Ellsworth v. Jablonski, 2011 ABQB 667

Court of Queen ’ s Bench of Alberta Citation: Ellsworth v. Jablonski, 2011 ABQB 667 Date: 20111109 Docket: 0601 07565 Registry: Calgary Between: John Ellsworth Plaintiff - and - Dr. Ted J. Jablonski and Ted J. Jablonski Professional Corporation Defendants _______________________________________________________ Memorandum of Judgment of the Honourable Mr. Justice R.A. Jerke _______________________________________________________ Introduction [ 1 ] Cancer of the cervix (cervical cancer) is a very serious concern for women.

The most common cervical cancer, squamous cell carcinoma, may occur after a woman is infected by a virus (Human Papillomavirus or HPV). Squamous cell carcinoma is almost always caused by HPV infection. [ 2 ] If a woman has been infected by HPV, she may develop atypical cells (known as dysplasia). Dysplasia may result in cervical cancer, which starts as a small carcinoma on the cervix, but then grows and invades other tissues and organs, and the lymphatic system.

Physicians classify the spread of the cancer by stages (1A, 1B1, 1B2, IIA, IIB, IIIA, IIIB, IVA, IVB). [ 3 ] A test (Pap Smear Test) has been developed to screen for cervical cancer. The Pap test can detect atypical cells (dysplasia) before they actually become cancerous (before Stage IA).

[ 4 ] If atypical cells are detected, a woman can be treated, with virtual assurance that cancer will never develop. [ 5 ] If cervical cancer is not detected until after it has invaded the lymph system, the prognosis for survival is not optimistic. [ 6 ] Elizabeth Ellsworth was diagnosed with cervical cancer in June, 2003. She died on September 19, 2004 as a result of the cancer. [ 7 ] Her husband, John Ellsworth, claims that Dr. Jablonski failed to screen Ms. Ellsworth for cancer, and failed to diagnose her cancer prior to June 2003. [ 8 ] Dr. Jablonski was Ms.

Ellsworth’s family physician from 1999 until her passing. From 1999 to February 12, 2003, Ms. Ellsworth never raised any gynecological complaints. On February 12, 2003, Ms. Ellsworth attended Dr. Jablonski’s office complaining of abdominal pain, and heavy, painful periods. She did not have a pelvic examination or Pap smear test until Dr. Hauck conducted them on May 30, 2003. By then it had been twenty years since she had a pelvic examination or Pap smear test. [ 9 ] Mr. Ellsworth’s claim is for medical malpractice, so he must prove Dr.

Jablonski failed to meet the standard of care expected of him, and that the failure caused Ms. Ellsworth’s death. [ 10 ] The following issues must be determined:

A) What was the standard of care for cervical cancer screening in Alberta from 1999 to February, 2003, and did Dr. Jablonski meet the standard?

B) What was the standard of care in Alberta in 2003 for assessment and treatment of patients with gynecological complaints, and did Dr. Jablonski meet the standard?

C) Did Dr. Jablonski’s negligence, if any, cause the injury for which the Plaintiff Claims Damages?

I) For the time period 1999 to 2003 II) For the time period February 12, 2003 to May 22, 2003

D) What is the quantum of damages for the Plaintiff’s Claim of Loss of Housekeeping Services? Issue I What was the standard of care for cervical cancer screening in Alberta from 1999 to February, 2003, and did Dr. Jablonski meet the standard? [ 11 ] Dr. Brian Spence was Ms. Ellsworth’s family physician from 1985 to 1998. Throughout that period, Ms. Ellsworth did not have a pelvic examination or a Pap smear test. The chart note for August 4, 1989, records what appears to be a complete examination for Ms. Ellsworth except for the note “pelvic not done”.

The chart note for August 8, 1990, reads “CPX no”. “CPX” means complete physical examination. [ 12 ] Prior to being under the care of Dr. Spence, Ms. Ellsworth had an annual exam and pelvic examination, including a Pap test, in July 1983.

[ 13 ] Dr. Jablonski took over Dr. Spence’s medical practice in August, 1998. He saw Ms. Ellsworth eight times before February of 2003, the first time on April 30, 1999. On each occasion prior to February of 2003, Ms. Ellsworth presented with specific complaints, none of them gynecological. [ 14 ] Dr. Jablonski confirmed that if Ms. Ellsworth had refused a pelvic examination or Pap smear test, he would have tried to understand why and recorded the refusal in her chart.

There is no such recording: the clinical notes from April of 1999 to February of 2003 make no reference to annual examinations, pelvic examinations, Pap smear screening or gynecological history or complaints. Other than the evidence of Dr. Jablonski’s standard practice, there is no evidence as to what information or advice Dr. Jablonski did or did not provide to Ms. Ellsworth. There is no evidence that Ms. Ellsworth specifically refused the examination and testing. [ 15 ] The Plaintiff contends that Ms. Ellsworth “slipped through the cracks”, and that Dr. Jablonski never made a recommendation to Ms.

