2015 QCCQ 4785, 2015 QCCQ 4785

Byford c. Hôpital vétérinaire Lasalle inc. 2015 QCCQ 4785 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Civil Division No: 500-32-136412-121 DATE: April 27, 2015 ______________________________________________________________________ PRESIDED BY THE HONOURABLE MARTINE L. TREMBLAY, J.C.Q. ______________________________________________________________________ BEVERLY BYFORD […] Montréal (Qc) […] and PRZEMYSLAW KONOPKO […] Montréal (Qc) […] Plaintiffs v.

HÔPITAL VÉTÉRINAIRE LASALLE INC. 7755, Bouvier Lasalle (Qc) H8N 2G6 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiffs allege professional malpractice, claiming $ 7,000 from Hôpital Vétérinaire Lasalle inc. (the “Hospital”). The Hospital pleads that its veterinarians and staff members acted in accordance with the applicable standards of practice even if they were unable to save the life of Plaintiffs’ cat, Pinky Pumpkin. QUESTIONS IN DISPUTE 1.

Did the Hospital commit a fault in the treatment and care given to Pinky Pumpkin ? 2. In the affirmative, what were the consequences of the fault and what constitutes adequate compensation for same? 3. How should the Hospital deal with the overpayment of fees by Plaintiffs ? THE RELEVANT FACTS [ 2 ] Pinky Pumpkin, Plaintiffs’ 9 year old cat, was rushed to the Hospital’s clinic on Tuesday, October 16, 2012, at 10:25 a.m. Plaintiffs suspected that he had ingested a disinfecting product on the previous Saturday or Sunday. [ 3 ] Pinky Pumpkin was seen by veterinarian Julie Givogue at 10:45 a.m..

She noticed hematuria and ordered various tests. She diagnosed a severe acute renal insufficiency, probably secondary to a urinary tract obstruction or intoxication. [ 4 ] Dr. Givogue discussed with Plaintiffs her proposed treatment, the costs involved and her prognosis. Plaintiff Konopko understood that Pinky Pumpkin was a sensitive case.

Plaintiffs agreed to the proposed treatment which included injections of Zantac and Cerenia in an attempt to achieve the resumption of the renal function. [ 5 ] At 11:15 a.m., Plaintiffs paid $ 300 [1] to the Hospital on account of services rendered and to be rendered. [ 6 ] Plaintiff Byford admits that at approximately 1:30 pm, she had a telephone conversation with a staff member of the Hospital during which she discussed the possibility of transfering Pinky Pumpkin to Centre Vétérinaire DMV for overnight supervision. [ 7 ] Sadly, at 4:52 p.m., Pinky Pumpkin passed away. [ 8 ] Plaintiffs paid the Hospital’s professional fees of $ 700.80 [2] .

At trial, they claimed that the Hospital overcharged them.

ANALYSIS [ 9 ] Professional liability is governed by the principles of ordinary civil liability. Therefore, the Hospital’s liability must be assessed bearing in mind that the evidence must establish that the Hospital committed a fault that caused or played a role in the alleged damages. [ 10 ] Plaintiffs have to prove the facts on which their claim is based [3] and that will allow the Court to conclude that the Hospital was at fault and that this fault was

i) the cause of Pinky Pumpkin’s agony and death; and/or ii) a source of additional stress and aggravation for Plaintiffs during this difficult period, where they feared the loss of their beloved companion. [ 11 ] The evidence must be such that it renders the existence of the facts alleged by Plaintiffs more probable than their non- existence [4] . This probability is assessed using direct and circumstantial evidence, inferences and presumptions [5] . 1.

Did the Hospital commit a fault in the treatment and care given to Pinky Pumpkin ? [ 12 ] Plaintiffs’ demand letter [6] summarizes the Hospital’s alleged faults as follows : We are extremely horrified, dismayed and grossly disappointed by your staffs’ lack of appropriate action.

