Forabosco v Swanepoel, 2015 ABQB 755

Court of Queen ’ s Bench of Alberta Citation: Forabosco v Swanepoel, 2015 ABQB 755 Date: 20151127 Docket: 0803 08210 Registry: Edmonton Between: Anita Forabosco, and Isabella Cornelia Heinemann, an Infant by Her Next Friend, Anita Forabosco Plaintiffs - and - Dr. Abraham Swanepoel and Dr. Lisa Wilson Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice R.

Paul Belzil _______________________________________________________ The Action [ 1 ] On June 12, 2008, Anita Forabosco, surviving widow of Russell Heinemann, on behalf of herself and their daughter, Isabella Cornelia Heinemann, filed a Statement of Claim pursuant to the Fatal Accidents Act , RSA 2000 c. F-8 (as am) against Dr. Abraham Swanepoel and Dr. Lisa Wilson alleging that they negligently failed to diagnose and treat his medical condition resulting in him committing suicide on June 18, 2006.

The action engages issues of standard of care, foreseeability and the impact of the failure of physicians to chart alleged treatment.

[ 2 ] The parties reached a Without Prejudice agreement on damages, thus the trial proceeded on the issue of liability only. Evidence for the Plaintiffs A. Anita Forabosco [ 3 ] Anita Forabosco is now 50 years of age, resides in Jasper and is employed as a Registered Nurse at the Hinton Health Centre. She was married to Russell Heinemann and they had one child, Isabella. [ 4 ] They met when they were Registered Nurses working at the Glenrose Hospital in Edmonton.

She confirmed that her late husband did have a B.Sc. in Nursing and that he started working in March 2006 at the Seton Hospital in Jasper, having earlier worked at the Hinton Health Centre. [ 5 ] She described him as being a very healthy, active individual, involved in many sporting activities. [ 6 ] She was not aware that he suffered from any form of mental illness and, in particular, was not aware that he ever suffered from depression or that he had ever been diagnosed with depression. [ 7 ] At the time of his death, to her knowledge, he was not taking any prescription or non-prescription medication. [ 8 ] She testified that in August 2005, her husband disclosed that he had a problem with medications, specifically Tylenol 3, Codeine and Morphine, which he was stealing from his employer, the Hinton Health Centre and that when he began to abuse Morphine, he realized he had a serious problem. [ 9 ] Following this disclosure, a decision was made between the two of them that they would jointly monitor his situation and she had no information that he was abusing drugs at the time of his death. [ 10 ] Following this disclosure, he contacted the Alberta Alcohol and Drug Abuse Commission (AADAC) and was referred to a counsellor in Edmonton.

He then attended a residential rehabilitation programme in Grande Prairie for three weeks. [ 11 ] She testified that they had some issues in their marriage because of the stress of them both doing shift work, but described their marriage as being solid. [ 12 ] She was concerned that in the months leading up to his death, he lost 25 pounds but, he told her, he wanted to lose weight and changed his diet accordingly. [ 13 ] On Friday, June 16, 2006, she travelled to Edson because she was delivering a lecture to nurses at the Edson Hospital. [ 14 ] She left late in the afternoon and called home from Edson confirming that she had arrived safely.

She testified that Heinemann told her he was not feeling well and was complaining of flu-like symptoms, nausea and diarrhea. [ 15 ] The seminar in Edson finished about 3:30 pm on Saturday, June 17 and she called her husband indicating that she would be coming home. [ 16 ] He made no comments about his health and she was not aware at that time that he had attended the Seton Hospital, which is located very close to their home. [ 17 ] On June 17, while driving back to Jasper, she called her husband on her cell phone and he sounded drowsy and confused, his responses were somewhat sluggish and his speech was slurred.

He sounded like he was quite medicated at the time. She asked him whether he had taken any medications and he said no. At that point the cellular call was terminated because of poor reception. She arrived home at about 7:45 pm and found him sleeping on the couch. [ 18 ] On the evening of June 17, she received two telephone calls from Janet Frechette, who is a nurse at the Seton Hospital, who was calling to inquire about how her husband was doing.

Nurse Frechette said that he had been an Emergency patient suffering from gastroenteritis, he was somewhat dehydrated and advised her to return him to the hospital if she was concerned about his condition. [ 19 ] When he awoke, she described him as being somewhat drowsy and he stated that he was experiencing stomach cramps, nausea, diarrhea and that he had been given some medication for nausea at the hospital. [ 20 ] Nurse Frechette made a second telephone call about an hour later as she was concerned about his condition. [ 21 ] Ms.

Forabosco described the tone of these calls as not being urgent but rather calls inquiring about his condition. [ 22 ] She made him something to eat and he fell asleep about 11:00 pm. She went to bed shortly thereafter. [ 23 ] She awoke about 4:00 am and noticed that he was gone. She noticed that there were lights on in the garage where he had his office and assumed he was in the garage, where he frequently spent time. [ 24 ] At that point, her husband telephoned from the Seton Hospital, advising that Dr. Swanepoel had decided to keep him in overnight for observation.

He told her that everything was under control and she had nothing to worry about. [ 25 ] Shortly thereafter, Dr. Swanepoel called and told her that her husband had received a fair bit of Gravol by way of injections as well as some Gravol doses to take home and expressed concern about the amount of Gravol he had consumed, which was affecting his

behaviour. [ 26 ] At that time, she did not have any concerns about his mental state and there was no mention of this issue by Nurse Frechette or Dr. Swanepoel. She assumed that he would be kept overnight for observation and discharged the next morning. [ 27 ] Her husband called about 9:30 am on Sunday, June 18 advising that he was waiting to be discharged and would be home shortly. [ 28 ] He arrived home at about 10:30 am and she described his appearance as being pathetic. He lacked energy and he sat in a chair with his shoulders and head down.

When she asked him how he was feeling, he responded that he was feeling tired and exhausted and had experienced a miserable night. [ 29 ] June 18, 2006 was Father’s Day and she and her husband had planned to visit her father along with other members of her family, but he was too sick to attend. [ 30 ] She and her daughter did attend the function for a couple of hours and arrived home about 1:00 pm. When she opened the garage door she observed his body lying on the floor of the garage next to a rifle. She immediately called 911.

At that point it was apparent that he was deceased from a self-inflicted gunshot wound to the head. [ 31 ] The RCMP found a suicide note next to his body, part of which reads: “PS as to why, well I can’t stop doing drugs – will ruin my life – in turn yours” [ 32 ] When she received the Medical Examiner’s Report confirming her husband’s death, she requested a toxicology screen. A copy of this toxicology screen was provided to her which revealed that he had tested positive for Lorazepam, which is the operative ingredient in the drug Ativan as well as Diphenhydramine which is the operative ingredient in Benadryl.

To her knowledge he had not been taking either medication, neither of which was in their home. [ 33 ] In cross examination, she acknowledged that her husband had hidden his drug problem from her until he disclosed in August 2005, that he was stealing Codeine, Tylenol 3 and Morphine from the Hinton Health Centre and that neither the Hinton Health Centre, or the Seton Hospital, was ever advised of this issue. [ 34 ] In September 2005, Heinemann filled out a Practice Permit and Membership Application for the College and Association of Registered Nurses of Alberta (CARNA).

In the application form he answered “no” to the question of whether he had “Developed a condition, disorder/addiction to alcohol or drugs that impairs your ability to practice nursing competently and safely?”. [ 35 ] She acknowledged that his drug abuse problem should have been disclosed, but it was his decision not to do so. [ 36 ] She questioned him in the period of August 2005 to June 2006 about using drugs, which he denied and did not think that he was abusing drugs in that period. [ 37 ] She described their marriage as a happy one and agreed that in Examinations for Discovery, she had described him as a happy contented person who was happy and contented in their marriage. [ 38 ] In the period March to June 2006, he continued to be active although somewhat less so, because of child care responsibilities. [ 39 ] She attributed his difficulties with insomnia to the fact that he was doing shift work which was not out of the ordinary, up to the time of his death, given that he worked shifts at both hospitals.

As of the date of his death, she did not describe him as being more anxious than normal. [ 40 ] She acknowledged that as a Registered Nurse, she frequently worked in the Emergency department and frequently encountered individuals with depression.

She is familiar with the symptoms of depression. [ 41 ] She testified that there was no Gravol in their home and has no idea what amount of Gravol he took, or where he got it. [ 42 ] When he arrived home on June 18 at approximately 10:30, he appeared to be oriented as to place, time and person although he was feeling poorly because of his flu-like symptoms. [ 43 ] At that time she had no concerns about his mental state and no concerns about leaving him home alone. [ 44 ] She did not anticipate that he would commit suicide.

