2011 QCCQ 8898, 2011 QCCQ 8898

Fent c. Hôpital Cité de la santé — Urgence 2011 QCCQ 8898 COUR DU QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF LAVAL CITY OF LAVAL Civil Division N° : 540-32-021114-093 DATE : March 10, 2011 ______________________________________________________________________ BY THE HONOURABLE MICHAEL SHEEHAN, J.C.Q. ______________________________________________________________________ MIRIA FENT Plaintif v.

HÔPITAL CITÉ DE LA SANTÉ – URGENCE (DF001) And DR MARTINE TURCOTTE (DF 002) DR GUY FLANAGAN (DF 003) Defendants ______________________________________________________________________ JUGEMENT ______________________________________________________________________ [ 1 ] Madame Fent is claiming for her minor daughter X, $7,000 from Cité de la santé and Drs Turcotte and Flanagan based on allegations of various errors and omissions in May 2008, leading to misdiagnosis of her ailments in the emergency room, delay in operating and needless suffering along with the possibility of major complications.

For the following reasons the claim must be dismissed. [ 2 ] The Civil code sets out that every person has a duty to honour his contractual undertakings. Where he fails in this duty, he is liable for any bodily, moral or material injury he causes to the other contracting party and is liable to reparation for the injury [1] . The creditor is entitled to damages for bodily, moral or material injury, which is an immediate and direct consequence of the debtor's default [2] . [ 3 ] A person wishing to assert a right must prove the facts on which his claim is based.

A person who alleges the nullity, modification or extinction of a right must prove the facts on which he bases his allegation [3] . Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law requires more convincing proof [4] . [ 4 ] On May 22nd 2008, X aged 13, was taken by her mother to Cité de la santé. She arrived at midnight and was seen 23 minutes latter. She was complaining of nausea, abdominal pains and vomiting. Triage nurse Tozzi checked her pulse and blood pressure and took her temperature. All were negative.

She noted her vital signs were normal and judged her pains to be moderate and her vomiting light to moderate with no dehydration and no diarrhoea. She classified X’s case as a level IV under the Canadian Emergency Department Triage and Acuity Scale and said that she would probably have an eight-hour wait before seeing a doctor. [ 5 ] 24 minutes latter, X and her mother said they wished to leave. She was given a diet of 2 Pedialite jars and told to return should she experience any signs of dehydration or diarrhoea. [ 6 ] On May 23 rd , X vomited all day and night.

On May 24 th and 25 th she had diarrhoea along with a slight fever. On May 26 th she continued to complain of stomach pains and back aches. On May 27 th her father consulted Info santé and her mother took her back to Cité de la santé. They arrived at 18h38. Triage nurse Tozzi immediately evaluated her. She recorded her recent history of abdominal pains and vomiting for more or less 48 hours. Her vital signs were normal, as well as her blood pressure. Her pulse was a little rapid but appropriate for her condition. Her temperature was normal as well as a saturation test.

She was classified as a level III priority case, given two Tylenol pills for her pains and directed to the waiting room. [ 7 ] At 21h33, the triage nurse revaluated X. The record shows that her abdominal pains had considerably diminished. Her vital signs were rechecked and showed that her blood pressure, pulse, temperature and saturation test were all normal. The nurse maintained the level III priority and returned her to the waiting room.

[ 8 ] A little while latter, X was examined by resident, Dr Torres, who questioned her in detail about her medical history, which she inscribed in the record along with the results of her extensive physical examination. The history notes that X was recently in contact with a friend presenting the same symptoms. Dr Torres noted the vital signs inscribed on the triage sheet and that the patient was well hydrated, her neck was not stiff, her heart, lungs and extremities were all normal. She then detailed her examination of the abdomen.

She noted the results of six different tests performed with her hands and fingers on the abdomen, stomach and thighs, which globally gave inconclusive symptoms of appendicitis as well as other possible diseases. [ 9 ] Dr Torres’ tentative diagnosis was a viral gastro or a mesenteric adenitis to explain the pain. She noted that a diagnosis of appendicitis remained to be eliminated. She consulted her supervisor, Dr Turcotte, head of emergency, who went over her findings with her and then met X and repeated the full physical examination and tests performed by Dr Torres. Dr Turcotte validated.

Dr Torres’ history, the physical examination and tentative diagnosis. To determine the correct cause of X’s pain, a blood test was prescribed and taken along with a urine test and a pregnancy test. An ultrasound of the abdomen was prescribed for the following day with an order to refrain from eating.

The prescription was issued at 23h54 and the blood sample was taken at 00h27, after which X was released, to go home. [ 10 ] At 07h42 the next morning on May28, a call from the hospital to X’s parents confirmed her appointment for the ultrasound of her abdominal-pelvic region at 09h00 along with a meeting immediately afterwards with an emergency doctor. At 10h13 the ultrasound was over. Its report indicated a swelling of the appendix and the possibility of an abscess.

At 10h45 another emergency doctor read the ultrasound report, met X, diagnosed a perforated appendix and requested a consultation in general surgery. The request was immediately sent to surgery. At 11h50 X was put on a stretcher, an intra-venous was installed and antibiotics were administered. [ 11 ] At 13h00, Dr Flanagan examined X in general surgery. The history of the illness was confirmed as well as the physical examination. He reviewed the test results, diagnosed an acute appendicitis and proposed an appendectomy by laparoscopy for the same day. At 13h45 X’s father signed the consent form for the operation.

