Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.
Edited by Steven Graham
Kain v Davey, 2021 ABQB 190
Medical Negligence | Causation | Standard of Care
The Plaintiff commenced an action against the Defendant Physician alleging medical negligence, in particular that the Plaintiff was not advised of the risks of the procedure performed on her and that as a result of substandard practice she developed a post-operative deep-vein thrombosis.
When assessing the standard of care, the Court emphasized that the relevant standard of care was that from 2012 when the procedure was performed, and in the particular community in which the Defendant operated – not that which existed when the trial was taking place and which may exist in other geographical locations:
 Liability cannot be established through hindsight: Brenenstuhl at para 62; Fournier v Wiens, 2004 ABQB 430 at para 83; Cooper v Flood, 2015 ABQB 567, aff’d 2016 ABCA 365 at para 16. A physician cannot be faulted for failing to conform to a standard of care that was based on research and technology that was only available or evident at a later date. This was confirmed in ter Neuzen v Korn, 1995 CanLII 72 (SCC),  3 SCR 674 at 693 where the judge emphasized, at para 34, that physicians must be judged in light of the knowledge that ought to have reasonably possessed at the time of the alleged act of negligence.
 It is also important that the standard of care be assessed against the standard of care governing practitioners in similar communities. If a physician’s conduct conforms with recognized medical practice as described by expert witnesses, the physician’s conduct will generally have met the standard of care and will be considered to have fallen within the scope of reasonable conduct.
The Court further emphasized that liability does not attach to an error in judgment; there must be something careless or lacking skill for a physician to be liable:
 Furthermore, a physician is not liable for a mere error of judgement. Physicians, like others cannot perfectly predict the future and even reasonable physicians make mistakes: Duncalf v Capital Health Authority, 2009 ABQB 80 at para 68. Liability does not follow a mere error of judgment. An error will attract liability if it demonstrates unskillfulness, carelessness, or lack of knowledge: Brenenstuhl at 67; Gemoto v Calgary Regional Health Authority, 2006 ABQB 740 at para 54.
Substantial expert evidence was put before the Court regarding the use of prophylaxis to manage the surgical risk of DVT. The Court weighed all of this evidence and applied it to the Defendant Physician’s situation as a practitioner operating in Lethbridge, Alberta and the standard of care expected of such a physician. The Court concluded that the Defendant’s decision to use mechanical thromboprophylaxis to manage the risk of post-surgery DVT met the standard of care, despite some of the experts considering the Plaintiff in a higher risk category than that in which the Defendant placed her:
 I do not find that by classifying Ms. Kain’s risk as low to moderate risk that Dr. Davey fell below the standard of care as the key question in this case is whether Dr. Davey met the standard of care by managing Ms. Kain’s surgical risk of DVT with mechanical thromboprophylaxis. The duration of the surgery was relatively short, the surgery was performed transvaginally (as opposed to open); and the previous DVT event was over twenty years prior.
 I find that the mechanical prophylaxis were appropriately managed once the surgery was over. Dr. Davey saw Ms. Kain every day while in hospital. Through this time she wore compression stockings and SCDs. The SCDs were turned on and activated when she was in bed and if they stopped working, the nurses would turn them back on. Once Ms. Kain was able to urinate independently, pass gas and was mobile she was discharged. The discharge care plan included instructions to take frequent walks every day. Ms. Kain also took the compression stockings home and wore them on and off until December 10, 2012. These orders met the required standard of care.
 Dr. Davey’s decision to use mechanical thromboprophylaxis and not anticoagulation to manage Ms. Kain’s surgical risk of DVT was reasonable and consistent with the ACOG Guidelines.
While the Court concluded that the Defendant met the standard of care, it provided a fulsome causation analysis, ultimately finding that the Defendant did not cause the Plaintiff’s injuries:
 I accept Dr. Crowther’s opinion that it was the surgery that caused the DVT. There is a risk of DVT with any surgery. Although Dr. Turpie opined that Dr. Davey’s use of mechanical thromboprophylaxis contributed to Ms. Kain’s DVT, this does not satisfy the “but for” test. It is not enough to establish that a medical outcome might have been better. The Court must be convinced that the outcome probably would have been more favourable to satisfy causation on a balance of probabilities.
 I find that even if Dr. Davey had fallen below the standard of care by failing to administer pharmacological anticoagulants, Ms. Kain could as just have easily suffered a DVT if she had received the anticoagulant. The efficacy of the intervention is not affected by the risk of having DVTs. Unfortunately, Ms. Kain was one of the few patients who went on to develop a DVT despite the use of an acceptable and reasonable prophylaxis. The submission by the Plaintiffs that the use of the mechanical thromboprophylaxis contributed to Ms. Kain’s DVT does not satisfy the “but for” test. Causation is not established.
The Court finally rejected the Plaintiff’s assertion that she was not properly informed of the risks of the procedure, and in any event even if she had not been reasonably informed of the risks, she would have undergone the procedure anyway:
 Ms. Kain submits that she would not have underwent the procedure had she properly being informed of the risks of the procedure and the alternative forms of prophylaxis available. She testified that at trial that had she known of the risks she would not have “gone into a risk for that for a clot, without a kind of safety net.” She would have only gone ahead with the procedure “if it was partnered with a plan to keep – to mitigate [her] risk”.
 Ms. Kain submits that there is a “wealth of evidence” in the present case to support the propositions that had she been properly informed of the surgical risk and the various methods of prophylaxis available Ms. Kain would not have agreed to undergo the rectocele surgery without pharmacological anticoagulation and this this alternate form of prophylaxis would not have produced the same or a more serious injury.
 I disagree. The evidence provided during trial illustrated that Ms. Kain’s vaginal prolapse had been gradually getting worse. The rectocele was symptomatic and was causing her difficulty. By her own admission, initially the vaginal prolapse was an inconvenience but it started to affect her daily life. By 2012, the symptoms were affecting her bowel movements, sexual intercourse and some of the flesh that was protruding was getting increasingly more uncomfortable. She was only 44 years old at that time and planned to enter new relationships. This type of diagnosis extends far beyond a mere inconvenience and would have been difficult to continue to live with.
 Furthermore, I find that Ms. Kain was not unfamiliar with surgical procedures and had undergone a tubal ligation prior to this surgery.
 I accept Dr. Skorenki’s evidence that most patients choose to undergo this surgery even after the risks are made known to them.
 Furthermore, the evidence produced at trial illustrates that pharmacological prophylaxis are not without risk.
 I find that a reasonable person in Ms. Kain’s circumstances would have proceeded with the surgery even if she had been informed of the risk of DVT, and the plans to manage it with mechanical prophylaxis.
Accordingly, the Plaintiff’s claim was dismissed.