Koerner v. Capital Health Authority, 2010 ABQB 753

Court of Queen ’ s Bench of Alberta Citation: Koerner v. Capital Health Authority, 2010 ABQB 753 Date: 20101129 Docket: 0803 01510 Registry: Edmonton Between: Lisa Koerner Applicant - and - Capital Health Authority, Royal Alexander Hospital, University of Alberta Hospital, Grey Nuns Community Hospital, Misericordia Community Hospital, Dr. Walter Yakimets, Dr. Todd McMullen, Dr. Doug Davey, Dr. D. San Agustin, Dr. Kata Matic, Dr. G. Sandha Respondents _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice D.L.

Shelley _______________________________________________________ Facts [ 1 ] This application is one of several that I have heard in the course of case management. The Plaintiff, Ms. Koerner, filed a Statement of Claim on January 31, 2008, alleging millions of dollars of damages due to the actions of the Defendant Physicians, Hospitals, and Crown. The Statement of Claim focussed on the injury suffered by Ms. Koerner as a result of actions allegedly taken by the doctors and hospitals. The Claim initially named the “Queen in right of Alberta as represented by the Minister of Health” as a party,

but I dismissed the action against the Crown on June 19, 2009. Ms. Koerner appealed that order, but her appeal was struck as abandoned. [ 2 ] In general, Ms. Koerner’s claim alleged the following: 1. Dr. Yakimets and Dr. McMullen failed to remove her gallbladder during a gallbladder surgery on October 11, 2006 and to attain proper consents to perform the surgery; 2. University of Alberta Hospital, Dr. Augustin, Dr. Matic, Dr. Sandha and Dr. Davey refused to provide treatment or testing for the personal injuries she suffered as a result of the failed gallbladder removal; 3. University of Alberta Hospital, Dr.

Agustin, Grey Nuns Hospital, Royal Alexandra Hospital, and Dr. Matic refused to read MRIs relating to the failed gallbladder removal; 4. Royal Alexandra Hospital and Dr. Bailey refused to provide a biopsy of cysts or a blood transfusion due to elevated bilirubin and a blood disorder; 5. University of Alberta Hospital, Grey Nuns Hospital, and the Royal Alexandra Hospital were liable for misdiagnoses relating to elevated liver enzymes and globular red blood cells and other undisclosed particulars; 6. Defamatory statements made by Dr. Davey describing Ms. Koerner’s need for psychiatric help.

Previous applications [ 3 ] Arising from a number of recent applications, I have made a number of orders that Ms. Koerner refers to in this application. In regards to service, I ordered that Ms. Koerner advise the Defendants, in advance, if she is leaving the country, and that she provide the name and phone number of a contact person in the Edmonton region. The Defendants could then serve Ms. Koerner by leaving a voice mail at that phone number, advising that documents were available for pick-up. That contact person could then forward the material to Ms.

Koerner. [ 4 ] Under Rule 217, I granted the Defendants’ application to require Ms. Koerner to attend for an independent medical examination with a psychiatrist and then with a psychologist to undergo the MMPI, the WAIS III, the McGill Pain Inventory, and the Pain Disability Index tests. [ 5 ] I also ordered Ms. Koerner to provide the Defendants with complete copies of the reports of Dr. J.A. Hammond, Dr. Richard Abidin and Dr. Theodore Milton; the complete records of her attendances with Dr. Klaus Gendemann, Dr. Penelope Sullivan, and Dr.

Yakov Shapiro; and to forward copies of her requests for these records to counsel for the Defendants; complete copies of all materials received from Drs. Gendemann, Sullivan, and Shapiro within one week of receiving them or, if already in her possession, to provide them to counsel for the Defendants within one week of the decision; and complete copies of the records or reports of any other psychiatrist, psychologist or other mental health profession with whom she has attended. [ 6 ] I heard this application the day before the appointment arranged for Ms. Koerner to see the psychiatrist, Dr. Urness.

At that time, I granted her application to have the interview video-taped at a location other than the University of Alberta Hospital, and I ordered that Ms. Koerner was responsible for making the appropriate arrangements for the video, including payment. This application [ 7 ] This is an application by Ms. Koerner for the following: 1. Order dismissed on allowing the defence to courier the Plaintiff documents While being hospitalized out of Country”;

2. Dismissing the order to provide irrelevance reports to the Defence; 3. Ordering that all assessments be videotaped to prevent any potential bias; 4. Change order of psychological testing.” Service [ 8 ] Ms. Koerner argued that a court may grant an adjournment until further notice, that the service order placed an unnecessary financial burden on her, and that the action should not proceed until she returns. Further, she argued that if the Defendants needed to notify her, that could be done by letter, and that the cost of faxing a letter is minimal compared to courier service. [ 9 ] Ms.

Koerner did not appeal the service order. As she has been told on numerous occasions, if she disagrees with an order that this Court makes, her remedy is to appeal. [ 10 ] In any event, as she has also been told many times, if Ms. Koerner plans to leave town for medical treatment, an adjournment is not automatic.

She must apply for an adjournment, providing appropriate evidence, such as an affidavit sworn by a doctor who is or is proposing to treat her, confirming the timing of treatment and where it will be done, and providing a date when she will have completed the proposed treatment and be available to continue with her obligation to pursue her action. [ 11 ] The order in question dealt with situations when Ms. Koerner chooses to leave the country without establishing that she is entitled to an adjournment. The Defendants have a right to have this litigation move along.

