Fridays with Rogers Partners

June 09, 2023

At our weekly meeting, Katrina Taibi discussed the recent decision of the Ontario Court of Appeal in Bothwell v. London Health Sciences Centre, 2023 ONCA 323.

Overview:

The Court of Appeal considered the test for a compensable psychological injury and whether feelings of shock, frustration, and anger meet this test.

Background Facts and Legislative History:

The plaintiff, Craig Bothwell, attended London Health Sciences Centre for a reverse ileostomy surgery related to his Crohn’s disease.  While recovering, his blood pressure dropped and the doctor ordered Voluven, a blood volumizer.  A nurse erroneously administered Heparin, an anti-coagulant.  Subsequently, Mr. Bothwell underwent further surgeries for related procedures. When he learned of the medication error, he experienced feelings of shock, frustration, and anger.  As such, the plaintiff commenced an action against the hospital and the subject nurse.

The Superior Court found that Mr. Bothwell was hemorrhaging prior to the medication error and that further surgeries would have been required regardless of the error.  Further, the Court stated that the error did not cause any additional physical injuries.  Despite Mr. Bothwell not leading any expert psychological evidence, the Court found that his feelings of shock, frustration, and anger “were objectively and subjectively serious and went beyond ordinary annoyances”[1] and therefore, a compensable mental injury.

Issues on Appeal:

The defendants submitted that the trial judge erred in:

  1. Failing to apply the correct legal test in determining whether Mr. Bothwell sustained a compensable mental injury; and
  2. Concluding that Mr. Bothwell’s anger about the medication error was sufficient to prove a compensable mental injury at law.

Test for Proving Mental Injury – Saadati:

Saadati v. Moorhead[2] is the leading case on proving mental injury.  In this case, the Supreme Court specified that a claimant does not need to show that their mental injury is a recognized psychiatric illness.  Rather, the Supreme Court stated:

[37] […] Claimants must, therefore, show much more – that the disturbance suffered by the claimant is “serious and prolonged and rise[s] above the ordinary annoyances, anxieties, and fears” that come with living in civil society. […] Ultimately, the claimant’s task in establishing a mental injury is to show the requisite degree of disturbance. […][38] […] In assessing whether the claimant has succeeded, it will often be important to consider, for example, how seriously the claimant’s cognitive functions and participation in daily activities were impaired, the length of such impairment and the nature and effect of any treatment [the Saadati factors].  To the extent that claimants do not adduce relevant expert evidence to assist triers of fact in applying these and other relevant considerations, they run a risk of being found to have fallen short. […][3]

Parties’ Positions on Superior Court’s Interpretation of Saadati:

The plaintiff’s position was that the trial judge properly considered Saadati.  He argued that the Saadati factors are not a mandatory consideration before the Court.

In contrast, the defendants’ position was that the trial judge erred in failing to consider all of the Saadati factors.  They argued that the trial judge focused on the plaintiff’s symptoms, but did not consider his impairments.

Court of Appeal’s Analysis and Application of Saadati:

The Court of Appeal made it clear that the trier of fact must consider all of the Saadati factors and failure to do so is an error of law:

[32] In my view, paras. 37 and 38 [of Saadati] together are a clear direction that, in distinguishing mental injury from psychological upset, the trier of fact must consider not only the claimant’s psychological upset but also how seriously the claimant’s cognitive functions and participation in daily activities were impaired, the length of such impairment, and the nature and effect of any treatment sought and taken in relation to the psychological upset.[4]

As there was an error of law, the trial judge’s decision is not owed any deference. 

In considering the Saadati factors, the Court of Appeal found no evidence of impairment from the medication error.  The plaintiff continued to work after the error, maintained a good relationship with his family, and did not seek any psychological treatment.  The Court of Appeal stated that this case is in contrast to Saadati, where Mr. Saadati experienced personality changes, mood swings, and headaches, which affected his relationships with family and friends. 

The Court of Appeal concluded that there is no question that the medication error breached the standard of care.  However, the plaintiff’s feelings of shock, frustration, and anger, without more, are not a compensable mental injury.

Takeaways:

When considering whether a mental injury is compensable, the Court must consider all of the Saadati factors:

  1. How seriously the claimant’s cognitive functions and participation in daily activities were impaired;
  2. The length of such impairment; and
  3. The nature and effect of any treatment sought.

[1] Bothwell v. London Health Sciences Centre, 2023 ONCA 323 at para 15 [Bothwell].

[2] Saadati v. Moorhead, 2017 SCC 28.

[3] Ibid at para 37-38.

[4] Bothwell, supra note 1 at para 32.