Case Summaries: Barbe v Evans, 2020 ABQB 599
Associated lawyers: Shelagh McGregor, Michael McVey, Michael Shepherd, Iman Jomha
The Plaintiff, Mr. Barbe, was experiencing urinary retention due to an enlarged prostate. The Defendant, Dr. Evans, advised Mr. Barbe that he required treatment and that a GreenLight Laser transurethral resection of prostate (“GLL procedure”) was his “best bet”.
The GLL procedure was performed on June 11, 2009. Following the procedure, Mr. Barbe developed progressively worse bladder and renal issues. Dr. Evans performed a cystoscopy (a test used to view the urinary tract) on Mr. Barbe on August 24, 2009 and noted the posterior urethra and prostatic fossa appeared quite abnormal and that it looked as if the bladder had been injured by lasering .Dr. Evans ordered an ultrasound on August 26, 2009 which was never conducted.
On May 27, 2010, Mr. Barbe saw Dr. Todd, urologist, for a second opinion at the request of his family doctor. After a number of tests, it was determined that Mr. Barbe had a small, fibrotic bladder and severe bilateral hydronephrosis and hydroureter. He was diagnosed with a bilateral high-grade distal obstruction involving both ureters at the level of the bladder.
Dr. Todd advised Mr. Barbe that without surgical intervention he risked his renal function further deteriorating. Mr. Barbe declined intervention until July 8, 2011. He underwent surgical intervention in March 2012. Subsequently, his renal function continued to decline and he began dialysis in December of 2016. At the time of trial, Mr. Barbe was required to attend for dialysis multiple times per week.
The Plaintiff sued Dr. Evans and the hospital where the GLL procedure took place in negligence. The Plaintiff was ultimately successful against Dr. Evans but not against the hospital.
Justice Kendell found that it is more likely than not that Mr. Barbe’s bladder and ureteric orifices were burned during the GLL procedure. She accepted the theory of the Plaintiff’s urology expert that the injury to Mr. Barbe’s bladder was the result of delayed thermal effects of defocused laser energy during the GLL procedure. She found that this was a breach of the standard of care as urologists are taught to avoid lasing the bladder and ureteric orifices during a GLL procedure.
Justice Kendell also found that Dr. Evans’s post-operative care was negligent for failing to order appropriate and regular testing to monitor Mr. Barbe’s condition given his post-operative symptoms, failing to follow up on the ultrasound he ordered but never occurred, and failing to refer Mr. Barbe to another urologist for a second opinion.
Regarding causation, Justice Kendell concluded at paragraph 356 that Mr. Barbe suffered a thermal injury to his bladder during the GLL procedure which resulted in inflammation, infection and a fibrotic process. This ultimately resulted in the full obstruction of Mr. Barbe’s ureteric orifices and progressed to Stage 5 chronic kidney disease and renal failure. She also found that Dr. Evans did not respond with appropriate urgency to Mr. Barbe’s deteriorating condition and that, had Dr. Evans investigated and intervened appropriately, Mr. Barbe’s injuries likely would have been minimized or prevented. Had Mr. Barbe been referred for a second opinion earlier, his kidneys may have been saved.
The Defendants argued that Mr. Barbe did not act in his own best interests, and this caused or contributed to his injuries. Justice Kendell agreed that there were times that Mr. Barbe did not act in his own best interests but found that Mr. Barbe’s acts or omissions were not the cause of his injuries.
Justice Kendell also found that Dr. Evans breached his duty to obtain informed consent because he did not appropriately canvass the risks of the GLL procedure with Mr. Barbe, including that it was a relatively new procedure, Mr. Barbe had significant comorbidities, and GLL was contraindicated for extremely large prostates. She found that had Mr. Barbe been appropriately informed about Dr. Evans’s lack of experience with the procedure and the special considerations regarding very large prostates, Mr. Barbe likely would have chosen to get a second opinion and would have chosen to have the GLL performed by a more experienced surgeon. Justice Kendell also found that Dr. Evans breached the standard of disclosure by failing to advise Mr. Barbe that an alternative treatment option, Holmium laser surgery, was available outside Alberta and that Mr. Barbe would have agreed to a Holmium laser procedure performed in a center of excellence if offered. She found that either option would not have produced the same, or more serious, injury, and therefore causation was made out.
Finally, Justice Kendell considered damages. The Parties had agreed on most of heads of damages except for general damages and retirement age. Justice Kendell found that the injuries, including kidney failure necessitating dialysis multiple times per week, had a devastating impact on Mr. Barbe’s life in several domains including relationships, work, leisure, mood, and physical health, and awarded him $350,000 in general damages.