Anderson v. Queen Elizabeth II Health Sciences Centre, 2012 NSSC 360

SUPREME COURT OF NOVA SCOTIA Citation: Anderson v. Queen Elizabeth II Health Sciences Centre, 2012 NSSC 360 Date: 20121016 Docket: Hfx No. 155158 Registry: Halifax Between: Victoria Renata Anderson, Mildred Anderson and Victoria Anderson Plaintiffs and The Queen Elizabeth II Health Sciences Center, Dr. S.A. Gee, and Dr. S. Sharma Defendants LIBRARY HEADING Judge: The Honourable Justice Cindy A. Bourgeois Heard: January 9, 10, 11, 12, 13, 16, 17, 18, 19, and 20, 2012 in Sydney, Nova Scotia Final Written Submissions: April 14, 2012 Written Decision: October 16, 2012 Subject: Medical malpractice.

Summary: The plaintiff, Victoria Anderson, brought an action against the two defendant doctors alleging their negligent attempts at a central line placement caused her to suffer a stroke, resulting in “locked in” syndrome. Issue: Were the defendants’ actions below the standard of care, and thus negligent? Did the negligent acts cause the stroke? Was there a lack of informed consent? Result: The Defendant Gee was found to have undertaken the central line placement in a negligent fashion, not assuring that the plaintiff’s head was placed in the proper location for the procedure.

The Court determined that it was more probable than not that the defendant Gee inadvertently punctured the vertebral artery twice during the procedure, and that this started a biological cascade of events giving rise to the stroke. The alternate theories of causation advanced by the defendants were found to be improbable. The Court further determined that the plaintiff did not provide her informed consent to the procedure.

The Defendant Sharma was absolved from liability given that he was acting under the supervision of the more senior Defendant, and there was no evidence his attempts at the procedure caused any injury which could have, on a balance of probabilities, given rise to the plaintiff’s stroke. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA Citation: Anderson v.

Queen Elizabeth II Health Sciences Centre, 2012 NSSC 360 Date: 20121016 Docket: Hfx No. 155158 Registry: Halifax Between: Victoria Renata Anderson, Mildred Anderson and Victoria Anderson Plaintiffs

and The Queen Elizabeth II Health Sciences Center, Dr. S.A. Gee, and Dr. S. Sharma Defendants Judge: The Honourable Justice Cindy A. Bourgeois Heard: January 9, 10, 11, 12, 13, 16, 17, 18, 19, and 20, 2012 in Sydney, Nova Scotia Last Written Submissions: April 14, 2012 Written Decision: October 16, 2012 Counsel: Raymond F. Wagner, Michael Dull, Counsel for the Plaintiffs Daniel M. Campbell, Q.C. and W. Harry Thurlow, Counsel for the Defendants By the Court: INTRODUCTION: [ 1 ] On April 6, 1997, the Plaintiff Victoria Anderson’s life and that of her family tragically changed forever. Ms.

Anderson, a lifelong resident of Louisbourg, Nova Scotia, suffered a stroke at the base of her brain, which has resulted in her experiencing “locked-in” syndrome. The only muscles she can voluntarily move are those controlling her eyes, yet she remains cognitively intact. Ms. Anderson was 23 years of age when she suffered her devastating stroke, and has lived with the consequences thereof for 15 years. [ 2 ] For several days preceding the onset of the stroke, Ms. Anderson was a patient at the Queen Elizabeth II Hospital in Halifax, Victoria General site, being treated for gastrointestinal concerns. Ms.

Anderson asserts that the stroke was caused by the actions of the Defendants, Drs. Sharma and Gee, medical residents at the time, who unsuccessfully attempted to insert a central line in her internal jugular vein on April 5, 1997. Ms. Anderson asserts the procedure was done negligently, and caused the stroke.

[ 3 ] The Defendant Doctors dispute that they were negligent in any way. Further, the issue of what caused Ms. Anderson’s stroke is hotly contested. The Court heard three possible theories of causation: that the procedure undertaken by the Defendants on April 5 th precipitated the stroke; that similar procedures undertaken on April 3rd and 4th on the subclavian vein caused the stroke; or that the stroke spontaneously occurred due to Ms.

Anderson’s blood being overly prone to clotting, known as hypercoagulability. [ 4 ] While the Defendants acknowledge that it is possible that any of the above three mechanisms could have caused the stroke, they assert that the evidence does not establish that the theory involving them has been shown to be the most probable. They assert that it is much more probable that the stroke was caused either due to Ms. Anderson’s hypercoagulability or other factors unrelated to their actions on April 5, 1997. Therefore, the claim must fail.

BACKGROUND: [ 5 ] It may be helpful to provide a brief review of the undisputed background and factual context in which this action arose. Ms. Anderson lives in Louisbourg, where her parents reside and where she grew up. She completed high school and worked seasonally in the restaurant at Fortress Louisbourg. In 1997 she was 23 years old, had a young daughter, and was planning her wedding. Ms. Anderson had a history of bowel disease since childhood which would “flare up” from time to time.

She had such a flare-up in 1996 and had been transferred from the Cape Breton Regional Hospital to the Victoria General Hospital, under the care of Dr. Jon Love, a gastroenterologist. She was considered for surgery and was given total parenteral nutrition via a central venous line. Her bowel disease subsided, and she went home without the need for surgery. [ 6 ] A central line is a catheter which is inserted into one of the large veins or arteries in the core of the body. These large catheters are used in medical care for the delivery of large volumes of fluids (such as total parenteral nutrition, or “TPN”).

