Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.
Edited by Steven Graham
Van Grinsven v Kortbeek, 2021 ABQB 33
Medical Malpractise | Standard of Care | Causation
The Defendants – a number of medical doctors – brought this application to dismiss the Plaintiff’s medical malpractise lawsuit. The action arose out of post-operative infections which lead to the amputation of the Plaintiff’s leg.
Expert opinion on the cause of the infections, being the type of bacteria, was consistent. The Plaintiff’s expert identified several possibilities through which these bacteria could become present in an operating room which could lead to the infection suffered by the Plaintiff. The Court found that there was insufficient evidence to conclusively pinpoint the specific cause of the infection, such that causation was essentially unprovable:
 I acknowledge that points 4, 7, 8 and 9 could be consistent with negligence on the part of the Doctors in the hospital. 9 and 10 could be consistent with negligence on the part of the manufacturer but there is no evidence to show that any of them are any more than possibilities, and, for this claim to succeed, probability (not possibility) is required.
 Although the bacterial agents involved are commonly found on the skin, all three experts agree that the specific reason for the infection usually cannot be identified; making causation essentially unproveable.
On the question of standard of care, the experts all concluded that Dr. Kortbeek had met or exceeded the applicable standard. The Court offered some clarity on the argument that the Defendants should still be liable because the infection occurred, under the principle of res ipsa loquiter:
 Res ipsa loquitur (‘the thing speaks for itself’), thus shifting the burden of disproof to the Defendants, is now mostly gone from the law. It has ‘expired’; in the words of Major J., in Fontaine v British Columbia (Official Administrator), 1998 CanLII 814 (SCC),  156 DLR (4th) 577 (SCC). However, there are some situations ‘in which the accident itself provides sufficient circumstantial evidence to permit an inference that the Defendants were negligent’, thus effectively reversing the burden of proof in those limited circumstances.
 The law also recognizes the difficulty a patient may have in proving the details of a medical accident (e.g. Snell v Farrell (1990), 1990 CanLII 70 (SCC), 72 DLR (4th) 289 (SCC)). And, running along side of all of this, is the possibility of inference-based causation.
 There are two cases that can provide us with some direction about whether any of these principles are engaged on our facts: In Hajgato v London Health Association et al, (1982) 36 OR(2d) 669; Affd (1983), 1983 CanLII 1687 (ON CA), 44 OR (2d) 264 (Ont CA), it was held that the fact that the site of a surgical operation becomes infected does not, in itself, provide sufficient circumstances to reverse the onus. The case does go on to say that the failure to detect, or treat the infection might be but here all the infections were identified and treated.
 Parragh v Eagle Ridge Hospital and Health Care Centre, 2008 BCSC 1299 (especially paras 64, 70 and following) holds that a breach of the applicable standard of care can be concluded from the fact of loss or damage, when that loss or damage would not have occurred without the breach. But in the present case, it cannot be concluded that the infection would not have occurred in the absence of negligence. Dr. Stiver, himself, raises 16 possibilities, only a few of which are consistent with negligence of the Doctors, or the hospital.
The Court also noted that the Plaintiff had a number of health-related issues which increased his vulnerability to infection:
 The risk of infection appears to rise dramatically with prior traumas, or prior surgeries. Mr. Van Grinsven came into this situation because of the residual and long term affects of the motor cycle accident he suffered in 1979; which, after 8 prior surgeries, left him with post-injury damage and severe osteoarthritis.
 At age 45, Mr. Van Grinsven was also overweight, had high blood pressure and had generalized joint problems with knees, neck, back, wrists and shoulders. He presented with prior trauma to the knee, prior reconstructive surgeries and an arthritic state. In other words, the very things that motivated Mr. Van Grinsven to have his knee replaced also made him more vulnerable to infection.
 It strikes me that Mr. Van Grinsven was not a ‘one percenter’ when he presented in April 2005. Given his history, the starting point was that his risk of infection was much higher.
The Court ultimately concluded that since causation could not be proven, the Plaintiff’s claim could not succeed, and granted the application dismissing the claim.