Priest v. Williams Lake Veterinary Hospital Ltd. Date:, 2011 BCPC 63

Citation: Priest v. Williams Lake Veterinary Hospital Ltd. Date: 20110302 2011 BCPC 0063 File No: 07-0474 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: DR. VONA PRIEST CLAIMANT AND: WILLIAMS LAKE VETERINARY HOSPITAL LTD. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.D. MORGAN Counsel for the Claimant: R. Breder Counsel for the Defendant: S. Oliver Place of Hearing: Williams Lake, B.C. Dates of Hearing: January 13 & 14, February 10, 2011 Date of Judgment: March 2nd , 2011 [ 1 ] The Claimant, Dr.

Priest, sues the Defendant, Williams Lake Veterinary Hospital Ltd, for damages arising from what she alleges is the negligent care of her dog, Shadow. She also bases her claim in contract, alleging the defendant broke an implied term of their contract that the care provided to Shadow be provided at the reasonable standard expected of a licensed and trained veterinarian. The Facts: [ 2 ] The Claimant is a psychiatrist who practices and lives on her farm located 10 minutes driving time outside of Williams Lake, B.C. She is single and has no children.

She uses her farm for animal rescues and currently has 103 various animals. She says her animals are her family and she is clearly very passionate about their care and well-being. On September 17, 2006, sometime between 12 noon and 1 PM, the Claimant's horse either kicked or stepped on the right forefoot of the Claimant's dog, Shadow. Shadow was a purebred Belgium Tervuren the Claimant had purchased for $1000 in approximately 1994 when the dog was one year old.

Shadow was approximately 13 years old in 2006. [ 3 ] The Claimant was not aware of the extent of her dog's injuries, but could see he was clearly favouring his right forefoot. She put her dog in a small cabin she used as an office. She noted that Shadow was calm and did not seem to be in pain. She left him in the cabin while she carried on with the chores associated with the care of her other animals. Later that afternoon Dr. Priest had her friend and neighbour, Mr. Knezevich , look at Shadow for his opinion as to Shadow's injury.

He felt Shadow's leg to see if he could determine whether there were any broken bones. He told Dr. Priest that he was unsure and that it could possibly be just a bruise. [ 4 ] Dr. Priest kept a close observation on Shadow. The next morning Shadow continued to favour the leg. Dr. Priest noted Shadow would not put weight on the leg, and says at no time since she first noticed the injury while the dog was at her residence did she see Shadow put weight on the leg. Dr. Priest called the Williams Lake Veterinary Hospital, whose services she had used many times, and was told to bring the dog in right away.

She had a 9 AM appointment with a client so she asked Mr.Knezevich if he would take Shadow

to the veterinary hospital for her. [ 5 ] There is no evidence as to how Shadow was transported from the cabin to the automobile or from the automobile to the front door of the vet clinic. However Rebecca Telford, animal health technologist at the Williams Lake Veterinary Hospital, saw Shadow brought in to the clinic on a leash. She noted the dog was walking on three legs holding the injured leg up. She could tell immediately by the way Shadow's injured foot was dangling that it was obviously broken. The treating veterinarian, Dr.

Schneider, also recalled Shadow was walked in by a man, and was walking on three legs holding up his right fore leg. She noted the dog's injured forefoot was swinging in a circular motion. She felt the limb, knew it was fractured, and directed x-rays be taken. She noted the dog presented as happy and alert with normal vital signs. [ 6 ] The x-rays showed that Shadow had suffered a severe, comminuted fracture of the right distal radius and ulna. In the exam room she noted the dog tried to weight bear a couple of times but generally held the injured foot up. Given the severity of the fracture Dr.

Schneider had her receptionist contact Dr. Priest to provide treatment options. Dr. Schneider told the receptionist the options were a referral to a veterinary orthopaedic surgeon, or to have the Williams Lake Veterinary Hospital do an amputation. Dr. Priest does not recall being told that an option was a referral to an orthopaedic surgeon. However she did leave a message for Dr. Schneider via Dr. Schneider's receptionist that she would be contacting Dr. Olson who was a veterinary orthopaedic surgeon practicing in Prince George. Dr. Priest had used Dr.

Olson previously and had known him personally for a few years. Dr. Olson describes Dr. Priest as his wife's friend. [ 7 ] In a telephone conversation between Dr. Olson and Dr. Schneider, Dr. Olson requested Dr. Schneider give Shadow antibiotics and splint his leg for transport. There was some discrepancy in the evidence as to whether Dr. Olson requested Dr. Schneider administer pain medication. In his report dated February 9, 2008, set out at Exhibit 2, Tab 4, Dr. Olson says, at paragraph 2, that he told Dr. Schneider to "administer pain control as required".