They are also used for other purposes, such as direct monitoring of vital signs and insertion of medical instruments. [ 7 ] The evidence in this case focussed on central lines inserted by two different approaches - in the subclavian vein (behind the clavicle, or collarbone) or in the internal jugular vein (in the neck). [ 8 ] During the trial, evidence was presented on the two techniques for insertion of central lines. In both techniques, a “finder” needle is used to locate the desired vein, followed by a larger vein being inserted in the same location.

A wire is then inserted into the vein through the needle, and the needle is then withdrawn, over the wire, which is left in place. A small incision is made where the wire enters the skin, and a catheter is threaded over the wire, which guides it into the vein. The wire is then withdrawn, leaving the catheter in place. [ 9 ] The process is done under sterile conditions in hospital - frequently in emergency rooms, operating rooms or intensive care units for critically ill patients, but occasionally in a ward setting for less critically ill patients. [ 10 ] In the spring of 1997 Dr. Sudheer Sharma and Dr.

Shirl Gee were medical residents in the Dalhousie University training program. Dr. Sharma was in his first post-graduate year (PGY-1) in internal medicine. Dr. Gee was in her second post-graduate year (PGY-2) in internal medicine. Each had completed certain “rotations” within specialty departments in the hospital, in the course of which they had received some degree of training and experience in the insertion of central lines. [ 11 ] In April 1997 Ms. Anderson had suffered a flare-up of her chronic bowel disease.

She was transferred from the Cape Breton Regional Hospital by ambulance to the Victoria General Hospital in Halifax. Ms. Anderson had been admitted to the Victoria General Hospital (then newly designated as the Victoria General Site of the Queen Elizabeth II Health Sciences Centre, recently formed by the merger of Camphill Hospital/Halifax Infirmary and the VGH). She was again under the care of Dr. Jon Love. [ 12 ] Dr. Love ordered that Ms. Anderson be provided with total parenteral nutrition (TPN) - an intravenous feeding method requiring the use of a central line. [ 13 ] Dr. Love sent a consultation note to Dr.

Robert Stone, a general surgeon, asking him to follow Ms. Anderson with him. He also asked Dr. Stone to arrange for the insertion of the central line (by one of his residents).

[ 14 ] Dr. Love had issued orders for TPN on Tuesday, April 21. His orders included: Consult Dr. Stone - surgery Consult dietician re: TPN Ostomy nurse consult. [ 15 ] Dr. Love wrote his consultation request to Dr. Stone on April 2. Dr. Stone replied, “ should settle - will follow + arrange for central line ”. [ 16 ] On the afternoon of Thursday, April 3, two residents attempted to insert the central line. Dr. Eric Versnick (PGY-1, radiology) was supervised by Dr. J. Doucet (PGY-5, surgery). They attempted to insert the catheter in the left subclavian vein. The procedure note written by Dr.

Versnick comments: “After several passes got flash back, but experienced pain in [L] hand. Aborted procedure. PAIN↓over 5 minutes. PLAN - try [R] side tomorrow”. [ 17 ] They ordered a chest x-ray to ensure that their needle had not entered the long space of the chest cavity, possibly causing a pneumothorax. [ 18 ] On Friday, April 4, Dr. Love visited Ms. Anderson. He signed an acknowledgement to a note by a pharmacist referring to the plan to start TPN that night, and wrote his own note including, “Flat plate - no dilation but thickened wall transverse: doing okay (with) I-II BM/day.

P-TPN ” [ 19 ] The same afternoon Dr. Doucet, the surgery resident, again attempted to insert the central line, this time to the right subclavian vein. He was unsuccessful, and wrote: Attempted [R] subclavian insertion - good flash back but unable to insert wire at any angle. No c/v afterward. P-CXR Ask someone with better luck today to retry line insertion . [ 20 ] By the afternoon of Saturday, April 5, the line had still not been placed.

The TPN materials had been prepared, activated, and were waiting in the medication room. [ 21 ] On Saturday afternoon, Catherine Beaton, RN, one of the nurses on the ward, noticed that the TPN order had still not been implemented. Ms. Beaton called Dr. Sharma, who was the resident on-call for internal medicine. She asked Dr. Sharma to come and assess the situation. [ 22 ] Dr. Sharma reviewed Ms. Anderson’s circumstances and decided to consult with his senior resident, Dr. Gee. When Dr.

Gee arrived on the ward, they reviewed the chart together, noting that there had already been two unsuccessful attempts at insertion of the line. The Defendants decided that they would insert the line by the internal jugular approach if the patient’s anatomical landmarks were suitable.

[ 23 ] The Defendants went to visit with Ms. Anderson, accompanied by some clinical clerks (medical students). Ms. Anderson’s visiting family members were asked to leave the room and Drs. Gee and Sharma examined her. They found her anatomical landmarks to be suitable. [ 24 ] No consent form was signed. [ 25 ] The procedure was performed under sterile conditions, with Drs. Gee and Sharma gloved and gowned. Ms. Anderson was placed in position and prepared for the procedure. [ 26 ] Dr. Sharma initially attempted the procedure, but was unsuccessful. Dr. Gee took over, and was also unsuccessful.

