The family of a patient challenges the case’s dismissal, raising the question of whether the court should determine causation before the standard of care.


On June 26, 1995, Patricia McArdle underwent surgery to undo a gastroplasty where two lines of staples were inserted across her stomach. The treatment shrinks the stomach, which prevents obese people from overeating. 

Eleven years prior, a different surgeon had carried out the original procedure, and other corrective surgeries had been done in the years after. The patient sought out the defendant, Samual Cox, who had performed forty surgery reversals because they were still experiencing weight and gastrointestinal issues. The defendant told McArdle that the procedure had significant risks because of her medical history. The procedure was carried out by Cox after the patient provided informed consent.

After the procedure, the patient appeared to be recovering normally for about 72 hours. McArdle was supposed to be discharged when she suddenly started having breathing issues and had to be taken to intensive care. She was then transferred from the defendant’s care to an intensive care physician in accordance with hospital procedures. 

Additionally, the defendant had to take a 30-day leave of absence from the hospital due to a lack of staff and to comply with hospital policies. The patient underwent additional surgery while in intensive care to fix a tiny intestinal leak. In critical care, the patient passed away.

According to the pathologist’s report, the stomach’s anterior and posterior walls were perforated, and the pathologist concluded that the infection was caused by gastric leakage in the anterior and posterior walls. The defendant acknowledged that both infections played a role in the patient’s fatal stroke and, more importantly, that the posterior leak close to the lower staple line was responsible for her demise.

The trial judge found that the defendant surgeon met the required standard of care during surgery and post-operation and he determined the standard of care before addressing causation, ultimately dismissing the action. The family of Patricia McArdle appeal this dismissal, claiming that the trial judge had erred by establishing the standard of care before determining causation.

The Alberta Court of Appeal

When considering the Appeal, the Court determined that the trial judge did not err in characterizing establishing the appropriate standard of care. The trial judge was aware of the relevant factors required to establish the standard of care and did an analysis regarding the foreseeable risk.

The Court also found that the appellant did not prove that the surgery conducted by the respondent failed to meet the standard of care, agreeing with the trial judge’s findings. There was also expert testimony and expert witnesses to support that the defendant met the appropriate standard of care.

After reviewing the treatment of the patient and all the evidence, the Court found that the trial judge did not err in his findings and dismissed the appeal. 

Read the full case here

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From CanLII