She acknowledged that prior to his death, he had filled the bathtub, opened up a new bar of soap and had laid out his clothing in order on the bed, as he was scheduled to work the night shift at the Seton Hospital. [ 45 ] She was not aware that he had any history of depression and was also not aware that he had any addiction issues between February and June 2006 and only became aware of this ongoing issue when she read the suicide note. B. Heather Chilton [ 46 ] Heather Chilton was employed as a registered nurse at the Seton Hospital in Jasper in June 2006.

She became a Registered Nurse in 1992. [ 47 ] She did have experience dealing with psychiatric patients.

[ 48 ] Her understanding of nurse’s charting is that all significant events were to be charted. [ 49 ] Nurse Chilton was on duty for the night shift from June 17 early in the morning until June 18 at approximately 1:00 pm when she left the hospital although her shift ended earlier. She acknowledged that she could not complete her charting until Nurse Wall completed her charting at 12:20 pm, by which time Heinemann had already left the hospital. [ 50 ] Her chart was placed in evidence before me and comprises a number of pages in great detail.

She acknowledged that that shift was extremely busy and most of the chart entries were done later after her shift had concluded. [ 51 ] She charted Heinemann’s arrival at approximately 2:20 am on June 17 in the Emergency department requesting some Gravol as he could not sleep. [ 52 ] She noted that he proceeded to go to the medicine room, started sifting through some of the items in the medicine room and was endeavouring to obtain Gravol suppositories. [ 53 ] She told him that because he was off duty he was not allowed to enter the medicine room and described him as being anxious, restless and unsteady on his feet.

He actually grabbed some Gravol suppositories and then left the medicine room. [ 54 ] At that point, he left the Emergency department and went home, returning approximately 20 minutes later advising that he wanted to return the Gravol suppositories and obtain some Gravol tabs instead. [ 55 ] In total he made six attempts to get into the medicine room. [ 56 ] She told him repeatedly not to go into the medicine room and he was advised that he had to wait for Dr. Swanepoel before he could be prescribed anything. [ 57 ] When told that he had to wait for Dr.

Swanepoel, he decided to leave and went home. [ 58 ] On June 18 he returned to the Emergency department at approximately 3:10 am. He asked for Gravol and Imovane, which is a sleep medication. [ 59 ] He was not given Imovane, but was given an injection of 50 mg of Gravol as well as two 50 mg Gravol tablets. [ 60 ] He then tried to get back into the medicine room to obtain more Gravol, but was told he could not do so. [ 61 ] He went home again and returned about 3:30 am advising that he had locked himself out of the house. [ 62 ] She charted that he met with Dr. Swanepoel privately.

She overheard him telephone his wife and he told her that everything was under control and that she had nothing to worry about. [ 63 ] At approximately 3:45 am on June 18 pursuant to the order of Dr. Swanepoel, he was admitted to the Emergency department for observation only but not as a patient.

He was also started with an IV to give him some hydration. [ 64 ] He was told to stay in bed but was continuously getting out of bed to use the bathroom as he had diarrhea. [ 65 ] He made several more attempts to get into the medicine room and was told again that he could not do so, while off duty. [ 66 ] Between 4:40 am and 7:00 am she described him as being very paranoid about the subject of a urinalysis. He demanded that a urinalysis be done and was very concerned what it might show.

Ultimately the urinalysis results were normal. [ 67 ] In her chart notes, she described his eyes as being glazed, that he had poor eye contact, a flat affect and that he was disjointed at times.

His behaviour was erratic. [ 68 ] She observed that he was dressed in a rather unusual fashion with sweat pants over his jeans and wearing runners of different colours. [ 69 ] At 7:00 am she charted that he was resting in bed and reading. [ 70 ] In cross examination, she acknowledged that she did have experience dealing with patients with psychiatric issues and that she was trained to recognize symptoms of depression. [ 71 ] She again confirmed that most of her chart entries were done after her shift was over and after Heinemann had already left the hospital.

She indicated that morning was extremely busy at the Seton Hospital and it was not possible to do her charting earlier. [ 72 ] Her recollection is that Dr. Swanepoel did talk privately with Heinemann but has very little recollection of what interaction there was between him and Dr. Wilson. [ 73 ] When Dr. Wilson arrived on duty, she attempted to speak to her but Dr. Wilson indicated that she wanted to speak to Heinemann first before discussing the situation further with her and she never did discuss his situation in detail with Dr.

Wilson. [ 74 ] She acknowledged that she is not able to say what was in the nurses’ chart notes when Dr. Swanepoel and Dr. Wilson looked at them because their interactions with Heinemann were completed well before the charting was completed, chart entries were not precisely time specific and were made over a period of time. [ 75 ] At the time of his final discharge from the hospital, Heinemann appeared to be stable and coherent.

C. Heather Wall [ 76 ] Heather Wall is a Registered Nurse and has been working at the Seton Hospital since 1989. [ 77 ] She is familiar with both Dr. Swanepoel and Dr. Wilson and thinks highly of each of them. [ 78 ] As of 2006 she was familiar with Heinemann as he worked with her from time to time on the same shift at the Seton Hospital. [ 79 ] She started her shift on June 17, 2006 at approximately 7:00 am. She recalled that Heinemann appeared at the hospital at approximately 10:30 am complaining of flu-like symptoms. [ 80 ] She was actually working on the acute care

section that morning but was asked to come to the Emergency department to start an IV for him. [ 81 ] She confirmed that the chart notes under her name, which were prepared on June 18, 2006, were prepared at approximately 12:20 pm that day and at the time they were prepared, she was not aware that he likely was already deceased. [ 82 ] Her concern at the time, was that he needed help as he had consumed too much Gravol. She could not recall any unusual behaviour while she was on shift and does recall that day was extremely busy at the hospital. [ 83 ] She observed him every 30 minutes as directed by Dr.

Swanepoel and at no time saw him attempting to get into the medicine room. She did not chart any unusual behaviour while she was observing him. [ 84 ] She does recall that Dr. Wilson discharged him but was not present for any discussion between him and Dr. Wilson and was not aware whether Dr. Wilson attempted any assessment of his mental state. [ 85 ] She could not recall if she told Dr.

Wilson that Heinemann had been abusing drugs. [ 86 ] She acknowledged in cross examination, to having a very limited direct memory of what occurred on June 17 & 18, 2006 and refreshed her memory prior to testifying from chart notes and acknowledged having some suspicion prior to these dates that Heinemann had been abusing drugs. [ 87 ] She was asked whether she had any concern at that time that there was any risk of him harming himself and she responded, “Zero”. D. Janet Frechette [ 88 ] Janet Frechette is a Registered Nurse and has been employed at the Seton Hospital since 1987 and is familiar with both Dr.

Swanepoel and Dr. Wilson. [ 89 ] She had worked with Heinemann previously, but had never observed bizarre behaviour by him prior to June 17. [ 90 ] She testified that he arrived in the Emergency department at the Seton Hospital at approximately 10:52 am on June 17. She spoke to him and he described his condition as being achy and feverish, nauseous, suffering from diarrhea and generally feeling unwell. [ 91 ] After examining him she called Dr.

Swanepoel at home who gave verbal orders respecting medication and fluids to be administered by IV. [ 92 ] She was aware that after the IV was started Heinemann attempted to increase the flow of the IV and told him not to do that. [ 93 ] She did not see him after that and confirmed that the nurse’s notes she made were prepared on July 7, 2006 by which time she was aware that he was deceased. [ 94 ] She observed him trying to get into the medicine room and told him that he should not be doing that. She was concerned about his behaviour and telephoned his residence receiving no answer on the first call at 6:00 pm.

She called again at 8:00 pm and 9:00 pm and on each of the latter two occasions spoke to Ms. Forabosco. [ 95 ] She was not on duty on June 18, thus had no interaction with him on that date. E. Dr. Edwin Brankston [ 96 ] Dr. Brankston, who is a family physician, was qualified to give opinion evidence respecting the standard of care of an Emergency room physician. [ 97 ] He prepared a detailed report dated October 19, 2007 followed by a supplementary report dated January 23, 2013, the latter of which was a comment on Examinations for Discovery evidence provided by Dr. Swanepoel and Dr.

