Galapia v. Northern Health Authority, 2013 BCSC 1841

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Galapia v. Northern Health Authority, 2013 BCSC 1841 Date: 20131007 Docket: 10-3663 Registry: Victoria Between: Roland Garcia Galapia and Roland Garcia Galapia, as personal representative of the Estate of Robella Galapia, and Roland Galapia Jr. by his litigation guardian, Roland Garcia Galapia Plaintiffs And Northern Healh Authority doing business as Dawson Creek and District Hospital and Dr. Andre Goetze and Dr.

James Aubrey Hargreaves and Carrie Steinlechner and Shimmy Matthew and Velvet Musfelt and Solutions Staffing Inc. and Nurses Doe #2 and #5 Defendants And Northern Healh Authority doing business as Dawson Creek and District Hospital and Dr. Andre Goetze and Dr. James Aubrey Hargreaves and Carrie Steinlechner and Shimmy Matthew Third Parties Before: The Honourable Mr. Justice Crawford Reasons for Judgment Counsel for Plaintiff: M.A. Sheane Counsel for Defendants, Velvet Musfelt and Solutions Staffing Inc.: A.

Howell Counsel for Defendants and Third Parties, Northern Health Authority doing business as Dawson Creek and District Hospital, Carrie Steinlechner and Shimmy Matthew: G.P.G. Deshon Place and Date of Hearing: Victoria, B.C. September 13, 2013 Place and Date of Judgment: Victoria, B.C. October 7, 2013 [ 1 ] A catastrophic post-surgical accident occurred on January 20, 2009 and resulted in a patient dying on January 29, 2009 at the Dawson Creek and District Hospital.

This unfortunate accident led to a Special Case regarding vicarious liability and indemnity being put before me by two of the defendants, Solutions Staffing Inc. and the Northern Health Authority doing business as Dawson Creek and District Hospital. (I will call each of the parties respectively Solutions Staffing and the NHA). [ 2 ] One of the nurses, Velvet Musfelt, who was on duty January 20, 2009 was provided to the hospital by Solutions Staffing, a company that provides medical personnel, including nurses, to health authorities. The three issues between the two defendants are: 1.

Is the NHA vicariously liable for the acts and omissions of Nurse Musfelt while Nurse Musfelt was on assignment to the hospital? 2. Is Solutions Staffing vicariously liable for the acts and omissions of Nurse Musfelt while Nurse Musfelt was on assignment to the hospital? 3. Is Solutions Staffing required to indemnify the NHA for the acts and omissions of Nurse Musfelt while Nurse Musfelt was on assignment to the hospital pursuant to clause 10.5 of the staffing contract? Background

[3] The staffing contract between the parties is dated September 1, 2008. It provides that Solutions Staffing will use its best effortsto provide the NHA qualified, experienced and competent health care professionals. [4] NHA is to notify Solutions Staffing from time-to-time when a temporary professional is provided for an assignment and tospecify the experience and qualifications they require of the professional. On each hiring, NHA is to provide Solutions Staffing with anassignment approval form, and NHA may accept or reject any professional without explanation. [5] Solutions Staffing is obliged to obtain and maintain insurance in accordance with

Schedule B.

Schedule B, in turn, includes acomprehensive general liability policy for “personal injury and liability”. [6] Paragraph 10.5 of the staffing contract states: The Staffing Agency will indemnify and save harmless the Facility … from and against any and all losses, claims, damages, actions,causes of action, costs and expenses, including legal costs on a solicitor own client basis, that any of the Indemnitees may sustain, incur,suffer or be put to at any time either before or after the termination of this Agreement, whether the same or any of them are based upon,arise out of or occur, directly or indirectly, by reason of:

a) the failure of any professional provided by the Staffing Agency to have the requisite or qualification, competence and experience foran Assignment.

b) any other breach of this Agreement by the Staffing Agency…

c) any act or omission of any of the Staffing Agency Group;

d) any representation or warranty of the Staffing Agency being untrue. [7] The employment agreement between Solutions Staffing and Nurse Musfelt states her employment is at will, and theassignments the agency arranges are temporary in nature and terminable at any time. [8] Further, Solutions Staffing agreed to pay the nurses at specified hourly and overtime rates.

As well, they agreed to pay vacationpay and make appropriate deductions to CPP, WCB, EI and federal and provincial taxes. [9] Nurse Musfelt occasionally worked at the Dawson Creek Hospital in 2007 and 2008, some four to five months in total. [10] On November 25, 2008, the Patient Care Clinical Resource Coordinator at the hospital emailed Solutions Staffing stating “I amlooking for an RN to fill a full-time line beginning January for long-term.

