Court File and Parties

COURT FILE NO.: CV-21-004-000 DATE: 2023-11-29

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Estate of Hermina Fletcher, Melvin Fletcher JR., and Melissa Fletcher Plaintiff/Moving Parties

D. Judson, for the Plaintiff/Moving Parties

- and -

Lindsey Coyle Defendant

Not appearing

HEARD: October 10, 2023 at Fort Frances, Ontario via Zoom

Regional Senior Justice W. D. Newton

Decision On Motion

Overview

[1] Lindsey Coyle was a nurse at La Verendrye Hospital – Riverside Health Care Facilities Inc. (“the Hospital”) in Fort Frances. Hermina Fletcher was her patient.

[2] Ms. Coyle falsified medication orders for Ms. Fletcher and failed to administer medication to Ms. Fletcher as ordered by the responsible physician. Ms. Fletcher died.

[3] Ms. Coyle pleaded guilty to criminal negligence causing Ms. Fletcher’s death. She is to be sentenced on January 16, 2024.

[4] The plaintiffs, Ms. Fletcher’s Estate, her son, and a granddaughter, have sued Ms. Coyle and the hospital for damages suffered as a result of Ms. Fletcher’s death. Ms. Coyle has not defended the action. The claim against the hospital has settled and the action against the hospital was dismissed.

The Facts

Liability and Causation

[5] As Ms. Coyle has not defended this action, she is deemed to admit the allegations in the Statement of Claim. Ms. Coyle was noted in default on May 10, 2021.

[6] In the Statement of Claim it is alleged that:

Hermina's death was caused by:

a. Lindsey's theft of Hermina's medication instead of administering it or providing it to the patient; and/or

b. Lindsey's falsification of Hermina's prescriptions, records, and patient chart in order to conceal her medication theft and/or to dispense additional medication doses which Lindsey then stole, causing other health care providers to administer incorrect or erroneous doses to Hermina; and/or

c. The administration of a heavy dose of medication to Hermina by a third party, on the belief that she had not been responding to previous, lower doses which had, in fact, been stolen by Lindsey and were not administered to Hermina or were not administered in their prescribed dosage; and/or

d. Other interference with or misappropriation, manipulation, or forging of Hermina's medication, pain management, medical prescription, or the administration of medication or medical substances to Hermina by Lindsey and/or the Hospital.

[7] Additionally, the evidence on this motion includes the transcript of the proceeding in the Ontario Court of Justice from August 29, 2022, when Ms. Coyle pleaded guilty and admitted the facts used to support her conviction. The admitted facts included:

• Ms. Fletcher was born on February 27, 1938, and died on January 4, 2015.
• The cause of death was morphine toxicity.
• Ms. Fletcher was admitted to the Hospital on December 20, 2014, and was critically ill upon attendance.
• Dr. Moorhouse noted that the victim was prematurely greatly aged, extremely frail and is frankly dying from multiple different reasons not any of them obviously treatable. Her family physician made a note in her chart that her care was noted to be palliative.
• She was not prescribed any narcotics until December 29, 2014.
• The prescription was to be 2 to 4 mg of morphine to be administered by IV.
• On January 1, 2015, the prescription was changed to 2 to 5 milligrams of morphine as needed.
• Between December 29, 2014, and the beginning of Ms. Coyle’s shift at 7:30 a.m. on January 3, 2015, Ms. Fletcher received a total of 24 mg of morphine at appropriate intervals.
• On January 3, 2015, Ms. Coyle changed the medical orders to 5 to 10 mg of morphine and subsequently recorded that 10 mg doses of morphine were administered to Ms. Fletcher between 8:20 a.m. and 7:20 p.m. on January 3, 2015, for a total of 70 mg.
• Ms. Coyle was noted on hospital records to be the nurse withdrawing the 10 mg vials of morphine on each occasion during that interval on January 3, 2015.
• When another nurse started her shift at 7:30 p.m. on January 3, 2015, she noted that Ms. Fletcher was alert. This new nurse administered 10 mg of morphine to Ms. Fletcher at 9:30 p.m. Subsequently, Ms. Fletcher lost consciousness and responsiveness, and passed away at approximately 6:11 a.m. on January 4, 2015.
• The regional coroner prepared a report indicating that Ms. Fletcher’s clinical course through the day did not support the conclusion that she received 70 mg of morphine over the 12-hour period on January 3, 2015, and opined that the victim received little, if any, morphine throughout that day. He noted that Ms. Fletcher’s death could have been caused by natural causes but that her illness appeared to be clearing up. He concluded that her death was due to morphine toxicity. A similar opinion was received from Dr. Walker, a forensic pathologist, who concluded that Ms. Fletcher likely died from acute morphine toxicity and that she did not receive 70 mg of morphine during the day on January 3, 2015.
• An audit was conducted of the narcotics delivery system at the Hospital and 700 mg of morphine and 22 mg of hydromorphone were either unaccountable or had unexplained discrepancies. Handwriting and initials were compared. Ms. Coyle was determined to be the person making the entries and the person signing out the drugs.
• When questioned, Ms. Coyle admitted to stealing narcotics for her own use.
• Ms. Coyle gave a statement to the police in which she admitted to stealing morphine from the Hospital, admitted to creating fictitious patients in order to steal morphine, and admitted to changing the medical administration reports in order to steal morphine.