Ellsworth to undergo an annual pelvic examination and Pap smear screening because if he had, she would have done so. The Plaintiff argues there is proof that no such recommendation was made because neither test was performed in the years 1999 to May, 2003. The Plaintiff urges that this conclusion is supported by the circumstances here including: - Ms. Ellsworth underwent pelvic examinations and Pap tests in 1983 and in 2003; - Ms. Ellsworth was trusting of her doctors and attended when she needed medical assistance; - Ms. Ellsworth followed Dr. Jablonski’s recommendations for testing and medications; - Ms.

Ellsworth was particular about her appearance and health; - Ms. Ellsworth did not belong to the demographic that typically ignored the need for cervical cancer screening; - Many women dislike pelvic examinations and Pap tests and complain about them, yet nevertheless submit to them, and Ms. Ellsworth complained about pelvic exams at the Cancer Clinic yet submitted; - Dr. Jablonski had many opportunities and much time to canvas the topics of pelvic examination and Pap test with Ms. Ellsworth; and, - Ms.

Ellsworth seemed like an average intelligent woman who would listen to her physician’s advice. [ 16 ] In my view, these factors do not necessarily lead to the conclusion that Ms. Ellsworth would have submitted to a pelvic examination and Pap smear if it was recommended by Dr. Jablonski. The evidence shows that cervical cancer screening was well known to most women in Alberta during the period in question, but participation in a screening program is voluntary, and a significant minority of women choose not to have annual Pap tests.

The totality of the circumstances must be considered in order to determine whether Dr. Jablonski made the recommendation. [ 17 ] Dr. Jablonski assumed care of about 1,500 patients from Dr. Spence. Dr. Jablonski stated that it was his standard practice at the first visit of such patients, who at face value appeared to be healthy, to ask them to make an appointment within the next few months, if not a year, to have a complete review. Dr. Jablonski believes that with respect to Ms.

Ellsworth, he followed his standard practice and advised her to come in at some point in the first year to have a review of her general health and appropriate screening. [ 18 ] Dr. Jablonski testified that he has no specific recollection of the information or advice he provided to Ms. Ellsworth. His evidence at examinations for discovery and at Trial was that it was his standard practice to do annual medicals on female patients and to do Pap smears at that medical. In his standard practice, patients would be encouraged and recommended to book and attend for an annual examination, and to have annual Pap smears.

He engaged in this standard practice from 1984, and believes he followed this standard practice with respect to Ms. Ellsworth. [ 19 ] By 1999 Dr. Jablonski had been practising as a family physician for 27 years and Pap tests were an every day part of that practice. His evidence was that he did between four to six Pap tests every day, and his clinic had a female practitioner who ran a weekly Pap clinic. [ 20 ] Evidence of usual practice is acceptable evidence in medical negligence cases.

The testimony of a professional about what they told a patient based on their invariable standard practice is an admissible substitute for present recollection and can be convincing evidence: Keane v. Adams , 2002 ABQB 63 , 309 AR 237; Raina v. Shaw, 2006 BCSC 832 , [2006] BCJ No 1219; and Loffler v. Cosman, 2010 ABQB 177 , 2010 Carswell Alta 1051 .

[ 21 ] There is no evidence in this case that Dr. Jablonski failed to follow his standard practice. [ 22 ] Weighing all the evidence, I find, on the balance of probabilities, that Dr. Jablonski did recommend to Ms. Ellsworth that she attend for an annual examination and Pap smear test, and that he did so on at least one of the eight visits that Ms. Ellsworth had with him prior to February 12, 2003. Further, I find that at Ms. Ellsworth’s initial visit with Dr. Jablonski in April 1999, he likely advised her to make an appointment to have a complete review. Ms. Ellsworth did not do so.

She did not participate in the cervical cancer screening program by booking a time for a pelvic examination and Pap smear test. [ 23 ] The Plaintiff contends that Dr. Jablonski had a positive duty to screen Ms.

Ellsworth, and that the applicable standard of care was that each female patient be recommended to undergo a regular pelvic examination accompanied by Pap testing, and that a family physician provide those services or refer the patient to another doctor. [ 24 ] In 2000, following a consultation process, the Alberta Clinical Practice Guideline Steering Committee published a clinical practice guideline for screening for cervical cancer. The Guideline provides: All women who have had sexual intercourse should be actively encouraged to participate in cervical cancer screening ... [ 25 ] Dr.

Flook testified on behalf of the Defendant, and was qualified as an expert in family medicine. He stated in his Report: There was no standard in place between 1999 and 2003 that required physicians to search their practices and find all patients who could benefit from screening and prevention. When patients did attend for health maintenance examinations, there were practice standards that outlined what services needed to be performed. Physicians were encouraged to recommend visits for preventative services...

