Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20230508 DOCKET: C70916

Gillese, Benotto and Coroza JJ.A.

BETWEEN

Craig Bothwell and Miranda Bothwell Plaintiffs (Respondents)

and

London Health Sciences Centre, Victoria Hospital and Cameron Dalton Defendants (Appellants)

Counsel: Andrew McCutcheon, for the appellants Melissa Miller and Adam Wagman, for the respondents

Heard: February 21, 2023

On appeal from the judgment of Justice Michael D. McArthur of the Superior Court of Justice, dated July 5, 2022, with reasons reported at 2021 ONSC 6755 and 2022 ONSC 3985.

Gillese J.A.:

[1] What legal principles did the Supreme Court of Canada establish in Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543, for determining whether a claimant has demonstrated a mental injury? Are persistent feelings of frustration and anger, without more, a compensable mental injury? This appeal depends on the answers to those questions.

Background

[2] Craig Bothwell had Crohn’s disease for which he had a number of resection surgeries. On September 22, 2011, he went to the London Health Sciences Centre, Victoria Hospital (the “Hospital”) to undergo a reverse ileostomy for an earlier resection surgery at the Hospital. While recovering in the post-anaesthesia care unit (the “PACU”) following surgery, his blood pressure began to drop and the doctor ordered that he be administered Voluven, a blood volumizer. The defendant nurse in this proceeding erroneously administered the anticoagulant Heparin instead. The defendant nurse, together with the Hospital, are the appellants in this matter (the “Appellants”).

[3] When Mr. Bothwell awoke in the PACU, he heard someone ask if the Voluven had been hung and then he heard words to the effect “that’s f***ing Heparin”. As a paramedic, Mr. Bothwell knew that Heparin could cause massive bleeding. He blacked out and awoke sometime later. His wife and others were there. He experienced shortness of breath and became very hot. He was sedated and intubated.

[4] A short time later, Mr. Bothwell underwent surgery to relieve abdominal cavity pressure as a result of substantial internal bleeding. Days later, he underwent further surgeries to close the abdomen and related procedures. When he later learned again of the administration of the Heparin, he was shocked, frustrated, and angry. His feelings of anger and frustration continued to the time of trial.

[5] Mr. Bothwell and his wife Miranda Bothwell (together, the “Respondents”) are both paramedics and were at the time of the medication error. They have two young children, with the eldest having been born just after the medication incident. Mrs. Bothwell thought she would lose her husband. They sued the Appellants for medical negligence (the “Claim”).

[6] In the Claim, the Respondents alleged that Mr. Bothwell had experienced an exacerbation of his symptoms of Crohn’s disease, injuries to internal organs, digestive issues, neurologic injury, weakness, muscle wasting, sensory loss, nightmares, emotional distress, anxiety, depression, and psychological injury as a result of the erroneously administered medication.

[7] The defence theory was that an intraoperative injury caused the hemorrhage, Mr. Bothwell was already hemorrhaging before the Heparin administration error occurred, and he would have required the further operation to stop the bleeding in any event.

[8] The trial of the Claim was bifurcated, with liability to be decided in the first trial and damages in the second.

[9] The first trial was focussed on causation: had the mistaken administration of Heparin (1) caused Mr. Bothwell to hemorrhage and suffer the ensuing physical consequences, and (2) caused the Respondents psychological damage amounting to a mental injury?

[10] After the first trial, the judge issued a decision (the “First Decision”). In it, the trial judge found against the Respondents on the first causation issue. He accepted the defence expert opinion that Mr. Bothwell 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. He further found that the Respondents had failed to prove that the medication error caused any additional physical injury. No appeal has been taken from the trial judge’s decision on the first causation issue.

[11] In the First Decision, the trial judge did not decide the second causation issue. At para. 8 of the First Decision, he stated that the Appellants acknowledged the medication error had caused Mr. Bothwell a mental injury. However, after the release of the First Decision, the parties clarified with the court that there had been no such concession or acknowledgement. The parties also agreed the court had made no determination as to whether Mr. Bothwell had suffered a mental injury as a result of the erroneous administration of Heparin and that the record was complete as to the evidence and submissions on that matter.

