Reasons for Decision

OSHAWA COURT FILE NO.: CV-17-2803
DATE: 2025-04-29
ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:
Bonnie Bradley, Plaintiff
– and –
Dr. Richard Wang, Defendant

Appearances:
Warren Whiteknight and Casey Dorey for the Plaintiff
Kosta Kalogiros and Erin Chesney for the Defendant

Heard: Nov. 21-24, Nov. 27-30, Dec. 1, 4-8, 2023, Oct. 28-30, 2024

REASONS FOR DECISION
M.E. Vallee J.

Introduction

[1] The plaintiff, Bonnie Bradley, is a Registered Nurse and at the relevant time worked in the emergency department at Lakeridge Health, a hospital in Oshawa. Over the course of her 15-year career, she had administered many vaccinations to patients and had received many herself. Her employment required her to have current vaccinations. She made an appointment to see her family doctor, Dr. Brankston, to have a tetanus vaccination and also to discuss a thyroid issue. At that time, Dr. Brankston was supervising a first-year family medicine resident, the defendant Dr. Richard Wang. On December 1, 2015, Ms. Bradley attended for her appointment. She saw Dr. Wang. He requisitioned blood testing for the thyroid issue and administered the vaccination. Ms. Bradley states that she experienced pain like white hot lightning in her arm at the injection site. She looked at the needle and saw it was not in the correct place for an injection – it was too high and too anterior. In the weeks and months following the vaccination, the pain continued. Ms. Bradley experienced pain going up her arm and developed a significant shoulder condition which will be explained below. She states that it has prevented her from working and has significantly impacted her life.

[2] Ms. Bradley brings this action against Dr. Wang alleging negligence and claiming various heads of damages. The action against Clinic Management and Technical Services has been discontinued.

Issues to be Determined

[3] What was the applicable standard of care on December 1, 2015 for a doctor to administer a tetanus vaccination?

[4] Did Dr. Wang breach the standard of care?

[5] If so, on a balance of probabilities, did the breach cause Ms. Bradley’s injury?

[6] If so, how much should she be awarded for general damages?

[7] What are Ms. Bradley’s ongoing needs; and what is the cost of them?

[8] Has Ms. Bradley incurred a past income loss? If so, how much? Will she incur a future income loss? If so, how much?

[9] Has she incurred a pension loss?

[10] Should she have returned to some form of modified work?

[11] What are Ms. Bradley’s out of pocket expenses?

[12] What is OHIP’s subrogated interest?

The Standard of Care

[13] The plaintiff called Dr. Ken Berger to provide expert opinion evidence on the standard of care. He was qualified as an expert in family medicine to give opinion evidence on the standard of care in 2015 for administering intramuscular deltoid vaccinations including the risks, benefits and side effects and the indicia of properly and improperly administered intramuscular vaccinations.

[14] The defendant called Dr. Nikolina Mizdrak to similarly provide expert opinion evidence on the standard of care. She was qualified as an expert in family medicine to opine on the standard of care applicable to family physicians in 2015 regarding administering intramuscular deltoid injections, the side effects and/or indicia, if any, of properly or improperly administered intramuscular vaccinations.

[15] Dr. Berger and Dr. Mizdrak agreed on the applicable standard of care. The injection site must be located, which they referred to as landmarking. In order to do this, a doctor would locate the end of the acromium process (the bone at the end of the shoulder), then apply two finger widths horizontally underneath it, as a measure to determine the correct site, then locate the middle of the deltoid muscle. The doctor would mark the site, disinfect the area and then administer the vaccine perpendicular to the skin.

Did Dr. Wang Breach the Standard of Care?

Ms. Bradley’s Evidence

[16] Ms. Bradley’s evidence regarding the location on her arm where the vaccination was injected is different from Dr. Wang’s evidence as to how he would typically landmark the location and administer an injection. Ms. Bradley testified that her nursing training included doing intramuscular injections. Her steps included assessing a patient for weight and muscle tone, drawing up the medication, landmarking and cleaning the area and then putting the injection in the middle of the deltoid muscle. After that, she would chart the injection, which included recording the lot number, the position where it had been injected and the patient’s tolerance.

[17] Ms. Bradley stated that prior to December 1, 2015, as a Registered Nurse, she had administered thousands of vaccinations. She had also received a number of vaccinations. She stated that she did not have an adverse reaction to any of them.