In his report dated July 29, 2009, set out at Exhibit 2, Tab 6, on page 2 of the report, second full paragraph, Dr. Olson says: “I specifically told Dr. Schneider that after she evaluated the vascular and nerve function, that analgesics should be given " prn " (as required) as well as an injectable antibiotic.” [ 8 ] However, he was much less clear in his testimony. In his direct testimony he was asked whether he asked Dr. Schneider to administer pain medication.

He answered by saying "We routinely ask dogs to be sedated" to ensure the “dog will not bang around and it will be a quiet patient for transport.” On cross examination he was asked whether he asked Dr. Schneider to sedate Shadow. Dr. Olson said "I said painkillers as required." He was then asked: "But not sedation?" He replied: "I said sedation." He was told: "That is not what your notes said." Dr. Olson then refreshed his memory by looking at his clinical notes set out at Exhibit 2, Tab 13, page 67, and then stated that he did not put his instructions into his records but that Dr.

Schneider put them into her records. [ 9 ] Dr. Schneider's records on this point are set out at Exhibit 2, Tab 12, page 53, and read as follows: Dr. Olson doing sx [surgery] requested Ab's [antibiotics] splint leg. Asked what pain meds - said none. [ 10 ] Dr. Olson was then asked in cross examination: "Did you ask her specifically to sedate that dog?" To which he answered: "It is long enough ago that I can't be sure how I phrased that. I asked is he in pain and she said no and I said if he needs analgesics give them to him now." [ 11 ] Dr. Schneider had a more clear recollection on this point. She confirms Dr.

Olson said to her to splint the leg and start on antibiotics. She asked Dr. Olson what his plan was and he said to her that he would have to look at the x-rays more closely. She recalls asking Dr. Olson what kind of pain control he wanted and gave him the history as had been passed on to her that the dog had been given an Advil the day prior. She asked Dr. Olson his opinion as to why the dog was not in obvious pain. She recalls Dr. Olson saying it was because of the way the periosteum was disturbed and that this is likely why the dog did not need pain control.

She confirmed making the clinical records set out at Tab 12 page 53 (above) and confirms that these notes mean that she asked Dr. Olson what pain medications should be given Shadow and that Dr. Olson told her 'none.' [ 12 ] There is also some discrepancy in the evidence with respect to the type of bandage or splint that was to be put on Shadow's leg by the defendant. Dr. Olson testified in his direct testimony that he told Dr. Schneider to put a Robert Jones splint or a modified Robert Jones splint on the dog's leg prior to transport.

A modified Robert Jones splint involves putting padding around the injured limb, taping the padding, and finally wrapping the padding with a wrap referred to as 'vet wrap'. In his cross-examination he said a suitable splint could be either of a Robert Jones splint, a modified Robert Jones splint, or a Meta-splint, and that he did not specify to Dr. Schneider which splint to use. [ 13 ] In his direct testimony Dr. Olson said when Shadow arrived in his office at Prince George it had only vet wrap on its leg. In describing what a modified Robert Jones splint was , Dr.

Olson described the external vet wrap as a "black stringy wrap". Later in his direct testimony he said that when Shadow arrived he had "just a black vet wrap" on his fore-paw. In his contemporaneous notes set out at Tab 13 page 67 of Exhibit 2, he noted the dog arrived at his office with "soft wrap" on its leg. In cross-examination, when asked if he could recollect clearly after all this time what exact bandage was on Shadow when the dog arrived at his office, Dr. Olson candidly said "No, it's been five years". [ 14 ] The Claimant's neighbour, Mr.Knezevich , testified that Dr.

Schneider came out of her office with Shadow and said that she had taken the splint off Shadow's leg because he had been standing on it. He says Dr. Schneider had replaced the splint with a bandage he describes as a 'pink' vet wrap. On cross-examination he described the bandage as like a "fist in a wool winter sock" and says it went from the dog's foot to just below the dog's elbow. [ 15 ] Dr. Schneider says she instructed her two technicians to splint the dog's leg.

However one of her technicians came to her and asked if she could put a Robert Jones type bandage on instead because she was concerned the dog would put too much weight on its foot

if a hard splint was used. Dr. Schneider agreed and so instructed. She described the bandage as a full bandage running from toe to elbow, with a wrap on the outside and padding underneath. She said the bandage was intact and had not been bitten or chewed. On cross- examination she confirmed that she remembers looking at the bandage as the dog was discharged and that she has a current recollection of it.