Wilson in 2011. [ 98 ] He confirmed that his initial opinion of October 19, 2007 was based on the following materials:

1. Seton Hospital records. 2. Certificate of Medical Examiner dated June 19, 2006. 3. Supplemental Toxicology Report dated June 30, 2006. 4. Information provided from counsel for the Plaintiff pertaining to Ms. Forabosco’s recollection of her husband’s behaviour in the two week period prior to his death. [ 99 ] The first portion of his October 19, 2007 report, deals with a review of the clinical history of Heinemann as disclosed in the charts.

He agreed with the initial assessment that Heinemann was suffering from gastroenteritis. [ 100 ] He acknowledged that he was unaware that nurse Frechette’s notes were prepared one month later and that nurse Chilton’s detailed notes were largely prepared after her shift ended on June 18. [ 101 ] In his report and testimony before me, Dr. Brankston was extremely critical of both Dr. Swanepoel and Dr.

Wilson in that, while he accepts that the diagnosis of gastroenteritis was reasonable, in his view, Heinemann was presenting with symptoms of a psychiatric disorder, most likely a depressive illness. [ 102 ] He noted that the nurses’ chart notes make extensive reference to Heinemann being anxious and restless and that he was suffering from insomnia.

It was also noted that his behaviour was erratic and that his eyes were glazed. [ 103 ] In his report of October 19, 2007, he opined that there was sufficient evidence in the hospital records to indicate that Heinemann was suffering from an acute psychotic depressive episode and that this psychotic depressive episode culminated in the patient’s suicide. [ 104 ] He also opined that Heinemann should have been detained pursuant to the provisions of the Mental Health Act . [ 105 ] He was particularly critical of Dr. Wilson who was asked by Dr.

Swanepoel to perform a psychiatric examination, but did not document the same. [ 106 ] In cross examination, he acknowledged that clinical judgment is a critical component of medicine and that the assessment of any patient involves an overall assessment based on the knowledge available and also acknowledged that a doctor might fail to recognize symptoms, which is particularly important in cases where there is a risk of harm. [ 107 ] He also acknowledged that doctors may have differing views based on differing schools of thought and agreed that not all doctors would agree on the diagnosis of a given patient and that there are legitimate differences of opinion possible. [ 108 ] He acknowledged that he undertook a retrospective analysis of the treatment of Heinemann and that this gave him an advantage in that he was aware that Heinemann did commit suicide. [ 109 ] He acknowledged that it was reasonable for Dr.

Swanepoel to keep Heinemann in the hospital overnight for observation and has no information whatsoever about the private discussion that took place between him and Dr. Swanepoel. [ 110 ] He agreed that the fact the Dr.

Swanepoel did not document this discussion does not mean that it did not take place and that there is never any guarantee that questioning a patient will obtain honest answers in any event. [ 111 ] He testified that he would expect that if nurses had any concerns about a patient harming himself, they would advise the attending physician. [ 112 ] In cross examination, he completely resiled from the opinion, he initially provided, that Heinemann should have been detained under the Mental Health Act and conceded that there was insufficient information to justify such a drastic procedure. [ 113 ] He maintained the opinion however, that it would have been appropriate to have obtained some sort of telephone consultation with a psychiatrist but acknowledged this conclusion was based on the assumption the Dr.

Wilson did not conduct any type of mental assessment. [ 114 ] He acknowledged that if Heinemann was oriented to time, place and person, this would be relevant to him not being in a psychotic state and, furthermore, that his desire to speak to Dr. Swanepoel in private indicated that he was fully lucid and that if Dr. Swanepoel asked him whether he needed help and he replied no, that this would also be relevant. [ 115 ] Dr.

Brankston agreed with the proposition put to him in cross examination that if, in fact, psychiatric questioning did take place at the hospital there would be no need for a psychiatric consultation and that Dr. Swanepoel acted appropriately in keeping him in overnight for observation. [ 116 ] He concluded his testimony by agreeing with the proposition, that if a psychiatric examination was conducted and no concerns were identified, it was reasonable to have discharged Heinemann on June 18. F. Dr. Farid Ullah [ 117 ] Dr.

Ullah was qualified by consent as an expert psychiatrist qualified to give opinion evidence on the subject of whether or not Heinemann needed psychiatric care when he attended at the Emergency department on June 17 & 18, 2006 and what were his prospects of being successfully treated for his mental condition. He was not tendered as an expert in the field of Emergency medicine.

[ 118 ] Dr.

Ullah has significant experience dealing with patients with depression and suicidal ideation and indeed indicated this is a major part of his practice. [ 119 ] In recent years, there has been an attempt by psychiatrists to engage in what is referred to as a suicide autopsy, that is, examine in retrospect, why an individual committed suicide. [ 120 ] Suicidality, is a state of mind wherein an individual comes to the point where life has no meaning, there is a general feeling of helplessness and a distorted world view which is very black or white leaving only one option, killing oneself. [ 121 ] In this case he reviewed the hospital charts in detail and observed that over a period of 48 hours Heinemann attended at the Emergency department multiple times. [ 122 ] He commented a number of times that Heinemann was observed at one point to be wearing inappropriate clothing and mismatched shoes, that he had a flat affect, disjointed speech and was anxious and agitated. [ 123 ] He also commented on the fact that one of the nurses noted that he was paranoid about getting a urine test. [ 124 ] According to Dr.

Ullah, the primary focus at the Emergency department should not have been on his physical condition, but rather on his mental state, as in his opinion, he had symptoms of a major mood disorder, that is, depression with psychotic features. [ 125 ] He noted that according to the charts, Heinemann had had insomnia for seven days, was agitated and had lost 25 pounds.

He also referred to the fact that he had a disjointed ability to talk and was having trouble concentrating but acknowledged there was no reference to him having any suicidal ideation. [ 126 ] He indicated that in psychiatric practice it is very common for a psychiatrist to ask general open ended questions of a patient to find out how life is going for that patient generally before asking specific questions about suicidal ideation.

Very often patients are in denial and it is necessary to get the patient talking to see what unfolds. [ 127 ] His review of the medical charts indicated to him that Heinemann’s mental state was not stable. [ 128 ] His

interpretation of the nurses’ chart notes, is that Heinemann was out of touch with reality and to him this was an indication of a psychotic episode and opined that there was a risk of Heinemann harming himself, when he was discharged on June 18. [ 129 ] He acknowledged that doctors do not have a crystal ball and that a doctor always engages in an objective assessment based on all relevant factors in determining whether or not a patient should be treated or not. [ 130 ] According to him, the major factors which should have been noticed by Drs.

Swanepoel and Wilson, is that his behaviour and speech were somewhat odd, he had a flat affect and appeared to be having a psychotic episode. [ 131 ] In his opinion, a Certificate should have been issued under the Mental Health Act allowing for a formal psychiatric assessment of Heinemann, who was experiencing a major depressive episode. [ 132 ] In cross examination, Dr.

Ullah acknowledged that reasonable psychiatrists can differ in their diagnosis, there is room for different schools of thought in the field of psychiatry and that clinical judgment involves a combination of knowledge, experience and knowledge of surrounding circumstances. [ 133 ] He agreed that whether or not a given individual will commit suicide is not foreseeable and is something that in most cases, cannot be predicted.

He opined that Heinemann’s suicide may have been preventable. [ 134 ] He admitted in cross examination, that he was not provided with the Examinations for Discovery transcripts of the nurses or Drs. Swanepoel or Wilson and that he relied heavily on his

interpretation of events as charted by the nurses. He acknowledged that some of the nursing entries are late entries and would not have been available to the doctors at the time. [ 135 ] He agreed, that he was attempting to work retrospectively from the suicide of Heinemann to explain why this occurred and whether or not it was preventable and his opinions derive from his

interpretation of charts, but that his opinions should be discounted if evidence contradicts his

interpretation of the charts. [ 136 ] He acknowledged not knowing the contents of what transpired in the private discussion between Heinemann and Dr. Swanepoel and similarly does not know what transpired in the discussion between Dr.

Wilson and Heinemann at the time of his discharge. [ 137 ] He was not aware that Heinemann confessed in 2005, to stealing drugs from the Hinton Health Centre. [ 138 ] He was confronted by the fact that he continuously made reference to observations of Heinemann over a period of 48 hours when in fact, it was a maximum of approximately 23 hours over two days. [ 139 ] He acknowledged that the DSM IV refers to a symptomatology of depression over a period of approximately two weeks whereas specific episodes of behaviour are excluded. [ 140 ] He acknowledged that Dr.

Swanepoel, after observing Heinemann, did suggest that he stay in the hospital overnight for observation and that the nurses’ chart notes seemed to refer to acute bizarre behaviour between about 2:20 am and 7:00 am on June 18, a period of something less than five hours and thereafter his behaviour was described as being normal. [ 141 ] He was not aware that Ms. Forabosco testified that Heinemann’s weight loss of 25 pounds was intentional or that she had no concerns about leaving him alone on June 18.

