as well.

the Flow Sheets.

as dark amber with small clots at 6:00 a.m. on April 9, 2005.

Dr. Arthur Zilbert

1974 with a degree in medicine.

He completed his residency in obstetrics and gynaecology at Dalhousie in

He is an assistant professor in the Department of Obstetrics and

He testified that urogynaecology is a relatively new sub-specialty of urology

He was admitted as an expert in obstetrics and gynaecology including post-

operative management of TVT or mesh complications in a 60 day period following surgery.

He described the sling procedure in issue and suggested that a cystoscopy be

He recommended a 70 degree lens on the cystoscopy to ensure that a good