In Harling v Lauf, 2022 ABCA 226 (Harling), a deceased patient’s widower and estate appealed a trial decision dismissing their action in negligence and battery against the deceased’s physician, Dr. Lauf, Alberta Health Services (AHS), and the University of Alberta Hospital. In dismissing the appeal in relatively brief reasons, the Alberta Court of Appeal provided noteworthy obiter commentary highlighting shortcomings of AHS policies concerning the issuance and regulation of medical staff hospital privileges.
Background
Ms. Peyton Harling was in the advanced stages of liver disease and underwent an interventional radiological procedure performed by the Defendant/Respondent, Dr. Lauf.[1] After the procedure, Ms. Harling remained in hospital for the typical four-hour recovery period for such a procedure, before being discharged. [2] She returned the next day complaining of discomfort, and was diagnosed with sepsis, the result of a perforated bowel.[3] Ms. Harling died after six weeks in critical care.
The Plaintiffs/Appellants, Ms. Harling’s widower, Kevin Harling, acting for himself and as Personal Representative for Ms. Harling’s Estate, brought two claims. First, a claim in negligence, citing the hospital failed to use antibiotics and recognize and treat her symptoms, in addition to discharging her prematurely.[4] Second, a claim in battery, arguing the hospital had not granted Dr. Lauf proper privileges to perform the medical procedure, rendering Ms. Harling’s consent inoperative.[5]
The decision of the trial judge
The trial judge engaged in a lengthy evaluation of the policies relating to physician privileges and permissions in the former Capital Health Region, now the Edmonton Zone, of AHS. Despite finding that radiologists performing interventional procedures, which included Dr. Lauf, did not have the specific privilege to perform interventional radiological procedures, which included the medical procedure at issue, at the University of Alberta Hospital, the trial judge found the physicians did have permission to do so.[6]
The Plaintiffs’ expert witness raised concerns about the “regulatory rigor” of the process to obtain privileges in Edmonton,[7] however Dr. Lauf’s requisite skill, training and expertise were not in dispute, and the trial judge found he was “eminently qualified” to perform the medical procedure in question.[8] The trial judge also found that while AHS policy at the time did not include granting privileges explicitly for this medical procedure, there was no evidence to indicate Dr. Lauf would not have been granted privileges to perform the procedure if such a gap had not existed in AHS policy.[9] Finally, the trial judge found that despite apparent policy-related shortcomings, there were adequate safeguards in place to protect patient safety; AHS had final say on which radiologists were permitted to perform services in its hospitals.[10] Accordingly, the trial judge found Ms. Harling’s consent was not vitiated, holding “any distinction between privilege and permission is meaningless for the purposes of a claim of battery.”[11]
With respect to the claim of negligence, the trial judge found the claim failed for lack of proof of causation, with the trial judge holding “I cannot conclude that anything that Dr. Lauf or the hospital did or did not do caused Ms. Harling’s death.”[12]
Appeal to the Alberta Court of Appeal
On appeal, the Appellants’ only argument was that the trial judge erred in finding Ms. Harling had consented to the medical procedure.[13]
The Court recognized AHS bears a statutory obligation to adopt by-laws governing hospital privileges.[14] However, the Court held that privileges are irrelevant when considering the existence of the patient’s consent.[15] Instead, provided said consent is otherwise valid, whether a physician has privileges is an issue as between the physician and the hospital.[16]
In light of this finding, the Court then considered whether the trial judge’s finding that the patient consented to Dr. Lauf’s performance of the medical procedure constituted a reversible error. The Court held that the trial judge was correct: Ms. Harling was informed of the risks, Dr. Lauf was experienced, Ms. Harling signed a consent form in plain English, and understood she required the procedure to live.[17] The Appeal was therefore dismissed.[18]
Despite dismissing the Appeal, the Court elected to proceed with the statutory interpretation of the term “delineate,” insofar as there is an obligation for AHS “as the board of an approved hospital, to “delineate” the privileges of members of the medical staff.”[19] The Court ascribed “delineate” the plain meaning definition of “the use of words or actions to describe or indicate the limits of something.”[20] The Court went on to highlight that AHS granted Dr. Lauf privileges for “Diagnostic Imaging Program/Radiology Section/Non-Admitting,” and that radiologists at other Edmonton area hospitals hold this same privilege.[21] The Court reinforced the trial judge’s finding that privileges are of relevance to “physicians as privilege holders and boards as privilege grantors,” not to members of the public,[22] before offering a critique of AHS: “Could Alberta Health Services choose other words to better describe the privileges it grants radiologists like Dr. Lauf? Probably. But that is not the issue before us.”[23]
Justice Khullar, concurring in the result, offered this additional criticism:
“These submissions raise important policy questions about how, when, and by whom privileges are actually granted. (The majority has addressed the ‘what’ of privileges.) While important, the policy questions raised by the appellant are beyond the purview of this court to address in the context of this appeal.”[24]
Conclusion
Potentially an otherwise unremarkable case leaving the law of battery with respect to medical intervention unchanged, Harling is noteworthy for the Court’s criticisms in obiter of the ambiguities and shortcomings of AHS’ policies for the granting of physicians’ hospital privileges. Because the issues did not fall within this Court’s purview, it remains to be seen whether the Court’s criticisms will spark policy changes within AHS as it continues to move towards provincial harmonization, or if AHS will allow the ambiguity to remain until future professional regulatory hearings put the issues squarely before the Court to direct policy changes be made.
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[1] Harling v Lauf, 2021 ABQB 235 at para 1.
[2] Ibid.
[3] Ibid at paras 1-2.
[4] Ibid at para 2
[5] Ibid at para 3.
[6] Ibid at para 86.
[7] Ibid at para 31-34.
[8] Ibid at para 35.
[9] Ibid at para 89.
[10] Ibid at para 89.
[11] Ibid at para 92.
[12] Ibid at para 158.
[13] Harling v Lauf, 2022 ABCA 226 at para 2.
[14] Ibid at para 5, citing the Hospitals Act, RSA 2000, c H-12 at s 18(1)(a) and the Operation of Approved Hospitals Regulation, AR 247/1990 at s 33(1).
[15] Ibid at para 8.
[16] Ibid at para 9.
[17] Ibid at para 11.
[18] Ibid at para 12.
[19] Ibid at para 14, citing the Hospitals Act, RSA 2000, c H-12 at s 18(1)(a) and the Operation of Approved Hospitals Regulation, AR 247/1990 at s 33(1).
[20] Ibid at paras 15-17.
[21] Ibid at para 20.
[22] Ibid at para 23
[23] Ibid at para 25
[24] Ibid at para 29