[ 142 ] According to him, the suicide note was reflective of feelings of guilt and denied suggestions from defence counsel that in fact the suicide note is lucid and refers specifically to the fact that he felt guilty about lying to Ms. Forabosco about his drug use. Evidence for the Defendants A. Dr. Abraham Swanepoel [ 143 ] Dr. Abraham Swanepoel is now 56 years of age and resides in Jasper. He is still working as a family doctor in that town and continues to work at the Seton Hospital.

He started working there as a family physician in 2005. [ 144 ] He took his medical training in South Africa and indicated that over the course of his medical career he has had extensive experience dealing with patients with mental health issues. [ 145 ] As of June 2006, there were four doctors in the community, meaning that he was on call every four days.

On call status meant that he was not required to be at the hospital and would receive telephone calls at home respecting acute care and Emergency patients. [ 146 ] He testified, that he had extensive experience with patients experiencing depression, suicidal ideation, alcohol and drug abuse issues, as well as other mental conditions, including schizophrenia and bipolar disorder.

Like most family physicians, 20-30% of his practice involves mental health issues. [ 147 ] He is experienced in assessing the mental states of patients and acknowledged that as a family physician he would seek a consultation from a psychiatrist if he could not complete his own diagnosis or had concerns about whether or not a patient was certifiable. [ 148 ] He does have experience in certifying patients under the Mental Health Act and is familiar with the Form used. [ 149 ] As of June 2006, he was familiar with the drug Gravol which has a short half life of three to four hours.

He testified that it is well established that there are side effects from Gravol which can cause symptoms of drowsiness, insomnia, restlessness and dry mouth.

Consuming too much Gravol can exacerbate these symptoms. [ 150 ] He agreed that, with any patient, it is necessary to do a thorough assessment and that with respect to a mental health assessment it is necessary to conduct an interview. [ 151 ] Respecting suicidal ideation, this requires a direct question so that an assessment can be made as to whether there is a risk of self-harm, including suicide. [ 152 ] Mental status examinations deal with the patient’s current mental status.

As of June 2006 he was familiar with the DSM IV, particularly with reference to depression. [ 153 ] As of June 2006, he was aware that Heinemann was a Registered Nurse at the Seton Hospital but did not know him well. He once spoke to him for a few minutes at a social gathering in Jasper but had only worked with him on a very few occasions prior to this. He had no concerns about his performance as a Registered Nurse. [ 154 ] Dr.

Swanepoel was not aware that he had been involved in stealing drugs from the Hinton Health Centre. [ 155 ] He had treated him once previously in the month of March 2006 for a plantar wart problem. [ 156 ] Dr. Swanepoel confirmed that he first saw Heinemann on June 17, 2006 shortly after 10:52 am, when he was registered in the Emergency department. He diagnosed him with gastroenteritis as he was experiencing nausea, vomiting and diarrhea which conditions he charted.

He directed that Heinemann be provided some fluids and thereafter discharged. [ 157 ] He had no recall of any discussions with Heinemann at this first interaction and next dealt with him at approximately 3:00 am on June18, at which point Heinemann returned to the hospital. At that time, Heinemann was still feeling nauseous and wanted some Gravol. Dr. Swanepoel ordered a 50 ml intramuscular injection of Gravol and prescribed two 25 mg tablets. He did not actually see him at that time as he was busy with another patient. [ 158 ] At 3:30 am he received a telephone call from Nurse Chilton at his home.

She advised him that Heinemann had returned to the Emergency department as he claimed to have locked himself out of the house. She described his behaviour, including entering the medicine room and removing some Gravol. [ 159 ] Dr. Swanepoel returned to the hospital and met with Heinemann in the Emergency department. Dr. Swanepoel asked him why he had entered the medicine room and Heinemann responded that he did not know that he could not enter the medicine room while he was off duty and was just trying to help as the nurses were busy. [ 160 ] At that time, Dr.

Swanepoel did a physical and neurological examination of Heinemann and made a decision that he should be kept in the hospital for observation as Dr. Swanepoel was concerned about the effects Gravol was having on him. [ 161 ] His neurological examination was essentially normal and the discharge diagnosis remained gastroenteritis and that he would be kept in the hospital for observation as Dr. Swanepoel felt it was appropriate to have him assessed after the effects of Gravol had dissipated. Dr. Swanepoel also wanted a urinalysis completed as well as some blood work.

[ 162 ] Dr. Swanepoel was aware that Ms. Forabosco had spoken to her husband over the telephone and did not want him kept in the hospital. [ 163 ] Dr. Swanepoel spoke to her by telephone and advised her that it was necessary to keep him in the hospital for observation and that he was not prepared to discharge him at that time. [ 164 ] At that point Heinemann requested a meeting with Dr. Swanepoel in private and they entered one of the private examination rooms. [ 165 ] He requested that their conversation not be recorded as he was an employee at that hospital and Dr.

Swanepoel agreed to this request. [ 166 ] Heinemann related to Dr. Swanepoel that he was having marital problems and had a strained relationship with his wife. Dr. Swanepoel asked him whether or not he needed help and Heinemann responded, “I’m coping”. [ 167 ] Dr. Swanepoel asked him whether or not he had any ideation of self-harm which Heinemann denied. [ 168 ] Dr. Swanepoel asked him again, “Do you need help?” and he replied “No”. [ 169 ] Dr.

Swanepoel testified that he was concerned about Heinemann’s behaviour, but assumed that the symptomatology was caused by the excess amount of Gravol he had consumed. [ 170 ] Dr. Swanepoel testified that conducting a full psychiatric examination is of no value while the patient is under the influence of drugs. [ 171 ] Dr. Swanepoel described Heinemann at this time as being fully cooperative. He made eye contact with him and he was oriented to time, place and person. He knew it was Father’s Day and fully understood that Dr. Swanepoel had told him to stay in the hospital for observation. [ 172 ] Dr.

Swanepoel indicated that he spent a total of 45 minutes with him, including the private meeting. He had no further contact with him and thereafter was not contacted by any of the nurses about him. [ 173 ] Prior to leaving the hospital Dr. Swanepoel completed a Consultation Sheet directed to Dr. Wilson who was going to be the next doctor on call. [ 174 ] The probable diagnosis was “gastroenteritis and dehydration”? reaction to Gravol. Under the category “information desired” he wrote the following: “your assessment please to his hydration status and mental status before discharge”?

He testified that he expected that Dr. Wilson would assess Heinemann, both with respect to his hydration status and mental state. [ 175 ] After Heinemann’s death, he met privately with Ms. Forabosco over a cup of coffee.

He did not disclose to her the private conversation with him as he did not want to hurt her and wanted to protect his privacy. [ 176 ] In cross examination, he acknowledged that it is necessary for the Emergency room physician to obtain as much information as possible about the patient prior to making a decision to discharge the patient. [ 177 ] He acknowledged that at the time the Seton Hospital had a Mental Status Examination Questionnaire which he used, but which was not placed on the file as it was not filled out.

The questionnaire included such things as how the person was feeling, their sleep situation and whether or not there was any ideation of self-harm. [ 178 ] He agreed that at the time he could consult with psychiatrists by telephone in Edmonton, Calgary or Ponoka and that he had used this service before. [ 179 ] When he first was provided with the hospital chart for Heinemann, the nursing note

section was blank but agreed that nurse Chilton told him about Heinemann’s inappropriate behaviour. [ 180 ] Dr. Swanepoel acknowledged that he was concerned that Heinemann had entered the medicine room and directed in his discharge orders that he be placed under observation every 30 minutes. [ 181 ] He acknowledged that when he left the hospital he had ongoing concerns about the state of hydration for Heinemann as well as his mental status. His primary concern was ensuring that the patient was safe and never had any expectation that he had any self-harm ideation. B. Dr. Lisa Wilson [ 182 ] Dr.

Lisa Wilson is a family doctor practicing in Jasper where she has worked since August 2005. She has extensive experience as a family doctor working as an Emergency doctor and has extensive experience as a family doctor dealing with mental health issues, including depression. [ 183 ] She is also experienced in dealing with patients expressing suicidal ideation. [ 184 ] She acknowledged, that a mental status examination involves observing the patient’s appearance, behaviour, speech, mood and affect, perceptions, delusions of thought as well as issues of judgment and cognition.