The evidence relating to the details of the procedure will be reviewed in further detail below. [ 27 ] Shortly after this, Dr. Gerald Schep arrived on the ward. He was a Gastroenterologist covering the weekend patients of Dr. Love. Drs. Gee and Sharma discussed with him their unsuccessful attempt at insertion of a central line, and Dr. Schep went to see Ms. Anderson. [ 28 ] Dr. Schep noted: “...Attempts at [L] subclavian 2d ago [R] subcl 1d ago & RIJ by various residents unsuccessful though clinically no significant sequelae.

In my estimation TPN is not absolutely required and her condition has been responding to Rx over -3d. So will ↑diet put on PPN. If gets worse then central line placement under fluoro/u/s could be considered” [ 29 ] Various witnesses described Ms. Anderson’s condition through the evening of April 5, which included - descriptions of pain, and later nausea and vomiting. [ 30 ] On Sunday morning, April 6, Ms. Anderson was noted as having serious neurological symptoms, which were first identified at about 10:00 a.m.

Tragically, those symptoms progressed rapidly to the point where she was “locked in”, the condition in which she remains 15 years later. ISSUES: [ 31 ] As referenced above, there are two primary issues to be resolved by the Court:

a) Were the Defendants negligent in the process of treating Ms. Anderson?; and

b) Did the attempted internal jugular cannulation on April 5, 1997 cause Ms. Anderson’s stroke? [ 32 ] Each of the above broad questions must be broken down and examined in closer detail. It is helpful at this juncture to consider more closely the position of each party. POSITION OF THE PLAINTIFFS

[ 33 ] Ms. Anderson’s counsel acknowledges that there are several possible causes of her stroke. It is asserted however, that the evidence permits the Court to conclude that the actions of the Defendants on April 5, attempting to insert the internal jugular central line, were the most probable cause. [ 34 ] Counsel submit that the other theories of causation raised by the Defendants, are plausible, but not probable based upon the evidence presented at trial.

It is asserted that there is insufficient evidence for this Court to find the stroke was either triggered by the attempts at subclavian cannulation on April 3 and 4, or that it spontaneously occurred due to Ms.

Anderson being in a state of “potent hypercoagulability”. [ 35 ] In their post-trial submissions, counsel summarized their theory of causation as follows: “An artery in Victoria’s neck was definitely punctured →The puncture was probably to her right vertebral artery →There will always be an intimal tear associated with a puncture → Intimal tears are always associated with clot formation → A clot definitely formed in a right sided artery in Victoria’s on April 5 (probably her vertebral) → Victoria suffered a thromboembolic occlusion of the distal right vertebral artery on April 6 → This was the first thrombotic event she had ever experienced → Victoria’s family has no history of thrombotic events → Research data does not support a link between ulcerative colitis and development of strokes → Victoria had several thrombotic events after becoming ‘locked in’, each having been preceded by a combination of her stroke, her immobility and cannulation in the area (showing that ‘she’s very susceptible to vessel wall injury’) → Most strokes in young people are caused by some traumatic intervention → The odds of Victoria’s April 6 stroke not being caused by traumatic intervention (arterial puncture) are 1 in 146,000,000 →→→→→stroke probably caused by arterial puncture.” [ 36 ] It is not enough to establish causation; Ms.

Anderson has to establish that the Defendants fell below the required standard of care. In their submissions, counsel assert negligence on two basis, as follows: It is alleged that Dr. Gee, in attempting the internal jugular cannulation, went too deep with the needle, and injured Victoria’s vertebral artery.

Alternatively, it is alleged that the Defendants were negligent in having attempted the internal jugular cannulation in the context of their inexperience, the failed prior subclavian attempts by a more experienced surgical resident, and in the context of the treatment plan put in place by Victoria’s treating physician. In addition to the allegations of negligence, Ms. Anderson further submits that the Defendants failed to obtain her informed consent prior to undertaking the attempted procedure on April 5 th , and as such should be held liable for her injuries.

Her counsel writes: In addition to the allegations of negligence, Ms. Anderson submits that the Defendants failed to obtain her informed consent to the procedure, specifically that she was not advised of the risk of stroke being a complication of the procedure, nor their level of experience with undertaking central line placement. It is submitted that if fully informed, Ms. Anderson would not have agreed to the procedure on April 5 th , 1997.

POSITION OF THE DEFENDANTS [ 37 ] The Defendants hotly contest both a finding of negligence and causation, and advanced evidence at trial accordingly. [ 38 ] The position of the Defendants is nicely summarized in their post-trial submissions as follows: To succeed, they must prove that the defendants committed a breach of standard of care ( negligent act ) and that the damage was caused by that breach ( causation) .

These are independent factors - even if it is shown that the injury was the result of the procedure, it must still be shown that the procedure was performed negligently, and even if it is proved that the defendants were in breach of a standard of care, it must be shown that the damage was caused by that breach.

The plaintiffs have proved neither a negligent act nor causation. The plaintiffs’ theory is a circle of assumptions, each of which is unproven. To show negligence they assume causation - that the stroke was caused by an injury to an artery - and based on that unproved assumption they infer that there must have been an injury to the vertebral artery in the course of the procedure by the defendants and that this was therefore a negligent act.