She said she "absolutely disagrees" with the suggestion that the bandage consisted of only a simple vet wrap without padding, and says that if that had been the case she would have changed it. [ 16 ] Animal health technician Rebecca Telford recalls being directed to put a wrap or splint on the dog for transport to Prince George. She says she looked at the x-rays and talked with Dr. Schneider and between them it was decided that a Robert Jones bandage would be best. She did not feel comfortable putting a solid splint on and that Dr. Schneider agreed.

She recalls putting a thick layer of gauze on from the elbow to below the toes then using cast padding covered by 'cling', then vet wrap. In cross-examination she said she has a recollection today of the exact padding she used on Shadow. [ 17 ] The Claimant, Dr. Priest, recalls when she picked Shadow up from the Williams Lake Veterinary Hospital Dr. Schneider told her she had originally had a splint on Shadow's leg, but he began to weight bear with it on, so she took it off. She recalls seeing only a pink vet wrap with no padding under it. She says it was not bulky, and disagrees with her friend, Mr.

Knezevich's recollection on this point. [ 18 ] During the approximately three hour trip by motor vehicle to Prince George, the Claimant and Mr. Knezevich recall Shadow being unsettled. Dr. Priest recalls seeing him stand up and circle in the back seat area. Mr. Knezevich recalls that about half way to Prince George Shadow turned on the rear car seat and tried to weight bear causing his broken foot to bend backwards. He suggested to Dr. Priest that perhaps he should get in the back seat with Shadow to help keep him settled. He speculates that Shadow may have stood up and moved two or three times per hour.

On cross examination Dr. Priest agreed it would have taken only thirty seconds or so to stop the vehicle to allow Mr. Knezevich to get into the rear seat. She also agreed she saw Shadow weight bear on his leg and was concerned about that. She does not know why she decided not to stop to allow Mr. Knezevich to get into the rear seat, other than recalling she simply wanted to get to Prince George as soon as possible. [ 19 ] Upon arrival at Dr. Olson's office, Dr. Olson noted Shadow's foot was cold and swollen. He had made contemporaneous notes when first obtaining information from Dr. Schneider, and had noted Dr.

Schneider reporting Shadow had deep pain, withdrawal reflex, and that his foot was warm. This told him there was nerve function and blood supply to the foot. Dr. Olson's records of his initial assessment upon Shadow's arrival at his office in Prince George was that his foot was swollen and cold and that there was severe soft tissue swelling. This indicated to Dr. Olson poor or no circulation in the foot. [ 20 ] Dr. Olson administered morphine, took the bandage off, repositioned the wrist, and wrapped it in a Robert Jones bandage. Dr.

Olson confirmed on cross examination that there was circulation in Shadow's foot after he had repositioned it, and that Shadow's leg had warmed up between his arrival in the evening of the 18th and the start of the operation at 10 a.m. the next day. However, Dr. Olson's records indicate that on September 20th, the day after surgery, the foot was cool but seemed to have some circulation. [ 21 ] The surgery was complicated and consisted of removing multiple small bone fragments and inserting two pins into the bone to assist in holding the bones in place. During the operation, Dr.

Olson trimmed out some necrotic tissues; muscle, skin and some bone. Dr. Olson clarified that necrosis occurs from a loss of blood and nutrient supply. Dr. Olson confirms the loss of blood supply that created the skin necrosis on what he described as the 'skin crescent' was a couple of days old. [ 22 ] Although the post operation signs were initially encouraging, by the 4th day after the operation the skin on parts of Shadows foot was starting to 'slough' (rot) from lack of nutrients. By October 2nd it was clear the foot had to be amputated. Dr.

Olson amputated the foot on October 3rd. [ 23 ] Much evidence was presented that related to damages that included the Claimant's determination that it was necessary to give one of her other dogs, Grady, permanently to Mr. Knezevich , to avoid it harming the disabled Shadow, and also included the Claimant's eventual decision that the only humane option was to have Shadow euthanized given his extreme difficulties in adjusting to having his leg amputated. Opinion Evidence: [ 24 ] Dr. Olson provided his opinion that the fracture did not heal because it went 'a-vascular'.

It had lost blood supply for too long to be able to diffuse and nourish the tissues to allow the tissues to heal. He believes the loss of blood supply occurred during the transport from Williams Lake to Prince George. He comes to this conclusion because he was told by Dr. Schneider Shadow's foot was warm, and when Shadow arrived in Prince George his foot was cold.

He also noted more swelling than was indicated in the x-rays taken at Williams Lake, and says the comparison of his x-rays against the Williams Lake x-rays show additional bone fragmentation, indicating to him Shadow was grinding his foot during transport. [ 25 ] Dr. Olson believes the blood supply was lost because Shadow "was allowed to punch over and knuckle for three hours during the transport time", and that this occurred because Shadow was not covered with a Robert Jones bandage and also because he was not sedated, so would not settle. [ 26 ] Dr.

