Kumar v. William Osler Health Centre, 2010 HRTO 1766

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hardev Kumar

Applicant

-and-

William Osler Health Centre o/a Etobicoke General Hospital

and Sameer D’Souza

Respondents

DECISION

Adjudicator: Mark Hart

Date: August 27, 2010

Citation: 2010 HRTO 1766

Indexed as: Kumar v. William Osler Health Centre

APPEARANCES BY

Hardev Kumar, Applicant ) Sudeesh Shivarattan, Representative )

William Osler Health Centre o/a ) Michele Warner, Counsel Etobicoke General Hospital, Respondent )

Dr. Sameer D’Souza, Respondent ) Matthew Sammon, Counsel

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), dated May 21, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on January 30, 2006.

2The applicant alleges that he experienced discrimination in respect of goods, services and facilities because of his race, ancestry, ethnic origin, place of origin and disability, arising out of his attendance in the emergency department of Etobicoke General Hospital in the early morning hours on August 6, 2005.

3The hearing in this matter was held on April 15, 2010, in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications, that section 53 applications proceed in an expeditious manner. On consent of all parties, I took the lead in questioning the witnesses and heard from the applicant, the personal respondent and one additional witness, with the parties being afforded the opportunity to cross-examine after I had completed my questioning of all witnesses.

The Applicant’s Evidence

4The applicant describes himself as a 62-year-old chronic asthmatic with other impairments, such as diabetes. The applicant self-identifies as being from Punjab in India and as being Hindu.

5The applicant states that on August 5, 2005, he was having a difficult time breathing, so his wife called an ambulance to take him to the hospital. The applicant was given some medication while in the ambulance, such that he had become a little more stable by the time he reached the hospital.

6Hospital records show that the applicant was admitted to the hospital’s emergency department at 12:40 a.m. on August 6, 2005. The applicant states that he was examined by a nurse and transferred from the stretcher to a hospital bed. The nurse was then followed by the personal respondent, Dr. D’Souza. The applicant states that as Dr. D’Souza was walking towards his bed, the doctor threw his hands into the air like a robot and said, “here he comes again”. Dr. D’Souza had treated the applicant once before in January 2005, and the applicant believes that the doctor recognized him from that earlier visit.

7The applicant states that Dr. D’Souza was abrupt and aggressive during his examination, stating “what happened, what brought you here?” and making the applicant feel like he was unwanted at the hospital. The applicant states Dr. D’Souza examined him with a stethoscope and did not spend more than two minutes with him before the doctor left.

8The applicant was given Ventolin treatment, which is usual for asthmatic patients, and was sent for a chest x-ray. An IV steroid also was administered to him. The evidence shows that a number of blood tests also were run on the applicant, including a drug screen. As will be discussed below, Dr. D’Souza’s evidence was that he could smell alcohol on the applicant’s breath and that the applicant was intoxicated when he arrived at the hospital. This is supported by the results of the drug screen, which show the applicant’s blood alcohol level to have been 16.5 mmol/L. Dr. D’Souza testified that this equates to the .08 level which is the legal limit of intoxication for driving across Canada. This evidence was not disputed by the applicant.

9In light of this evidence, I asked the applicant some questions about his alcohol consumption prior to his attendance at the hospital. The applicant states that there had been a gathering at his home on the evening of August 5, 2005, and he states that he was drinking beer. The applicant first testified that he thought that it was two or three bottles of beer, and then shortly thereafter testified that it could have been two to four bottles of beer. The applicant also testified that he consumed this amount of alcohol in the hour and a half before he went in the ambulance.

10After I had completed my questioning of the applicant, I next proceeded to question Dr. D’Souza. He testified that the applicant’s evidence that he consumed two to four bottles of beer in the hour and a half prior to midnight is not consistent with a blood alcohol level of .08 when his blood was drawn at 1 a.m., given that alcohol degrades in the blood at a rate of .02 per hour. Dr. D’Souza testified that the applicant would have had to have consumed five 12-ounce bottles of beer at the very least in the hour and a half before he was picked up by the ambulance in order to get to a level of .08 when his blood was drawn at 1 a.m.

11When the applicant subsequently was cross-examined on this point, the applicant acknowledged that it was possible that he had had five bottles of beer. This evidence was contrasted with the statement made by the applicant in the initial letter of complaint that he sent to the hospital on August 22, 2005, in which he stated, “prior to coming in hospital emergency on August 6, 2005, complainant had a responsibly moderate alcoholic drink”, which suggests that he had only had one drink.