[12] The trial judge then issued a second decision (the “Second Decision”), in which he addressed whether the medication error caused injury to the Respondents. The reasons for the Second Decision are reported at 2022 ONSC 3985.

[13] While Mr. Bothwell had alleged in the 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 on the matter of psychological injury came from the Respondents; they did not lead any expert evidence.

[14] The trial judge accepted Mr. Bothwell’s evidence that he was frustrated and angry about the medication error, those feelings persisted up to trial in 2020, and they were revisited whenever he attended the Hospital for his work as a paramedic. He described Mr. Bothwell’s testimony as reliable and sincere, not prone to exaggeration, and sensible and fair. There was no evidence that Mr. Bothwell had 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.

[15] The trial judge stated that the Appellants owed Mr. Bothwell a duty of care which they breached through administering Heparin to him. He stated that he was “cognizant and careful not to confuse nor conflate the erroneous administration of medication with [Mr. Bothwell’s] extended stay in hospital and recovery”. He concluded that the causation requirement between the breach and Mr. Bothwell’s psychological upset met the standard described in Saadati: Mr. Bothwell’s feelings were objectively and subjectively serious and went beyond ordinary annoyances. It is the determination in the Second Decision that Mr. Bothwell suffered a mental injury caused by the administration of Heparin which is under appeal.

[16] In the Second Decision, the trial judge found that Mrs. Bothwell had not alleged that she sustained a mental injury attributable to the administration of Heparin. Rather, her claims were made pursuant to the Family Law Act, R.S.O. 1990, c. F.3. Consequently, he said, the “court need not make any other finding in this regard at this juncture”. No appeal is taken against the trial judge’s determination in respect of Mrs. Bothwell.

Issues on Appeal

[17] The Appellants do not challenge the trial judge’s finding that Mr. Bothwell’s feelings of anger and frustration about the medication error remained with him to the date of trial. They take issue with the trial judge’s conclusion that those feelings amount to a compensable mental injury. Specifically, they submit that the trial judge erred in:

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

The Legal Framework for Proving Mental Injury

[18] What constitutes mental injury and how it can be proven were the principal issues addressed by the Supreme Court in Saadati. Resolution of this appeal is heavily dependent on the reasoning in Saadati, particularly that which addresses how mental injury is to be distinguished from psychological upset. Consequently, before addressing the issues on this appeal, it is helpful to review the salient aspects of Saadati.

[19] Mr. Saadati was involved in a series of five motor-vehicle collisions. The trial judge found that the second accident caused Mr. Saadati “psychological injuries, including personality change and cognitive difficulties”. The trial judge’s finding of psychological injuries did not rest on an identified medical cause or on expert evidence. It was based on the testimony of Mr. Saadati’s friends and family that, after the accident, his personality changed for the worse. Once a funny, energetic, and charming individual, Mr. Saadati had become sullen and prone to mood swings. Historically close relationships with family and friends had deteriorated. He complained of headaches.

[20] The British Columbia Court of Appeal reversed the trial judge on the ground that Mr. Saadati had not demonstrated, with expert medical evidence, a recognizable psychiatric injury.

[21] The Supreme Court allowed a further appeal and restored the trial judge’s award. Justice Brown, writing for the Court, saw no legal error in the trial judge’s treatment of the evidence of Mr. Saadati’s symptoms as supporting a finding of mental injury. Although no expert evidence had been tendered, the evidence that the trial judge accepted showed that Mr. Saadati had suffered “a serious and prolonged disruption that transcended ordinary emotional upset or distress”: at para. 40.

[22] Justice Brown soundly rejected the notion that, to prove mental injury, the claimant must prove that their condition meets the threshold of a recognizable psychiatric illness: Saadati, at paras. 29-36. Rather, he explained, recovery for mental injury in negligence depends on the claimant satisfying the ordinary duty of care analysis, which is whether: the defendant owed the claimant a duty of care to avoid the kind of loss alleged; the defendant breached that duty by failing to observe the applicable standard of care; the claimant sustained damage; and that damage was caused, in fact and in law, by the defendant’s breach: at para. 13.