To show causation they assume negligence - that an injury was negligently done to the vertebral artery, and from that unproven assumption they infer that this is the most likely cause of the stroke. These circular assumptions prove nothing. Not only are these circular assumptions unproved, there is evidence that they are incorrect. The physicians treating Ms. Anderson specifically investigated the cause of the stroke, and whether it was secondary to an arterial injury. To do so they ordered an angiogram, a radiology procedure that is described as the “gold standard” for investigating such injuries.

All experts who have reviewed the angiogram images agree that they are normal - that they show no injury to the vertebral artery in the area alleged by the plaintiffs. Conversely, there is extensive clinical evidence that Ms. Anderson was in a powerfully hypercoagulable state, which led to a number of thrombotic events. (Even the plaintiffs’ experts acknowledge that Ms. Anderson was hypercoagulable, although they argue that it was this condition and the hypothetical injury that resulted in the stroke). The physicians treating Ms.

Anderson concluded that her thrombosis, including the one which led to her stroke, were caused by this hypercoagulable state. The defendants’ experts agree with the treating physicians; the plaintiffs’ experts take issue with them. The opinions of the plaintiffs’ witnesses all come down to a variation of the theme that the stroke followed within 12-18 hours of the defendants’ line insertion, and that it must therefore be the cause. This is the great logical error of confusing chronology with causation.

Temporal sequence is a necessary condition for causation, but it can never be a sufficient condition unless all other potential causes are eliminated. That is not true in this case - there are other possible causes, and there is evidence that the plaintiffs’ theory is not true. A finding of causation must be based on evidence. To be successful, the plaintiffs must prove to the court that her injuries were caused by a wrongful act of the defendants, Dr. Sharma and Dr. Gee.

We submit that the evidence at trial has proven neither fault not causation, and that accordingly the action must be dismissed. [ 39 ] As to the issue of informed consent, it is submitted by the Defendants that, “if the risk of stroke was not discussed by any of these doctors, and it likely was not, it is because it was not a material risk, in that it is such a rare and unusual complication that a reasonable physician would not mention it.” [ 40 ] Further, it is submitted that “even if advised, a reasonable person in Victoria’s circumstances would have continued with the procedure.

As such, there was no lack of informed consent, nor liability”. THE LAW : [ 41 ] The elements of proof in a malpractice action are summarized by Dean Meredith in his text, Malpractice Liability of Doctors and Hospitals at p. 156 as follows: “The success of a malpractice suit founded on negligence is dependent upon the existence of four conditions: First: There must have been a legal duty on the part of the doctor towards his patient to exercise care. This duty arises as a matter of law when the doctor takes on the case, and as already stated, is independent of contract.

Second: There must have been negligence on the part of the doctor, i.e. a breach of his legal duty to conform to the standards ofproficiency and care required by law. Third: The patient must have suffered loss or injury. Negligence not resulting in loss or injury provides no ground for a civil action indamages. Fourth: The patient's loss or injury must have resulted directly from the doctor's negligence.

In other words, the negligence must havebeen the determining (as distinct from the indirect or remote) cause of the damage.” [42] This text, and the above quote has been cited extensively, including by the Supreme Court of Canada (see Cardin v. City ofMontreal (1961), (SCC), 29 D.L.R. (2d) 492), and by this Court (see Anderson v. Grace Maternity Hospital et al (1989), (NS SC), 93 N.S.R. (2d) 141 and Locke v. Lea 1997 NSSC 131) [43] As to the first condition, it is acknowledged by the Defendants that a duty of care was owed to Ms. Anderson. Similarly, withrespect to the third condition, it is undisputed that Ms.

Anderson has suffered a stroke with devastating consequences. It is the standardof care and causation elements which the Court must consider.

A) STANDARD OF CARE: [44] With respect to the standard of care, both parties have cited the statement of Schroeder, J.A., in Crits and Crits v. Sylvester et al.,(1956) (ON CA), 1 D.L.R. (2d) 502 (Ont. C.A.): "Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree ofcare.

He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of thesame experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than one who doesnot profess to be qualified by special training and ability." [45] This standard has been referred to with approval on many occasions in Nova Scotia, including: Anderson v. Grace Maternity Hospital et al, supraRobichaud v. Bruce and Sayat (1988), (NS SC), 86 N.S.R. (2d) 421 (T.D.);Goguen v. Crowe (1987), (NS SC), 80 N.S.R. (2d) 36 (T.D.);Young v. St.

Rita Hospital and Critchley (1986), 75 N.S.R. (2d) 239 (T.D.). [46] The case before the Court involves the conduct of medical residents. In Fraser v Vancouver Hospital, (SCC),[1952] 2 S.C.R. 36, the Court considered the standard of care expected of two hospital interns. The standard of care is not lessened bythe inexperience of a young doctor.

Rand, J. cautioned that an intern “must use the undertaken degree of skill, and that cannot be lessthan the ordinary skill of a junior doctor in appreciation of the indications and symptoms of injury before him, as well as an appreciationof his own limitations and of the necessity for caution in anything he does.” [47] The above has been recently followed and applied to medical residents. In Adair Estate v.

