ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-09-0320-00 & CV-09-0321-00
DATE: 2013-12-20
B E T W E E N:
COURT FILE NO.: CV-09-0320-00
MELISSA ANNE SHANTRY and TAYLOR ANNE MILLER, a minor by her Litigation Guardian, MELISSA ANNE SHANTRY
Robert E. Somerleigh, for the Plaintiffs
Plaintiffs
- and -
MELISSA THOMPSON, THUNDER BAY REGIONAL HEALTH SCIENCES CENTRE and PAUL WARBECK
Michael E. Royce and Dena N. Varah, for the Defendants
Defendants
AND BETWEEN:
COURT FILE NO.: CV-09-0321-00
DAVID BLAKE, DONNA MILLER, HAROLD MILLER, DENISE POST-BLAKE, BURKLEY BLAKE and DAVID BLAKE JR.
Plaintiffs
- and -
JESSICA HUGHES, MARGARET ZACHARIASZ, MELISSA THOMPSON, THUNDER BAY REGIONAL HEALTH SCIENCES CENTRE and PAUL WARBECK
Defendants
Roy D. Macgillivray, for the Plaintiffs
Michael E. Royce and Dena N. Varah, for the Defendants
HEARD: December 3,4,5,7,10,11,17,18,19, 2012,
at Thunder Bay, Ontario
Mr. Justice T.A. Platana
Reasons for Judgment
Overview
[1] On July 11, 2007, 22 year old Shane Miller stepped on a pine cone and fell on his back. He hurt his ankle, and put a tensor bandage on it. Three days later he was experiencing difficulty with pain in his back. He was taken to hospital at 18:19 on July 14, 2007 because he was experiencing pain in his lower mid-back and chest. He was admitted to a medical ward after midnight and placed on morphine. Between 09:00 – 09:30 the next morning he came under the care of Dr. Warbeck. Mr. Miller received 25 mgs of morphine at intervals. There is no issue in this case as to appropriate use of morphine. On hearing from the nurses that the morphine was not controlling the pain, at 17:00 on July 15, Dr. Warbeck changed Mr. Miller’s medication from morphine to a 5 mg dosage of hydromorphone, medically referred to as Dilaudid. Mr. Miller died 11 hours later. A coroner’s report says that the cause of death was “Acute Mixed Hydromorphone and Morphine Intoxication.”
[2] The plaintiffs’ claim that Dr. Warbeck was negligent in that the dosages of Dilaudid exceeded an appropriate amount considering that Mr. Miller had been on morphine but was medically opiate naive. They further submit that he was negligent in not properly monitoring Mr. Miller.
Evidence of Family Members
[3] Melissa Shantry is Mr. Miller’s partner. She testified that 2 days after the he had stepped on the pine cone, he woke up around 17:00 p.m. and “seemed out of it.” He went to lie down and he then began having small convulsions, saying his back hurt. He was taken to hospital by his father, and was admitted. The following day she phoned the hospital, and was told he was in isolation. On arrival at the hospital, he was complaining of his back pain and of being tired and itchy. The next day, she received a call from the hospital at 05:00 a.m. saying he had taken a turn for the worse, and advising that she attend at the hospital. She arrived at the hospital and was told he had “passed away”. Later that day in response to a request from the hospital, she met with two doctors. She understood them to say that Shane had been given a larger than normal dosage of medication because he was a larger person. One of the doctors said that Shane should have been checked for his tolerance to the second medication which had been administered. Her evidence is that she later saw Dr. Miller, the coroner. She understood his view was that the cause of death was a drug overdose from the combinations of medications.
[4] David Les Blake, Jr. (“D.J.”) is Shane Miller’s brother. He went to the hospital at 18:00. His dad, mom and sister were there. He saw his dad scratching Shane who was itching badly and was jerking in bed. He remained at the hospital until 21:15 and saw no nurse attending to Shane during the time he was there. He said Shane was “out of it”, unresponsive. He says everyone in the room was confused about his condition. He never saw a nurse come into the room. He then got a call from his sister around 04:00 a.m. advising Shane had passed away. Later that day, he went to a meeting at the hospital with other family members.
[5] Denise Post is Shane Miller’s sister. She saw him in the hospital the morning of July 15. She returned to the hospital around 18:30 with her husband. Shane was still sleeping, and both parents were scratching him. At times he would “jolt”. She and her husband left around 20:15 or 20:30. Her evidence is that Shane was moaning, was “out of it” seemed “comatose”. She later learned from her mother that he had passed away. She attended to family meetings with the doctor at which time the doctor said because Shane was “a big guy”, they had to “up the dose” of medication.