12There is no dispute that the issue of the applicant’s alcohol consumption was raised by Dr. D’Souza when he initially examined the applicant. The applicant states that he admitted to Dr. D’Souza when being examined the first time that he had had a drink. The applicant does not dispute that he was under the influence of alcohol a little bit, but states that he was communicating properly with Dr. D’Souza and with the ambulance paramedics and he believes he was very clear. The applicant notes that there is no reference in the ambulance record to him being intoxicated. The applicant denies that the issue of alcohol was subsequently discussed with him by Dr. D’Souza when he was re-examined later that morning.

13After his initial interaction with Dr. D’Souza, the applicant states that he didn’t see the doctor again for two to three hours. He states that during treatment, he was given three Ventolin treatments one after another. He states that, as with any medication, Ventolin has its side effects, and after the third treatment, the applicant states that he was not able to stand on his feet.

14The applicant states that after 2 hours and 15 minutes, Dr. D’Souza came back and examined his chest. The applicant states that the doctor asked how he was feeling, to which he replied that he was still weak and perhaps needed a little more treatment. However, the applicant states that he told the doctor that he could not take more Ventolin at that time due to the effects that it was having on him. The applicant states that at this point Dr. D’Souza got angry with him and said, this is a hospital not a hotel, and then just walked away without saying that the applicant was discharged or was going to be given Ventolin.

15The applicant states that shortly thereafter, a nurse came and said that the doctor had ordered more Ventolin. The applicant states that he responded that he would take more Ventolin, but needed 10 minutes because he had a little headache. The applicant states that the nurse then told him that the doctor had said, either take it or leave. As a result, the applicant states that he had no choice but to leave, because if he took the Ventolin he might fall down again whether as a result of the influence of alcohol or his condition.

16The applicant believes that Dr. D’Souza was scornful of him and could care less about the applicant’s health. The applicant states that he did not want to go home for another hour or so, because he wanted to be stable before he was discharged. However, the applicant believes that this was disregarded by Dr. D’Souza. While the applicant acknowledges that he was given a prescription filled out by Dr. D’Souza before he left the hospital, the applicant states that this was given without asking for his record or history of asthma and without the doctor coming to explain the prescription to him. The applicant also states that Dr. D’Souza was watching him when he left, and knew that he was weak.

17The applicant testified that he believes that this was racial discrimination because the applicant is Hindu from India and the doctor’s last name reveals that he is a Christian either from Goa or Portugal who does not share the applicant’s civilization or origin. The applicant states that Dr. D’Souza is different from the applicant and that the doctor knows it. He testified that they understand each other by names and understand the history just by their names.

18The applicant testified that Christians from Goa look down on Hindu people because the island of Goa used to be a colony of Portugal and Goan people did not like being taken over by the Indian government. The applicant states that this hatred of India still lives on. In addition, in final submissions, it was submitted on the applicant’s behalf that, in particular communities, Christians who converted felt they were more enlightened than the traditional way of life in the country and that India is no exception. This was described as the genesis of the applicant’s belief that Dr. D’Souza displayed an initial dislike for him.

Dr. D’Souza’s Evidence

19Dr D’Souza has been practising for seven years at Etobicoke General Hospital, and emergency medicine is his area of specialty.

20Dr. D’Souza testified that he has no recollection of having encountered the applicant at the hospital prior to August 6, 2005, although in the context of the applicant’s complaint to the College of Physicians and Surgeons of Ontario the doctor reviewed the hospital charts and realized that he had seen the applicant six months earlier. However, the doctor has no recollection of that previous visit.

21Dr. D’Souza states that on August 6, 2005, the applicant came in by ambulance and was directed to a room directly behind the physician station. He states that as the applicant was brought in by ambulance at about 12:40 a.m., he walked into the applicant’s room and assessed the applicant through a history and physical examination and directed treatment through the nurse who was in the room. The doctor’s assessment was that the applicant met the criteria for a moderate asthma attack, with partial relief from treatment by the ambulance medics. He states that the applicant was breathing rapidly, but didn’t appear agitated and he wasn’t sweating or in horribly laboured breathing. The doctor states and the records show that the applicant received a first set of Ventolin masks within five minutes.

