2017 QCCQ 3318, 2017 QCCQ 3318

C.L. c. Jewish General Hospital 2017 QCCQ 3318 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-149974-158 DATE: April 12, 2017 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ C. L. Plaintiff v.

JEWISH GENERAL HOSPITAL Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff is suing defendant hospital, in damages, for $15,000.00. [ 2 ] Plaintiff is a 90-year-old woman. [ 3 ] She is represented by her daughter, M. L., for the purposes of her various recriminations.

They are, inter alia : - unacceptable quality of after-care services while hospitalized; - insufficient, inappropriate and untimely physiotherapy; - early removal of a cholecystectomy tube; - being placed in rooms with “MRSA patients”; - not being placed in isolation; - being made to use a toilet instead of a bedpan; - being left in a toilet; - the false documentation of facts in her medical record. [ 4 ] The Court heard several witnesses (Lobbo, hospital employees Filomena Novello, Lynn Gillespie, Justine De Monteiro and insurance adjustor Isabelle Doucet), and examined the copious documentation filed into the court record by L..

[ 5 ] At the outset, it is important to note that, at trial, L. declared that half of the claim is for the “loss of salary” she allegedly lost while taking care of her mother. There is no evidence that plaintiff herself incurred any expenses in relation to the help she received from L.. As for L., she clearly has no interest, as there is no “lien de droit” between herself and defendant.

This part of the claim is therefore denied. [ 6 ] With respect to the other half of the claim, plaintiff was hospitalized at defendant hospital from November 29 to December 20, 2012, and February 7 to February 21, 2013. [ 7 ] While plaintiff was hospitalized, and after she was discharged, L. complained incessantly about the care her mother received ( inter alia , 5 page letter dated January 25, 2013; 4 page letter dated “January 25, 2013/Feb 25/13”; another 5 page letter dated “January 25, 2013/Feb25/13”; letter dated March 20, 2013; 5 page letter dated July 4, 2013; 4 page letter dated September 16, 2015; 4 page letter dated October 28, 2015; 2 page letter dated November 9, 2015; 15 page complaint dated “September/Nov. 2016”). [ 8 ] Defendant wrote back and responded to plaintiff and L., on March 11, 2013; March 21, 2013; September 17, 2015; November 5, 2015; January 14, 2016; and July 21, 2016. [ 9 ] In addition to the foregoing, L. complained about fax copies; prescriptions; red marks and creams; individual nurses and orderlies and their day-to-day duties and activities, in every minute detail; nurse and orderly schedules and time allotments for services rendered, on a floor-by-floor basis; diapers; “foleys”; “clean up jobs”; lack of hygiene; bedpans; nurse and orderly breaks and where they rest; inaccurate entries in the medical file; the grammar used in the medical file; what the staff wrote about plaintiff’s shoes and falls; “the shoe safety issue”; the description of plaintiff’s dwelling, in the medical record: an apartment vs a semi-detached cottage with “16 steps to get in” vs “5 stairs to get in and 17 stairs to get to the washroom”; spelling mistakes in the medical file; doctors’ observations; failure to correct “twisted words or changes” in the medical file; aggressive physiotherapy; “FALSE” statements in the record; lack of daily sponge baths; having to “remove poop from (plaintiff’

s) vagina”; defendant’s delay in “launching an investigation immediately upon receipt of the complaint”; orderly refusing to provide a body sponge; false accusations of dementia; plaintiff’s sudden hearing loss, later regained; plaintiff being evaluated in L.’s absence; etc. [ 10 ] As above stated, over the years, defendant responded to L. regarding her complaints.

Defendant also investigated L.’s allegations, and, on July 21, 2016, sent her the following letter: “[…] Observations and Conclusions As stated in the body of this response, responding to a complaint 3 years after the hospitalization is difficult as we are unable to request the direct input of the staff who participated in the care. Reliance on recording offers a limited perspective as recording is designed to be a concise presentation of relevant information needed to described significant events and or conditions and to demonstrate that the plan of care was followed and or adapted as needed.

From everything I read and ail the information I received, it appears that Mrs. Braganza required and received a comprehensive plan of care from a multidisciplinary team that included nursing, nutrition, physiotherapy, occupational therapy and several medical specializations. There was some indication in the recording that Mrs. Braganza felt “pushed” by certain professionals, but this was later explained as trying to actively encourage her to participate in her own care so as to maximize her autonomy. This is always a primary concern for the elderly in hospital.

Often hospitalizations can result in elderly patients losing some autonomy as being ill is very de-stabilizing. Mrs. Braganza was initially suffering from a very painful condition that was addressed quickly but did take some time to resolve. Further her respiratory difficulties, asthma, shortness of breath exacerbated her feelings of being unwell and made it more frightening for her to assume her level of autonomy previously experienced. It is very regrettable that the “encouragement”: she was receiving to improve her functional status and maintain her autonomy was perceived as being harsh or unfeeling.

I would assure Mrs. Braganza that was never the intent. Communication is a key element in good health care. I do unfortunately see this element in complaints frequently. The JGH recognizes this fact and has offered on numerous occasions specialized communication courses to staff and physicians with a goal to improving this area of care. Further, there are continued efforts to engage family as partners in care and have an open dialogue throughout a hospitalization.

It appears from your complaint that you did not experience being a partner in care in spite of your participation as the main caregiver for your mother. While some of your perceptions or

interpretations about what occurred were erroneous, I cannot help but question whether this would have been so difficult had there been better lines of communication between you and the team. In situations like you are describing, I generally recommend that a family meeting be help so that the patient and family can meet with all the major health care providers so that information could be exchanged and questions asked in an open and transparent fashion. This type of meeting is being held much more frequently.

Your experience serves to renew my belief that family meetings with the multidisciplinary team remain an effective and necessary activity and I will continue in my efforts to encourage these. I trust that I have responded to all elements of your concerns. I want to thank you for having brought these concerns to my attention. This type of feedback is a critical element in the ongoing efforts to improve care. Rosemary Steinberg Commissioner of Complaints & Quality of Services”

(exhibit P-1, pages 6 and 7) [ 11 ] Be that as it may, at the hearing, plaintiff did not present an expert witness or expert’s report to support her allegations. [ 12 ] Furthermore, plaintiff, who had the burden of proof (arts. 2803 and 2804 of the Civil Code of Quebec ), did not demonstrate, according to a preponderance of evidence, that the alleged faults occurred or, alternatively, that they caused her injury. [ 13 ] There is no evidence that the “after-care services” and physiotherapy which plaintiff received were insufficient or inappropriate.

In fact, the evidence demonstrated the contrary. [ 14 ] There is no evidence that she suffered injury as a result of being mistakenly placed in a room with “MRSA” patients; as a result of not being placed in isolation; or as a result of being encouraged to use the toilet rather than a bedpan.

Indeed, in the appendix attached to plaintiff’s claim, L. herself described any injury as being purely hypothetical. [ 15 ] Likewise, there is no evidence that the medical record contains any false or misleading information that may have caused injury to plaintiff. [ 16 ] Lastly, plaintiff failed to demonstrate that a nurse ever removed the cholecystectomy or manipulated it in a negligent fashion.

Rather, according to the preponderance of evidence, it appears that a doctor performed said medical act. [ 17 ] Whereas the evidence does not show that defendant committed a fault in plaintiff’s regard; WHEREFORE THE COURT HEREBY: DISMISSES plaintiff's claim, with court fees in the amount of $250.00. __________________________________ ELIANA MARENGO, J.C.Q. Date of hearing: March 1, 2017