Hamilton Health Sciences Corp (ON SC), [2005] 32 C.C.L.T. (3d) 283, Harris, J. of the Ontario Superior Court of Justice considered a claim of negligencebrought against several defendants, including second and third year residents. After referencing Fraser v Vancouver Hospital, suprawith approval, Justice Harris states at para. 137: “Like any student of any profession or trade, a resident must not fail to understand his or her own inexperience, lack of knowledge andlack of skill.

For a student to ignore the certainty of these shortcomings and instead act in complex matters without the supervision of aprinciple is negligence of the highest order.”

[48] Again from the Ontario Court of Justice, the actions of a first year resident were considered in Bearden v. Lee, 2003 CarswellOnt1178. As noted in the following comments of Sanderson, J., a resident must be careful to not step beyond their level of experience, or actunsupervised: “126. While I would not have reached a similar conclusion if I had found she was acting on Lee’s directions, I am of the view thatAbramson was also negligent. I accept Bearden’s evidence that she discharged him with inadequate discharge instructions, even after heprotested that he was being sent home.

She minimized his concerns, telling him that he had gastro-enteritis and that nothing more couldbe done for him. When giving her evidence, she was very definite and obviously reluctant to admit any uncertainty about anything. While confidence is a positive attribute of an experienced doctor, [and while I have every reason to believe Abramson is now a fine andexperienced specialist,] I am of the view that on July 1-2, 1991 she inappropriately allowed herself to go unsupervised and confidentlypresented herself to Bearden as being more experienced and knowledgeable than she really was.

She did not advise Bearden that she wasuncertain about the cause of his abdominal pain. Her diagnosis of gastro-enteritis was unequivocal [but yet incorrect,] as was her advicethat nothing more could be done for him at TWH. Her records were inadequate. Her written discharge instructions, [which she stillmaintains were complete,] were incomplete. The combination of her diagnosis of gastro-enteritis and discharge instructions causedBearden to reasonably refrain from seeking follow-up monitoring and care and led to the rupture of his appendix and other adverseconsequences detailed elsewhere.

I accept Bearden’s evidence that if he had been told to see his family doctor if the pain persisted, hewould have done so. [49] An important aspect of a standard of care analysis is the recognition that doctors do not have to act with perfection in terms of theoutcome of their professional actions. Clearly a doctor is not an insurer and does not guarantee a cure.

Dean Meredith in MalpracticeLiability of Doctors and Hospitals, supra writes at p. 63: "Since the science of medicine is not an exact science, a doctor is not as a result liable for an honest error of judgment, provided he doeswhat he considers best in the patient's interests following a careful examination. The point is often overlooked by plaintiffs in medicalmalpractice suits ... One cannot, therefore, assume negligence merely because an operation was unsuccessful, or because a patient sustained injury throughmedical treatment.

And to hold a doctor responsible in damages, it is not sufficient to show his diagnosis was incorrect, or that headopted one of several recognized methods of treatment rather than another, or that complications followed an operation unless in eachinstance it is also shown that he failed to exercise the degree of skill and care required by law." [50] In Cardin v. City of Montreal, supra, Mr. Justice Tachereau observed at p. 494: "The doctor is not a guarantor of the operation which he performs or the attention which he gives.

If he displays normal knowledge, if hegives the medical care which a competent doctor would give under identical conditions, if he prepares his patient before the operationaccording to the rules of the art, it is difficult to sue him in damages, if by chance an accident occurs. Perfection is a standard required bylaw no more for a doctor than for other professional men, lawyers, engineers, architects, etc. Accidents, imponderables, what isforeseeable and what is not, must necessarily be taken into account."

B) INFORMED CONSENT: [51] A doctor must obtain a patient’s consent before undertaking a procedure, explaining the risks thereof. If a doctor fails in thisregard, he or she can be held responsible for a properly performed procedure, if an undisclosed risk materialises. [52] A doctor’s duty to disclose to a patient the known risks of a procedure was described by the Supreme Court of Canada in Hopp v.Lepp (1980), (SCC), 112 D.L.R. (3d) 67 where Chief Justice Laskin said at para. 23: "Kenny v. Lockwood is important as much for what it portended as for what it actually decided.

It indicated that a surgeon whorecommends an operation which involves known risks, that is probable risks, or special or unusual risks, is under an obligation to hispatient to disclose those risks, and, if he fails to do so, and injury results from one of the undisclosed or not fully disclosed risks, thepatient's consent to the operation will be held to be not an informed consent, although the operation itself was competently performed.

Apart from situations of this kind, a surgeon need not go into every conceivable detail of a proposed operation so long as he describes itsnature, unless the patient asks specific questions not by way of merely general inquiry, and, if so, those questions must be answered,although they invite answers to merely possible risks.

If no specific questions are put as to possible risks, the surgeon is under noobligation (although he may do so) to tell the patient that there are possible risks since there are such risks in any operation." [53] The nature of the risk which will be deemed “material” and hence required to be disclosed was also addressed by Laskin, C.J. Clearly, not all risks must be disclosed, and is a case-specific analysis. The following passages do however, offer valuable guidance: “32.

The case law on the question of informed consent or the duty of disclosure has exhibited a variety of classifications of risksinvolved in proposed surgery or therapy.