Olson says that although he could open the main blood vessels, the damage to the small blood vessels had already been done causing the flow in these vessels to shut off. [ 27 ] However, Dr. Olsen also said that 'sloughing' of dead tissue would take 4 to 5 days after the circulation impairment, and that he first noticed the sloughing on the 23rd, 4 days after surgery. Although he disagreed with the suggestion that surgery caused the sloughing, he does acknowledge that small vessels would be cut and damaged by the surgery. [ 28 ] Dr.

Olson does not disagree that sloughing is caused by the gradual dying of the skin and that the most common cause is a severe comminuted fracture. He also agrees that the horse kick could have caused the sloughing.

[ 29 ] Dr. Olson also agreed that it is unlikely that standing on the injured limb for only a few minutes would make any difference, and agrees he does not know how long Shadow would have been actually standing on his limb during the transport time to Prince George. Dr. Olson presumed Shadow had been standing on his limb because his paw was bent under upon arrival. He also concluded it was bent under for some time because the paw was cold, although he does concede there may be other reasons for a cold paw. [ 30 ] Dr. Schmon was called by the defence to provide her opinion.

She compared the two x-rays and said she was unable to find evidence of further damage in the later x-rays taken by Dr. Olsen. She noted the x-rays were from different machines limiting her ability to do an accurate comparison, however she determined she could say the percentage of swelling was similar but that a little more swelling was indicated in Dr. Olson's x-rays. She did not note any major difference in the bone fragments indicated in the two x-rays and says any minor differences may be due to different positioning of the paw upon the taking of the x-rays. [ 31 ] Dr.

Schmon says a partial obstruction of a blood vessel, either by occlusion or damage to the vessel, will take longer to show up. She also says that although skin necrosis after surgery is not common with severe fractures of the ulna and radius, it can occur, and is usually a result of damage to the blood supply to the involved area of the skin. Potential causes of necrosis include damage associated with the initial trauma. The more pieces of bone fragments, the more likely there is to be significant trauma to the soft tissue. [ 32 ] Dr.

Schmon says progressive slow death of the skin or of the distal limb after surgery is unusual and does not appear to be predicated on whether or not these fractures are bandaged for transport. She says this result is most often seen in severely comminuted fractures with extensive soft tissue swelling as in this case. [ 33 ] Dr. Schmon gives her opinion that it is not possible to determine the specific cause of Shadow's failure to recover from, or respond well to, the surgery, and that in this case a combination of factors was most likely involved.

She also says that even if no bandage was used for transport, it would not have been the most significant contributing factor. Dr. Schmon says that although pain killers were warranted, the lack of pain killers was not a factor in the outcome of this case. [ 34 ] The Claimant argues I should attribute little weight to Dr. Schmon’s evidence on the basis that she is biased because in the past she was a professor of Dr. Schneider’s. I found no evidence of bias. Nor do I find Dr. Olson’s evidence should be given less weight because his wife is friends with the Claimant.

Positions of the Parties: [ 35 ] I thank counsel for the Claimant, Rebeka Breder , and counsel for the Defendant, Stephen Oliver, for the excellent work they did in representing the interests of their clients. In summarizing the parties’ positions, I do so at a high level knowing that as a consequence I will not do justice to the detailed and comprehensive submissions of counsel. That said , counsel should be assured I have carefully considered their entire submissions.

I especially thank Claimant's counsel for her detailed and professional written submissions and note that although counsel cannot control the facts as they come out at trial, I am unable to conceive of how Ms. Breder could have done a better job in advocating for Dr. Priest. [ 36 ] The parties agree that the approach to be taken is to firstly determine whether the Claimant has established on the balance of probabilities that there was any negligence or breach of contract by the Defendant.

If the Claimant establishes negligence or breach of contract, the next consideration is whether the Claimant has established on the balance of probabilities that the negligence or breach of contract caused the failure of Dr. Olson's operation. If the Claimant establishes causation, the final consideration is what legal heads of damage have been established by the Claimant, and the quantum of those damages.

The Claimant's Argument Regarding Negligence and Breach of Contract: [ 37 ] The Claimant says the Defendant was negligent primarily in the following two ways: by failing to administer pain medication to Shadow prior to the three hour motor vehicle ride from Williams Lake to Prince George, and also by failing to properly immobilize Shadow's fractured leg prior to transport.

More specifically, the Claimant says the failure to medicate and immobilize the fracture allowed Shadow to put weight on his leg during transport resulting in impaired blood flow and also resulting in excessive grinding of the end's of the bones which in turn caused additional trauma and blood flow disruption. [ 38 ] The Claimant says the necrosis that was the reason Dr. Olson's operation on Shadow was not successful occurred as a result of damage to the blood vessels and that this damage occurred during the three hour transport as a result of the failure to medicate and failure to properly immobilize the limb.