[18] Ms. Bradley stated that Dr. Brankston had been her family doctor since 2009. She stated that she attended at his office on Tuesday December 1, 2015 to obtain a vaccination for tetanus, diphtheria, and pertussis known as Adacel. (I will refer to it as the tetanus vaccination.) She also wanted to have her blood checked for a thyroid condition. Instead of seeing Dr. Brankston, Dr. Wang came into the room. He was a first-year medical resident who was working at Dr. Brankston’s clinic under his supervision. Ms. Bradley stated that she was somewhat surprised to see him as she was expecting to see Dr. Brankston. Dr. Wang filled out the form for the bloodwork and left the room to draw the vaccine. Ms. Bradley sat down in the chair by the desk. He returned and cleansed her left arm. She stated that she looked away because she did not want to watch the needle go into her arm. When the injection went in, she immediately had significant pain which she described as a white blast of lightning. She did not jerk her arm but yelled out. She stated that she turned her head and could see the needle which was still in her arm. The needle was not where she thought it should be. She described it as “way too high up and way too close” to the front of her arm in comparison to the middle of the deltoid, which was where it should have been placed. She stated that she was 100% certain that the needle was in the wrong place because she saw it. She denied that the pain affected her perception of the location. She could not specifically remember the length of the needle. She pointed to the location on her arm where the needle went in. During her initial appointments with Dr. Brankston and Dr. Mason after December 1, 2015, Ms. Bradley showed them the location where the vaccination had been injected. (During their testimony, both doctors pointed to the location on their arms to illustrate what Ms. Bradley had told them.)

[19] Ms. Bradley stated that she did not see how Dr. Wang carried out his landmarking to determine the injection site because she was looking away. Ms. Bradley stated that she had been taught how to landmark an injection site. This involved finding the end of the acromion, placing two fingers underneath it horizontally on the deltoid muscle and then injecting into the middle of the deltoid. Ms. Bradley stated that she did not say anything to Dr. Wang about the location of the injection. She was too concerned about the pain. She stated that she tried to tell him three times about the significant pain but he did not seem to pay attention. She stated that she yelled out, stated “that really hurts” or “it hurt a lot” and “you’re not understanding me.” He did say, “Ya tetanus hurts” and then left the office. She did not say anything to Dr. Wang about the location of the needle nor to the receptionist on the way out of the office. During her testimony, Ms. Bradley pointed to the spot on her shoulder where the injection was given. Ms. Bradley stated that she had never felt pain from her previous injections. She had never had a patient react like this to an injection that she had administered.

[20] I will set out here Ms. Bradley’s evidence of what occurred up to December 9, 2015 because the defendant states that her actions were inconsistent with the pain she describes, and partly to maintain the chronology.

[21] Ms. Bradley stated that after she received the injection, she went to the lab to have blood drawn. She then drove for 30 minutes to have lunch with a friend who was in a bad emotional situation because she was going through a divorce. Ms. Bradley stated that part way through the lunch, she went to the bathroom and was crying because of the pain.

[22] Ms. Bradley stated that she then went home and was feeling “pretty rotten”. Her husband, Grant, was at work that day. She laid on the couch and cried. When Grant came home, she told him that the vaccine had been injected into the wrong place and that she was having severe pain.

December 7, 2015

[23] Over the next three days (Wednesday December 2 to Friday December 4, 2015), Ms. Bradley did not call Dr. Brankston’s office. She stated that she hoped the pain would go away but it was immense. Ms. Bradley stated that she called Dr. Brankston’s office on Monday December 7, 2015 and made an appointment for the next day. She went to work on December 7, 2015 and was able to manage because she was working in only the medical observation zone.

December 8, 2015

[24] Ms. Bradley stated that she went to her appointment with Dr. Brankston on December 8. She told him that she was very concerned that there had been some nerve damage to her left arm because the injection had been improperly landmarked. She was having severe pain and had trouble using her arm at work. Dr. Brankston noted that Ms. Bradley’s pain had improved 50%. He prescribed Lyrica. She went to work after the appointment. At 1:08 p.m., she called Dr. Brankston and requested stronger pain medication, Dilaudid. He faxed a prescription for it.

[25] Dr. Brankston stated Ms. Bradley reported a burning-like sensation. He believed it had a neuropathic origin. She was experiencing numbness in the distribution of the median nerve. He believed she likely had irritation of the nerve from the injection. He prescribed Lyrica which is commonly used for neuropathic pain.

December 9, 2015

[26] Ms. Bradley stated that on the next day, December 9, she went to work but only lasted for 1.5 hours because she had too much pain. She could not work so she returned home. The pain was causing her to cry. She could hardly eat anything. At this point, her husband Grant began to look after all aspects of the home. Ms. Bradley did not return to work after this date.

