Cooper v. Dr. Flood, Alberta Court of Appeal Decision, 2016

For anyone who has suffered the results of medical negligence, they have no doubt discovered the “white wall” that is put up to prevent successful lawsuits. At Robinson LLP, only a small percentage of cases actually go to trial. The overwhelming majority of our medical malpractice cases end with a successful settlement. Unfortunately for the public at large, settlements are always made with a “gag order” (or the Plaintiff’s agreement to keep the terms silent). As a result, news of successful cases is few and far between.

That’s why we are so pleased to be able to talk about the Cooper case, a case of medical malpractice in Edmonton.

On November 18, 2016, the Alberta Court of Appeal released its decision in Cooper v Flood, 2016 ABCA 365. Mrs. Cooper went to the Royal Alex Hospital for a surgical TVT procedure that she understood was going to be performed by Dr. Catherine Flood. Dr. Flood decided to let her 4th year resident, Dr. Kimberly Liu, perform the procedure. Dr. Liu managed to perforate Mrs. Cooper’s bowel and she suffered a life-threatening infection.

In June 2015, the team at Robinson LLP successfully represented Mrs. Cooper in the Alberta Court of Queen’s Bench. After hearing all the evidence, the trial judge found that Dr. Flood and Dr. Liu had not performed the procedure properly and had breached the standard of care expected of a reasonable skilled doctor.

The trial judge’s decision was appealed by the doctors to the Alberta Court of Appeal. The doctors’ main argument was that the trial judge had misunderstood the original facts of the case and that the surgery had been performed properly. They stated that since the surgery was “blind,” and the doctors could not see what they were doing, there was no way to prove that there were no other causes of injury to Mrs. Cooper. They blamed the bowel puncture on factors outside of the doctors’ control such as an anomaly in Mrs. Cooper’s anatomy or previous surgical scars.

In the unanimous decision, the Court found that the trial judge had gotten it right. The Court stated that the trial judge had correctly interpreted the facts and that Dr. Liu, under the supervision of Dr. Flood, had performed the TVT surgery below the standard of care. They found that based on the evidence, both doctors were responsible for perforating Mrs. Cooper’s bowel. The Court concluded that Mrs. Cooper and her counsel had successfully shown that there was no other cause of her injury, and that the only plausible explanation for the bowel puncture was that the surgery had been done incorrectly.

Thanks to the findings of the Court of Appeal, and the hard work of the lawyers at Robinson LLP, Mrs. Cooper and her family can finally rest at ease knowing that they have been vindicated. This decision was a major victory for victims of medical malpractice in Edmonton and will help to ensure that Doctor’s in Alberta remain accountable to their patients.

Click here to view the full Cooper case report: Cooper v. Dr. Flood, Alberta Court of Appeal Decision, 2016

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