The Claimant says that but for the damage that occurred during transport the operation would have been successful. [ 39 ] The Claimant argues that immobilization by use of a Robert Jones bandage or a modified Robert Jones bandage is standard practice in these types of cases, and that it doesn't matter which version were to be used, the effect would be that it would stabilize and immobilize the dog's leg. At paragraph 135 of the Claimant's written argument the Claimant submits: 135. The point that Dr.

Olson made was that the importance of the Robert Jones bandage is that it would stabilize and immobilize the dog's leg. This would prevent the dog from bearing weight on its fracture and would decrease swelling, which in turn would reduce the chances of any additional trauma to the fractured site - especially in this case where Shadow was going to travel in a vehicle for at least three hours. [ 40 ] In regards to the importance of pain control, the Claimant submits at paragraph 133 of her written argument: 133. In chief, Dr.

Olson explains the importance of giving pain medication is to sedate and relax the dog so that he does not put weight on his leg.

[ 41 ] At paragraph 130 and 131 of her argument the Claimant states that Dr. Olson uses the words "pain medication/control" and "sedation" and "analgesics" interchangeably. The Claimant thereby suggests that it does not matter if Dr. Olson could not recall exactly what term he used in his directions to Dr. Schneider, the primary point was that Shadow should have received pain control in order to keep him calm during transport. [ 42 ] The Claimant goes on to submit that even if it is found that Dr. Olson did not tell Dr. Schneider to administer pain medication, Dr.

Schneider should have recognized the need on her own and emphasizes that it would be a simple and routine procedure to do so. [ 43 ] The Claimant argues that if the court is unable to conclude the failure of Dr. Olson's operation would not have occurred 'but for' the negligence of the Defendant, that in this case the law supports a finding of causation on the basis that the Defendant breached a duty of care owed to the Claimant, and that breach 'materially contributed' to the failure of the operation.

The Claimant says the breach of the duty of care occurred for the same reasons as relied on and set out above regarding the negligence claim. [ 44 ] The Claimant also argues that there was a contract between the parties that the Defendant would provide veterinary services to the standard of a reasonably prudent and diligent veterinarian. The Claimant says the Defendant breached the contract on the medical services grounds set out above, and also by exhibiting a lack of professionalism. The lack of professionalism alleged is the failure to provide Dr.

Priest with a choice between a referral to an orthopaedic surgeon and amputation, the failure to explain the severity of the injury, and a delay of several days in returning Dr. Priest's calls after the surgery by Dr. Olson. The Defendant's Argument Regarding Negligence and Breach of Contract: [ 45 ] The Defendant agrees that the standard to be considered in the negligence claim is one of a reasonably competent veterinarian in practice. The Defendant emphasizes the standard is not that expected of a specialist like Dr.

Olson. [ 46 ] The Defendant also agrees it's reasonable that some type of support for Shadow's injured leg was necessary and agrees with Dr. Olson that a meta-splint, Robert Jones bandage, or a modified Robert Jones bandage would have been adequate for the three-hour trip by car. [ 47 ] The Defendant submits that the best evidence with respect to the type of bandage that was used is the evidence of Rebecca Telford and Dr. Schneider, which, the Defendant submits, is not inconsistent with the evidence of Mr. Knezevich .

The Defendant says that if the court prefers the Defendant’s evidence on this point then that ends the matter. [ 48 ] The Defendant also says that the evidence is clear that none of the three bandages referenced by Dr. Olson are intended to allow the dog to weight-bear on its broken leg. The Defendant argues the Claimant understood this through talking to Dr. Schneider and Dr. Olson before the trip to Prince George, and should also have understood through common sense that it would be important to keep her dog from standing on its broken leg during transport.

The Defendant says if in fact Shadow was allowed to stand on his broken leg during transport, it was not through the fault of the Defendant. [ 49 ] The Defendant also points out that it is speculation by Dr. Olson that Shadow stood on his broken leg with it knuckled over thereby crimping the blood vessels like – using Dr. Olson’s analogy - a kink in a hose. The Defendant says there is no evidence by the occupants in the vehicle that this occurred, and that the evidence of weight bearing during transport is minimal, with Mr.

Knezevich only speculating that Shadow may have stood up and turned around a few times during each hour of transport. Also, both Dr. Olson and Dr. Schmon agree that a severe, comminuted fracture will cause tissue damage and the more severe the fracture, which indicates the level of force involved, the more severe the tissue damage. The Defence emphasizes that Dr. Olson agrees that the initial trauma could have damaged the blood vessels. The Defendant says the evidence from the experts is that damage to blood vessels can be slow and progressive. [ 50 ] The Defendant says Dr.