22Dr. D’Souza states that when he walked into the room, the first thing he noticed was that the applicant was intoxicated and smelled heavily of alcohol. The doctor states that he tried to get a history but the applicant was not cooperative. He states that the applicant’s coordination was not quite there, and his reflexes were not quite up to specification. He states that the applicant was able to speak in full sentences but his speech was slightly slurred. Dr. D’Souza states that he asked the applicant if he had used alcohol and the applicant denied this at the time.

23Dr. D’Souza states that he did not say “here we go again” or make a gesture with his hands, and was not disinterested or like a robot when dealing with the applicant. He states that he tried to get a history from the applicant and was having difficulty.

24Dr. D’Souza states that he followed the standard guidelines for treatment of a moderate asthma attack, which indicate that the applicant should get a supply of oxygen and Ventolin. He states that the applicant also was administered inhaled steroid.

25The doctor states that he spent 10 minutes with the applicant, and knows this because he documented on the chart when he came out of the room, which was at 12:50 a.m. The orders that the doctor had put down were that the applicant was to get a first Ventolin mask and then get two Ventolin masks back to back, which is standard treatment for moderate asthma. After that, the applicant was to receive a Ventolin mask every hour thereafter. Dr. D’Souza states that when he wrote those orders, the rationale was that this was an open-ended interaction and that the applicant would remain in emergency as long as was needed. Dr. D’Souza states that he also put in an order that the applicant was to get IV steroids, which is standard treatment for moderate asthma, and he also asked the nurse to give the applicant an antibiotic as many asthmatics have an underlying condition that can trigger an attack.

26Dr. D’Souza ordered blood work on the applicant, which included a complete blood count, electrolytes, his kidney function tests, his blood sugar and a drug screen. He states that the point of the drug screen was to assess the amount of alcohol in the applicant’s system. His rationale for ordering a drug screen was that when someone comes into emergency apparently intoxicated, one cannot assume that this comes from alcohol, and the doctor cited a famous case of a 16-year-old who appeared intoxicated and was not. So when he ordered the drug screen, the doctor wanted to ensure that the applicant was intoxicated by alcohol. The doctor states that he also needed to asses how alcohol was going to affect the applicant’s asthma or his discharge. The doctor acknowledged that he would not order a drug screen in every case, but did so with the applicant because he smelled alcohol and the applicant appeared intoxicated.

27Dr. D’Souza states that he next interacted with the applicant at 3:10 a.m. During the intervening period, the applicant was in the room directly behind the physician’s station where the doctor was working, so he could see the patient in the room at all times and was able to visually assess the patient and how he was doing on multiple occasions when he was there. The doctor was aware that the applicant had gone for an x-ray and had a few breaks from the Ventolin masks. By the time he next saw the applicant, the applicant had received a number of Ventolin masks as well as the anti-biotics and steroids.

28Dr. D’Souza states that he reviewed the applicant’s blood work and x-rays and saw no evidence of any pneumonia. He states that he noticed that the applicant’s blood sugar was 8.3 and was aware from the history he had taken that the applicant was diabetic. Having reviewed all of that, the doctor states that he went into the room to speak with the applicant. He states that he assessed the applicant’s lungs, and he had slight wheezes but pretty good air entry. He states that the applicant had 95% oxygen saturation, which is normal, and he also noticed that the applicant didn’t have any laboured breathing and wasn’t agitated or sweating.

29Dr. D’Souza states that he told the applicant that he was pleased with how the applicant was oxygenating. He told the applicant that he didn’t meet the criteria for admission to hospital, but said that if he wanted to stay, he could do so. Dr. D’Souza states that giving the applicant the option to stay is standard procedure. The doctor states that the applicant had received his last Ventolin mask at 2:30 a.m., so based on his orders the applicant’s next mask would be given at about 3:45 a.m. or so. The doctor states that he had no intention of giving the applicant another mask right away.

30Dr. D’Souza states that he also mentioned to the applicant that his blood alcohol level was 16.5 and that the applicant had previously denied consuming alcohol. He states that the reason he brought up the issue of alcohol is because one of the things he does as a physician is to advise patients on unhealthy lifestyles, and alcohol is always a part of it. The doctor states that he told the applicant that it was not good for him to be drinking when he was having an asthma exacerbation. The reason for this is that alcohol is a sedative and decreases a person’s ability to breathe, and also creates a risk of the person aspirating. Dr. D’Souza states that the applicant wasn’t particularly happy with that counselling, and claimed that he must have told the doctor that he had been drinking. Dr. D’Souza states that he didn’t say anything in response, because he was not going to push that point. The applicant denies that he received any such counselling from Dr. D’Souza.