At 14h30 X was resting calmly on a stretcher and said she didn’t want a sedative, as her pain was tolerable. At 15h20 she was transferred to the paediatric unit in a wheelchair. Her temperature was checked and an acetaminophen was administered. At 15h40 and again at 16h50, her blood pressure, pulse, temperature and saturation were tested and the results noted. [ 12 ] At 17h20 she entered the care of the anaesthetist. She was calm and relaxed.

The surgery began at 18h00 and involved the removal of a dysfunctional appendix and a large abscess by laparoscopy, a complete cleansing and the placing of two drains inthe same small incisions made during surgery. At 20h25 X left the anaesthetist’s care and at 21h00 she returned to the paediatric unit. [ 13 ] Dr Flanagan examined her on May 29 and 30. On May 31 and June 1 she was referred to the surgeon on duty and on June 2 nd she was seen again by Dr Flanagan and released from the hospital. An appointment was given for June 9 th at which time a gradual renewal of activities had begun.

Dr Flanagan recommended a convalescence of two to three weeks and she was released from his care. [ 14 ] The claim by Madam Fent is essentially based on allegations of misdiagnosis of an emergency room nurse and of doctors, which caused needless delays and needless suffering for her daughter X. These allegations are unfounded. [ 15 ] No misdiagnosis took place in this case. On May 22 nd X’s mother brought her to Cité de la santé where they arrived at midnight. She met triage nurse Tozzi who assessed her level of urgency and advised that they would most likely have an eight-hour wait before seeing a doctor.

Although nurse Tozzi mentioned that the symptoms were those of a gastro, no diagnosis was made. In a little less than an hour they decided to leave, which they did after being told to return to the hospital should X experience any signs of dehydration or diarrhoea. [ 16 ] The next time they returned to the hospital was on May 27 th . They were then seen and examined by the resident, Dr Torres, and Dr Turcotte, her supervisor and emergency department head. Both concluded that X’s symptoms were inconclusive symptoms partially compatible with appendicitis as well as other diseases.

They concluded that tests should be ordered to determine the true cause of X’s abdominal pains. The tests were prescribed and the results confirmed the need to proceed with the surgery. Madam Fent acknowledges that X was given a thorough physical examination by Dr Torres and the record shows that Dr Turcotte redid the same thorough examination herself. [ 17 ] X’s mother alleges that the ultrasound test should have been done immediately at midnight, instead of the next morning and that surgery should have been performed at the beginning of the afternoon the next day rather than after 17h00.

Both these allegations are unfounded. X’s general condition was good and her physical examination was reassuring. Dr Turcotte concluded that bringing in a radiologist for an ultrasound in the middle of the night, was unwarranted and Dr Flanagan concluded that cancelling already scheduled surgery to make place for X’s before 17h00, was also unwarranted. [ 18 ] These decisions are fully approved by Dr Beaucage and Dr Saint-Jean, the two expert witnesses with impeccable credentials, who made a detailed review of the care and treatment given to X and testified at the trial.

Both stated clearly that no mistake was made and that a prudent and diligent doctor practicing in an emergency or surgery unit would have acted in the same manner under the same circumstances. [ 19 ] Finally, the damages claimed in this case are based on the one hand, on events that “could have happened” which are hypothetical, and didn’t occur and on the other hand, on normal inconveniences of surgery and convalescence which took place normally within a normal time frame. [ 20 ] In Le Gardeur [5] , the Supreme Court stated that in a case of professional liability, a doctor’s conduct must be assessed against the conduct of a prudent and diligent doctor placed in the same circumstances.

In Leduc [6] , the Court of appeal pointed out that

in making this assessment, a judge must rely on the opinion and testimony of a competent medical expert who studied and analyzed the particular circumstances of the case at hand. In Harris [7] , the Court of Quebec stated that these rules of evidence also apply in cases heard in small claims division. [ 21 ] In this case the only proof offered in support of Madam Fent’s claim is her own personal opinion and certain comments on acute appendicitis found on the Internet. General comments found on the Internet or in an encyclopaedia indicate at best “general rules” which apply in “general circumstances” only.

They cannot be used to assess the conduct of a doctor placed in “the same circumstances” as the ones at hand. [ 22 ] For all of these reasons, the Court must agree with both expert witnesses for the defence that no malpractice or any unwarranted delays occurred in this case. At all times, X was given the care and treatment that prudent and diligent health-care workers and doctors placed in the same circumstances, would have given her.

Madam Fent’s claim must therefore be dismissed. [ 23 ] The Court recognizes that when litigants take the trouble to launch a claim in damages for medical malpractice, most often, they wish to improve medical care by putting an end to the improper treatment complained of. On the other hand, no matter how noble, the end doesn’t justify the means.

The trial and its preparation in this case required that a triage nurse, a resident doctor and a head doctor in an emergency unit as well as a surgeon in surgery and two medical experts were all temporarily removed from their work to deal with an unsupported claim. [ 24 ] If this case helps future litigants understand the importance of obtaining the support of a competent medical expert whose opinion and testimony is based on a careful analysis of the case and its particular circumstances, when going to court with a claim based on allegations of medical malpractice, a positive result for all concerned, will have been salvaged from an unfortunate situation [ 25 ] FOR THESE REASONS, THE COURT : DISMISSES the claim with costs set at $ 471. __________________________________ MICHAEL SHEEHAN, J.C.Q.

Date of hearing: January 27, 2011