[23] At para. 37 of Saadati, Brown J. set out the following propositions relating to what constitutes a compensable mental injury. Citing Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, he stated that “mental injury is not proven by the existence of mere psychological upset” (emphasis in original). Relying again on Mustapha, he said 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”. He concluded by stating that “the claimant’s task in establishing a mental injury is to show the requisite degree of disturbance”.

[24] Justice Brown went on, at para. 38 of Saadati, to explain that when determining whether the claimant has succeeded in showing a mental injury, it will be important for the trier of fact to consider:

[H]ow 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. To the extent that claimants do not adduce relevant expert evidence to assist triers of fact in applying these and any other relevant considerations, they run a risk of being found to have fallen short. … To be clear, however: while relevant expert evidence will often be helpful in determining whether the claimant has proven a mental injury, it is not required as a matter of law. Where a psychiatric diagnosis is unavailable, it remains open to a trier of fact to find on other evidence adduced by the claimant that he or she has proven on a balance of probabilities the occurrence of mental injury. [Emphasis added; citations omitted.]

Issue 1: The trial judge erred by failing to take into account relevant considerations

The Parties’ Positions

[25] The Appellants submit that the trial judge erred in law by failing to consider “key” factors set out in Saadati for determining whether Mr. Bothwell sustained a mental injury: cognitive impairment; the effect on his daily activities; and, the nature of, and response to, any treatment for his emotional response to the medication incident. They say that the trial judge focussed on factors speaking to symptoms but erroneously failed to consider those factors speaking to impairment.

[26] The Respondents submit that the trial judge properly considered Saadati. They argue that, while the Saadati factors can inform a court’s view, those factors are not a mandatory consideration before the court can determine whether the claimant has established a mental injury.

Analysis

[27] I accept the Appellants’ submission on this issue. In my view, the trial judge erred in law by failing to recognize that Saadati requires that certain considerations be brought to bear in determining whether the claimant has succeeded in showing a mental injury. In failing to take into account those relevant legal considerations, the trial judge erred in law: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 27.

[28] The trial judge’s statement of the law is found in paras. 12-13 of the Second Decision. Based on Saadati, he set out the following legal principles:

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.

[29] The trial judge made no error in his recitation of these legal principles in Saadati. However, it is not a complete statement of the relevant legal principles established by that case; it fails to reflect the Supreme Court’s instructions to triers of fact, at para. 38, on how to determine whether the claimant has succeeded in proving mental injury.

[30] As noted above, Brown J. makes it clear at para. 37 of Saadati that a mental injury is not proven by the existence of mere psychological upset. 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. He concludes para. 37 by observing that the claimant’s ultimate task is “to show the requisite degree of disturbance”.

[31] In para. 38, Brown J. describes how claimants are to show that requisite level of disturbance. He explains that in assessing whether the claimant has succeeded in showing a mental injury, it will often be important for the trier of fact to consider “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”). Later in para. 38, Brown J. describes the Saadati factors as “relevant considerations” for the trier of fact.

[32] In my view, paras. 37 and 38 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.

[33] In short, Saadati instructs 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.

[34] In concluding that Mr. Bothwell had succeeded in showing a mental injury, the trial judge failed to consider the degree of disturbance Mr. Bothwell experienced as a result of his psychological upset. That is, he failed to consider what impact Mr. Bothwell’s continuing anger and frustration had on his cognitive functions and participation in daily activities. He also failed to consider the absence of evidence that Mr. Bothwell sought treatment for those feelings. These failures caused the trial judge to fail to determine whether Mr. Bothwell’s continuing psychological upset met the requisite degree of disturbance to become a compensable mental injury.

[35] In sum, the trial judge’s failure to advert to or consider the Saadati factors was an error in law. Consequently, his determination that Mr. Bothwell’s psychological upset rose to the level of mental injury is owed no deference by this court.

