Case Summary: Barbe v Evans et al, 2020 ABQB 599

On October 9, 2020 the Honourable Justice Kendell issued her decision in Barbe v Evans, 2020 ABQB 599. The case considers the issues of surgical and post-surgical standard of care, informed consent, causation, contributory negligence, and general damages for catastrophic injuries. Weir Bowen lawyers Shelagh McGregor, Michael McVey, and Michael Shepherd represented the Plaintiff, Mr. Barbe. 

In the fall of 2005, Mr. Barbe began seeing the Defendant urologist, Dr. Evans, with complaints of urinary retention. He was diagnosed with an enlarged prostate. When Mr. Barbe’s urinary retention recurred in 2009, Dr. Evans advised him 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. 

On June 14, 2009 Mr. Barbe attended the hospital with complaints of constipation and abdominal pain. A CT of Mr. Barbe’s abdomen showed a small amount of fluid outside the bladder. He was diagnosed with a pseudo-obstruction in his bowel. On June 22, 2009 Dr. Evans performed a cystoscopy and noted that a significant amount of prostate tissue remained and the bladder appeared normal. Mr. Barbe was admitted to hospital later that day with complaints of urinary retention. A catheter was placed and Mr. Barbe was discharged on June 29, 2009.

On July 30, 2009 Mr. Barbe was hospitalized with complaints of urinary retention. He was catheterized and an IV started. Lab tests showed a high creatinine of 1338. Mr. Barbe underwent a cystoscopy performed by Dr. Jacobson and was diagnosed with acute renal failure secondary to bladder outlet obstruction and possible bilateral ureteric obstruction. The report noted that the bladder had an atypical appearance with pale mucosa, and that the urologist was unable to identify the ureteric orifices or perform a retrograde pyelogram. Mr. Barbe’s creatinine level improved after catheterization and he was discharged on August 4, 2009. After discharge, Mr. Barbe’s creatinine continued to go down, but did not return to pre-surgical baseline levels.

Dr. Evans performed a cystoscopy of Mr. Barbe on August 24, 2009 and noted that the posterior urethra and prostatic fossa were quite abnormal with a lot of white changes. Dr. Evans wrote in his report: “What was more alarming was, on examination of the bladder, it looked very similar with white change, as if the bladder had been injured from the lasering”. Dr. Evans ordered an ultrasound on August 26, 2009 which was never conducted.

Mr. Barbe continued to follow up with Dr. Evans. On subsequent cystoscopies, Dr. Evans noted that there were still white debris on the bladder mucosa, but the appearance was improving. 

On April 1, 2010 Mr. Barbe’s family physician requested a second opinion. Mr. Barbe saw Dr. Todd on May 27, 2010. 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 alleging that Dr. Evans was negligent in recommending and performing the GLL procedure, resulting in injuries to Mr. Barbe’s bladder. The Plaintiff also alleged that Dr. Evans provided negligent follow up care to Mr. Barbe. The Plaintiff also sued Covenant Health who owned and operated the hospital where the GLL procedure took place, alleging that the nursing staff negligently overheated the irrigation fluid used during the procedure and negligently attempted to catheterize Mr. Barbe, as well as Alberta Health Services (“the Hospital Defendants”). The Plaintiff was ultimately successful against Dr. Evans but not against the Hospital Defendants.

The main issue in the case was determining what happened to Mr. Barbe’s bladder. The Plaintiff’s theory was that Mr. Barbe’s bladder was burned either by heated irrigation fluid or the laser itself. The Defendants’ position was that the bladder was not burned during the procedure.

In her analysis, Justice Kendell noted that it was very difficult to determine what occurred during the GLL procedure. However, she found at paragraph 228 of her decision, that it is more likely than not that the bladder was burned given Dr. Evans’s observation on August 24, 2009 that Mr. Barbe’s bladder appeared similar to the white changes observed to the prostatic tissue. At the time of that observation Dr. Evans believed the changes to the prostatic tissue were due to the laser. 

One of the issues at trial was that the thermal injury to Mr. Barbe’s bladder was not immediately apparent following the GLL procedure. The Defendants argued that, because Mr. Barbe’s bladder appeared normal during the June 22, 2009 cystoscopy and he was producing urine during his July 31, 2009 hospitalization, his bladder could not have been burned during the GLL procedure. However, at paragraphs 220-224, Justice Kendell accepted the plaintiff’s argument that Mr. Barbe’s urine output during hospitalization reflected the fact that he was being given IV fluids and had a catheter placed, and not the function of his bladder. She found at paragraph 224 that the evidence establishes that Mr. Barbe’s bladder was small and contracted at least beginning in July of 2009. She accepted the theory of Dr. Woods, the Plaintiff’s expert in urology, that the injury to Mr. Barbe’s bladder was the result of delayed thermal effects of defocused laser energy during the GLL procedure.  Justice Kendell held:

[233] I accept that Dr. Evans followed, to the best of his ability, the instructions for use of the GLL. I accept that he had tried to exercise caution during the procedure in order to avoid the ureteric orifices, and I accept that he believed there were no complications during the procedure. However, I accept the Plaintiff’s theory that Dr. Evans had inadvertently caused thermal injury to Mr. Barbe’s bladder and ureteric orifices. This was not noticeable to Dr. Evans at the time. There was no observation of Mr. Barbe’s bladder in the period between June 22 to July 31, 2009, when Mr. Barbe’s bladder was first identified as being pale and blanched. The logical inference is that the injury to Mr. Barbe’s bladder emerged during those interim weeks. I accept the Plaintiff’s theory of delayed thermal effect.