[8] It was confirmed that Ms. Coyle reviewed and admitted those facts and specifically admitted that, by increasing the dosage and not delivering the morphine, she put Ms. Fletcher on a path to receive doses of morphine which caused Ms. Fletcher’s death.

[9] Also before me, and subject to a sealing order as these documents formed part of the Crown disclosure, are the reports of the coroner, Dr. Wilson, and the report of the forensic pathologist, Dr. Walker.

[10] Dr. Wilson noted:

13. It is possible that her death was due to natural disease. She had elevated enzymes that indicated pancreatic injury, earlier in her course in hospital. She had kidney failure, likely related to dehydration and immobility, when she was initially admitted to hospital. These illnesses appeared to be clearing up however, by the time she died. She may have had pneumonia; her white blood cell count was increasing in the period leading up to her death. She may have had a stroke, or a myocardial infarction, or systemic infection (sepsis). None of these causes of death reach entirely due to natural disease.

[11] Dr. Walker described Ms. Fletcher pre-hospitalization medical history as follows:

The decedent Hermina Fletcher (dob February 27, 1938) was a 76-year-old woman with a history of dementia, cachexia, osteoporosis with multiple fragility fractures, chronic pain, pressure sores and chronic obstructive pulmonary disease (COPD) who had been prescribed a multitude of sedative medications for her conditions which included morphine.

[12] Cachexia is weakness and wasting of the body due to severe chronic illness.

[13] As to cause of death, Dr. Walker concluded that:

(i) Hermina Fletcher likely died from acute morphine toxicity and (ii) she did not receive 70 mg of morphine between 0820 hrs and 1925 hrs on January 3, 2015.

Damages

Melvin Fletcher Jr.

[14] Melvin Fletcher is Hermina Fletcher’s son. In his affidavit he describes himself as “the closest and most present in my mother’s life.” He has one brother and one sister.

[15] He described his childhood as being in his mother’s care most of the time. He described the things that his mother taught him and which he carries with him to this day.

[16] His mother supported him and his young family, and she lived close by. She was in their lives on a daily basis. His mother was his family’s primary alternate means of childcare.

[17] When Mr. Fletcher Jr.’s marriage was “breaking down”, his mother’s home became the “go-to refuge” for his daughters.

[18] After his daughters moved away for education purposes, he continued to see his parents every day.

[19] He was present when his mother was admitted to the Hospital on December 20, 2014.

[20] His father passed away in July 2017 and grieved for his wife’s passing until his death.

[21] A copy of the victim impact statement he read at Ms. Coyle’s sentencing hearing was attached to his affidavit.

Melissa Fletcher

[22] Melissa Fletcher is Hermina Fletcher’s granddaughter. Her father is Melvin Fletcher Jr. Melissa is 30 years old.

[23] In her affidavit, she described her grandmother as a “integral part of my life from the day I was born until this very day.” She said that her grandmother was a primary support for her and her sister throughout their childhood and into adulthood, especially after their parents’ marriage breakdown in 2006.

[24] Growing up, she lived close to her grandmother in Fort Frances. Her grandmother was the family’s primary babysitter. She taught Melissa to bake and sew. Melissa said that her grandmother was a “strong support for me as I grew up and became my own person”.