This is reinforced under the new Rules of Court , whose foundational rules include the requirement that the parties “facilitate the quickest means of resolving the claim” (r). 1.2(3) (a)). Moreover, the order was made to deal with bulky documents like lengthy affidavits and briefs which cannot be conveniently faxed or mailed. As noted by the Respondents, the order never required Ms. Koerner to courier the documents. [ 12 ] Even if I had the discretion to vary the order, I would not do so. Irrelevant reports [ 13 ] Ms.

Koerner argues that the reports I ordered to be produced are irrelevant, and would violate the privacy rights of her children. She attempted to rely on R. 40 ( Old Rules ), which provided that if an action was defective “for want of parties” the Court could render judgment saving the rights of all persons who are not parties. She argues that the information is only relevant if it contains a diagnosis, and that the information in the reports was provided in confidence.

She argued that the handwriting in the reports is difficult to read, and that therefore the reports would be incomplete and therefore biased. [ 14 ] Ms. Koerner did not appeal the order that she produce the reports. That is Ms. Koerner’s remedy if she wants the Order reversed. However, the Order can be varied if the parties agree. The Defendants agreed that the reports could be submitted to the Court for redaction of personal information regarding Ms. Koerner’s children. [ 15 ] I note, first of all, that R. 40 has no application here; it relates to joinder of parties.

Further any objection to the use of the reports as evidence is an issue for trial. These documents are being produced for the purposes of discovery. This is not the forum for these issues. [ 16 ] The reports must be produced as ordered, but records and reports that reference Ms. Koerner’s children may be submitted to the Court for the appropriate redaction of information related to them.

Dr. Urness’s appointment [ 17 ] Ms. Koerner argued that Dr. Urness, the psychiatrist, was biased and that he improperly relied on the report of Dr. McKaigney, a report she said would not stand up at trial. The complaints about the McKaigney report included that it was inconsistent and contradictory, it raised a somatoform diagnosis without a factual basis, and was from a doctor that she has never met. Ms.

Koerner further argued that the expert reports, by their very nature, are biassed because they are selected by the parties. [ 18 ] Much of this argument was directed towards her application for video-taping of the interview with Dr. Urness, but I want to make it clear to Ms. Koerner at this point that the question of the validity of expert reports is an issue for trial. At trial, she may introduce her own expert evidence to compete with the Defence expert witnesses, raise evidence about the validity and fairness of tests, or raise concerns about the actual interview.

Video-taping of the psychological testing [ 19 ] Ms. Koerner also sought video-taping of the psychological testing by Dr. Mrazik, and asked for the right to expand on her answers and explain them, rather than just write the test. She raised the case of R. v.

Mohan , 1994 CanLII 80 (SCC) , [1994] 2 S.C.R. 9, to challenge the testing by the psychologist, suggesting that the case is intended ... to protect people from the basic evaluation of the norm... if you want to dispute the other party’s expert witness, you can apply to the courts for this hearing before trial and dispute, and um... this is one of the tests that is very commonly disputed, this MMPI test and therefore the courts, Mohan was put in place, like I said by the one quote I used, I know for a fact, it was definitely on the website, says “Mohan kept the door open to novel science, rejecting the general acceptance” so basically they’re giving you the opportunity to state this test should not be included and because it is evaluated on the norm and again what doctor can state what is the norm.”. [ 20 ] Ms.

Koerner further discussed particular questions that she says appear on the tests and noted how they were unfair. As noted above, most of these issues would be appropriate to raise at trial. [ 21 ] The Respondents noted that there are copyright issues in regards to these tests and that there may ethical concerns in regards to this approach. Further, the Respondents indicated that they would oppose any variation of the testing that might invalidate the results, but were not opposed to Ms.

Koerner having an interview in addition to the standardized testing. [ 22 ] As a result, I asked for further submissions on this question, and the issue will be dealt with at the next case management meeting. Conclusion [ 23 ] Ms. Koerner’s application to change the terms of the Order dealing with service when she is out of the country is dismissed. The order has been entered and I have no jurisdiction to change it.

Her remedy is to appeal it. [ 24 ] Similarly, the application to “dismiss” the order requiring production of the various reports listed in my previous order is dismissed, except to the extent that the Respondents have agreed to redaction, under Court supervision, of references to Ms. Koerner’s children. Ms. Koerner must provide complete copies of all reports and materials set out in my previous order to counsel for the Defence immediately, except for those which she alleges contain personal information regarding her children.

These are to be provided to the Court within 7 days of this decision to be redacted under this Court’s supervision. The Court will then forward the redacted versions to all the parties.

[ 25 ] The issue of video-taping the psychological testing and of providing expansions on her answers is adjourned pending the next case management meeting. Heard on the 16 th day of November, 2010. Dated at Edmonton, Alberta this 29 th day of November, 2010. D.L. Shelley J.C.Q.B.A. Appearances: Lisa Koerner Appeared on her own behalf Jennifer Janz Field LLP for the Respondent Hospitals Sharon Roberts Bennett Jones LLP for the Respondent Doctors