Justice Kendell was clear that she was not imposing the standard of perfection on Dr. Evans nor finding a breach of the standard of care merely because a negative outcome occurred (see paragraphs 234-235 of her decision). She concluded at paragraph 235 that “a prudent surgeon would not have damaged Mr. Barbe’s bladder and urteric orifices during the GLL procedure”. This is consistent with Justice Kendell’s statement at paragraph 179 of her decision: “ It was not disputed that the burning of the bladder and ureteric orifices during the GLL procedure would be a breach in the standard of care, particularly as urologists are taught to avoid lasing these areas.” Justice Kendell concluded that Dr. Evans did in fact burn the bladder and ureteric orifices during the GLL procedure. This was a breach of the standard of care, because urologists are taught not to lase these areas. 

Justice Kendell next considered whether Dr. Evans’s post-operative conduct met the standard of care and discussed several principles of general application to many medical negligence cases. She cited both Paniccia Estate v Toal, 2011 ABQB 326 and DD v Wong Estate, 2019 ABQB 171 wherein the court held that a physician must consider the potential diagnoses consistent with the patient’s symptoms, apply the worst first principle, and carry out appropriate testing to confirm or eliminate the potential conditions in order of severity, not probability (see for example paragraphs 256, 260, and 300 of her decision). Consistent with this principle, Justice Kendell discussed the dangers of “tunnel vision” noting at paragraph 299 that a physician may be negligent for focusing on one diagnosis, to the exclusion of all others, without consistent reconsideration or reassessment. She also considered a defence often advanced by defendants in medical negligence cases: the defence of error in judgment. She held at paragraphs 301-302 that although an error in judgment does not attract liability, an error which would not have been made by a reasonable doctor in similar circumstances does attract liability. A physician is required to exercise critical thinking and common sense and not merely rely on guidelines. She further held at paragraph 261 that a physician is entitled to exercise clinical judgment, but clinical judgment must be based on a consideration of all of the relevant information. The failure to take routine tests, steps, or consultations that would have disproved a diagnosis can be negligent.

Applying these principle, Justice Kendell found that:

• Dr. Evans breached the standard of care by failing to order an ultrasound on June 14, 2009 after Mr. Barbe had been admitted to the hospital with fluid in the abdomen and a pseudo-obstruction, and breached the standard of care by failing to order regular testing to monitor Mr. Barbe’s condition (para 262);
• Although Mr. Barbe’s creatine improved following his July 31, 2009 hospitalization, Dr. Evans breached the standard of care by failing to investigate why Mr. Barbe’s creatinine level never returned to its presurgical baseline (para 304);
• Dr. Evans breached the standard of care by failing to follow up on the ultrasound he ordered on August 26, 2009, which never occurred, and failing to order a new ultrasound (para 307);
• Dr. Evans breached the standard of care by failing to attempt a second retrograde pyelogram after Dr. Jacobson had been unable to visualize the ureteric orifices on July 31, 2009 (para 309); and
• Dr. Evans breached the standard of care by failing to refer Mr. Bare to another urologist to obtain a second opinion (para 314).

Dr. Evans did not breach the standard of care by relying on Homecare to catheterize Mr. Barbe or by prescribing antibiotics to Mr. Barbe without first obtaining a blood or urine culture.

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. However, she did not accept that a heart attack suffered by Mr. Barbe in 2015 was caused by the negligence.

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 considered informed consent. The Plaintiff argued that Dr. Evans failed to obtain informed consent from Mr. Barbe because he did not appropriately canvass the risks and alternative treatments with Mr. Barbe considering the size of Mr. Barbe’s prostate and his personal circumstances. At paragraph 468 Justice Kendell found that Dr. Evans was required to inform Mr. Barbe that the GLL procedure was relatively new, Mr. Barbe had significant comorbidities, and GLL was contraindicated for extremely large prostates. She also found at paragraphs 491-492 that Dr. Evans breached the standard of disclosure by failing to discuss an alternative treatment option: Holmium laser surgery. Although this procedure was not available in Alberta, it was a reasonable treatment option that ought to have been disclosed. Regarding causation, Justice Kendell found at paragraph 496 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. Similarly, he would have agreed to a Holmium laser procedure performed in a center of excellence. It was reasonable to conclude 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 accepted that the “cap” on general damages imposed by the trilogy is a policy-based cap and does not reflect the worst-case scenario to which all other injuries are to be compared (see paragraph 514). She accepted 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. She concluded at paragraph 544 that “no amount of non-pecuniary damages will fully compensate, much less overcompensate Mr. Barbe for his loss”.

by Iman Jomha