They were also encouraged to offer opportunistic screening services or make arrangements for them to be done by someone else. [ 26 ] Dr. Brankston testified on behalf of the Plaintiff, and was qualified as an expert in family medicine. His evidence was that the first time he sees a female patient he asks her when her last Pap smear was. He did not, however, suggest that the standard of care requires that discussion to be had at the first appointment with every patient, only that the discussion should be had. He agreed that a woman’s gynecological history should be obtained “if it is relevant”. [ 27 ] While Dr.

Brankston stated in his Report, “In the case of a woman such as Mrs. Ellsworth the expected standard of care is to carry out annual pelvic examinations and Pap smear screening”, in cross-examination he conceded that all a family physician can do is recommend a course of investigation, management or examination including an annual examination or a Pap smear test. A patient has a choice to go along with the recommendation or not. [ 28 ] I agree with the Plaintiff’s

summary of Dr. Flook’s evidence: On cross examination, Dr. Flook testified that notwithstanding the opportunistic nature of the Alberta system in the years 1999 to 2003, standards of care were in place. It was recognised that women 18 - 69 years of age who had initiated sexual relations were to be recommended to have regular pap screening. The national standard recommended 2 years of pap smears in a row, and if the second was negative, a gap of 3 years until the next pap smear. If any test was positive, the patient was to be followed every 6 months thereafter.

The more stringent Alberta standard was to recommend annual pap smear screening to all applicable patients. If the test was positive, the patient was to be followed every 6 months thereafter.

Under either standard, the family physician was to make the recommendations and provide the service himself, or if the patient was uncomfortable, or the physician unable to provide the service himself, to make a referral to have the screening done by an alternative physician. [ 29 ] Doctors Jablonski, Brankston and Flook all agreed that it was their common experience that most women expect to have an annual pelvic exam and Pap smear, and they all agreed that there are some women who refuse to do so and others who passively avoid doing so. Dr.

Ghatage testified on behalf of the Plaintiff, and was qualified as an expert in gynaecological oncology. He agreed that prior to 2003 a significant proportion, perhaps up to 50% of women in Alberta, were either unscreened or under-screened.

[ 30 ] As a patient has the right to make her own decisions about her health care options, the standard of care cannot obligate a family physician to ensure that every female patient undergoes a regular pelvic examination and Pap test. [ 31 ] I find that the standard of care applicable to a family physician practising in Alberta from 1999 to 2003 was that the physician had the duty to actively encourage female patients to participate in cervical cancer screening.

This included recommending that women participate in cervical screening when they were in the appropriate age group, and offering cervical cancer screening in their practice or advising the patient where they could obtain the services.

The standard of care did not require a family physician to undertake a practice audit to determine which women in the practice were unscreened or under-screened, nor did it place a positive duty on the physician to screen patients. [ 32 ] The obligation to actively encourage patients to participate in cervical cancer screening is ongoing, so a determination of whether a physician has met the standard of care requires an analysis of the facts and circumstances throughout the course of the doctor patient relationship. [ 33 ] The importance of ensuring that cancer screening occurs is not one-sided, for the patient also owes a duty of care to herself: Rose v.

Dujon , 1990 Carswell Alta 464, 408 AR 353 (QB), at para. 148 : ... The duty a patient owes to himself is to do everything reasonably necessary to ensure he is not harmed, failing which he exposes himself to the submission that he has been contributorily negligent in the losses suffered by him. That being so, surely it is reasonable that in discharging the duty of care a patient owes to himself, the patient should be held responsible and accountable for disclosing to his doctor all relevant and pertinent information of which he is aware in order to permit his doctor to make a proper diagnosis.

Both parties in the doctor-patient relationship have obligations - the doctor to the patient and the patient to himself - and inherent in the discharge of such obligations is the need to communicate fully with each other. To be effective, communication must be bilateral. Doctors are not mind readers and it would be unrealistic and unfair to treat the doctor-patient relationship as one in which the doctor were constantly being tested to see if he could solve the patient’s medical problems with limited or no relevant information from the key source - the patient.

Diagnostic testing in a vacuum is time-consuming, costly and inefficient. [ 34 ] The Plaintiff argues that Dr. Jablonski breached the standard of care because he failed to familiarize himself with Ms. Ellsworth’s chart, and failed to obtain the appropriate information concerning her gynecological history. [ 35 ] Dr. Jablonski identified some circumstances which would elevate the manner in which active encouragement occurs. If a patient is encouraged to have a Pap smear and refused, Dr.

Jablonski said that he would try to understand why she refused, and would then try to educate her on the importance of having the Pap smear. If she still refused, he would make a note on the chart that an explanation had been provided to the patient and the patient refused to proceed. Dr. Jablonski testified at Examinations for Discovery that if he had noticed that there was no record on the patient’s chart of Pap smears or pelvic exams in the previous 13 years, he would seek clarification of why that might be the case.

If there was nothing obvious on the chart, he would try to get an explanation from the patient. [ 36 ] A family physician who is taking over many patients from another practice cannot be expected to read every treatment chart prior to seeing the patient for the first time. Dr. Flook agreed that it would be incumbent upon the physician to eventually familiarize himself with a detailed history of each patient, typically booking a specific appointment for that purpose.