[25] Melissa moved from Fort Frances to Toronto to begin post-secondary education in 2012. Melissa fondly remembered her long telephone conversations with her grandmother while she was in college.

[26] She was home in December 2014 and was present when her grandmother was taken by ambulance to the hospital.

[27] Melissa described how she was thrown into an “emotional whirlwind” as “one of my biggest supports and role models was stripped away from me just as I was beginning to figure out who I was as an individual and transition to adulthood.”

[28] Since her grandmother’s death, Melissa has found herself experiencing bouts of depression and anxiety. Her victim impact statement filed for the sentencing hearing was attached as an exhibit to her affidavit. She has incurred out-of-pocket expenses as set out in her affidavit totaling $3,600.06.

Position of the Plaintiffs

[29] The Estate seeks general damages in the amount of $200,000.

[30] Melvin seeks damages of $55,000 and Melissa seek damages of $53,600.06 for loss of care, guidance, and companionship and expenses pursuant to the Family Law Act. These claimants rely on Moore v. 7595611 Canada Corp., 2021 ONCA 459.

[31] All plaintiffs seek interest and costs.

[32] Additionally, the plaintiffs seek a declaration that Ms. Coyle shall have no right to seek contribution or indemnity against the Hospital; an order redacting the settlement agreement with the hospital and medical records and expert reports obtained through Crown disclosure; and the adjournment of the balance of this motion to allow punitive damages to be determined once Ms. Coyle has been sentenced. The Victims’ Bill of Rights, 1995, S.O. 1995, c. 6, s. 4(4), provides that a criminal sentence must be taken into consideration before ordering punitive damages.

[33] As this action was commenced on April 19, 2021, more than two years after the death of Hermina Fletcher, an issue arises as to whether this action is barred by operation of law as section 38(3) of the Trustee Act, R.S.O, 1990, c. T.23, provides that no action shall be allowed for the death or the loss of expectation of life unless the action is brought within two years from the death of the deceased. The plaintiffs rely upon the common law doctrine of fraudulent concealment to suspend the operation of the limitation period and rely upon a number of decisions from the Ontario Court of Appeal and the Supreme Court of Canada. See e.g., Giroux Estate v. Trillium Health Centre (2005), 74 O.R. (3d) 341; Bikur Cholim Jewish Volunteer Services v. Penna Estate, 2009 ONCA 196; Pioneer Corp. v. Godfrey, 2019 SCC 42; Beaudoin Estate v. Campbellford Memorial Hospital, 2021 ONCA 57.

Analysis and Disposition

[34] I am satisfied that the doctrine of fraudulent concealment suspends the operation of the limitation period in this case. Ms. Coyle’s action in falsifying the medical records is exactly the nature of wrongdoing that this common law doctrine was created to address. As the true facts were not known until charges were laid against Ms. Coyle on August 1, 2019, the limitation period clock began to run then. This action was commenced within two years of that date and, therefore, the Estate’s claim for damages, and the claims for damages under the Family Law Act by the individual plaintiffs, are not statute barred.

[35] The civil standard of proof of liability and causation is proof on a balance of probabilities. I am satisfied that the facts deemed admitted, and the facts admitted to support Ms. Coyle’s conviction for criminal negligence causing death, lead to the conclusion that Ms. Coyle’s conduct in falsifying the medical records and withholding medication was a cause of Ms. Fletcher’s death. Ms. Coyle obviously owed Ms. Fletcher a duty of care, and her conduct breached that standard of care. She is liable to the Estate, and the Family Law Act claimants, for damages.

[36] With respect to the Estate’s damages, the plaintiffs rely on the decision in Zarei v. Iran, 2021 ONSC 3377 which dealt with the suffering of individuals who were passengers on an airplane. The airplane was hit by two missile strikes 30 seconds apart, which caused the airplane to crash four minutes later killing all on board. In that case, the Court awarded $1 million to the estate of each deceased for their pain and suffering in those four minutes. In his additional reasons (2021 ONSC 8569), Justice Belobaba noted at para. 31:

The judicially-imposed $100,000 cap on pain and suffering damages in cases involving negligence (first imposed in Andrews in 1978 and valued at about $402,850 in today's dollars) does not apply in cases of intentional wrongdoing involving criminal behaviour, such as here. [Footnote omitted.]