Issue 2: Insufficient Evidence to Find a Mental Injury

The Parties’ Positions

[36] The Appellants submit that the trial judge made a palpable and overriding error in concluding that Mr. Bothwell’s feelings of anger about the medication error amounted to anything other than psychological upset. They contend that persistent feelings of anger, without more, are not evidence of mental injury. They say there was no evidence that Mr. Bothwell suffered cognitive impairment or impairment in daily activities, nor was there evidence he sought or obtained treatment for his psychological upset. In the absence of such evidence, the Appellants say it was not open to the trial judge to conclude Mr. Bothwell had suffered a mental injury from the maladministration of Heparin.

[37] The Respondents submit that the trial judge made no error in finding that Mr. Bothwell suffered a mental injury as a result of the inadvertent administration of Heparin while he was in the PACU. They point to the fact that Mr. Bothwell was a paramedic and, with his knowledge and experience, on learning that he had been mistakenly given Heparin post-operatively, he was shocked and reasonably believed he could bleed to death. They also point to his persistent and ongoing feelings of frustration and anger, which are revisited whenever he is in the hospital. They say that Mr. Bothwell suffered a traumatizing near-death experience, which he relives every time he is in the hospital, whether as a paramedic or a patient. They concede that the trial judge’s review of the evidence was brief and limited but contend it was sufficient for him to have concluded that Mr. Bothwell suffered a mental injury that was “serious and prolonged, and went beyond generalized or ordinary annoyances, anxieties and fears”.

Analysis

[38] As I explained above, the trial judge erred in law by failing to take into account the Saadati factors when determining whether Mr. Bothwell suffered a mental injury. Because he erred in law, his determination of that issue is owed no deference. Thus, it falls to this court to determine whether Mr. Bothwell’s feelings meet the legal requirements for a mental injury. In my view, the evidence in this case falls short of establishing that Mr. Bothwell’s feelings of anger and frustration are sufficient to support a finding of mental injury.

[39] I begin by noting that I fully accept all of the trial judge’s findings relating to Mr. Bothwell’s testimony. These findings include that Mr. Bothwell was sincere, his testimony was reliable, he was not prone to exaggeration, and he was sensible and fair.

[40] On my review of the record, however, there was no evidence to show that Mr. Bothwell’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 has continued his work as a paramedic and remains a committed father and husband. Nor was there any evidence that Mr. Bothwell pursued any form of treatment to deal with his emotional reaction to the medication error. The only evidence on this issue came from the Respondents – and their testimony was devoid of evidence of impairment arising from Mr. Bothwell’s feelings of anger and frustration.

[41] The absence of evidence of impairment in this case stands in marked contrast to the evidence in Saadati. In Saadati, other family members and friends testified about how Mr. Saadati had changed from a funny, energetic, outgoing person into a sullen person with mood swings. They further testified about how his personality change had caused his close personal relationships with family and friends to deteriorate. He also suffered from headaches.

[42] While Saadati makes it clear that expert medical evidence is not necessary to prove a mental injury, it also makes clear that where claimants do not adduce relevant expert evidence to assist triers of fact in considering the Saadati factors and other relevant considerations, “they run a risk of being found to have fallen short”: at para. 38. Here, in addition to an absence of evidence of impaired cognitive functions or participation in daily activities, there was no evidence that Mr. Bothwell had a physical manifestation of his psychological upset or sought medical assistance to deal with his persistent feelings of anger and frustration due to the maladministration of Heparin.

[43] The absence of evidence of impairment distinguishes this case from Ontario cases in which persistent feelings were an element that assisted in proving mental injury. For example, in Barker v. Barker, 2020 ONSC 3746, rev’d on other grounds, 2022 ONCA 567, 162 O.R. (3d) 337, leave to appeal refused, [2022] S.C.C.A. No. 368, a group of plaintiffs sued Ontario for, among other things, breach of fiduciary duty stemming from its administration of the Oak Ridge Division of the Mental Health Centre in Penetanguishene (“Oak Ridge”). Each plaintiff was involuntarily admitted to Oak Ridge between 1966 and 1983 and subjected to various programs, including the Motivation, Attitude, Participation Program (the “MAPP”). The MAPP was a strict physical disciplinary program that was implemented by other psychiatric patients. The trial judge found that one of the plaintiffs who was subject to the MAPP, Maurice Desrochers, developed stress that “either caused or greatly exacerbated his gastrointestinal problems” and developed “a lingering sense of anger that, according to his sister, stayed with him the rest of his days”: at para. 432. Some of the medical experts acknowledged that a person with Mr. Desrochers’ gastric problems should never have been exposed to the MAPP and that he would have been “especially prone to suffering great psychic pain”: at para. 430. In his reasons on damages, the trial judge held that Mr. Desrochers’ stress and lingering anger were sufficiently severe to constitute a compensable mental injury under Saadati: see 2021 ONSC 158, 68 E.T.R. (4th) 1, at paras. 339‑345.