[ 185 ] She testified being familiar in June 2006 with the DSM IV criteria for Major Depressive Disorder. [ 186 ] She testified that in her mental assessments, she uses a mnemonic comprising nine items: MSIGECAPS: M – mood S – sleep I – interest G – guilt E – energy C – concentration A – appetite P – psychomotor retardation S – suicidal ideation [ 187 ] To be diagnosed as a major depressive illness, the patient would have to have five out of nine symptoms. [ 188 ] As of June 2006, she knew Heinemann as she had often worked with him in the Emergency department at the Seton Hospital and overall had no concerns about his work as a nurse. [ 189 ] She had never heard rumours about him having a possible drug problem and knew nothing about his personal life. [ 190 ] On June 18, 2006 she saw him in the Emergency department at approximately 9:30 am.

She had arrived at the hospital that day at approximately 9:00 am. [ 191 ] Nurse Wall told her that Heinemann was in the Emergency department and that nurse Wall was concerned he was abusing drugs. [ 192 ] Nurses Chilton and Wall were present when she first saw him at approximately 9:30 am. Dr. Wilson was told by the nurses that he had been assessed the previous day for gastroenteritis and that he had come back several times requesting Gravol. [ 193 ] Dr. Wilson was told that he was given 50 mg by intramuscular injection as well as some tablets and she was aware that he had spoken to Dr.

Swanepoel privately on June 17. [ 194 ] She looked at the Consultation Sheet from Dr. Swanepoel and then went to see Heinemann. [ 195 ] She testified to conducting both physical and neurological examinations. [ 196 ] Nurse Chilton told her prior to her examination of Heinemann, that the previous night, he had tried to get into the medicine room several times, had been restless, was wandering and that his pupils were dilated to 8 mm. [ 197 ] She asked him what medications he had taken and what doses.

He indicated that he had taken two Gravol oral tablets of 50 mg each as well as two suppositories of 50 mg each plus the intramuscular injection of 50 mg as well as 2 mg of Ativan. [ 198 ] She asked him why he had taken that much Gravol and he replied that it was because of his nausea and that he had experienced four sleepless nights. [ 199 ] She asked him whether or not he had taken Gravol to harm himself and he responded that he had only taken this amount of Gravol to treat his nausea and that the Ativan was for insomnia. [ 200 ] In response to her questioning, Heinemann denied that he had any decrease in his mood but did say that he was unable to sleep for four nights.

He denied loss of interest or attitude and denied any feelings of guilt or that he had had any changes in energy or concentration. He did acknowledge that he was eating less. [ 201 ] Dr.

Wilson observed no symptoms of psychomotor retardation and he specifically denied any suicidal ideation, delusions or hallucinations. [ 202 ] He specifically denied that he was abusing prescription drugs or street drugs. [ 203 ] She asked him again whether he was abusing prescription drugs, which he again denied and asked him if he had any homicidal ideation, which he denied. [ 204 ] When asked about his nausea he said that it had cleared and then stated that he was feeling better and fit to go home. [ 205 ] He was oriented to time, place and person and knew that he was in Jasper in Alberta in Canada and what day of the week it was.

He knew his name. His pupils appeared normal, his cranial examination was normal and his strength examination was normal.

[ 206 ] His abdomen was soft and he had normal bowel sounds. His blood work analysis appeared to be normal. [ 207 ] The toxicology screen from the urinalysis was not yet available. [ 208 ] She discussed with him attending at the clinic several days later to deal with the issue of insomnia and then discharged him. [ 209 ] Dr. Wilson acknowledged that she did not document in any way her mental status examination of Heinemann.

Some of her chart notes were made during the examination whereas the balance were made at approximately 2:30 pm that afternoon, after it was known that he had committed suicide. [ 210 ] She was asked why she did not chart the mental status examination and she is at a loss to explain why. She indicated that afternoon was the most stressful day of her life, both professionally and personally and that she was very affected by Heinemann’s death.

She was sad and distracted when she learned of his death. [ 211 ] She indicated that the entire hospital staff became upset on learning of Heinemann’s death and yet they had to deal with a very busy day in the Emergency department. [ 212 ] It never occurred to her to document her mental status examination, after she learned that he had committed suicide. [ 213 ] She acknowledged that Dr.

Swanepoel’s Consultation Sheet requested that she check his hydration state and mental status before discharge. [ 214 ] Her discharge diagnosis was viral gastroenteritis and also made reference to unusual behaviour secondary to Gravol consumption. [ 215 ] She agreed that with respect to psychiatric care, it is necessary to obtain as much information as possible and that the mnemonic she referred to is not found in a form and is simply a mnemonic she uses. [ 216 ] She testified to spending between 15 & 30 minutes with Heinemann, but in Examination for Discovery testified that it was about 15 minutes. [ 217 ] She agreed that her failure to chart the mental status examination means that there are no chart notes dealing with this subject, but was emphatic that she did conduct a mental status examination. [ 218 ] She was aware from nurses Chilton and Wall that Heinemann had been engaged in erratic behaviour on June 17 and noted that this is referred to in her chart notes, but observed no such behaviour when she met with him. [ 219 ] She is emphatic that at the time of her assessment of him she did not notice any unusual clothing as he was sitting in bed with his legs covered. [ 220 ] She did not ask him whether he had any firearms or access to them. [ 221 ] She is emphatic, that at the time she examined him his behaviour was normal, he was no longer trying to get into the medicine room, was not agitated, not wandering or restless and that his pupils had the normal dilation of 4 mm.

C. Dr. Stanley Mayer [ 222 ] Dr. Mayer was tendered as an expert witness by the Defendants and qualified by consent as an expert to give opinion evidence in the areas of acute care and Emergency medicine in the context of family practice. He was specifically qualified to give opinion evidence on the standard of care of a physician in that capacity. He prepared a report dated April 8, 2014, which was prepared as a rebuttal report to the initial report of Dr.

Brankston. [ 223 ] He has extensive experience working in Emergency medicine and has a special interest in that field. [ 224 ] He opined that it is critical for any patient who attends at an Emergency department to be assessed and diagnosed to determine what is causing the patient difficulty. [ 225 ] Very often this involves a physical examination and one looks at the findings and the history and then using clinical judgment, a diagnosis is developed. [ 226 ] He does have experience dealing with depression which is quite commonly found in Emergency patients and is also familiar with patients exhibiting suicidal ideation. [ 227 ] He opined that a patient expressing mental health concerns is not always referred to a psychiatrist, as this depends on the circumstances. [ 228 ] He is aware, as an Emergency physician, that Gravol is often abused and that excess Gravol consumption can cause mental confusion. [ 229 ] He was asked about the practice of charting and commented that significant events should be charted but does not accept the proposition that if something is not charted, it was not done, but he agreed that Dr.

Wilson should have charted the mental health questioning which she says she conducted of Heinemann.

[ 230 ] He indicated that charting is really a standard of practice and not directly related to a standard of care. [ 231 ] It was pointed out to him that Dr. Brankston, at trial, testified that Dr. Swanepoel’s treatment of Heinemann was reasonable, particularly in keeping him overnight for observation. [ 232 ] In his opinion, there was no basis for certifying Heinemann given everything he read on the file. [ 233 ] He was asked to assume that Dr. Wilson was told by nurse Wall on the morning of June 18 that Heinemann was abusing prescription drugs.

He was also asked to assume that Heinemann was requesting Gravol and trying to enter the medicine room. [ 234 ] He was asked to assume that Dr. Wilson did conduct a mental status examination of Heinemann prior to discharge and testified that if these assumptions are accurate, Dr.

Wilson did not breach the standard of care of an Emergency physician in those circumstances. [ 235 ] He agreed with the underlying assessment of gastroenteritis as the underlying diagnosis and noted that the blood work, which was done, revealed a high white blood count, which would appear to correspond to gastroenteritis, although there are other causes of elevated white blood counts. [ 236 ] He is familiar with the DSM IV diagnostic criteria for major depressive disorders which he notes have to present over a period of two weeks. [ 237 ] In cross examination, he agreed that Dr.

Wilson’s failure to chart the mental health assessment was in fact a breach of the standard of care. [ 238 ] He was asked whether or not mental health questions are necessarily recorded immediately and he replied in the negative and pointed out that very often in busy Emergency wards, chart notes are made later. [ 239 ] He agreed that substance abuse is a risk factor for suicide, but noted that not all drug abusers are suicidal. [ 240 ] He indicated that it is necessary in assessing a patient, to look at the global presentation, one does not focus entirely on one issue and what is important is the clinical context. [ 241 ] He personally does not use mental health questionnaires, but is aware that other doctors do.

He acknowledged knowing that some physicians use the mnemonic, MSIGECAPS, but he does not.