Probable risks, which must be disclosed, have been contrasted with mere possibilities (as, forexample, risks involved in any operation), but this dichotomy cannot be absolute because it ought to take note of whether a risk is or isnot quite remote, and here the gravity of the consequences, if a risk should materialize, must be brought into account; for example, therisk of death, even if a mere possibility; as contrasted with some residual stiffness of a member of the body. A second classification,expressed in American cases and American writings, is that of material and immaterial risks.

Under this classification possible riskswhose consequences would be grave could well be regarded as material. Materiality connotes an objective test, according to what wouldreasonably be regarded as influencing a patient’s consent. 33. Then there is the language of special or unusual risks, in contrast to those inherent in any operation. This contrast was expressedby Morden J. in Kelly v. Hazlett (1976), (ON SC), 15 O.R. (2d) 290 at 319, 1 C.C.L.T. 1, 75 D.L.R. (3d) 536 (H.C.).

Ifby special or unusual risks is meant merely probable risks, then this classification is substantially the same as the probable-possible onethat I have already referred to, subject to qualifying possible risks by the gravity of the consequences if such a risk should materialize. Special or unusual risks may, however, go beyond those that are probable in respect of the surgery or therapy involved in a particularcase and could relate to serious consequences in the particular instance even if the risk be a mere possibility. On this view, theclassification is incomplete, in not taking account of probable risks.

Of course, if specific questions are asked, this introduces anotherelement but here the evidence touching the specific character of the question will first have to be assessed. 34. In

summary, the decided cases appear to indicate that, in obtaining the consent of a patient for the performance upon him of asurgical operation, a surgeon generally should answer any specific questions posed by the patient as to the risks involved and should,without being questioned, disclose to him the nature of the proposed operation, its gravity, any material risks and any special or unusualrisks attendant upon the performance of the operation.

However, having said that, it should be added that the scope of the duty ofdisclosure and whether or not it has been breached are matters which must be decided in relation to the circumstances of each particularcase. [54] In Reibl v. Hughes (1980), (SCC), 114 D.L.R. (3d) 1, the Supreme Court of Canada confirmed that where aphysician fails to advise a patient of those risks and the risk ultimately materializes, liability will be imposed.

The Court confirmedhowever, the existence of an objective standard in that liability must be founded upon whether a reasonable person in the circumstancesof the plaintiff, accurately advised of the risk, would have refused to undergo the treatment. [55] Chief Justice Laskin also stated at para.24: "...It could hardly be expected that a patient who is suing would admit that he would have agreed to the surgery, even knowing all of theaccompanying risks.

His suit would indicate that having suffered a serious disablement because of the surgery, he is convinced that hewould not have permitted it if there had been proper disclosure of the risks, balanced by the risks of refusing the surgery.

Yet, to apply asubjective test to causation would, correlatively, put a premium on hindsight even more of a premium than would be put on medicalevidence in assessing causation by an objective standard." [56] The decision in Riebel, supra further served to clarify the nature of evidence to be used in assessing the materiality of anyparticular risk, and in particular, whether the standard of disclosure had been met.

The analysis cannot be confined to only the evidenceof medical experts, but must be wider, as noted by the Chief Justice as follows: “17. ...To allow expert medical evidence to determine what risks are material and, hence, should be disclosed and, correlatively, whatrisks are not material is to hand over to the medical profession the entire question of the scope of the duty of disclosure, including thequestion whether there has been a breach of that duty. Expert medical evidence is, of course, relevant to findings as to the risks thatreside in or are a result of recommended surgery or other treatment.

It will also have a bearing on their materiality but this is not aquestion that is to be concluded on the basis of the expert medical evidence alone. The issue under consideration is a different issue fromthat involved where the question is whether the doctor carried out his professional activities by applicable professional standards. What

is under consideration here is the patient’s right to know what risks are involved in undergoing or foregoing certain surgery or othertreatment. 18. The materiality of non-disclosure of certain risks to an informed decision is a matter for the trier of fact, a matter on which therewould, in all likelihood, be medical evidence but also other evidence, including evidence from the patient or from members of hisfamily. It is, of course, possible that a particular patient may waive aside any question of risks and be quite prepared to submit to thesurgery or treatment, whatever they be.

Such a situation presents no difficulty. Again, it may be the case that a particular patient may,because of emotional factors, be unable to cope with facts relevant to recommended surgery or treatment and the doctor may, in such acase, be justified in withholding or generalizing information as to which he would otherwise be required to be more specific. [57] The Supreme Court of Canada has re-affirmed the continuation of the modified objective assessment in Arndt v. Smith, 2 S.C.R.539. There, Cory J. writes as follows: 15 Reibl is a very significant and leading authority.

It marks the rejection of the paternalistic approach to determining how muchinformation should be given to patients. It emphasizes the patient’s right to know and ensures that patients will have the benefit of ahigh standard of disclosure. At the same time, its modified objective test for causation ensures that our medical system will have someprotection in the face of liability claims from patients influenced by unreasonable fears and beliefs, while still accommodating all thereasonable individual concerns and circumstances of plaintiffs.

The test is flexible enough to enable a court to take into account a widerange of the personal circumstances of the plaintiff, and at the same time to recognize that physicians should not be held responsiblewhen the idiosyncratic beliefs of their patients might have prompted unpredictable and unreasonable treatment decisions. 16 The Reibl test has had the desired effect of ensuring that patients have all the requisite information to make an informed decisionregarding the medical procedure they are contemplating. Members of the medical and legal professions are familiar with itsrequirements.

