by Mina Karabit July 10, 2023 4 min read

A recent decision from the Court of Appeal for Ontario inBothwell v. London Health Sciences Centre addresses the legal principles set out by the Supreme Court of Canada for determining whether a claimant has demonstrated a compensable mental injury, clarifying that persistent feelings of frustration and anger, without more, are not compensable. 

Case Facts 

The plaintiff had Crohn’s disease and had undergone several resection surgeries. In September 2011, he went to the hospital to undergo a reverse ileostomy for an earlier resection surgery. While recovering in the post-anesthesia care unit (PACU) following surgery, his blood pressure dropped. His physician ordered Voluven, a blood volumizer, to be administered. The defendant nurse erroneously administered Heparin, an anticoagulant, instead. 

Shortly after, the plaintiff underwent surgery to relieve abdominal cavity pressure as a result of substantial internal bleeding. A few days later, he underwent additional surgeries to close the abdomen and related procedures. 

When he learned about the erroneous administration of Heparin, he was shocked, frustrated, and angry. His feelings of anger and frustration continued to the time of trial. The plaintiff is a paramedic and knew that Heparin could cause “massive bleeding.” He alleged that he experienced an exacerbation of his symptoms of Crohn’s disease, nightmares, emotional distress, anxiety, depression, and psychological injury as a result of the erroneously administered medication. 

The defence theory was that an intraoperative injury caused the hemorrhage, and the plaintiff was already hemorrhaging before the Heparin administration error occurred.  The defence asserted that the plaintiff would have required further surgery to stop the bleeding in any event. 

The Trial Judge’s Decision 

The trial judge was tasked with considering whether the mistaken administration of Heparin caused: 

  1. The plaintiff to hemorrhage and suffer the ensuing physical consequences; and, 
  2. The plaintiff’s psychological damage such that it amounted to a compensable mental injury. 

The trial judge accepted the defence theory that the plaintiff was hemorrhaging prior to the medication error, and the hemorrhage was caused by an intraoperative injury that would have required reoperation to address even if the medication error had not occurred. The medication error did not cause additional physical injury. 

While the plaintiff had alleged in the Statement of Claim 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 evidence came from the plaintiff himself, and he did not lead any expert evidence. 

The plaintiff’s evidence was that he was frustrated and angry about the medication error. Those feelings persisted up to trial in 2020 and reoccurred whenever he attended the Hospital for his work as a paramedic. There was no evidence that he sought or received treatment for his emotional reaction to the medication incident, and he acknowledged that it had not interfered with his ability to do his job. 

The trial judge concluded that the plaintiff’s feelings were objectively and subjectively serious and went beyond ordinary annoyances. The trial judge determined that the plaintiff suffered a mental injury caused by the administration of Heparin. 

The defendant appealed the decision to the Court of Appeal for Ontario. 

The Court of Appeal’s Decision 

The Court of Appeal allowed the appeal and dismissed the action. It found that the trial judge had erred in law by failing to recognize that the Supreme Court of Canada’s decision inSaadati v. Moorhead (Saadati) requires that certain considerations be brought to bear in determining whether a plaintiff succeeded in showing a mental injury. 

The existence of mere psychological upset is not a mental injury. Claimants must show that the disturbance they suffered is serious and prolonged and rises above the ordinary annoyances, anxieties, and fears that come with living in civil society. A plaintiff bears the onus to show the requisite degree of disturbance. The plaintiff is not required to lead expert evidence to meet their burden, but there must be evidence to show mental injury, not just psychological upset. 

In assessing whether the claimant has succeeded in showing a mental injury, it will often be important for the trier of fact to consider: (i) how seriously the claimant’s cognitive functions and participation in daily activities were impaired; (ii) the length of such impairment; (iii) and the nature and effect of any treatment.

In short,Saadatiinstructs that it is insufficient for the trier of fact to find evidence of psychological upset, such as feelings of anger and frustration: the inquiry must include a consideration of the level of impairment that the claimant’s particular feelings represent. 

InBothwell, the trial judge failed to consider the degree of disturbance the plaintiff felt as a result of his psychological upset. He failed to consider the impact of the plaintiff’s continuing anger and frustration on his cognitive functions and participation in daily activities. He also did not consider the absence of evidence that the plaintiff sought treatment for those feelings. 

When the Court of Appeal examined the record, it found no evidence that the plaintiff’s continuing feelings of anger and frustration arising from the medication error led to impairment in his cognitive functions or participation in daily life. He continued to work as a paramedic and remained a committed father and husband. He did not seek treatment to deal with his emotional reaction to the medication error. 

The Court of Appeal was careful to note that it was not trivializing the seriousness of the medication error or the plaintiff’s reaction to it. He was expecting a new baby when he learned of the medication error, which he reasonably understood could have led to his death. However, the Court of Appeal rejected the submission that this case was analogous to ones that involve a “near-death experience.” 

The plaintiff’s persisting feelings of anger and frustration about the incident are understandable. However, feelings of anger and frustration, without more, are evidence of psychological upset, not mental injury. Based on the principles inSaadati, in the absence of evidence of impairment of cognitive functioning, interference with activities of daily living, or treatment for emotional symptoms, the claim for mental injury cannot succeed. 

Note:Our blog is not intended as legal advice. The team atWise Health Lawis experienced in defending health professionals and organizations against claims for malpractice. 

To learn more about Wise Health Law and our services, please contact us!



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