He noted that overuse of Gravol may produce odd behaviours but conceded that there may be other explanations for odd behaviours. [ 242 ] With respect to major depressive episodes, he acknowledged that there is a possible risk of suicide and that it is necessary to ask the patient whether or not he or she has any suicidal ideation. [ 243 ] He did not agree with the proposition put to him, that if a patient denies suicidal ideation, it is then necessary to ask the patient if there is a plan to commit suicide. [ 244 ] He indicated that if the patient responds positively to a question about suicidal ideation, only then is it necessary to explore the subject further and observed that there is no standard test for screening for suicide.

D. Dr. Pierre Chue [ 245 ] Dr. Pierre Chue was qualified by consent as an expert in psychiatry qualified to give opinion evidence on the subject of causation and the likelihood that Heinemann was experiencing a major depressive episode or major psychotic episode. [ 246 ] Dr. Chue is thoroughly familiar with all psychiatric issues. He prepared two lengthy reports, the first dated June 16, 2012 and the second dated June 15, 2015, which he adopted as part of his testimony.

He confirmed that he reviewed all of the Examinations for Discovery transcripts of the Defendant doctors and the nurses in preparing his reports. [ 247 ] He testified that delirium is a state of altered consciousness, whereas a psychosis is a break from reality, usually accompanied by delusions. [ 248 ] An acute psychotic event involves a rapid development of a psychosis along with delusions and hallucinations and disorganization of thought.

It is often accompanied by a major depressive episode. [ 249 ] He is very familiar with the DSM IV which he described as an operational manual which is used to diagnose mental illnesses and disagreed with Dr. Ullah who described the DSM IV as a guide. [ 250 ] He noted that the guidelines for diagnosing depression in the DSM IV refer to symptoms over a two week period and that the patient must experience five out of nine symptoms which must be concurrently present.

It is necessary to look at a constellation of symptoms in assessing any patient. [ 251 ] He noted that some of the symptomatology that Heinemann was displaying may be explained. For example, he deliberately chose to lose weight because of a change of diet which is not the same as an unexplained loss of appetite. [ 252 ] He is familiar with the effects of Gravol and that overuse of Gravol varies from person to person.

Overuse of Gravol can cause sleep disturbance, confusion as well as dry mouth. [ 253 ] In his opinion, the suicide note written by Heinemann was clear, lucid and reflective of the guilt he felt in deceiving his wife

about his drug use. [ 254 ] He based his opinions on the assumption that Dr. Wilson had assessed Heinemann prior to discharge and observed him not to be suicidal because he denied it and also denied any drug abuse. [ 255 ] In his opinion, there was no basis to conclude that Heinemann at the time was suffering from a major depressive disorder and that there was no evidence that he was psychotic, delirious or intoxicated at the time Dr.

Wilson dealt with him. [ 256 ] He opined that Heinemann’s suicide was not foreseeable and that he had not demonstrated any signs suggestive of high suicide risk, to anyone at the Seton Hospital. [ 257 ] He also opined, that Heinemann suffered from an active Substance Abuse Disorder of unknown duration and observed that relapses are common with this type of disorder. [ 258 ] He further observed that it is not possible to determine the motivation for this suicide, but likely, it was related to the Substance Abuse Disorder. [ 259 ] In cross examination, he reiterated that his opinion is based on the assumption that Dr.

Wilson actually screened Heinemann for depression and did a mental status examination of him. He agreed that it would have been better for her to have recorded this history. [ 260 ] He agreed with the proposition that 90% of individuals who commit suicide are suffering from some form of mental disorder. [ 261 ] In

summary, he concluded that it was not reasonably foreseeable that Heinemann was a danger to himself on June 17 or 18, 2006 and did not agree with Dr. Ullah’s opinion that Heinemann was suffering from a psychotic, depressive or mood disorder. [ 262 ] He concluded that when Heinemann was present at the Emergency department of the Seton Hospital, his behaviour was not consistent with suicidality and that his suicide was not predictable, preventable or related to treatment he received from Dr. Swanepoel or Dr. Wilson.

Probative Value of the Certificate of the Medical Examiner [ 263 ] The Certificate of Medical Examiner was exhibited at trial. The Certificate, dated June 19, 2006 was prepared by Dr. M. Addison, who did not testify at trial. [ 264 ]

Part 1 of the Certificate is headed “Immediate Cause of Death” and the following handwritten words appear: (massive head trauma due to consequence of gunshot wound) [ 265 ]

Part 2 is headed “Other Significant Conditions Contributing to the Death but not causally related to the immediate cause (

a) above and the following handwritten words appear: substance abuse/depression [ 266 ] The manner of death was indicated as suicide occurring on June 18, 2006. [ 267 ] In the box headed “circumstances” the following words appear: “deceased was known to be struggling with drug addiction problem” [ 268 ] Both Dr. Swanepoel and Dr. Wilson were questioned as to what input they had, if any, in the preparation of this Certificate and both denied having any involvement whatsoever. [ 269 ] In argument, counsel for the Plaintiffs conceded that in the absence of testimony from Dr.

Addison, they would not be arguing that the notations in the Certificate of Medical Examiner have any probative value. Probative Value of Nurses’ Chart Notes [ 270 ] As noted, chart notes by nurses Chilton, Wall and Frechette were extensively relied upon by all of the expert witnesses who testified at trial.

The nurses’ chart notes are quite detailed and in particular, nurse Chilton’s chart notes are copious. [ 271 ] It is uncontroverted, that virtually all of the nurses’ chart notes were completed after Heinemann left the Seton Hospital, at 10:00 am on June 18. [ 272 ] Nurse Wall’s chart notes were completed at 12:20 pm that day whereas Nurse Chilton testified that the bulk of her chart notes were completed after Nurse Wall completed hers. [ 273 ] Nurse Frechette’s chart notes were completed on July 7, well after Heinemann’s death. [ 274 ] One of the key issues in the litigation, is what information about Heinemann’s mental state was or should have been known by Drs.

Swanepoel and Wilson.

[275] It would be grossly unfair to them, to rely on the complete nurses’ chart notes as being equivalent to what knowledge they hador should have had about Heinemann’s mental state at the times they interacted with him. [276] The evidence at trial is clear, that during their respective interactions with Heinemann they had at very best minimalpreliminary chart notes from nurse Chilton and none whatsoever from nurses Wall and Frechette. [277] Drs.

Swanepoel and Wilson received some verbal information from the nurses but again this appears to be extremely minimal.While in no way criticizing the experts who relied on these chart notes in formulating their opinions, it must be recognized that anyonereading the complete nurses’ chart notes after the fact, would be left with an inflated image of the extent of the information actuallyavailable to the Defendants at the relevant times. [278] It necessarily follows, that my analysis of what information was or should have been available to the Defendants, must beinformed by this temporal factor.

Evidentiary Impact of Omissions in the Defendants’ Chart Notes [279] Dr. Swanepoel testified that he had a private discussion with Heinemann at his request and that Heinemann requested that thisprivate discussion not be charted. During this private discussion Heinemann revealed that he was having marital difficulties. During theprivate discussion as well as portions of the discussion which were not private, Dr. Swanepoel testified to asking Heinemann a series ofquestions about his mental status, which questions and answers were not charted. [280] Dr.

Wilson acknowledged that she made no chart entries respecting the mental status examination she testified to conducting. [281] In Gemoto v Calgary Regional Health Authority, 2006 ABQB 740 the following passage appears at para. 100: [100] The law accords a special status to contemporaneous chart entries as business records. Hospital records, including physicians' andnurses' notes, can be received in evidence as prima facie proof of the facts stated therein: Ares v. Venner, (SCC), [1970]S.C.R. 608 at 626.

The case law allows a Court to conclude that the absence of contemporaneous chart entries at crucial points permitsthe inference that nothing was charted because nothing was done: Joseph Brant Memorial Hospital v. Koziol, (SCC),[1978] 1 S.C.R. 491. This is not a rule of law or an automatic conclusion: it is an inference which may only be drawn if supported after acareful weighing of all the evidence. [282] In argument, counsel agreed that the outcome of the analysis of what Drs. Swanepoel or Wilson, did or did not do, will dependon my determination of their credibility.

Requirements of Proof in a Medical Negligence Action [283] The elements of a medical negligence claim were defined in Tailleur (Next Friend of) v Grande Prairie General and AuxiliaryHospital and Nursing Home District No. 14, 1999 ABCA 2 at para 15: 15 The legal principles to be applied in the case of an action alleging negligence by a medical practitioner are clear. They weresummarized in the text, Legal Liability of Doctors and Hospitals in Canada, Picard Ellen I., and Robertson G.R., 3d Ed. at p. 174: Tosucceed in an action, the plaintiff must prove on a balance of probabilities:

(1) The doctor owes the patient a duty of care.