Olson's evidence with respect to pain medication is confusing. The Defendant says that no where in Dr. Olson's medical notes is it indicated that he directed Dr. Schneider to 'sedate' the dog. The Defendant distinguishes between 'sedation', suggesting that sedation means rendering the patient drowsy or perhaps semiconscious for transport, versus 'pain killing' which means simply killing or dulling the pain. The Defendant suggests the court should at most conclude that Dr. Olson told Dr. Schneider to give Shadow pain killers if Dr. Schneider thought it was necessary. The Defendant says Dr.

Schneider found Shadow to be stoic and consequently not in need any pain medication. [ 51 ] The Defendant says that in these circumstances, it can not be said the Defendant was negligent, or breached a duty of care expected from a reasonably competent veterinarian. Decision: [ 52 ] The Claimant's claim is premised on her belief the Defendant did not properly bandage Shadow's leg for the three hour car journey to Prince George, and was also negligent and breached a duty of care by failing to administer pain medication. The Claimant has the onus of proving her claim on the balance of probabilities.

Bandage Issue: [ 53 ] Dr. Olson says he told Dr. Schneider to put a Robert Jones bandage or a modified Robert Jones bandage on Shadow's foot before transport. He made no notes of his instructions to Dr. Schneider. These two bandages are described in an excerpt from Textbook of Small Animal Surgery Vol. II, edited by Douglas H. Slatter , entered as Exhibit 3 by the Claimant. On page 1990 the modified Robert

Jones bandage is described as follows: The modified Robert Jones bandage is essentially the same, except that cast padding is substituted for the cotton. This type of dressing is essentially a heavy padded soft padded bandage, and although it is effective in preventing and minimizing edema , it provides little or no immobilization for fractures. [ 54 ] When Shadow arrived at his office Dr. Olson recorded that Shadow presented with a "soft wrap" on his foot. The evidence does not indicate this description is inconsistent with a Robert Jones type bandage. I also note Dr.

Olson did not record this as 'soft wrap only ' as he described it in his direct testimony. In his direct testimony, Dr. Olson also said that when Dr. Priest brought Shadow in, Shadow had a wrap of "just black vet wrap". On cross examination Dr. Olson admitted he could not recall accurately exactly what type of bandage Shadow presented with. [ 55 ] Both the Claimant and her neighbour Mr. Knezevich recalled the vet wrap being pink, not black. Dr. Priest says the pink vet wrap constituted the entire bandage. She also disagrees with her own witness, Mr.

Knezevich's description of the size and bulkiness of the bandage. Mr. Knezevich recalls Shadow's bandaged foot as looking like "a fist in a wool winter sock". That description indicates there was some bulk to the wrap, as you would expect to find in a Robert Jones type bandage. [ 56 ] Dr. Schneider described the bandage as a full bandage running from toe to elbow, with a wrap on the outside and padding underneath. On cross-examination she confirmed that she remembers looking at the bandage as the dog was discharged and that she has a current recollection of it.

She said she "absolutely disagrees" with the suggestion that the bandage consisted of only a simple vet wrap without padding, and says that if that had been the case she would have changed it. [ 57 ] Rebecca Telford, the technician who applied the bandage, testified that she put a thick layer of gauze on from the elbow to below the toes, then used cast padding covered by 'cling', then vet wrap.

In cross-examination she said she has a recollection at trial of the exact padding she used on Shadow. [ 58 ] All of the witnesses appeared to be making their best efforts at being accurate and truthful in their recollections. There was nothing in the direct testimonies or cross examinations of Dr. Schneider or Rebecca Telford that indicated they were being untruthful or that their recollections were unreliable.

When I consider all of the evidence on the bandage issue, I am compelled to conclude that the Claimant has not proven on the balance of probabilities that a Robert Jones bandage or a modified Robert Jones bandage was not put on Shadow for the three hour trip to Prince George. I find the evidence establishes it is more likely that a Robert Jones or modified Robert Jones type bandage was used by the Defendant. Medication Issue: [ 59 ] Dr. Olson conceded in cross examination that due to the passage of time he can not be sure how he phrased his discussion with Dr.

Schnieder regarding pain medication, but that his best recollection is that he asked Dr. Schneider "Is he in pain?" and that Dr. Schneider said no, and then Dr. Olson said "If he needs analgesics give them to him now." [ 60 ] Dr. Schneider had a more clear recollection on this point. She asked Dr. Olson what his plan was and he said to her that he would have to look at the x-rays more closely. She recalls asking Dr. Olson what kind of pain control he wanted and gave him the history as had been passed on to her that the dog had been given an Advil the day prior. She asked Dr.