We believe that the unnecessary delays and the staffs misdirected set of priorities contributed to the death of our beloved Pinky Pumpkin. [ 13 ] For Plaintiffs, the Hospital focussed on making sure that it would be paid rather than attending to Pinky Pumpkin’s dire condition. [ 14 ] The evidence, however, is that Pinky Pumpkin was seen and evaluated by Dr. Givogue prior to the $ 300 payment [7] .

There is no evidence that treatment was suspended pending receipt of payment [8] . [ 15 ] A veterinarian will not incur liability unless he or she acts in a manner inconsistent with that of a reasonable veterinarian confronted with similar circumstances. A veterinarian has an obligation of means and not of result .

An obligation of means is one that requires the person who owes it to demonstrate prudence, diligence and skill in arriving at the result desired by the parties . [ 16 ] To support their allegation of faulty treatment or technique on the part of the Hospital’s veterinarians and other staff members on duty that day, Plaintiffs wanted to submit documents found on the Internet on the treatment of urinary tract obstruction [9] . As the Court mentioned during the trial, it has to distinguish between a possibility and a probability. Internet information does not suffice.

The Court needs proper explanations by a veterinarian. [ 17 ] Indeed, on technical issues of this nature, the judge is a layman [10] . Therefore, to determine if the care and medical attention given to Pinky Pumpkin was technically and medically adequate, the judge needs an independent veterinarian to advise him or her on what " is known by science " in cases similar to Pinky Pumpkin’s. [ 18 ] Furthermore, the Hospital cannot be blamed for the urinary tract obstruction diagnosed upon Pinky Pumpkin’s arrival, which is the true cause of his death. [ 19 ] The Court believes Dr.

Givogue when she testified that she didn’t inject Zantac or Cerenia to provoke Pinky Pumpkin’s death. These injections were part of the treatment to cure the renal insufficiency. [ 20 ] Plaintiff Byford was upset about the way she was informed of Pinky Pumpkin’s unfortunate demise. According to Plaintiff Byford the veterinarian then on duty said “we can’t save them all” . She would have expected her to say “we did all we can”.

The Court cannot conclude that the veterinarian’s conduct or attitude in conveying the information, in this particular instance, was one that did not correspond to the conduct generally expected from someone who must be the bearer of such bad news. 2 . In the affirmative, what were the consequences resulting from the fault and what is an adequate compensation of same? [ 21 ] There is no need to answer this question given the negative conclusion reached by the Court on the first question. 3.

How should the Hospital deal with the overpayment of fees by Plaintiff ? [ 22 ] The Hospital agreed to reimburse $ 40.24 to Plaintiffs and asked the Court how to proceed given Revenu Quebec’s third-party seizure dated November 5, 2013 [11] . The Court can condemn the Hospital to pay the sum of $ 40.24 in order to liquidate the Hospital’s debt towards Plaintiffs once and for all, including Plaintiff Byford, but cannot give directions to the Hospital on how to pay that amount.

The Court invites the Hospital to consult an attorney, an accountant or to call Revenu Québec. [ 23 ] Considering that there was no medical malpractice on the part of the Hospital’s veterinarians and staff members, a judgment favourable to Plaintiffs is only required in order to liquidate the Hospital’s debt towards Plaintiff Byford for the purpose of the seizure made by Revenu Québec. Accordingly, the Court will not award costs in favour of Plaintiff. Each party will support their respective costs. FOR THOSE REASONS, THE COURT: PRAYS ACT of Hôpital Vétérinaire Lasalle inc.’s offer to refund $40.24 to Plaintiffs.

CONDEMNS Hôpital Vétérinaire Lasalle inc. to pay Beverley Byford and Przemyslaw Konopko, jointly, the sum of $40.24, together with the legal interest and the additional indemnity provided by

section 1619 of the Civil Code of Quebec , calculated from December 6, 2012.

THE WHOLE , each party paying its own costs. ________________________________ MARTINE L. TREMBLAY, J.C.Q. Date of hearing: January 27, 2015.