(2) The doctor breaches a standard of care which has been established by law.

(3) The patient suffers an injury or loss; and

(4) The doctor's conduct was the actual and legal cause of the patient's injury or loss. [284] The Defendants agree that they owed Heinemann a duty of care and that it is not necessary for the Plaintiffs to prove that hisdeath by a self-inflicted gunshot wound was foreseeable. Hughes v Lord Advocate, [1963] 1 All E.R. 705 (H.L.). Defining the Standard of Care for Family Physicians in a Rural Hospital [285] In ter Neuzen v Korn, (SCC), [1995] 3 SCR 674, the Supreme Court of Canada defined the standard of care ofphysicians.

At pages 693 & 694, the court commented on the danger of relying on the perfect wisdom of hindsight in assessing whetherthe standard of care has been breached: 33 It is well settled that physicians have a duty to conduct their practice in accordance with the conduct of a prudent and diligentdoctor in the same circumstances. 34 It is also particularly important to emphasize, in the context of this case, that the conduct of physicians must be judged in the lightof the knowledge that ought to have been reasonably possessed at the time of the alleged act of negligence. As Denning L.J. eloquentlystated in Roe v.

Ministry of Health, [1954] 2 All E.R. 131 (C.A.), at p. 137, "[w]e must not look at the 1947 accident with 1954spectacles". That is, courts must not, with the benefit of hindsight, judge too harshly doctors who act in accordance with prevailingstandards of professional knowledge. This point was also emphasized by this Court in Lapointe, supra, at pp. 362-63:

... courts should be careful not to rely upon the perfect vision afforded by hindsight. In order to evaluate a particular exercise of judgment fairly, the doctor's limited ability to foresee future events when determining a course of conduct must be borne in mind. Otherwise, the doctor will not be assessed according to the norms of the average doctor of reasonable ability in the same circumstances, but rather will be held accountable for mistakes that are apparent only after the fact. Factual Matrix [ 286 ] In deciding the issues in this litigation, I make the following findings of fact: 1.

There is no evidence that Heinemann had ever been diagnosed or treated for any form of mental illness prior to his death. 2. There is no evidence that he ever expressed suicidal ideation to anyone and no evidence he ever attempted suicide. 3. There is no evidence that anyone was ever suspicious that he was suicidal. 4. There is no evidence that Ms. Forabosco, an experienced Registered Nurse, ever perceived that her husband was suffering from any type of mental illness, prior to his death. 5.

When he disclosed to her in 2005 that he was stealing drugs from the Hinton Health Centre, they made a joint decision not to inform either the Hinton Health Centre or the Seton Hospital of this development. 6. Some time after Heinemann’s AADAC drug counselling programme in 2005, he suffered a relapse and began abusing drugs again. On this evidentiary record, it is impossible to determine when this relapse occurred. 7. The magnitude of his drug abuse problem at the time of his death, is unknown and unascertainable. 8. Heinemann did not disclose to Ms.

Forabosco that he was again abusing drugs and there is no evidence that she had any awareness whatsoever of this, as he had completely hidden it from her. 9. There is no evidence that either Dr. Swanepoel or Dr. Wilson had any knowledge that he had a substance abuse problem prior to his death. 10. While nurses Chilton, Wall and Ferchette were concerned that Heinemann had a substance abuse problem, there is no evidence that any of them thought he was suffering from any form of mental illness. 11.

There is no way to verify the total amount of Gravol he consumed on June 17 & 18, 2006, nor is there any way of verifying whether he had consumed other drugs on those days and if so, in what amounts. 12. There is no evidence that Ms. Forabosco told nurse Frechette or Dr. Swanepoel during any of their telephone discussions, about Heinemann’s 2005 drug abuse issue specifically, that he spent three weeks in a residential treatment programme. 13. Given that Heinemann did not disclose his drug abuse relapse to anyone, there is no evidence he ever sought any treatment for it. 14.

There is no evidence that Heinemann engaged in erratic or unusual behaviour from 7:00-10:00 am on June 18 and no evidence that during that three hour period, he made any further attempts to enter the medicine room. He was observed to be reading quietly in his bed at 7:00 am.

Did the Defendants Breach the Standard of Care? A. The Evidence of Dr. Ullah and Dr. Chue [ 287 ] Drs. Ullah and Chue are both highly trained, competent psychiatrists and both were qualified before me as experts in the field of psychiatry qualified to give opinion evidence in that field. [ 288 ] Dr. Ullah opined that Heinemann was suffering from a major depressive disorder during his visits at the Seton Hospital on June 17 & 18, 2006, that he should have been certified under the Mental Health Act , and that his death was foreseeable and preventable. [ 289 ] Dr.

Chue opined that Heinemann was not suffering from a major depressive disorder at that time and opined that he was fit to be discharged on June 18. He also opined that Heinemann’s suicide, was neither foreseeable or preventable. [ 290 ] It is apparent from reading Dr. Ullah’s reports dated October 14, 2008 and September 30, 2013, that he placed substantial reliance on the nurses’ chart notes provided to him. [ 291 ] Counsel for the Plaintiffs confirmed that Dr.

Ullah was not provided with the Examinations for Discovery transcripts of the Defendants or the nurses, thus was unaware that the Defendants in Examination for Discovery swore that they both conducted mental status questioning of Heinemann. Moreover, he was not aware that Dr. Swanepoel testified to spending 45 minutes with Heinemann in the early morning hours of June 18, following which Dr. Swanepoel ordered that he be kept overnight for observation. [ 292 ] As noted, Dr. Chue was provided with these Examinations for Discovery transcripts, which he read. [ 293 ] In my view, Dr.

Chue, after reading these Examinations for Discovery transcripts, was able to make assumptions predicated on the treatment Drs. Swanepoel and Wilson allegedly provided Heinemann, whereas Dr. Ullah assumed that neither Dr. Swanepoel or Dr. Wilson questioned Heinemann about his mental status. In the result, Dr. Chue had access to significantly more information than Dr.

Ullah. [ 294 ] I have already noted the risk of anyone relying on the totality of the nurses’ chart notes, given that most of the chart notes were not available to the Defendants at the times they interacted with Heinemann. [ 295 ] This is of particular concern for Dr. Ullah, who was completely unaware of the Examination for Discovery evidence of the nurses and the Defendant doctors. [ 296 ] As a result of the incomplete information provided to Dr. Ullah before trial, he was unable to assess the scope of treatment the Defendants swear they provided. [ 297 ] If Dr.

Ullah were aware of this Discovery evidence, it may be that his opinion would have changed, at least to the extent of concluding that if Drs. Swanepoel and Wilson actually did what they say they did, they would have been in the best position to conclude if he was fit to be discharged on June 18, after being held overnight for observation. [ 298 ] In the result, I prefer the opinion evidence of Dr. Chue over that of Dr. Ullah, where they conflict. B. The Evidence of Dr. Brankston and Dr. Mayer [ 299 ] As noted, in his initial report of October 19, 2007, Dr.

Brankston opined that Heinemann was presenting with symptoms of a psychiatric disorder, most likely a depressive illness and he also opined that he should have been detained pursuant to the provisions of the Mental Health Act . [ 300 ] In cross examination however, he completely resiled from that opinion after conceding there was insufficient evidence to justify this. [ 301 ] He also agreed, that if Dr. Swanepoel questioned Heinemann and kept him overnight for observation, he was acting properly and meeting the standard of care of a family physician. [ 302 ] Finally, he agreed that if Dr.

Wilson conducted the mental status examination she says she conducted, it was reasonable to have discharged Heinemann on June 18. [ 303 ] Dr. Mayer opined that Dr. Swanepoel acted within the standard of care in holding Heinemann overnight for observation after questioning him and that Dr. Wilson also acted within the standard of care in discharging him if she conducted the mental status examination she says she did. [ 304 ] In the result, there is very little substantive conflict in the evidence between Drs. Brankston and Mayer. C.

Was Russell Heinemann Suffering from a Major Depressive Disorder or other Serious Mental Disorder which was discernible to a Family Physician?

[305] I have already concluded, that I prefer the opinion evidence of Dr. Chue over that of Dr. Ullah. [306] Dr.