[6] Madonna Miller is Shane’s sister-in-law, married to David Blake. The day after Shane was admitted, she went with David to the hospital around 10:00-10:30. He was twitching and itchy but said he was going to sign himself out because there was nothing wrong with him. They left at 13:00 and returned between 14:00-14:30. He was still twitching and itching and he was sick to his stomach. They stayed until 22:15. Her evidence is that a nurse came in around 17:00 and gave him Dilaudid. Before that, he seemed sleepy. She says she never saw Nurse Melissa Thompson in the room. She said he wasn’t complaining of pain during the day.
[7] David Blake Sr. took Shane to the hospital on July 14. He returned to the hospital the next day at 09:00-10:30. Shane was in I.C.U. and was sedated. He was twitching and itching. The nurse said she would speak to the doctor to get something stronger. After being given a drug between 16:30-17:30, Shane vomited, went in to a “total frenzy” and said it felt like he had a hole in his head. He seemed “stoned out of his tree.”
Medical Evidence
[8] Margo Zachariasz (Margaret) has been a registered nurse since May 2006. She had previously worked half her time in the oncology department and as of July 2007 had administered opiate medications, including morphine and Dilaudid. She came on duty July 15 at 07:30, received verbal reports from the nurse who she was relieving and reviewed the patient’s charts. She received the order sheet and progress notes and saw that morphine was ordered “1-5 mg IV at 2 hours prn…” A 5mg dose of morphine was shown at 08:20, July 15. She first saw Mr. Miller shortly after 08:00. The chart noted he had been reporting extreme pain. During her shift, she saw him 5-6 times.
[9] A physical assessment, recorded 08:30, shows “itching.” Other notations show vomiting, nausea and a pain level of 10/10. He was noted as moaning, crying, restless, nausea and screaming.
[10] He was again given 5 mgs morphine at 11:30. At 11:37 he was reporting excruciating pain (10/10). A new order, recorded at 12:40 increased the morphine dosage to 5-10mg I.V.Q 2 hr prn. Mr. Miller continued to complain of excruciating pain. A further five mgs was administered at 12:25. At 13:40 Mr. Miller is noted as still in terrible pain, and a 10mg dose was given.
[11] When asked at 17:09 he was noted as having throbbing pain, moaning, crying, irritable and restless. The nurse called Dr. Warbeck, described Mr. Miller’s condition, and Dr. Warbeck changed the morphine to Dilaudid, which he started that 5 mgs at 17:30. She believed the relative strength was 1 Dilaudid to 5 morphine. After administering it, her evidence is that she would have gone in to check on him 15-30 minutes later. He was more comforted with the pain. She also gave him gravol for nausea.
[12] In cross-examination, she stated she had worked with Dr. Warbeck before and knew him well. On checking the chart, she knew that Mr. Miller was not opiate tolerant. She acknowledged that itching and twitchiness can be signs of opiate toxicity
[13] At 17:30 he is reported as awake. At 18:47, he was awake, and the pain was improving. In her shift summary prior to the end of her shifts she notes “jerky movement on occasion, until pain, A+ O x 3” – which she stated meant “alert and oriented to maximum”. She testified that she had no concerns with respect to over sedation or respiration, but some concerns with respect to his level of pain.
[14] Melissa Thompson is a registered nurse who was on duty in the evening of the day Shane Miller was admitted in July 2002. She began her shifts at 19:30 and received a shift review from the previous nurse. She noted that Dr. Warbeck had prescribed Dilaudid to replace previously prescribed morphine. At around 20:15, she briefly went into Mr. Miller’s room. Everyone seemed content with family visiting. At 21:00 she took vital signs from head to toe. At 21:30 he was complaining of pain so she gave him 5mgs of Dilaudid IV. He did not appear to be in extreme pain, but complained of lower back pain. At 22:00 she administered antibiotics. He was then watching T.V. She checked on him every hour. Around midnight he was asleep with the lights and T.V. on.
[15] At 02:00 the next morning when she checked on him he was standing, at the side of the bed urinating on the floor. He knew where he was, and was not disoriented. He was very angry and upset with her for not waking him earlier to give him his pain medication, and he was complaining that he should not have to wake up in pain. She called another nurse to help. He was wobbly on his feet, like somebody in extreme pain. He was screaming and swearing. They got him settled, in bed, and he was then rolling around in his bed.
[16] At 02:30, he was awake, alert, and did not appear sedated at all. He reported pain at 9/10. She gave him 5 mgs of Dilaudid and stayed in the room watching him for 15 minutes. He was relaxing and when she left at 02:45 he was settled watching T.V.