Dr. Wang’s Evidence

[27] Dr. Wang stated that during medical school, he had a day of training in how to do injections. He had a chance to practice on a dummy. A nurse instructor watched the students doing it. In his clerkship, he administered intramuscular deltoid injections. By the time he graduated from medical school he had done a few dozen injections. None of his supervisors stated that he was doing it incorrectly.

[28] Dr. Wang described the process that he was trained to use for administering an intramuscular deltoid injection. He would locate the lateral tip of the acromion on bone, measure two finger widths down the arm from it, put his middle finger at the back of the arm and his thumb on the front of the deltoid to locate the center of the muscle and then give the injection in the center. Dr. Wang stated that by December 1, 2015, he had completed five months of his family medicine residency. By that date, he administered a few dozen intramuscular deltoid injections. He was doing intramuscular deltoid injections independently. Every time he administered a vaccination, he did it the same way that he was trained.

[29] With respect to his encounter with Ms. Bradley, Dr. Wang stated that he recalled the appointment but not all of the details. He recalled the injection but not the specifics. Nobody else was present when he gave Ms. Bradley the injection. He does not have a visual memory of where the needle was injected. Dr. Wang stated that he would have administered the injection the same way as he had been trained to do it. He stated that this is the only way that he does intramuscular deltoid injections. He stated that he would not administer an injection at the location shown by Ms. Bradley. He has never administered one there. Dr. Wang stated that the location identified by Ms. Bradley was significantly anterior to any place that he has ever inserted an intramuscular deltoid needle. It would not be a safe place to administer a vaccination. There would be a heightened risk of a bad outcome in contrast to administering in the midline of the deltoid. He did not recall Ms. Bradley’s expressing concerns about pain three times during the encounter. A patient’s experiencing pain like lightning would not be a typical response to a vaccination administration. Dr. Wang stated that after he administered the vaccination he made a progress note in Ms. Bradley’s chart and signed it at the bottom. After his signature, there is a notation, “Case Reviewed and agree with above – Edwin Brankston, preceptor”. Dr. Wang stated that he had no recollection of discussing this matter with Dr. Brankston.

Credibility and Reliability of Evidence

[30] Credibility is a significant issue in this case. In Osmani v. Universal Structural Restorations Ltd., 2022 ONSC 6979, paras. 265-268, Justice Di Luca described the analysis for making credibility findings:

As has been often stated, there is no magic formula to be applied in determining whether a witness is telling the truth. There are many factors that may be relevant in determining credibility. Some of the key factors include: whether the witness’ evidence is internally consistent, whether it is externally consistent with evidence from other witnesses or exhibits, whether the witness has a bias or motive to give evidence that is more favourable to one side or the other, whether inconsistencies in the evidence are about important or minor matters, what explanations are given for any inconsistencies, and whether the inconsistencies suggest that the witness is lying.

Credibility is to be assessed based on the totality of the evidence before me. The court is not to engage in a piecemeal determination of a particular witness’ evidence standing alone without context and without reference to the balance of the evidence. That said, in conducting a credibility analysis, I am permitted to accept some, none or all of a witness’ evidence.

Ultimately, the assessment of credibility is a task guided by common sense and reason. In this regard, I am guided by the following oft-quoted passage from Faryna v. Chorny, para. 11:

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 a 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. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again, a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to be telling the truth" is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind. [Emphasis added.]

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Justice M.E. Vallee
Released: April 29, 2025

Endnotes

[1] Shoulder blade
[2] I am not setting out the content of these articles because both Dr. Ruggles and Dr. Smith stated that they were controversial and that they did not base their opinions on them.
[3] SIRVA is an acronym for a condition discussed in the articles, which means Shoulder Injuries Related to Vaccine. Dr. Smith stated that he conducted a literature review on shoulder injuries related to vaccine administration because Dr. Ruggles had referred to it and he was not familiar with it. He stated that it is a medico-legal term, not a diagnosis. In his 2022 report, he states that it identifies symptoms that have arisen from vaccinations. It was introduced in 2010 by the Vaccine Injury Compensation Program in the United States (which was a no fault system) and has been used in various medical contexts when discussing some of the adverse effects of vaccine administration. He stated that very little is known about the pathologic mechanisms related to symptoms. Little is known about what causes them. The literature indicates that more studies are required. Dr. Smith stated that the majority of his opinion is based on his review of Ms. Bradley’s charts and his medical examination of her.
[4] Shoulder blade