Chue concluded that Heinemann was not suffering from a major depressive disorder or other significant psychiatriccondition on June 17 or 18, 2006. [307] In cross examination, he agreed with the proposition that 90% of individuals who commit suicide are suffering from some formof mental illness but that does not necessarily mean that the patient is displaying overt symptoms. [308] Given Heinemann’s death, it is impossible to determine whether he was suffering from some form of mental illness when hedied. [309] Moreover, even if one assumes that Heinemann was suffering from some form of mental illness, the issue remains as to whetherthis was discernible to a family physician working in a small rural hospital?

D. Could the Defendants have Certified Russell Heinemann under the Mental Health Act? [310] Pursuant to s. 2 of the Mental Health Act, RSA 2000, c. M-13 (as am) (Act), a physician may issue a Certificate to detain aperson against his will. [311]

Section 2 reads as follows: 2 When a physician examines a person and is of the opinion that the person is (

a) suffering from mental disorder, (

b) likely to cause harm to the person or others or to suffer substantial mental or physical deterioration or serious physical impairment,and (

c) unsuitable for admission to a facility other than as a formal patient, the physician may, not later than 24 hours after the examination, issue an admission certificate in the prescribed form with respect to theperson. [312] The term “mental disorder” is defined in s. 1(1)(g): (g) “mental disorder” means a substantial disorder of thought, mood, perception, orientation or memory that grossly impairs (

i) judgment, (ii) behaviour, (iii) capacity to recognize reality, or (iv) ability to meet the ordinary demands of life; [313] In Russell v Calgary General Hospital, 2004 ABQB 102, Rowbotham J (as she then was) at paragraphs 49 and 50, commentedon the significance of issuing such a certificate: [49] Admission of a patient against his or her will by use of the procedure under the Mental Health Act is a rare occurrence. The merefact that a person conducts herself in a manner which is unhealthy or fails to accept treatment recommended by a physician, does notjustify such detention.

This is clear from the decision in Winnipeg Child and Family Services (Northwest Area) v. D.F.G. (MB CA), [1996] M.J. NO. 398 (Man C.A.) , aff'd on other grounds, (SCC), [1997] 3 S.C.R. 925. In that case ayoung woman was pregnant and severely addicted to solvent sniffing. In order to protect the unborn child, Family Services applied tohave her committed as a ward of the province under the provisions of the Manitoba Mental Health Act. The Manitoba Court of Appealfound that the finding of a mental disorder was not supported by the evidence.

There was no evidence of the young woman's incapacityto look after her own affairs. The definition of "mental disorder" in the Manitoba legislation was virtually identical to that in the Albertastatute. [50] This court in M. v. Alberta (1985), (AB KB), 63 A.R. 14 (Q.B.) considered the requirement of danger tooneself or others. Justice McDonald found this to mean a present or imminent danger. A danger which might arise in a matter of weekswas insufficient.

Despite a subsequent amendment to the legislation to include the words, "or likely to present a danger to himself orothers", this court has continued to require evidence of imminent risk of harm (See Wurfel v. Alberta Hospital (Edmonton), [1999] A.J.No. 868). [314] Dr. Chue opined, that it would not have been appropriate to issue a Certificate for Heinemann, whereas Dr. Brankston at trialcompletely resiled from his initial opinion that a Certificate should have been issued. [315] Only Dr.

Ullah maintained at trial, that a Certificate should have been issued but, as noted, he had considerably less informationavailable to him than was available to Drs. Brankston and Chue respecting the interactions which Drs. Swanepoel and Wilson say theyhad with Heinemann prior to his discharge. [316] I accept Dr. Chue’s opinion, now supported by Dr. Brankston, that there was no justification based on the information, thenavailable, for the issuance of a Certificate under the Act respecting Heinemann.

[ 317 ] On the basis of the evidence which I accept, Heinemann was not suffering from a mood disorder at the time of his discharge and there was no basis to conclude that he was likely to cause harm to anyone, including himself. E. Did Dr. Swanepoel’s Treatment of Russell Heinemann fall below the Standard of Care? [ 318 ] Dr. Swanepoel’s primary interaction with Heinemann occurred between 3:30 and 4:15 am on June 18. [ 319 ] He testified to questioning Heinemann at that time as he was concerned about his mental state as a consequence of the amount of Gravol he had consumed. [ 320 ] In his testimony, Dr.

Swanepoel observed that it is not possible to conduct a proper mental health examination if the patient is under the influence of drugs and that one must wait for the drugs to dissipate from the patient’s body before proceeding. [ 321 ] He testified that Heinemann requested a private meeting with him during their discussion, at which time he disclosed that he was having marital difficulties and requested that this discussion not be charted, which request Dr.

Swanepoel agreed to. [ 322 ] He testified to spending approximately 45 minutes with Heinemann, including the private discussion, and during this 45 minute period asked Heinemann a number of questions, including whether or not he had any ideation of harming himself, which he denied. Dr. Swanepoel’s primary concern at this time was the prospect of Heinemann harming himself. [ 323 ] Given the absence of chart notes on the subject of the alleged mental status questioning of Heinemann, it is necessary to determine if there is other evidence which confirms or contradicts, Dr.

Swanepoel’s version of events. [ 324 ] I identify the following as confirmatory evidence: 1. Nurse Chilton charted that Dr. Swanepoel had a private meeting with Heinemann. 2. Nurse Chilton also charted that Dr. Swanepoel spoke to Ms. Forabosco several times which corresponds with his version of events as well as the testimony of Ms. Forabosco. 3. The Consultation Sheet addressed to Dr. Wilson confirms his conclusion that it was medically necessary to inquire into the effects of Gravol overuse by Heinemann. [ 325 ] There is no evidence to the contrary. [ 326 ] I believe Dr.

Swanepoel’s version of events and conclude that his decision to hold Heinemann for observation was prudent in the circumstances. [ 327 ] He recognized that Heinemann’s consumption of Gravol could cause behavioural side effects and the only way to properly assess him was to hold him for observation and then have Dr. Wilson determine if he was fit to be discharged after the Gravol had dissipated from his body. [ 328 ] No evidence was proffered at trial, that Dr.

Swanepoel made any error of judgment in holding Heinemann for observation while the Gravol in his body dissipated and it is uncontroverted that while in the Seton Hospital he was completely safe and came to no harm. [ 329 ] There is no evidence, that under these circumstances, Dr. Swanepoel could reasonably have done anything more to protect Heinemann. [ 330 ] Dr. Swanepoel’s Consultation Sheet clearly contemplated that Heinemann would not be discharged until a mental status examination was conducted by Dr. Wilson. [ 331 ] Dr.

Swanepoel met the standard of care of a family doctor working in a small rural hospital in his treatment of Heinemann. F. Did Dr. Wilson’s Treatment of Russell Heinemann fall below the Standard of Care? [ 332 ] The issue of whether Dr. Wilson’s treatment fell below the standard of care must be determined independently of the assessment of Dr.

Swanepoel’s treatment. [ 333 ] There was overwhelming evidence at trial that Heinemann’s physical and mental conditions and his behaviour changed from the time he first attended at the Seton Hospital on June 17, until his discharge on the morning of June 18. [ 334 ] Given that Dr. Wilson only started dealing with Heinemann on the morning of June 18, in determining whether she breached the standard of care, it is necessary to consider what his mental and physical conditions were when she interacted with him that morning. [ 335 ] Moreover, in determining whether Dr.

Wilson’s treatment fell below the standard of care, the critical timeframe is the time of discharge at 10:00 am, as clearly Heinemann came to no harm in the hospital before that time. [ 336 ] She arrived at the hospital at 9:00 am and was advised by the nurses that Heinemann was in a bed in that

section of the hospital pursuant to the order of Dr. Swanepoel who had met with Heinemann for the last time in the early morning hours of June 18. [ 337 ] Dr. Wilson testified that she had some conversation about Heinemann with nurses Chilton and Wall, scanned the nurses’ notes

that had been prepared up to that time and also read the Consultation Sheet which had been prepared by Dr.

Swanepoel. [ 338 ] She testified that she met with Heinemann for approximately 15 minutes, conducted both a physical and mental status examination of him, and discharged him at 10:00 am. [ 339 ] It is uncontroverted that she made some chart notes during the meeting and added some additional chart notes several hours after learning that Heinemann had committed suicide. [ 340 ] She made no chart notes regarding the mental status examination she says she conducted and readily acknowledged that she had been trained to chart all significant events in the care of a patient. [ 341 ] She was unable to explain her failure to chart the mental status examination she says she conducted. [ 342 ] During her testimony at trial she was emphatic that she had conducted a mental status examination of him and questioned him about substance abuse and suicida

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