Olson his opinion as to why the dog was not in obvious pain. She recalls Dr. Olson saying it was because of the way the peristeum was disturbed and that this is likely why the dog did not need pain control. She confirmed making the clinical records set out at Exhibit 2, Tab 12, page 53 (above) and confirms that the notes: 'Asked what pain meds - said none', mean that she asked Dr. Olson what pain medications should be given Shadow and that Dr. Olson told her 'none.' [ 61 ] On the evidence presented, I find it more likely that Dr. Schneider's recollection as to the discussion regarding Dr.

Olson's instructions regarding pain medication is the more accurate. I put much weight on the fact that she made contemporaneous notes on this point and Dr. Olson did not. At minimum, I can not find that the Claimant has proven Dr. Olson directed her to administer any pain medication. Clearly there was a discussion about Shadow's pain, or lack of it, and pain control. The Claimant urges me to read Dr. Schneider's notes as meaning she told Dr. Olson that Shadow was not on any pain medication. The Claimant urges this

interpretation even though it is contrary to Dr. Schneider’s testimony that was straightforward and not shaken on cross-examination. [ 62 ] It is clear that at this point Dr. Olson was assuming control of Shadow’s care. Dr. Schneider was deferring to his expertise. The evidence presented indicates it is more likely than not that Dr. Olson told Dr. Schneider not to give Shadow any pain medication. From a non-medical but commonsense perspective, I can not see why this instruction would not have been made by Dr. Olson in these circumstances. He was told the dog was not exhibiting any signs of pain.

The dog was self limiting, by walking on three legs. The self limiting was likely because to stand on the leg would cause pain. The Doctors did not want Shadow to stand on her broken leg.

Deadening the pain associated with weight-bearing may well be counterproductive, and if Shadow was presenting as calm and not in pain why administer any sort of pain control? [ 63 ] It was especially important to keep Shadow from weight bearing given the bandages recommended for transport were not designed for weight bearing, and the modified Robert Jones, according to the textbook relied on by the Claimant, provides little or no immobilization for fractures.

Conclusion: [ 64 ] The Claimant has not established that the Defendant was negligent or breached an implied term of a contract by failing to care for Shadow to the standard expected of a reasonably competent veterinarian. The evidence indicates that it is more likely than not a

proper bandage was used consistent with the instructions of the specialist, Dr. Olson, who was assuming care of Shadow. On the evidence, it is also more likely than not that Dr. Olson instructed no pain medication be administered to Shadow, an instruction that does not seem unreasonable in the circumstances. It was not contrary to the standard of care expected of Dr. Schneider to follow the directions of Dr. Olson. [ 65 ] Even if I had found that the evidence supported Dr. Olson's recollection that he told Dr.

Schneider "If he needs analgesics give them to him now", I could not conclude that, in these circumstances where Shadow was exhibiting no signs of pain at the Williams Lake Veterinary Hospital, that Dr. Schneider should have disregarded the fact that Dr.Olson had given her a discretion, and simply administered pain control medication. In short, there was no indication Shadow needed pain control, something recognized through Dr.

Olson’s best recollection of the words he used in his instructions. [ 66 ] I also find the Claimant's claim for breach of contract – the alleged breach being that the Defendant failed to return phone calls in a timely fashion after Dr. Olson had completed his surgery - can not succeed. There was no contract at that point. The Defendant's were no longer caring for Shadow and they had received the payment from the Claimant.

In any event, in the circumstances of this case I do not find the timely return of phone calls made several days after the conclusion of the Defendant's care of Shadow amounts to an implied term of the contract regarding the care of Shadow. Nor would the untimely return of phone calls be actionable per se, without related proof of loss. [ 67 ] The Claimant's claim for breach of contract related damages for the Defendant's failure to advise her of the option of talking to a specialist for a second opinion must also fail. Dr. Schneider says she instructed her staff to advise Dr.

Priest her options were a referral to an orthopaedic surgeon or to have the Defendant do an amputation. Dr. Priest says that is not the information she received from the person who called her from the Defendant's place of business, and that she called Dr. Olson on her own initiative. The employee who spoke to the Claimant was not called as a witness. Even if, notwithstanding the hearsay nature of the evidence, I accept both testimonies, the apparent mistake by the employee was of no consequence. Dr. Priest says she immediately called Dr. Olson.

Nothing flows from the unnamed employee’s apparent failure to accurately pass on that Dr. Schneider said an option was to refer Shadow to a specialist. [ 68 ] The Claimant also claims for breach of contract on the basis that the severity of the fracture was not explained to her by the Defendant. Implied in this claim is the suggestion that had she known how severe the fracture was she would have acted in a different way, presumably during the transport of Shadow to Prince George.