It strikes a reasonable balance, which cannot be obtained through either a purely objective or a purely subjectiveapproach. A purely subjective test could serve as an incitement for a disappointed patient to bring an action. The plaintiff willinvariably state with all the confidence of hindsight and with all the enthusiasm of one contemplating an award of damages that consentwould never have been given if the disclosure required by an idiosyncratic belief had been made. This would create an unfairness thatcannot be accepted.

It would bring inequitable and unnecessary pressure to bear upon the overburdened medical profession. On theother hand, a purely objective test which would set the standard by a reasonable person without the reasonable fears, concerns andcircumstances of the particular plaintiff would unduly favour the medical profession. CAUSATION: [58] As noted above, the fourth element of proof, causation, is hotly disputed. That being said, both parties acknowledge the Supreme Court of Canada’s decision in Snell v.

Farrell (1990) (SCC), 72 D.L.R. (4th) 289 provides the foundation for the Court’scausation analysis. [59] A medical malpractice case, the Court in Snell, supra rejected the notion of a shifting burden to a defendant, and discussed same atlength, along with the role of inferences in a causation analysis. Sopinka, J. writes as follows: 33. These references speak of the shifting of the secondary or evidential burden of proof or the burden of adducing evidence. I find itpreferable to explain the process without using the term secondary or evidential burden.

It is not strictly accurate to speak of the burdenshifting to the defendant when what is meant is that evidence adduced by the plaintiff may result in an inference being drawn adverse tothe defendant. Whether an inference is or is not drawn is a matter of weighing evidence. The defendant runs the risk of an adverseinference in the absence of evidence to the contrary. This is sometimes referred to as imposing on the defendant a provisional or tactical burden. See Cross, 6th ed., at p. 129.

In my opinion, this is not a true burden of proof, and use of an additional label to describe what is anordinary step in the fact-finding process is unwarranted. 34. The legal or ultimate burden remains with the plaintiff, but in the absence of evidence to the contrary adduced by the defendant, aninference of causation may be drawn although positive or scientific proof of causation has not been adduced. If some evidence to thecontrary is adduced by the defendant, the trial judge is entitled to take account of Lord Mansfield's famous precept.

This is, I believe,what Lord Bridge had in mind in Wilsher when he referred to a "robust and pragmatic approach to the ... facts" (p. 881).

35. It is not therefore essential that the medical experts provide a firm opinion supporting the plaintiff's theory of causation. Medicalexperts ordinarily determine causation in terms of certainties whereas a lesser standard is demanded by the law. As pointed out inLouisell, Medical Malpractice, vol. 3, (New York: Matthew Bender, 1977-1990), the phrase "in your opinion with a reasonable degree ofmedical certainty," which is the standard form of question to a medical expert, is often misunderstood.

The author explains that [atpp.25-27]: Many doctors do not understand the phrase ... as they usually deal in ‘certainties’ that are 100% sure, whereas ‘reasonable’ certaintieswhich the law requires need only be more probably so, i.e., 51%. 36. In David M. Harvey, Medical Malpractice (Indianapolis: A. Smith, 1973), the learned author states [at p.169]: Some courts haveassumed an unrealistic posture in requiring that the medical expert state conclusively that a certain act caused a given result. Medicaltestimony does not lend itself to precise conclusions because medicine is not an exact science. 37.

The respective functions of the trier of fact and the expert witness are distinguished by Brennan J. of the United States SupremeCourt in the following passage in Sentilles v. Inter-Caribbean Shipping Corp.,361 U.S. 107 (1959), at pp. 109-10: The jury's power to draw the inference that the aggravation of petitioner's tubercular condition, evident so shortly after the accident, wasin fact caused by that accident, was not impaired by the failure of any medical witness to testify that it was in fact the cause.

Neither canit be impaired by the lack of medical unanimity as to the respective likelihood of the potential causes of the aggravation, or by the factthat other potential causes of the aggravation existed and were not conclusively negated by the proofs. The matter does not turn on theuse of a particular form of words by the physicians in giving their testimony. The members of the jury, not the medical witnesses, weresworn to make a legal determination of the question of causation.

They were entitled to take all the circumstances, including the medicaltestimony, into consideration. [60] The causation analysis outlined in Snell, supra, has recently been reconfirmed and applied in a medical malpractice context by theOntario Court of Appeal in Fisher v. Atack 2008 ONCA 759. There, the Court offered further explanation and guidance regarding theappropriate application of the “robust and pragmatic approach”. The Court writes: 54.

Whatever test for causation is applied, it is clear that scientific precision is not required to support a finding of causation: Snell, at p.328; see also Aristorenas v. Comcare Health Services (2006), (ON CA), 83 O.R. (3d) 282 (C.A.). Accordingly, inmedical malpractice cases, an expert capable of providing a firm opinion that supports the plaintiff’s theory of causation is not required: Snell, at p. 330.

Rather, the trial judge is entitled to consider all the facts and circumstances established by the evidence at trial, and,where appropriate, to draw an inference of causation through the application of reason and common sense. This approach has beentermed “the robust and pragmatic approach” . . . [61] The Court makes it abundantly clear, that applying a robust and pragmatic approach, is not an invitation for the trier of fact toforgive a plaintiff’s lack of evidence, indicating: 56. [T]he robust and pragmatic approach does not shift the burden of proof away from the plaintiffs.