He stated that when a patient new to the physician presents with a problem, the physician needs to get enough information to manage the patient’s present problem. An initial visit provides an excellent opportunity for the physician to suggest that the patient come in for a checkup in the normal course where time is set aside for the physician to read the patient’s chart. Dr. Jablonski’s standard practice with Dr. Spence’s former patients was to do just that. [ 37 ] A physician has a duty to take a careful and thorough history, but that need not always amount to a cross-examination.

Generally speaking, the physician’s duty of inquiry is related to the patient’s presenting condition and symptoms: Rose v. Dujon . [ 38 ] None of the witnesses suggested that a family physician is obligated to always record advice given to a patient to have an annual examination, pelvic examination or Pap screen tests. If, however, a physician provides a recommendation to a patient to have a pelvic examination or Pap test and the patient refuses, that refusal should be recorded on the treatment chart. Medical charts are used to

assist in the ongoing treatment of a patient and to provide guidance to other physicians as to the patient’s history. Thus the physician is obligated to record important information, such as a patient’s refusal to undergo testing, in the chart. [ 39 ] A physician undoubtedly has an obligation to review the relevant portion of a patient’s chart in the appropriate circumstances. In this case, there is no evidence that Ms. Ellsworth explicitly refused any recommendation by Dr.

Jablonski to make an appointment for a physical examination or complete review, or to undergo a pelvic examination or Pap smear, and I find as a fact that she did not explicitly refuse. This fact, when considered alongside the fact that Ms. Ellsworth only attended upon Dr. Jablonski for specific complaints, none of which were gynecological in nature, lead me to conclude that the circumstances which would require Dr. Jablonski to review the chart for Ms. Ellsworth’s gynecological history did not arise between 1999 and February of 2003. Dr. Jablonski would have been expected to do so if Ms.

Ellsworth had presented for a general examination, a pelvic examination or with any gynecological complaints. [ 40 ] Given the advice that Dr. Jablonski gave Ms. Ellsworth and in light of the specific treatment she sought from him between 1999 and 2003, I find that there was no obligation on Dr. Jablonski to review Ms. Ellsworth’s chart to determine her gynecological history or her history of participation in cervical cancer screening. I find that the duty to actively encourage Ms. Ellsworth to engage in cervical screening beyond the recommendations Dr. Jablonski did make did not arise. Dr.

Jablonski was never made aware that Ms. Ellsworth refused pelvic examinations and Pap smears, or that it had been many years since she had previously had them. [ 41 ] I find that Dr. Jablonski met the standard of care required with respect to cervical cancer screening of Ms. Ellsworth between 1999 and 2003. Issue II What was the standard of care in Alberta in 2003 for assessment and treatment of patients with gynecological complaints, and did Dr. Jablonski meet the standard? [ 42 ] Ms. Ellsworth began experiencing problems in December 2002.

In January and February 2003, she had a couple of telephone conversations with her sister-in-law Ms. Darroch, in which she advised she was having abdominal pain and bleeding. Ms. Darroch advised her to get an internal examination and a Pap smear. Ms. Ellsworth did not do so, and there is no indication that she mentioned having either a pelvic exam or Pap smear to Dr. Jablonski when she saw him in February of 2003. [ 43 ] On February 12, 2003, Ms. Ellsworth saw Dr. Jablonski.

She presented with the following complaints, as stated in the Agreed Statement of Facts: Complaints of abdominal pain, painful periods - very heavy. Bleeding stopped but pain has persisted. No change in bowel movements, no urinary symptoms. On examination abdomen vaguely tender in left lower quadrant. Patient also had some weight gain - check TSH. Gynaecological ultrasound and laboratory investigations ordered. [ 44 ] There were additional visits in March, April and May where Ms. Ellsworth had symptoms of a similar nature. On May 22, 2003, Ms. Ellsworth attended before Dr.

Jablonski at which time he prescribed pain medication and referred her to Dr. Hauck for further assessment of recent irregular periods/menorrhagia and dysmennorrhea. Dr. Hauck is a specialist in gynaecology. [ 45 ] The question here is whether Dr. Jablonski met the standard of care required of him from February 12, 2003, to May 22, 2003, for assessment and treatment of Ms. Ellsworth. [ 46 ] The Plaintiff does not complain about the treatment given and tests performed by Dr. Jablonski during this period, but bases his claim on what Dr.

Jablonski failed to do, which could have lead to a diagnosis of cervical cancer. During the period February 12, 2003, to May 22, 2003, Dr. Jablonski did not obtain a complete gynecological history. He did not read Ms. Ellsworth’s chart. He did not undertake a pelvic examination, and he did not conduct a Pap smear test. [ 47 ] Dr. Brankston opined in his Report:

At the attendance of February 12, 2003, it is evident that Dr. Jablonski did not carry out any degree of adequate focused functionalinquiry with respect to the patient’s abdominal pain and vaginal bleeding. With respect to each complaint, he should have askedquestions with respect to when the symptoms first began, their timing and duration, associated symptoms, factors that initiated orrelieved the symptoms and factors that improved or exacerbated the symptoms. In addition, he should have asked about the presence orabsence of urinary symptoms such as frequency, burning or blood in the urine.