31Dr. D’Souza states that after having discussed the alcohol issue, he told the applicant that he was responding well to treatment and didn’t meet the criteria for admission. The doctor states that the applicant was upset about the doctor’s comments about alcohol and said he wanted to be admitted to the hospital. The doctor states that he told the applicant that he didn’t meet the criteria for admission, but if he wanted to stay for observation the doctor could keep him there. Dr. D’Souza states that he is generally very open to allowing people to stay. The doctor states that he offered the applicant observation in the hospital hallway, but explained that there were a lot of sick people out in the waiting room and that this was an acute care bed that was needed by others. Dr. D’Souza states that when he mentioned that to the applicant, the applicant said that he wanted to be admitted and wanted to stay in the room and sleep it off. Dr. D’Souza states that to him, this was unusual. He says that the point that he was trying to make was to try to remind the applicant that this was a hospital bed not a hotel bed, but this was in the context of trying to remind the applicant that this was an acute care bed.

32Dr. D’Souza states that at this point, the applicant didn’t want any more treatment and didn’t want to be observed in the hallway. The doctor states that the applicant chose to discharge himself as the doctor documented in the chart. The doctor’s chart includes a note that the applicant had refused any more treatment and would leave the hospital against medical advice. On cross-examination of Dr. D’Souza, the issue was pursued that the nurse’s notes indicate that the applicant was seen by Dr. D’Souza and “discharged home”, without saying that the applicant had discharged himself or that this was against medical advice. I do not see any necessary contradiction between the nurse’s notes, which are quite general, and the doctor’s chart, which is much more specific.

33Dr. D’Souza states that the applicant has made assumptions about his background based solely on his last name. He states that he was born in 1971 in Bombay in India and lived there until he was 10 years old and left there as a child, not having any concepts about race and prejudice. From there, Dr. D’Souza lived in Africa and the United States and came to Canada in 1990. He states that neither of his parents were born in Goa, and that while his paternal grandfather was born there, he barely knew the man. Dr. D’Souza states that he is of the Roman Catholic faith.

34In preparation for the hearing, Dr. D’Souza had done some research about Goa and provided as part of his evidence a history of this island off the west coast of India. While this evidence was interesting and informative, I do not believe that it is necessary for me to explore the history of this region in order to make my decision. Suffice to say that the history presented by Dr. D’Souza disputes the contention by the applicant that Goans were resentful of the takeover of this island by India, but instead suggests that Goans were thankful for their liberation from the Portuguese and a repressive regime.

35Evidence was given before me by Dr. D’Souza about a statement made by the applicant in his letter of complaint to the hospital that when he got home from the hospital, he checked his blood sugar and it read 39 which would be a very high level. Dr. D’Souza testified that there is a lot of research on how blood sugar changes with the administration of steroids at the dose given to the applicant, which points to the level doubling at its maximum peak 10 hours later. So the doctor’s evidence is that the applicant’s blood sugar level would have peaked at a maximum of 16.6 ten hours from the time that the IV steroids had been administered (this is based upon the blood work showing a base level of 8.3). Dr. D’Souza also did some research into glucometers, and found that the maximum level recorded is 33.3 and beyond that level the instrument simply shows “high”, which he states is inconsistent with the applicant’s claim that his meter read 39. The actual glucometer used by the applicant was not tendered into evidence before me.

DECISION

36I have heard evidence from the two main protagonists in this case which differs markedly on the factual details of their interactions. Accordingly, I need to make an assessment of their respective credibility in order to determine the issue before me.

37In making my assessment of credibility, I have been guided by the principles established by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, at pp. 356-357:

…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

38I will first observe that I was not satisfied with the applicant’s evidence, particularly in relation to his consumption of alcohol. In his initial letter of complaint to the hospital dated August 22, 2005, a few short weeks after the incident, he states that “prior to coming in hospital emergency on August 6, 2005, complainant had a responsibly moderate alcoholic drink”. This statement clearly suggests that the applicant had only one drink before arriving at the hospital. Then in response to my questions, he first stated that he had two to three bottles of beer and then quickly revised this to two to four bottles of beer. It was only on cross-examination, after hearing Dr. D’Souza’s evidence that in order to reach a blood alcohol level of .08 when his blood was drawn at 1:00 a.m., the applicant would had to have consumed at least five bottles of beer in the hour and a half before he was picked up by the ambulance at around midnight, that the applicant conceded that it was possible that he had consumed five bottles of beer. This evolution of the evidence over the course of the proceeding, in my view, indicates a tendency on the applicant’s part to give his evidence in a manner that is most favourable to himself and least favourable to Dr. D’Souza.

