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Monday Morning Case Bites for March 4, 2019

Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.

Edited by Amanda Kostek & Christie Dewar

Fraser v Jeffries, 2019 ABQB 145
Dismissal for Inordinate Delay | Explanation of Delay | Lawyer’s Illness

Peppler Estate v Lee, 2019 ABQB 144
Medical Malpractice | Standard of Care of a Family Physician

Fraser v Jeffries, 2019 ABQB 145

This was a successful appeal of a Master’s decision dismissing the case for inordinate delay.

The cause of action arose out of a finger injury during a recreational hockey game in January, 2011. The claim moved with reasonable action initially, but in couple of years before the application for delay, little occurred. At the hearing, both counsel conceded that the claim was ready for Trial. The two year period of delay from 2016 onward was explained by Plaintiff counsel’s illness. The Court concluded that although the delay was inordinate, it was excused by Plaintiff counsel’s illness:

[47] There is no evidence of activity in the litigation during 2016 after the April correspondence. I have no evidence of the date on which the lawyer actually began to take time off from practice, however one can deduce that it was at some point in 2017. The inordinate delay occurred because the Plaintiffs’ original lawyer became ill, ultimately had to take some time off, and the file was transitioned to Mr. Jang in January 2018. Mr. Jang is a lawyer with the same firm that has handled the Plaintiffs’ action since its inception. When the file was taken over by Mr. Jang, he acted with dispatch and sent a form of litigation plan to Defendant’s counsel on January 25, 2018. When agreement to that plan was not forthcoming, he promptly brought an application that was within the spirit and intent of the Rules, as set out in Rule 1.2.

[48] In Ivkovic v Tingle Merrett LLP, 2018 ABQB 308 (CanLII), Hall J, in obiter, noted that the delay in that case could be excused partly on the basis of the Plaintiffs’ evidence of “chaos and then illness of his counsel”: at para 26. The illness, among other reasons such as lack of evidence of prejudice, would have led Hall J to conclude that the action should not be dismissed under Rule 4.31. However, having found a period of delay of three years to satisfy Rule 4.33, the Court did not need to apply Rule 4.31.

[49] I am of the view that the inordinate delay in this case is adequately explained and justified by the evidence of the Plaintiffs’ counsel becoming ill.

[50] The evidence of counsel illness is not detailed. I place weight on Mr. Jang’s status as an officer of the court and an affiant. Mr. Jang’s evidence is “reasonably capable of belief”: Housser at para 14. As an affiant, he has of course sworn to tell the truth. As an officer of the court (Legal Profession Act, RSA 2000, c L-8, s 102(2)), Mr. Jang has significant duties to his clients, as well as to the Court. Lawyers in Alberta must carry on the practice of law honourably and with integrity: Law Society of Alberta Code of Conduct (26 April, 2018) at chapter 2 (Code of Conduct). As advocates, lawyers must treat courts and other tribunals with candour: Code of Conduct at chapter 5. On a balance of probabilities, which is the only standard applicable in civil matters (FH v McDougall, 2008 SCC 53 (CanLII), [2008] 3 SCR 41), I accept the evidence of the intervening event of the lawyer’s illness, and based on these facts it would be unjust to deprive the Plaintiff of his opportunity to present his case.

Peppler Estate v Lee, 2019 ABQB 144

This was an unsuccessful medical malpractice action against a family physician who saw the Plaintiff twice in the four to five months before the Plaintiff was rendered a quadriplegic. The physician was suspicious of cervical myelopathy, and sent the Plaintiff for testing. During the second visit, the Plaintiff was triaged and scheduled for an MRI five months later. Two months after the second visit, the Plaintiff’s symptoms of numbness in his extremities worsened. He also relapsed and was using cocaine. Two months later he saw a chiropractor who told him to immediately attend at emergency. She also gave him requisitions for an MRI and CT scan. The Plaintiff ignored the advice due to drug cravings. After leaving the chiropractors office “he bought crack and other cocaine and alcohol, and proceeded to party in a hotel room with people he had met on the street.” Two days later he drove himself to emergency, but by this point his right leg was paralyzed. The progression of his issues was described as follows:

[51] The NLER chart notes indicate that Mr. Peppler was received at 12:02 hours complaining of neck pain, numbness, and tingling to his hands and legs for two months, no bowel control for three weeks, and generalized weakness. He was observed to have a limping gait, was dragging his right leg and had a weak hand grip, but his left side seemed strong. A CT scan showed a large soft tissue mass projecting onto the spine at C4-C5 consistent with a large disc protrusion or extrusion.

[52] Mr. Peppler was air lifted to the RAH where an emergency MRI and spinal decompression surgery were performed. It was too late. Mr. Peppler was quadriplegic.

The Court concluded that the physician should have identified red flags such as bowel and bladder symptoms in cases of suspected cervical myelopathy, but the Plaintiff failed to prove that the physician breached the requisite standard of care. As a result, the Court set out it’s findings on contributory negligence in the event of an appeal.

The Court noted that the Plaintiff repeatedly ignored advice to seek medical attention if his symptoms worsened:

[317] The evidence is clear: Mr. Peppler well understood Dr. Lee’s advice to go to the ER if his symptoms got worse. Despite this, and progressively worsening symptoms from as early as late September through December, he did not. Further, despite repeated cautions from his colleagues (to have a doctor check out why he was complaining more and moving slower in December), his father (to have his medical issues “checked out” in mid-December), and Dr. Niewczas (to attend the NLER with MRI and CT requisitions in hand on December 24), he still did not heed Dr. Lee’s advice. Rather, he went to the ER, but aborted his attendance on December 24. He repeated the same procedure the next day. It was only on experiencing leg paralysis on December 26 that Mr. Peppler thought it time to go to the ER and stay there to get medical help.

[318] In the result, the plaintiff has not established that Dr. Lee’s breach of the standard of care caused Mr. Peppler’s injuries. If another Court disagrees with my conclusion, I offer a provisional assessment for contributory negligence.

The Court concluded that the Plaintiff did not act reasonably, and was therefore contributorily negligent:

[324] A reasonable patient would follow his physician’s advice. A reasonable patient would take his physician’s instructions and go to an ER if his symptoms worsened and stay there to get help; a reasonable patient would act in his own best interests and heed the seriousness of his symptoms; a reasonable patient would avoid chiropractic neck manipulation when his physician warned against it. Mr. Peppler did not act as a reasonable patient. Rather, he unreasonably ignored or glossed over increasingly worsening symptoms.

In terms of apportionment, the Court held the Plaintiff 70% liable for his own injuries:

[330] Dr. Lee’s negligent conduct was twice failing to instruct Mr. Peppler about the importance of ‘red flag’ bowel and bladder symptoms in cases of suspected cervical myelopathy. Dr. Lee was not indifferent to the consequences of his conduct. Indeed, he was operating in circumstances where his initial differential diagnosis was later obfuscated by the revelation of new information from Mr. Peppler. At best, Mr. Peppler’s negligent conduct was a two-month long pattern of continuing indifference about his health and well-being. At worst, it was a continuing period of recklessness. I digress to note that before 2012, Mr. Peppler appeared to have had no difficulty attending the ER for relatively minor shoulder, neck and back issues. Why he chose to conduct himself so very differently in the fall and early winter of 2012 is, and will remain, a mystery.

[331] Mr. Peppler was a significant contributor to his misfortune. I find him to have been 70% contributorily negligent.