[17] At around 03:00 he called her into the room and apologized for the mess on the floor earlier and asked her to turn the T.V. off. He said he had no pain. She testified that she had experience in Dilaudid as this was an oncology ward. She had learned about “opiate naive” and “opiate tolerant” in her training. She was not concerned and saw no need to call a doctor or pharmacist. The Dilaudid seemed to be working. Her evidence is that from 19:00-03:00 he showed no confusion, no slow breathing, did not appear overly sedated, and was aware of his surroundings.
[18] She checked on him at 04:30 and found no vital signs. She called Code Blue and concluded he was dead. Others came in to begin chest compressions and an ICU team was called.
[19] Donna Perry has been a registered nurse since 1995. She is familiar with opiate by I.V. to both tolerant and opiate naive patients. She was working the 19:30-07:30 shift on July 15, 2007. On one occasion she assisted Nurse Melissa Thompson to clean Mr. Miller’s room where he had soiled. The room was disorganized. He was complaining of being in pain, and he was very aggressive towards her
Dr. Kevin Miller
[20] Dr. Kevin Miller was the coroner who investigated Mr. Miller’s death. He has practiced family medicine since 1997, and has been a coroner since 2001. He regularly uses morphine and Dilaudid, and is familiar with the term “opiate tolerance”.
[21] He received a call at 05:27 on July 16, 2007. On attendance to the hospital he reviewed the medical records including the medicine administration records. He could state no clear cause of death and ordered an autopsy. He requested a special analysis to test for opiate levels because of the deceased father’s indication of the deceased`s shaking, a fact he learned after the death, which is indicative of toxicity. He referred to a CFS Report of J.W. Rajotte, Forensic Toxicologist dated September 6, 2007 which determined that the level of hydromorphone blood concentration found is what would be expected after chronic use, rather than acute. Investigation determined no chronic use. His conclusion after reviewing this report is that the deceased was not opiate tolerant.
[22] Dr. Miller subsequently prepared his Coroner’s Investigation Report which resulted in his conclusion, previously referred to, that the cause of death was mixed drug overdose, resulting from an unintentional overdose of opiate analgesics. Shane Miller’s family later requested that further investigation be carried out. Dr. Miller subsequently obtained a report authored by Dr. Jacqueline Parai of the Forensic Pathology Unit of CFS. Dr. Miller reviewed that Dr. Parai‘s report had considered the issue of enterovirus, however, concluded that the viral infection was not responsible for Mr. Miller’s death. She reached a similar conclusion as to the cause of death. A Medical-legal Report of pathologist Dr. El Demellawy specified the same conclusion.
[23] In cross examination, Dr. Miller stated that his statutory duty as a coroner is to answer 5 questions, and only when he can answer all 5, can he issue a finding of cause of death. As of November 2007, he considered that he had enough information to issue his report. He testified that the Regional Coroner’s Office continued to investigate because the pattern of death was not consistent with a narcotic death. In an e-mail dated December 20, 2007, Dr. David Eden, Regional Coroner, indicated “if he in fact died from the hydromorphone, and it was administered intravenously, then he would have been expected to have died shortly after the injection, and not 2 hours later”. Other possibilities were investigated. The Coroner’s Office could not determine any other matter of death and determined there was sufficient evidence to support the “probable mechanism.” Dr. Miller acknowledged that it is not uncommon where there is insufficient information to determine medical cause of death, and the death is then called “undetermined”. He acknowledged that if the opiates had not been present this death may have been one of “undetermined cause”.
[24] He testified that the Regional Coroner’s Office noted that other causes of death were later explored, and none were found.
(Complete text continues exactly as in the original judgment…)
The Hon. Mr. Justice T.A. Platana
Released: December 20, 2013
COURT FILE NO.: CV-09-0320-00 & CV-09-0321-00
DATE: 2013-12-20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MELISSA ANNE SHANTRY and TAYLOR ANNE MILLER, a minor by her Litigation Guardian, MELISSA ANNE SHANTRY
Plaintiffs
- and -
MELISSA THOMPSON, THUNDER BAY REGIONAL HEALTH SCIENCES CENTRE and PAUL WARBECK
Defendants
AND BETWEEN:
DAVID BLAKE, DONNA MILLER, HAROLD MILLER, DENISE POST-BLAKE, BURKLEY BLAKE and DAVID BLAKE JR.
Plaintiffs
- and -
JESSICA HUGHES, MARGARET ZACHARIASZ, MELISSA THOMPSON, THUNDER BAY REGIONAL HEALTH SCIENCES CENTRE and PAUL WARBECK
Defendants
REASONS FOR JUDGMENT
Platana J.
Released: December 20, 2013
/nf & /mls