I find that the Claimant, after being told Shadow's injury was so serious that the only thing the Defendant could do for Shadow was to amputate his leg, knew his injury was extremely serious. She also knew that it was very important that Shadow not weight-bear on his injured leg. The Claimant emphasized during her testimony that at no time when Shadow was in her care prior to taking Shadow to the Defendant's place of business, did Shadow weight-bear on his injured leg. She said she even slept beside Shadow the night after the injury occurred so she could keep an eye on him.

This indicates the Claimant already had the belief it was important to keep Shadow from weight bearing. [ 69 ] However, even if the Claimant did not initially have that belief, both she and Mr. Knezevich testified they were told by Dr. Shneider that Dr. Schneider had taken off the hard splint and replaced it with the bandage because Shadow was attempting to weight- bear on the injured leg with the splint. This would have made it clear - if it had not already been clear to the Claimant - that due to the very serious injury Shadow had, it was very important to keep Shadow from weight-bearing.

I find that the Claimant knew, and was told, that Shadow had an extremely serious injury to his foot, and that it was important for her to ensure he did not weight-bear on it. Comments on Causation: [ 70 ] Given my findings above I need not discuss causation. However, I am concerned that I may leave the Claimant with the impression that I have determined the failure of Dr. Olson's operation was a result of her lack of care during transport or was a result of Dr. Olson's instructions to Dr. Schneider.

I do not believe the evidence supports a finding that something that occurred during transport was the cause of the failure of the operation. I come to this conclusion for the following reasons. [ 71 ] On direct Dr. Olson said "torn arteries and veins in the initial injury would certainly cause a problem". He was then asked whether that happened in this case, and said "I don't know. But Dr. Schneider did mention there was circulation and withdrawal therefore all I can conclude is the loss of blood supply occurred during transport." Dr.

Olson agreed that if Shadow stood on his leg for only a few minutes during the trip it would not have made any difference. He also agreed he did not know if Shadow had been standing on his injured leg for the whole trip. [ 72 ] Dr. Olson said he presumed Shadow had been standing on his leg during the trip because when Shadow came into his office his paw was cold. The information he had received from Dr. Schneider was that the paw was warm.

He concluded that Shadow would have had to have been standing on his foot for some time for the paw to have become cold, however also agreed there are all kinds of reasons for a cold paw. The evidence of the Claimant and Mr. Knezevich regarding Shadow's movements during the trip does not support Dr. Olson's theory that Shadow had been standing on his paw for a lengthy period of time, or that, as Dr. Olson put it in direct, he had been "allowed to punch over and knuckle for three hours transport time." [ 73 ] The loss of blood supply is the reason for the necrosis.

Both experts agree that sloughing is caused by gradual dying of the skin and that the most common cause of this is a severe comminuted fracture. Dr. Olson agreed that the horse kick causing the comminuted fracture could also have been the cause for the sloughing. Dr. Olson found and removed necrotic tissue during the operation. He said on direct he trimmed out necrotic muscle and skin. He said on cross he removed a necrotic crescent of skin, tiny necrotic bone chips, and the necrotic tip of a butterfly bone fragment. He confirmed bone fragments take longer to die from lack of blood supply.

When asked if the necrosis could have occurred days prior to the surgery he said "it depends on the tissue". He then agreed necrosis usually does not occur in one day. He also confirmed that the loss of blood supply that created the skin necrosis on the skin crescent was a couple of days old. [ 74 ] Dr. Olson's belief that the x-ray comparison showed that Shadow had been standing on his leg and had ground the bone fragments into smaller bits was countered by Dr. Schmon's reading of the x-rays and her conclusion that the x-rays did not show a

significant or major shift of the bone fragments, and that any minor differences may be due to the position of the limb when the x-rays were taken. She does agree that the x-rays indicated the swelling "was similar but a little more" in the Prince George x-rays. The theory that Shadow had been allowed to stand on his leg long enough to grind the fragments into smaller bits is again not consistent with the evidence of Dr. Priest and Mr.

Knezevich regarding Shadow's behaviour during the trip. [ 75 ] Although Shadow's foot was cold upon his arrival at Prince George, it had warmed up and the circulation was deemed sufficient by Dr. Olson for him to operate approximately 16 hours after Shadow first arrived at his clinic. [ 76 ] When I consider all of the above, I find it is most likely the circulation problems that resulted in the limb eventually going avascular occurred upon the initial trauma. The evidence does not support a conclusion that the operation failed due to improper care by either Dr. Olson, Dr. Schneider, or by Dr.

Priest. [ 77 ] The Claimant's claim against the Defendant is dismissed. _________________________________ R.D. Morgan, Provincial Court Judge