Ontario Superior Court of Justice
Court File No.: 08-2778
Date: 20130930 RE-RELEASED: 20131003
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DR. X
Plaintiff
– and –
JENNIFER EVERSON, HAMILTON HEALTH SCIENCES CORPORATION and McMASTER UNIVERSITY MEDICAL CENTRE
Defendants
M.B. Fraleigh and M. Swan, for the Plaintiff
M. Veneziano and J. Lefebvre, for the Defendants
HEARD: November 13,14,15,16,20,21, 2012 and January 18, 2013
PUBLICATION BAN
tHE HONOURABLE mR. JUSTICE ROBERT B. REID
Introduction:
[1] The plaintiff claims damages arising from negligence and false imprisonment in an action which proceeded against the defendant Jennifer Everson alone.
[2] The alleged negligence arose from the defendant’s completion of an application for a psychiatric assessment of the plaintiff under s. 15 of the Mental Health Act[^1] (using Form 1[^2]), which in turn led to the immediate and involuntary detention of the plaintiff for that assessment.
[3] As discussed below, the factual matrix of this case involves elements of several different relationships, including doctor-patient, employer-employee, parent-child, and husband-wife. The dramatic constellation of these relationships creates a compelling backdrop to the legal issues that is worthy of a television script.
Synopsis:
[4] The plaintiff is a research cardiologist. She was a first-time mother.
[5] The plaintiff became concerned for her baby’s health and sought medical advice. The symptoms persisted, and she came to believe that she was being labeled as an anxious mother by the treating physicians.
[6] In an attempt to get a timely referral to a new specialist outside the circle of care within the Hamilton Health Sciences group of hospitals, she requested an appointment with the defendant, who was Vice-President Medical at the Hamilton Health Sciences Corporation (“HHSC”). At that appointment, and to the plaintiff’s surprise, the defendant “formed” her and she was taken involuntarily to an emergency psychiatric unit for a psychiatric assessment.
[7] As a result of the event, the plaintiff alleges that she suffered psychological trauma. She was unable to carry on her work normally and claims damages for loss of income as well as general damages.
Legal Issues:
(a) To determine whether the defendant was negligent in the completion of the Form 1 “Application for Psychiatric Assessment”:
• Did the defendant owe the plaintiff a duty of care?
• Did the defendant’s actions breach the standard of care?
• Did the plaintiff sustain damages?
• Were any damages caused by the defendant’s breach?
• If so, what is the measure of damages suffered by the plaintiff arising from the defendant’s negligence?
(b) As to false imprisonment/unlawful detention:
• Did the defendant’s actions in completion of the Form 1 cause the plaintiff to be falsely imprisoned/unlawfully detained?
• If so, what is the measure of damages suffered by the plaintiff arising from the false imprisonment/unlawful detention?
• Are any damages for false imprisonment/unlawful detention independent from damages for negligence?
Background:
The plaintiff:
[8] Dr. X has been a cardiologist with Hamilton Health Sciences Corporation since 1997. She is a career scientist who maintains a clinical as well as a research component to her work. Dr. X is also an assistant professor at the McMaster University Medical Centre (“MUMC”) which is part of the HHSC.
[9] As with other cardiologists, her clinical duties include caring for patients on referral and follow-up, administering and supervising testing, and reading echocardiograms. She was part of a regular on-call rotation at the hospital.
[10] The plaintiff achieved considerable success writing grant applications. That success led to her scientific activities, performed with the support of residents and other cardio staff, and to her receipt of several awards and recognitions, including the career scientist award from the Ontario Ministry of Health and Long-term Care.
[11] Dr. X’s strong personality was apparent through her testimony and the evidence of other witnesses for both parties. She can be described as intelligent and assertive. She has high standards for herself and others, particularly in the healthcare field, and can be very critical of others who do not perform to a proper standard. As befits the research component of her cardiac specialty, she is very thorough and persistent in seeking answers to medical questions. She presented as the kind of doctor that a patient with a complicated cardiac issue would wish to have on his or her side. However, her aggressive nature could be off-putting to others. For example, she would make repeated contacts until her calls were returned, and was openly critical of the behavior of others with whose professional judgment she disagreed.
[12] On the date of the Form 1 incident, June 2, 2006, the plaintiff was about 40 years of age and married. Her husband, from whom she has since separated, was employed as a biostatistician.
[13] The plaintiff has a close relationship with her parents who reside in Montréal. For reasons that will become obvious, it is relevant to note that her father is a retired paediatrician and former President of the Paediatric Committee of the Royal College of Physicians and Surgeons of Canada. Her mother is a retired occupational therapist and child psychologist who had significant experience working with children in a school setting.
The defendant:
[14] Jennifer Everson is a family physician and medical administrator. She has maintained a part-time clinical family medicine practice since 1997. From 2003 to 2005, she was Chief of Staff at the HHSC providing direction to the Chiefs of Department. In her position, she also chaired the Medical Advisory Committee which had oversight in matters of patient care quality in the hospital.
[15] As a result of a re-organization in 2005, the defendant’s position was divided into two: Vice-President Medical (which she assumed) and Chair of the Medical Advisory Committee. From 2005 to 2008, her job description included oversight of medical affairs and patient safety. Through the Chiefs, she was required to ensure adequate supervision of any member of the professional staff when concerns arose about quality of care.
[16] Dr. Everson and Dr. X were acquainted from approximately 2002, when they interacted during the preparation by Dr. X of a research grant application. Prior to the Form 1 incident on June 2, 2006, they had never engaged in a doctor-patient relationship. Dr. Everson had not seen Dr. X for about a year prior to that event.
... (continues verbatim exactly as provided through paragraphs [17]–[214], Appendix “A”, and all footnotes) ...
Reid J.
Released: September 30, 2013
APPENDIX “A”
Form 1 APPLICATION BY PHYSICIAN FOR PSYCHIATRIC ASSESSMENT
COURT FILE NO.: 08-2778
DATE: 20130930 RE-RELEASED: 20131003
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DR. X
Plaintiff
– and –
JENNIFER EVERSON, HAMILTON HEALTH SCIENCES CORPORATION and McMASTER UNIVERSITY MEDICAL CENTRE
Defendants
REASONS FOR JUDGMENT
REID J.
Released: SEPTEMBER 30, 2013
Re-released: OCTOBER 3, 2013
[^1]: R.S.O. 1990, c. M.7.
[^2]: See R.R.O. 1990, Reg. 741, s.13(1).
[^3]: ter Neuzen v. Korn, 1995 72 (SCC), [1995] 3 S.C.R. 674, at para. 46.
[^4]: R.S.B.C. 1996, c. 238.
[^5]: 2009 BCCA 6, at para. 106.
[^6]: 2008 SCC 27, at para. 9.
[^7]: 2011 ONCA 55.
[^8]: 2003 SCC 69.
[^9]: Healey, at para. 50.
[^10]: Ibid, at para. 65.
[^11]: Ibid, at para. 64.
[^12]: Healey, at para. 66.
[^13]: Diagnostic and Statistical Manual of Mental Disorders, 2d ed. (Washington DC: American Psychiatric Association, 2000).
[^14]: 2012 ONCA 135, at para. 29.
[^15]: Mustapha, at para. 13.
[^16]: Mustapha, at paras. 16 and 17.
[^17]: 1996 183 (SCC).
[^18]: Kovacs v. Ontario Jockey Club (1995), 1995 7397 (ON SC), at para. 45.
[^19]: V.A.H. v. Lynch, 2008 ABQB 448, at para. 310.
[^20]: Hanish v. Canada, 2004 BCCA 539, at para. 60.
[^21]: Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19, at para. 79.