[37] Zarei was, like this case, undefended. While this case also involved criminal activity which caused or contributed to a death, I note that Ms. Fletcher was hospitalized and was suffering before any conduct by Ms. Coyle worsened her condition. Dr. Wilson, the coroner, stated that Ms. Fletcher had kidney failure when she was initially admitted to the Hospital, although that appeared to be clearing up by the time she died. As already noted, Dr. Walker, the forensic pathologist, described in Ms. Fletcher’s pre-hospitalization medical history, as follows:

The decedent Hermina Fletcher (dob February 27, 1938) was a 76-year-old woman with a history of dementia, cachexia, osteoporosis with multiple fragility fractures, chronic pain, pressure sores and chronic obstructive pulmonary disease (COPD) who had been prescribed a multitude of sedative medications for her conditions which included morphine.

[38] Ms. Fletcher was suffering from weakness and wasting due to severe chronic illness.

[39] The period of time when she was deprived of medication, and then overmedicated as a result of Ms. Coyle’s actions, was approximately 24 hours.

[40] The analysis in other cases is of more assistance to me in assessing damages in this case. In Adair Estate v. Hamilton Health Sciences Corp. (2005), 32 C.C.L.T. (3d) 283 (Ont. S.C.), Harris J. assessed the Estate’s damages at $50,000 based on these findings at para. 189:

For the three weeks that Mrs. Adair lived past her original surgery, her pain was unabated and utterly frightening. The prospects of death would present themselves in her mind at some point through her odyssey. She would have suffered greatly during those tortured days and nights until her demise. She was in pain throughout and no one could help her.

[41] In Thompson v. Handler, 2023 ONSC 5042, LeMay J. assessed the Estate’s damages at $40,000 when the patient was alive for approximately seven days after the negligent act and was unconscious for most of that time period.

[42] Following this analysis, I assess the Estate’s entitlement to general damages in the amount of $25,000.

[43] The claims of Ms. Fletcher’s son and granddaughter for damages for loss of care, guidance, and companionship, also have to be assessed in light of Ms. Fletcher’s medical condition and life expectancy.

[44] In Moore, the decision relied upon by the plaintiffs, the Family Law Act claimants were the parents of a 24-year-old daughter who died in a house fire. The court observed at para. 34 that the:

…fire destroyed all hope of the society, comfort, and protection that Alisha would give to her parents. The respondents never got to experience of these rewards of association past Alisha’s 24th year. The fire eradicated their future together, repeating parenthood apart, the family away, and leaving both respondents childless.

[45] I accept that Melvin had a very close relationship with his mother and that he continued to see her almost every day up until her death. I also accept that Melissa had a very close relationship with her grandmother, particularly as she was growing up in Fort Frances, and that the close relationship continued after Melissa moved away.

[46] Pursuant to s. 61(2) of the Family Law Act, damages recoverable may include:

(a) actual expenses reasonably incurred for the benefit of the person injured or killed; (b) actual funeral expenses reasonably incurred; (c) a reasonable allowance for travel expenses actually incurred in visiting the person during his or her treatment or recovery; (d) where, as a result of the injury, the claimant provides nursing, housekeeping or other services for the person, a reasonable allowance for loss of income or the value of the services; and (e) an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred.

[47] The expenses incurred by Melissa relate to court attendances and meetings with victim services and prosecutors. The expenses in 2018 relate to travel from Toronto to Thunder Bay to meet with police. The travel in August 2022 related to her attendance at court when Ms. Coyle pleaded guilty. The expenses incurred in 2023 relate to her attendance at the sentencing hearing. As such, these are not expenses recoverable under the Family Law Act.

[48] It is asserted in the factum filed in support of this motion that Melvin claims $5,000 for funeral and headstone costs and that the court has recently accepted evidence that the average cost of a funeral was $6,200. However, there is no evidence before me at this time of actual funeral and headstone costs reasonably incurred, or any evidence of the average cost of a funeral. Therefore, I cannot make an award at this time but will accept evidence with respect to these costs when this motion continues before me.