As well, he should have taken a menstrual history thatwould have included questions regarding the regularity or irregularity of her cycles, the duration of her cycles, the presence or absence ofintermenstrual bleeding, the presence or absence of post coital bleeding, a history of previously abnormal Pap smears and a previoushistory of pelvic pain or of painful intercourse. ... In

summary, the care and management that Dr. Jablonski provided to Kathleen Ellsworth fell below the expected standard since: ... 2. Dr. Jablonski failed to carry out an adequate history and physical/pelvic examination/Pap smear regarding the patient’scomplaints of abdominal pain and abnormal vaginal bleeding from February 12, 2003 to the end of May 2003. [48] Dr. Flook does not specifically disagree with Dr. Brankston. He states in his Report: The second question about Dr. Jablonski’s care of Mrs. Ellsworth relates to the assessment and management of Mrs. Ellsworth betweenFebruary and May of 2003.

She presented with abdominal pain, tiredness and heavy menstruation. Dr. Jablonski did not perform acomplete assessment of the patient at the first visit in that there was no pelvic examination or Pap test performed at that visit. Dr.Jablonski was not obligated to perform the pelvic examination at the first visit however it needed to be done at some point. ... [49] Dr. Flook agreed that a speculum examination/pelvic examination is useful to determine whether blood is vaginal or cervicalin it’s origin and needed to be done during the assessment of Ms. Ellsworth’s symptoms.

He testified that it did not need to be done onFebruary 12, but it needed to be done somewhere along the line either by Dr. Jablonski or someone else, maybe his partner, maybe agynecologist. To provide a complete assessment Ms. Ellsworth needed a gynecologic assessment. [50] Dr. Flook also stated: ... A gynecological examination and Pap test would be recommended at some point in the assessment of this patient’s symptomsparticularly since the last Pap test was twenty years before this problem arose.

Whether or not to have a Pap test and if so, the timing ofthe Pap test and a decision about who would perform it, are matters that would need to be discussed with the patient. There is nodocumentation by Dr. Jablonski of a conversation about the need for a Pap, follow-up plans for further investigation or refusal of Paptesting. It was not necessary for Dr. Jablonski to perform these tasks because he referred the patient to a gynecologist, Dr. Hauck for acomplete gynecological assessment. It would have been substandard practice if Dr.

Jablonski had not either performed or referred for theperformance of the Pap and complete gynecological assessment. [51] Dr.

Flook agreed that when a woman attends with gynecological problems, a prudent doctor would make a full functionalinquiry to glean facts from her about her problem, and that the questions that would be asked could include how long has the problembeen going on, is the patient experiencing pain during sex, is the patient experiencing pain when urinating, is the patient experiencingregular periods. [52] A physician is obligated to meet the standard of a normal prudent practitioner of the same experience and standing.

Aphysician undertakes that she possesses and utilizes the skill, knowledge and judgment of the average reasonable physician in that field:Wilson v. Swanson, (SCC), [1956] SCR 804, 5 DLR (2d) 113 (SCC); Challand v. Bell, (1959), (ABKB), 27 WWR 182, 18 DLR (2d) 150 (Alberta Supreme Court Trial Division).

[53] With regard to the skill, knowledge and judgment to be used by a family physical engaging in diagnosis, the authorities alsoprovide useful guidelines: Rose v. Dujon: 103 Thus, it does not automatically follow that the misdiagnosis of a patient's condition is tantamount to negligence on the part of thephysician. However, such misdiagnosis will be regarded as an indication of negligence if the physician failed to resort to whateverreasonable tests, equipment or assistance were available to him. [Vail v. MacDonald, (SCC), [1976] 2 S.C.R. 825 at 832(S.C.C.) and Lankenau v.

Dutton et al., (1986) 37 C.C.L.T. 213 at 216.] Fournier v. Wiens, 2004 ABQB 403, [2005] 11 WWR 99 (ABQB): 90 The duty to diagnose requires a doctor to take a full history, use appropriate tests and consult or refer if necessary. A doctor must takereasonable care to detect signs and symptoms and formulate a diagnosis using good judgment. A doctor cannot act only on what they aretold.

"A doctor's skill and judgment must be in step with that of colleagues but need not be in advance of theirs, and if this standard ofcare is met in the particular circumstances the doctor will not be held liable to a patient injured by a misdiagnosis."Picard and Robertson,supra at 245-246 [54] A family physician has a duty to take a careful and thorough history as warranted by the presenting symptoms. That includesthe duty to review the patient’s chart to obtain information related to the presenting symptoms. Ms.

