Bothwell v London Health Sciences Centre, 2023 ONCA 323
Written By: Aidan Vining and Kate Hunter, Summer Student
OVERVIEW
The recent Court of Appeal for Ontario decision Bothwell v London Health Sciences Centre, 2023 ONCA 323, arises from an incident where Mr. Bothwell was administered the wrong medication in Hospital. When Mr. Bothwell learned of this error, he was angry and frustrated, and he claimed mental injury as a result.
In Bothwell, the Court of Appeal considered whether persistent feelings of anger and frustration, without more, are a compensable mental injury. The Court of Appeal reviewed the legal framework for proving mental injury as laid out by the Supreme Court of Canada in Saadati v Moorhead, 2017 SCC 28, and held that feelings of anger and frustration, without more, is evidence of psychological upset, not mental injury. Specifically, the Court of Appeal held that in the absence of evidence of impairment of cognitive functioning, interference with activities of daily living, or treatment for emotional symptoms, a claim for mental injury cannot succeed.
FACTUAL BACKGROUND
Mr. Bothwell has Crohn's disease and has undergone numerous resection surgeries. In September of 2011, following one of these surgeries, Mr. Bothwell was recovering in hospital when his blood pressure began to drop. The doctor ordered he be administered Voluven, a blood volumizer. A nurse erroneously administered Heparin, a drug known to cause massive bleeding. As a result of this error, Mr. Bothwell had to undergo surgery to relieve abdominal cavity pressure which was a product of substantial internal bleeding.
As a trained paramedic, Mr. Bothwell understood the error and its potentially devastating consequences. He was shocked, angry, and frustrated as result. Mr. Bothwell and his wife sued the hospital and nurse for medical malpractice and the infliction of mental injury.
AT TRIAL
While Mr. Bothwell had alleged that he suffered nightmares, emotional distress, anxiety, and depression following the medication error, the evidence led at trial was much more limited. The only evidence of psychological injury came from the Bothwells themselves and they did not lead any expert evidence.
However, the trial judge accepted Mr. Bothwell's evidence that he had persistent feelings of anger and frustration as a result of the medical error and that these feelings were aggravated when he visited the Hospital, which was frequent due to his work as a paramedic. The trial judge found that Mr. Bothwell's feelings were objectively and subjectively serious and went beyond ordinary annoyances.
Ultimately, the trial judge held that Mr. Bothwell suffered a mental injury caused by the administration of Heparin. This decision was appealed.
ISSUE ON APPEAL: SATISFYING MENTAL INJURY
While the hospital and nurse acknowledged Mr. Bothwell's feelings of anger and frustration, they did not agree that these feelings amounted to a compensable mental injury.
The Supreme Court of Canada originally addressed what constitutes a mental injury in Saadati. In Saadati, the Supreme Court addressed the distinction between mental injury (which is compensable), and psychological upset (which is not). The Supreme Court explained that claimants must show that the disturbance suffered is "serious and prolonged and rises above the ordinary annoyances, anxieties and fears that come with living in civil society...the claimant's task in establishing a mental injury is to show the requisite degree of disturbance." The Supreme Court also held that while expert evidence is helpful in determining whether a claimant has proven a mental injury, it is not required.
THE COURT OF APPEAL'S ANALYSIS
The Court of Appeal held that the trial judge erred by failing to consider certain factors provided in Saadati required for claimants to succeed in showing mental injury.
The trial judge's statement of law set out the following principles based on Saadati:
- Recovery for mental injury in negligence requires that the claimant satisfy the ordinary duty of care analysis (duty, breach of the duty, and whether the claimant sustained damage caused by the breach);
- Liability for mental injury must be confined to claims which satisfy the proximity analysis within the duty of care framework and the remoteness of the inquiry;
- The disturbance of a mental injury must be shown to be serious and prolonged, and rise above ordinary annoyances, anxieties, and fears;
- While expert evidence can assist in determining whether a mental injury has been shown, it remains open to the court, on other evidence adduced, to find that the claimant has proven, on the balance of probabilities, the occurrence of a mental injury.
The trial judge's statement of law made no errors; however, it was not complete. The Court of Appeal stated that pursuant to Saadati, triers of fact must also consider the following factors:
- 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.
Upon review of the record, the Court of Appeal was not satisfied that Mr. Bothwell's ongoing feelings of anger and frustration from the medical error led to impairment in his cognitive functions or participation in daily life. Mr. Bothwell continued to work as a paramedic without interruption and took good care of his family. There was no evidence of impairment or evidence that Mr. Bothwell pursued any form of treatment to deal with his emotional reaction. In the absence of evidence of impairment of cognitive functioning, interference with activities of daily living, or treatment for emotional symptoms, the court rejected the claim for mental injury.
WHY THIS MATTERS
Not all injuries are physical or easily observable. Mental injuries can occur on their own or in conjunction with physical injuries. In either case, the impact of mental injury on an individual's life can be severe and devastating. However, because mental injuries cannot be observed, they are difficult to prove. The decision of Bothwell highlights why it is crucial to obtain legal representation and assistance where such injuries are present.
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