Do you have anyone available?” [11] On December 1, 2008, the Solutions Staffing accounts manager emailed the Director of Patient Care and the Patient CareClinical Resource Coordinator advising that Nurse Musfelt would return to the hospital if needed. The same day, the Patient CareClinical Resource Coordinator emailed in response saying they could use Nurse Musfelt starting on January 9, 2009. [12] Solutions Staffing sent NHA an assignment proposal form regarding Nurse Musfelt’s proposed assignment on “medical L8”commencing January 9, 2009, and NHA signed the assignment on December 1, 2008.

Discussion [13] Both counsel provided excellent arguments replete with authority. I thank them for their excellent work. However, the trial iscoming up very quickly, and I am going to provide brief reasons. [14] Both NHA and Solutions Staffing are enterprises that accept risk, but it might be said NHA would not be considered a businessfor profit in the ordinary sense whereas Solutions Staffing is. [15] NHA effectively directs the nurse regarding the work she must perform.

I note NHA had employed Nurse Musfeltintermittently over the previous two years to the incident, and it would have known Nurse Musfelt and her level and areas ofcompetence. [16] I note also NHA has the choice to hire or not hire Nurse Musfelt. NHA directs and controls the nurse on duty. NHA paysSolutions Staffing for Nurse Musfelt’s services. In turn, Solutions Staffing take their portion of the monies and pays Nurse Musfeltaccording to their contract and various legislative requirements.

NHA may discipline Nurse Musfelt, and NHA effectively may “hire orfire”. [17] NHA holds out that their staff, including Nurse Musfelt are competent to deal with medical and surgical issues when a patientpresents at the hospital. Ultimately, one may say in contract, Nurse Musfelt’s employer is Solutions Staffing, but here the claim is in tort,and I find NHA sufficiently connected to Nurse Musfelt such that NHA may be vicariously liable. [18] Macfarlane J. in McDonald v. Associated Fuels Ltd. (BC SC), [1954], 3 D.L.R. 775 quoted the words of LordBlackburn in Dalton v. Angus & Co. (1881), 6 App.

Cas. 740 at p. 829: On the other hand, a person causing something to be done, the doing of which casts on him a duty, cannot escape from the responsibilityattaching on him of seeing that duty performed by delegating it to a contractor. He may bargain with the contractor that he shall performthe duty and stipulate for an indemnity from him if it is not performed, but he cannot thereby relieve himself from liability to thoseinjured by the failure to perform it. (Italics removed.)

[ 19 ] In sum, NHA cannot contract out of its duty to its public patients. [ 20 ] My answer to question one - “Is the NHA vicariously liable for the acts and omissions of Nurse Musfelt while Nurse Musfelt was on assignment to the hospital?” - is yes; the hospital can be vicariously liable for the alleged acts and omissions of Nurse Musfelt. [ 21 ] My answer to question two - “Is Solutions Staffing vicariously liable for the acts and omissions of Nurse Musfelt while Nurse Musfelt was on assignment at the hospital? - is also yes. [ 22 ] The contracts between NHA, Solutions Staffing and Nurse Musfelt make it plain that Solutions Staffing can be vicariously liable for the acts and omissions of Nurse Musfelt while Nurse Musfelt was on assignment at the hospital. [ 23 ] Question two’s answer is driven by the contractual nexus.

NHA paid Solutions Staffing, and Solutions Staffing was obligated to select an appropriate person and was responsible for paying Nurse Musfelt’s wages less appropriate deductions. [ 24 ] However, I point out my answer to question two is not a ruling in any sense as to the liability of Solutions Staffing. [ 25 ] Question three - “Is Solutions Staffing required to indemnify the NHA for the acts and omissions of Nurse Museflt while Nurse Musfelt was on assignment to the hospital pursuant to clause 10.5 of the staffing contract?” - is a question I cannot answer at this point.

A trial is needed to thoroughly analyze this question. [ 26 ] I do accept the argument that the indemnity clause was specifically what was contracted for, i.e., to assign the risk of any negligence from NHA to Solutions Staffing, and that Solutions Staffing ran its business at a profit and one of its costs would be the obtaining of appropriate insurance, and accordingly the plain wording “any act or omission of any of the staffing agency group” could be sufficient to trigger the indemnity provision. [ 27 ] However, I accept the submission that the nature and extent of the contract between Solutions Staffing and NHA cannot be determined in this context until a trial judge makes a finding of direct negligence on the part of the NHA vis-à-vis the acts and omissions of Nurse Musfelt or indeed any of the other staff.

The case law cited to me makes it plain that the contract clauses should not be determined until the factual matrix is proven. I note Solutions Staffing argues case law provides a basis to fairly argue the indemnity clause does not provide indemnity to NHA. [ 28 ] Liability is yet to be established. Other nurses in the NHA’s employment were named defendants, and issues may arise from the staff “mix”.

Factual nuances may well appear as the evidence is presented at trial that are not presently in the contemplation of counsel or myself. [ 29 ] In sum, my answers to this Special Case’s questions are: 1) Question one: yes; 2) Question two: yes; and 3) Question three: the answer must wait another day. “The Honourable Mr. Justice Crawford”