Case: Bothwell v. London Health Sciences Centre, 2023 ONCA 323 (CanLII)
Keywords: mental injury; medical negligence; Saadati v. Moorhead, 2017 SCC 28
The Respondent, Mr. Craig Bothwell, undergoes surgery at the London Health Services Centre, Victoria Hospital, in Ontario. (See para. 2). While in the “post-anaesthesia care unit”, Mr. Bothwell’s blood pressure drops. The doctor orders a blood volumizer, but the nurse administers “Herapin” – an anti-coagulant – instead. (See para. 2).
As paramedics, Mr. Bothwell and his wife, Miranda, know the administration of an anti-coagulant in these circumstances can cause massive bleeding, which occurs here. (See para. 3). Mr. Bothwell undergoes surgery to relieve abdominal cavity pressure resulting from the bleeding. Further surgeries and related procedures are required to then close the abdomen. (See para. 4).
When Mr. Bothwell learns about the “maladministration” (see para. 46), he is shocked, frustrated, and angry. His wife Miranda, pregnant with their eldest child at the time of the “medication incident”, “thought she would lose her husband”. (See para. 5).
They sue for medical negligence. The claim includes psychological injury resulting from the erroneously administered medication. (See para. 6). The only evidence comes from the Respondents themselves; they do not lead expert evidence on the psychological injury. (See para. 13). The Trial Judge (McArthur J.) applies Saadati v. Moorhead, 2017 SCC 28; concludes Mr. Bothwell’s feelings are “objectively and subjectively serious and went beyond ordinary annoyances.” (See para. 15).
The Appellants “take issue” with the Trial Judge’s conclusion that Mr. Bothwell’s feelings “amount to a compensable mental injury”. (See para. 17). The Court of Appeal (Gillese, Benotto, and Coroza JJ.A) allows the appeal. They determine that, without “evidence of impairment of cognitive functioning, interference with activities of daily living, or treatment for emotional symptoms”, the Respondents’ claim for mental injury cannot succeed. (See para. 51).
At paras. 18-24, the Court of Appeal summarized what it calls the “salient aspects of Saadati” – making this a must-read decision for the personal injury bar. In Saadati, Justice Brown “soundly rejected the notion that, to prove mental injury, the claimant must prove that their condition meets the threshold of recognizable psychological illness.” Rather, a claimant must satisfy “the ordinary duty of care analysis”. In other words,
did the defendant owe the claimant a duty of care to avoid the kind of loss alleged;
- did the defendant breach that duty by failing to observe the applicable standard of care;
- did the claimant sustain damage; and
- was that damage caused, in fact and in law, by the defendant’s breach? (See para. 22; Saadati at paras. 13, 29-36).
The Court of Appeal’s analysis emphasizes paras. 37-38 of Justice Brown’s reasons, particularly the notion that mental injury is not proven by the existence of “mere psychological upset” and that some evidence should be provided as to:
- how seriously a claimant’s cognitive functions and participation in daily activities have been impaired,
- the length of any such impairments, and
- the nature and effect of any treatment. (See para. 24; Saadati at para. 38).
For the Court of Appeal, the Trial Judge erred in law by failing to recognize that these considerations must be brought to bear in determining whether a claimant has succeeded in showing a mental injury. (See para. 27). Although the Court of Appeal found the Trial Judge had “made no error” in his “recitation” of the principles in Saadati, they ultimately determined his analysis was incomplete – the Trial Judge erred by failing to recognize the claimant’s task is “to show the requisite degree of disturbance” and failing to consider the “Saadati factors” outlined by Justice Brown at para. 38. (See paras. 29-32).
So, what are the evidentiary requirements to prove mental injury in Canada? At para. 41, the Court of Appeal strongly indicated that the testimony of family members (as in Saadati), some evidence of a “physical manifestation of his psychological upset”, or evidence that a claimant had sought medical assistance to deal with persistent feelings of anger and frustration may have provided assistance to the Bothwell family in meeting the standard. (See para. 42).
However, to speak plainly, does the Court of Appeal’s emphasis on physical or objective evidence undermine Justice Brown’s ‘sound rejection’ of the notion that a claimant must prove their condition meets the threshold of recognizable psychological illness?
Ultimately, the Court of Appeal herein determined “feelings of anger and frustration, without more, is evidence of psychological upset, not injury”. The question for future litigants, therefore, is what should be done to ensure a trial judge is not left wanting “more”? In the absence of concrete guidance from the Court of Appeal on what “more” really is, might the Supreme Court of Canada wish to re-consider Saadati?
Counsel for the Appellants: Andrew McCutcheon (Aviva Canada Inc., Toronto)
Counsel for the Respondents: Melissa Miller and Adam Wagman (Howie, Sacks & Henry LLP, Toronto)