39In addition, one of the main claims of the applicant is that, after being seen by Dr. D’Souza for the second time, he was ordered either to take a further Ventolin mask immediately, which he said he was willing to do but simply wanted to wait 10 minutes, or leave the hospital. This evidence simply is not consistent with the hospital records. The records confirm Dr. D’Souza’s evidence that once the initial Ventolin masks had been administered, the applicant was to receive a further Ventolin mask every hour. The nurse’s notes confirm that the last Ventolin mask had been administered at 2:30 a.m. and that the applicant was seen by the doctor and discharged at 3:10 a.m. Pursuant to the doctor’s orders, the earliest that a further Ventolin mask would have been administered was at 3:30 a.m., which is well past the additional 10 minutes that the applicant states he wanted to wait. There is no order recorded for a Ventolin mask to have been administered at the time alleged by the applicant, nor would it make sense for any such step to have been taken given the results of the lab work and the doctor’s final examination. Accordingly, I do not accept the applicant’s evidence that he was told by the nurse that he had to receive a Ventolin mask immediately or leave the hospital.

40The applicant also denies that Dr. D’Souza took a history as part of his initial interaction when he arrived at the hospital, and did not spend more than two minutes with him. This evidence is belied by the doctor’s own notes of his initial interaction, which record that he took a history from the applicant and contain detailed information from the history taken, including the medications that the applicant was taking.

41In contrast to the applicant’s evidence, I found Dr. D’Souza’s evidence to be clear and consistent with the notes that he made at the time the incident occurred. As a result, I accept Dr. D’Souza’s evidence wherever it is in conflict with that of the applicant.

42I accept that there may have been some friction or tension in the interactions between the applicant and Dr. D’Souza. However, I find it more likely that any such friction or tension was attributable to the applicant’s alcohol consumption and the impact of the applicant’s own beliefs about how Hindus are regarded by Christians from Goa, which he erroneously believed Dr. D’Souza to be.

43I say this on the basis of Dr. D’Souza’s evidence that the “first thing” he noticed upon entering the room was that the applicant was intoxicated and smelled of alcohol. I find it consistent with the context and surrounding probabilities, that this initial impression on the part of Dr. D’Souza may have affected the manner in which he interacted with the applicant, which in turn may have been perceived by the applicant on the basis of his own beliefs to have been attributable to a reaction to the applicant as a Hindu. I further find it likely that the applicant’s perception of how he was being treated by Dr. D’Souza was impaired by the amount of alcohol he had consumed in the short time before he arrived at the hospital, which I find to have been five bottles of beer in the preceding hour and a half in accordance with the medical evidence, which is a significant amount of alcohol to have consumed in a short period of time.

44I find it likely that the friction or tension between these two men was compounded by the applicant’s denial that he had consumed alcohol, which was contrary to the doctor’s own observations. That Dr. D’Souza was annoyed with the applicant’s denial of alcohol consumption is evidenced by his note on the chart after the blood test results had been received, that the applicant had “lied” to him. I find it likely that Dr. D’Souza’s annoyance with the applicant having lied to him about his alcohol consumption may have affected the doctor’s interaction with the applicant leading to the applicant’s discharge, which again fuelled the applicant’s pre-conceived and erroneous belief that the doctor was looking down on him because he was a Hindu from India.

45I appreciate that there may be cases where the political or cultural history between two groups may spill over to this country and affect interactions between members of those groups. I also appreciate that there may be cases where one religious group may feel superior to or more enlightened than another religious group, and that this dynamic too may at times spill over to interactions in this country.

46But I find that no such dynamic was operating in the manner in which Dr. D’Souza interacted with the applicant, except to the extent that the applicant erroneously projected his beliefs onto Dr. D’Souza. As stated above, I find that any tension or friction between these two men was caused by the applicant’s alcohol consumption and his denial of such consumption to the doctor, and compounded by the applicant’s projection of his own beliefs and the impairment of his perceptions by alcohol.

47Accordingly, I find that the evidence does not support the applicant’s allegation that he experienced discrimination because of his race, ancestry, ethnic origin or place of origin. While the applicant also alleged in his complaint that he experienced discrimination because of disability, no submissions were made by the applicant in support of this allegation nor does the evidence provide any basis for a finding of discrimination on this ground.

48For all of these reasons, the Application is dismissed.