Ellsworth’s symptoms andcomplaints were relatively consistent from February 12, 2003, to May 22, 2003 and were gynecological complaints. A pelvicexamination and Pap test were required as part of the gynecological assessment. The obvious course for Dr. Jablonski to take was toconduct a pelvic examination and obtain a gynecological history, if not on February 12, 2003, then at least soon after. There were anumber of opportunities for him to do so. Dr. Jablonski did not do so, for a period of more than three months. It was only after his effortsto address Ms. Ellworth’s symptoms failed that he referred her to Dr.

Hauck, a gynaecological specialist. [55] I find that Dr. Jablonski breached the standard of care expected of him with respect to the assessment and treatment of Ms.Ellsworth in the circumstances of her presentation because from February to May of 2003 he did not obtain a complete gynecologicalhistory, he did not read Ms. Ellsworth’s chart, he did not undertake a pelvic examination and he did not conduct a Pap smear test. Hisomissions amount to a breach of the required standard of care. ISSUE III Did Dr.

Jablonski’s negligence cause the injury for which the Plaintiff claims damages? [56] The Plaintiff has the burden of proving on the balance of probabilities that damages resulted from the doctor’s negligent care.In particular the Plaintiff must prove that the Defendant was the cause-in-fact of the injury, in this case the death, of Ms. Ellsworth, andthat death was a reasonably foreseeable result of the negligence. [57] A

summary of the law, as applicable to medical malpractice, is provided by Nation J. in Waap v. Alberta, 2008 ABQB 544, 95 Alta LR (4th) 167: 72 The Supreme Court of Canada recently reiterated the general principles of the test for causation in Resurfice Corp. v. Hanke, 2007SCC 7, 1 S.C.R. 333 at paras. 20-25. The decision affirmed that the test for factual causation remains the “but for” test.

The plaintiffbears the onus to prove that “but for” the negligence of the defendant, the injury would not have occurred. 73 The “but for” test mandates that compensation for negligent conduct should only be made where there is a substantial connectionbetween the injury and the defendant’s impugned conduct. It ensures that a defendant will not be held liable for injuries that may well bedue to factors unconnected to the defendant: Resurfice at paras. 21 and 23. 74 In certain exceptional cases, the “but for” test will not apply and the “material contribution” test may be applied.

Such cases requirethat (Resurfice at paras 24-25):

(

a) It be impossible for the plaintiff to prove that the defendant’s negligence caused the plaintiff’s injury using the “but for” test; and (

b) It be clear that the defendant breached a duty of care owed to the plaintiff and exposed the plaintiff to an unreasonable risk ofinjury, and that the plaintiff suffered the injury. 75 Resort can be made to the material contribution analysis only if it is impossible to prove negligence using the “but for” analysis. Afailure by a plaintiff to prove causation on the “but for” analysis does not, in itself, mean that the plaintiff may then resort to the lessstringent material contribution test: Bohun v.

Segal, 2008 BCCA 23 at para. 53. 76 In cases where the plaintiff has first shown it is impossible to meet the “but for” test, the plaintiff must show that any breach ofcare by the doctor made a material contribution to the plaintiff’s injuries (a causative role that falls outside the de mimimus range): Atheyv. Leonati, (SCC), [1996] 3 S.C.R. 458 at para. 15. 77 The burden of proof lies with the plaintiff.

However, where no contrary evidence is adduced by the doctors, an inference ofcausation may be drawn using a “robust and pragmatic” approach to the facts, even though positive or scientific proof of causation hasnot been adduced: Snell v.

Farrell, (SCC), [1990] 2 S.C.R. 311 at 330. [58] An interesting discussion on the law with respect to cause-in-fact is provided by Russell Brown in his paper, “Good News andBad News for Defendants, and Bad News and Good News for Plaintiffs: Developments in Cause-in-Fact since Resurfice, and a New/OldWay of Proving Cause-in-Fact” (Presentation to the Mid-winter Meeting of the Manitoba Bar Association Winnipeg, MB, January 21,2011). He concludes as follows: In nearly all cases, cause-in-fact is determinable by the but-for test.

Indeed, so long as we accept that the defendant may still be liablewhere his or her negligence was one cause among several, we can say that the but-for test does the job in every case. This probablymakes sense; once courts waiver from requiring that a plaintiff demonstrate a probable and necessary connection between thedefendant’s negligence and the injury, there is really no obvious alternative test.

Defendants should insist on plaintiffs proving theircases to that standard, and plaintiff’s counsel should, judging by the trends in the current (post-Resurfice) jurisprudence, give up trying topersuade courts otherwise. At the same time, courts are not forums for trial-by-mathematics, or trial-by-scientific expert. Trials are by judge alone (or by judge andjury). And, where the trial is by judge alone, the judge is expected to judge - that is, to apply judgment. Judgment goes, first of all, to theprocess of inferring facts.