[49] In the recent decision of The Estate of Mary Fleury et al v. Olayiwola A. Kassim, 2022 ONSC 2464, Stothart J. discussed the challenges of assessing damages for loss of guidance, care, and companionship, and described the analysis the court must undertake. She said:

276 Courts have struggled to quantify the amount of money that can reflect the loss of a loved one. As Justice Nordheimer stated in Hechavarria v. Reale, [2000] O.J. No. 4288 (ONSCJ) at para. 11:

As anyone will quickly appreciate, and certainly any judge that has to undertake the task, it is impossible to quantify the loss of life in monetary terms. No amount of money could ever replace the contribution which a loved one makes to the people around him or her. The loss of the care, companionship, guidance and the very important emotional bond cannot be calculated in dollar terms. The awarding of money, however, is the only remedy which a court has available to it in circumstances such as this. Further, when considering the amount to be awarded, a judge must be constrained to a range that is consistent with awards previously made in other cases so that the results in any given case will have a measure of consistency with other like cases. In that way, the courts try to achieve a degree of predictability which in turn, it is hoped, will assist future litigants to resolve such matters without the need for a full trial with all of its attendant hardships and expense.

277 What "loss of care, guidance and companionship" was described by the Ontario Court of Appeal in To v. Toronto Board of Education (2001), 204 D.L.R. (4th) 704 at para 36 as follows:

Companionship, as it was defined in Mason v. Peters in a fatal accident context, consists of the deprivation of the society, comfort and protection which might reasonably be expected had the child lived. Robins J.A. described it as "the loss of the rewards of association which flow from the family relationship". Care was referred to by Linden J. in Thornborrow v. MacKinnon (1981), 32 O.R. (2d) 740 (Ont. H.C.) as including "feeding, clothing, cleaning, transporting, helping and protecting another person". Thornborrow was cited with approval by Robins J.A. in Masonv v. Peters. See also Huggins v. Ramtej (Ont. S.C.J.). In Thornborrow, Linden J. described guidance as including such things as education, training, discipline and moral teaching.

278 Each case depends on a full assessment of the evidence, on a case-by-case basis. Various factors to be considered include the circumstances of the death, the age of the deceased, the age of dependent, the nature and quality of the relationship between the deceased and the dependent, the dependent's personality and ability to manage the emotional consequences of the death, and the effect of the death on the dependent's life. Wilcox v. "Miss Megan" (The), 2007 FC 1000 at para 90.

279 This assessment must be objective, unemotional and based on the evidence presented to the court. The assessment does not include compensation for the grief, sorrow and mental anguish suffered. Lawrence Estate v. Alexander, 2009 ONSCJ 1148 at para. 502; Reidy v. McLeod Estate, 2009 ONCA 768 at para. 4.

[50] In this case, an adult son (age not stated but assumed to be mid 50’s) and an adult granddaughter, age 30, claim damages for the loss of guidance, care, and companionship of Hermina Fletcher who was 76, suffering from dementia, and weakness and wasting from severe chronic illness.

[51] Considering these factors, I assess general damages under the Family Law Act as $40,000 for Melvin and $25,000 for Melissa.

[52] Prejudgment interest will run from the date of service of the Statement of Claim unless notice was given prior to service.

[53] Costs of this motion and action are sought on a substantial indemnity basis in the amount of $40,000 inclusive of HST. The Victims’ Bill of Rights, s. 4(6), directs that a judge who makes an order for costs in favour of the victim of a prescribed crime shall make the order on a substantial indemnity basis unless the judge considers that to do so would not be in the interest of justice. Criminal negligence causing death is a prescribed crime. Costs shall be on a substantial indemnity basis. I have reviewed the cost outline submitted and note that the costs outline lists fees incurred in excess of $40,000. I am satisfied that an award of $40,000 inclusive of HST is appropriate in the circumstances.

[54] The sealing order is granted.

[55] I also agree that a “bar” order is appropriate in this case for finality. The defendant, Lindsey Coyle, shall have no right to seek contribution, indemnity, or to bring any other claims for the sums against the plaintiffs or La Verendrye Hospital – Riverside Health Care Facilities Inc.

[56] The balance of the motion is adjourned to a date to be fixed by the trial coordinator.

“Original signed by” The Hon. Justice W.D. Newton, R.S.J.

Released: November 29, 2023