[44] In Johnson v. Cline, 2017 ONSC 3916, aff’d on other grounds, 2019 ONCA 188, leave to appeal refused, [2019] S.C.C.A. No. 131, the plaintiffs in the counterclaim successfully sued their neighbour for nuisance that lasted for six years. Both plaintiffs testified as to suffering from depression and anxiety as a result of the persistent hostility demonstrated by the defendant. They further adduced clinical records from their family physician which showed that both had been prescribed medication to treat their depression and anxiety arising from the situation with their neighbour. Noting that expert evidence was not required nor a diagnosed psychiatric condition need be proven, the trial judge was satisfied that the harm experienced by the plaintiffs was a mental injury that met the Saadati threshold: see paras. 120-124.

[45] Unlike this case, the plaintiffs in both Barker and Cline adduced evidence of impairment within the meaning of the Saadati factors. In Barker, the plaintiff’s sister indicated that the plaintiff experienced life-long anger after experiencing the MAPP that was not limited by time or place. This anger was coupled with stress that caused or exacerbated ongoing gastrointestinal issues, an impairment of his participation in daily activities. In Cline, there was medical evidence about the nature of the treatment the plaintiffs received for depression and anxiety associated with the defendant’s conduct.

[46] I wish in no way to trivialise the seriousness of the medication incident or the Respondents’ reactions to it. They were expecting a new baby when they learned of the maladministration of Heparin, which they reasonably understood could have led to Mr. Bothwell’s death. However, respectfully, I do not accept the Respondents’ assertion that this case is analogous to ones that involve “a near‑death experience”.

[47] First, I begin by noting that it is not clear that Mr. Bothwell’s fear that he might die as a result of the medication incident was a near‑death experience. In this regard, it is important to bear in mind the trial judge’s finding that none of Mr. Bothwell’s ensuing surgeries and recovery arose from the erroneous administration of medication.

[48] Second, in any event, the question is not whether Mr. Bothwell suffered a near‑death experience but, rather, whether his persistent feelings of anger and frustration following the medication incident meet the requisite “degree of disturbance” to be a compensable mental injury. While the gravity of the experience may be a relevant consideration in this inquiry, the other Saadati factors must still be considered and applied to the evidence adduced by the plaintiff.

[49] The “near-death” cases relied on by the Respondents are distinguishable from the present case because, in those cases, there was evidence of impairment. In Weafer v. Vancouver Coastal Health Authority et al., 2007 BCSC 481, the trial judge was satisfied that the negligent administration of Ketamine caused the plaintiff to suffer “psychological trauma” and a “great degree of stress and anxiety”. He found that the plaintiff’s depression became “more severe and persistent” after the incident and that the prescribed antidepressant medication he took caused him to experience side effects, including “headaches, fatigue and memory problems”: see paras. 95, 131-133.

[50] Similarly, in Owen v. Bains, 2020 ONSC 3958, aff’d 2021 ONSC 6666 (Div. Ct.), while the trial judge did not find the defendant liable for negligence, he had a medical expert’s testimony that, since his “near-death” experience, the plaintiff had developed symptoms that she would diagnose as Adjustive Disorder with Anxiety and Major Depressive Disorder: see paras. 32, 38-39.

[51] In conclusion, there is no question that the medication error breached the standard of care that the Appellants owed Mr. Bothwell and was a deeply disturbing event for him and his wife. Mr. Bothwell’s persisting feelings of anger and frustration about the incident are understandable. However, feelings of anger and frustration, without more, is evidence of psychological upset, not injury. Based on the principles in Saadati, 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.