Given the evidence, which includes evidence of the defendant’s risky behaviour and the evidence of theplaintiff’s harm (and, perhaps also, evidence of other potentially causative factors), does the fact-finder’s judgment lead him or her toinfer that the defendant’s negligence was causative of the harm, or not? Critics of Snell miss that point. Again, to reiterate - there is nosuch thing as evidence of cause-in-fact. There is evidence of negligence, and there is evidence of harm, from which a fact-finder may -using his or her sense of judgment - choose (or not choose) to infer cause-in-fact.

A) The Time Period 1999 to 2003 [59] In the event I am in error in my finding that Dr. Jablonski did not breach the standard of care required of him from 1999 to2003, it is necessary to consider whether the Plaintiff has met the burden of proving that Ms. Ellsworth’s injury resulted from the care heprovided. [60] Pap smear screening is a form of preventative medicine aimed at detecting patients at risk of developing cancer.

It seemsappropriate to me to apply the but for test in the manner adopted by the Defendant in it’s written Argument: 150 In order for the Court to come to the conclusion that there would have been a timelier detection of pre-cancer through a pap testdone between 1999 to 2003, the following facts must be proven on a balance of probabilities:

(

a) That Mrs. Ellsworth would have followed Dr. Jablonski’s advice to have a pap test for screening purposes; (

b) That the pap test or tests would have shown an abnormality, dysplasia or cancer. [ 61 ] I have found that Dr. Jablonski did recommend to Ms. Ellsworth that she engage in cervical cancer screening, and she did not do so. She did not flatly refuse, but she did not participate. Similarly, when her sister-in-law recommended that she have an internal examination and Pap smear test, Ms. Ellsworth also did not do so. [ 62 ] The onus is on the Plaintiff, and the Plaintiff has not proven that Ms.

Ellsworth would have participated in a cervical cancer screening program or underwent a Pap smear test for screening purposes. [ 63 ] There is no doubt that if abnormal cells (dysplasia) are detected before they become cancerous, there is a virtual certainty that treatment will be successful and cervical cancer will be avoided. But even if Ms. Ellsworth agreed to have a Pap smear test for screening purposes, the evidence does not show that the test would have happened immediately. At best, all the Plaintiff can say is that Ms.

Ellsworth might have had a pelvic examination and Pap smear sometime after April of 1999 and before February of 2003. Pap smear tests carry a false negative rate for HPV induced squamous cell cancer of about 20%. It is only when annual Pap smear tests are taken for three consecutive years showing consistently negative results that the confidence level is very high (in the order of 99%). [ 64 ] Pap smear screening is not very effective following the onset of cancer. In such cases a Pap smear test carries about a 50% false negative rate. Ms.

Ellsworth had cancer in February of 2003, and probably had cancer for at least a number of months before that. [ 65 ] In the result, I find that the Plaintiff is unable to establish on the balance of probabilities that even if Ms. Ellsworth would have agreed to have a Pap smear test prior to February of 2003, it would have shown an abnormality, dysplasia or cancer. [ 66 ] These facts do not give rise to circumstances under which the material contribution test would apply.

There may be scientific uncertainties in identifying when cancer emerges from the dysplasia stage which may be sufficient to give rise to application of the material contribution test. However, the Plaintiff cannot rely on the test because he has failed to prove if or when Ms. Ellsworth would have participated in pelvic examinations and Pap smear tests. Uncertainties as to when Ms.

Ellsworth would have undergone a Pap smear test and whether she would have done so more than once are not contingencies within the knowledge or control of her family physician, and they are not matters of scientific uncertainty. [ 67 ] In the result, I find that the Plaintiff has failed to meet the onus to prove on the balance of probabilities that if Dr. Jablonski did breach the standard of care from 1999 to February, 2003, that breach caused the Plaintiff’s injury.

B) The Time Period February 12, 2003 to May 22, 2003 [ 68 ] With respect to Dr. Jablonski’s treatment on and after February 12, 2003, the Plaintiff argues that the material contribution test should be used, and even in light of the lack of scientific precision, the delay in diagnosis occasioned by Dr. Jablonski’s breach of the standard of care materially contributed to Ms. Ellsworth’s death. To analyse this argument, it is necessary to review the diagnosis and stage of Ms. Ellsworth’s cancer. [ 69 ] It is not clear that Dr. Jablonski would have diagnosed Ms.

Ellsworth’s cervical cancer on February 12, 2003, no matter what he had done. For example, Dr. Hauck, a gynecological specialist, conducted a physical/pelvic examination and obtained a Pap smear on May 30, 2003. He did not immediately diagnose Ms. Ellsworth with cervical cancer. Rather, he questioned whether she had a cervical lesion. [ 70 ] The Pap smear obtained by Dr. Hauck disclosed evidence of squamous cell carcinoma.

While Pap smear screening is an excellent test for diagnosing abnormal cells prior to the onset of cancer, as discussed, it is not very reliable for detection of cervical cancer (negative 50% of the time).

[ 71 ] Dr. Ghatage diagnosed Ms. Ellsworth with stage 2B squamous cell carcinoma of the cervix on June 25, 2003. At that time she had a six to seven centimetre tumour involving the cervix with evidence of a right perametrial involvement, meaning the cancer had advanced into tissue lining the uterus. He was of the opinion that she most likely had cancer six to twelve months prior to June of 2003. He was also of the opinion that in February of 2003, Ms. Ellsworth probably had a “biggish” cancer which would likely have been at a 1B 2 or 2B stage.

There was a good chance there was some metastasis of the cancer to the lymph nodes. Dr. Ghatage was of the opinion that in February 2003 Ms. Ellsworth’s chances of cure were almost the same as when she was diagnosed in June. [ 72 ] Dr. Brankston’s evidence was that Ms. Ellsworth had a cancerous tumour on February 12, 2003, and that it would likely have been visible in the weeks and possibly a few months prior to February 2003. [ 73 ] Dr. Faught testified on behalf of the Defendant, and was qualified as an expert in gynaecological oncology. He agreed that Ms.

Ellsworth had a stage 2B carcinoma in June of 2003 based on the size of the cancer and how far it had intruded into other tissue. The factors impacting survival rates are the size of the tumour and whether there has been any metastasis of the cancer to the lymph nodes. The intrusion of cancer into the lymph nodes is the most important factor when considering survival. Dr. Faught was of the opinion that Ms. Ellsworth had lymph node involvement at least at the microscopic level in February of 2003. He was of the opinion that as of February 2003, Ms.

Ellsworth was at least at a stage 1B2 cancer with microscopic lymphatic involvement. He was of the opinion that if she would have been diagnosed in February 2003, her outcome likely would have been the same. [ 74 ] The Plaintiff can not prove that but for the negligence of Dr. Jablonski the injuries would not have occurred. This was all but conceded by the Plaintiff in argument. [ 75 ] I find that by February of 2003, Ms. Ellsworth had cervical cancer which had progressed to at least stage 1B2 with metastasis to the lymphatic system. I find on the balance of probabilities that even if Dr.

Jablonski had taken the appropriate steps to meet the standard of care as of Ms. Ellsworth’s visit in February of 2003, there would have been no provable difference in the outcome for Ms. Ellsworth. In short, nothing Dr. Jablonski did or failed to do after February 12, 2003, contributed to the unfortunate outcome here or exposed Ms. Ellsworth to any risk. The material contribution test is of no assistance to the Plaintiff. [ 76 ] The Plaintiff has failed to meet the onus to establish on the balance of probabilities that Dr. Jablonski’s breach of the standard of care caused Ms. Ellsworth’s injury.

Issue IV What is the quantum of damages for the Plaintiff ’s Claim of Loss of Housekeeping Services? [ 77 ] Because this is a claim under the Fatal Accidents Act , RSA 2000, c F-8, the question of the Plaintiff’s entitlement to damages and causation are related. [ 78 ] Given the agreement of the parties, the only issue is the amount of the Plaintiff’s loss of household services resulting from Ms. Ellsworth’s death. [ 79 ] Two of the factors that the Court considers in evaluating such a claim are the time spent by the spouse on household services and the hourly rate to be used for valuing those services.

The Plaintiff has agreed with the hourly rate of $17.50 proposed by the Defendant’s expert. The parties have not agreed, however, on the number of hours which should be considered, or the contingencies that should be applied in the circumstances. [ 80 ] The Plaintiff also claims an award for a tax gross-up, however the amount of the tax gross-up is dependent on the amount of the loss of housekeeping services. [ 81 ] Some of the contingencies in this case such as Mr. Ellsworth’s life expectancy, and his possibility of remarriage or of

establishing a relationship which results in some or all of the replacement of the housekeeping services provided by Ms. Ellsworth, will become more clear as time progresses. [ 82 ] In light of the importance of future events, and my findings that Dr. Jablonski is not liable for Ms. Ellsworth’s death and is not responsible to compensate the Plaintiff for damages, I am of the opinion that it is not appropriate to quantify damages at this time. Conclusion [ 83 ] Dr. Jablonski encouraged Ms. Ellsworth to participate in cervical cancer screening in accordance with the standard of care. Ms.

Ellsworth had cervical cancer in February 2003 when she attended, with gynaecological complaints, and Dr. Jablonski did not meet the standard of care for her assessment and treatment from February 2003 to May 2003, but his failure did not cause Ms. Ellsworth’s death. [ 84 ] In the result, John Ellsworth’s claim for damages is dismissed. [ 85 ] If necessary, costs may be spoken to. Heard on the 6 th day of June, 2011 to the 17 th day of June, 2011. Dated at the City of Lethbridge, Alberta this 1 st day of November, 2011. R.A. Jerke J.C.Q.B.A. Appearances: Clint R. Suntjens Litwiniuk & Co.

For the Plaintiff Valerie Prather Bennett Jones LLP for the Defendants