Rather, the plaintiff must still“provide an evidentiary foundation for finding that there is a substantial connection between the injury and the defendant’s conduct”: Barker v. Montfort Hospital (2007), 2007 ONCA 282 , 278 D.L.R. (4th) 215, at para. 54. 57. Further, as this court emphasized at paras. 54 and 60 of Aristorenas, the robust and pragmatic approach offers a method forevaluating evidence. It is not a substitute for evidence that the defendant’s negligence caused the plaintiff’s injury; nor does it changethe amount of proof required to establish causation. 58.

Finally, just as the robust and pragmatic approach cannot be used as a substitute for evidence, it cannot be used as a substitute forreviewing and making findings about relevant evidence. [62] Distinguishing an inference from speculation has been the subject of consideration by this province’s Court of Appeal. Referring toearlier observations, the Court in Dixon v. NS (Public Safety) 2012 NSCA 2, offer the following:

43. The parties appear to agree on the law with respect to reasonable inference. By way of one common example, they both cite this Court's decision in Kern v. Steele , 2003 NSCA 147 . In Kern , Justice Oland described the difference between an inference and a conjecture: [98] Two of the leading cases on the difference between inference and speculation or conjecture are Jones v. Great Western Railway Co. (1930), 47 T.L.R. 39 (H.L.) and in Caswell v. Powell Duffryn Associated Collieries, Limited , [1940] A.C. 152 .

In the former, Lord Macmillan stated at p. 45: The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof. In the latter, Lord Wright stated at p. 169-170: Inference must be carefully distinguished from conjecture or speculation.

There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture. [ 63 ] Both parties have also cited the Supreme Court’s decision in Resurfice Corp. v.

Hanke 2007 SCC 7 , as the most current statement of the test for causation in negligence actions. In affirming the “but for” test remains the primary test for causation, Chief Justice McLachlin writes: 20. Much judicial and academic ink has been spilled over the proper test for causation in cases of negligence. It is neither necessary nor helpful to catalogue the various debates. It suffices at this juncture to simply assert the general principles that emerge from the cases. 21. First, the basic test for determining causation remains the "but for" test. This applies to multi-cause injuries.

The plaintiff bears the burden of showing that "but for" the negligent act or omission of each defendant, the injury would not have occurred. Having done this, contributory negligence may be apportioned, as permitted by statute. 22. This fundamental rule has never been displaced and remains the primary test for causation in negligence actions. As stated in Athey v.

Leonati , at para. 14, per Major J., "[t]he general, but not conclusive, test for causation is the 'but for' test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant." Similarly, as I noted in Blackwater v. Plint , at para. 78, "[t]he rules of causation consider generally whether 'but for' the defendant's acts, the plaintiff's damages would have been incurred on a balance of probabilities." 23.

The "but for" test recognizes that compensation for negligent conduct should only be made "where a substantial connection between the injury and defendant's conduct" is present. It ensures that a defendant will not be held liable for the plaintiff's injuries where they "may very well be due to factors unconnected to the defendant and not the fault of anyone": Snell v. Farrell , at p. 327, per Sopinka J. 24. However, in special circumstances, the law has recognized exceptions to the basic "but for" test, and applied a "material contribution" test.

Broadly speaking, the cases in which the "material contribution" test is properly applied involve two requirements. 25. First, it must be impossible for the plaintiff to prove that the defendant's negligence caused the plaintiff's injury using the "but for" test. The impossibility must be due to factors that are outside of the plaintiff's control; for example, current limits of scientific knowledge. Second, it must be clear that the defendant breached a duty of care owed to the plaintiff, thereby exposing the plaintiff to an unreasonable risk of injury, and the plaintiff must have suffered that form of injury.

In other words, the plaintiff's injury must fall within the ambit of the risk created by the defendant's breach. In those exceptional cases where these two requirements are satisfied, liability may be imposed, even though the "but for" test is not satisfied, because it would offend basic notions of fairness and justice to deny liability by applying a "but for" approach.

[64] The Nova Scotia Court of Appeal has recently had the opportunity to consider the application of the “but for” versus “materialcontribution” test in McIntyre v. Cape Breton Regional Health Authority 2011 NSCA 3, and declined to apply the less stringent test. [65] As a final matter relating to causation, Resurfice, supra in re-affirming the primary “but for” test of causation did not, vary from theprinciple enunciated in Athey v. Leonati (SCC), [1996] 3 S.C.R. 458, that a plaintiff need not establish that adefendant’s tortious act was the sole cause of their injury.

Justice Major writes at para.17: “It is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant’s negligence was the sole cause of theinjury. There will frequently be a myriad of other background events which were necessary preconditions to the injury occurring. ...

Aslong as a defendant is part of the cause of an injury, the defendant is liable, even though his act alone was not enough to create the injury.There is no basis for a reduction of liability because of the existence of other preconditions: defendants remain liable for all injuriescaused or contributed to by their negligence. [66] And further at paras. 19 and 20: 19. The law does not excuse a defendant from liability merely because other causal factors for which he is not responsible also helpedproduce the harm: Fleming, supra, at p. 200.

It is sufficient if the defendant’s negligence was a cause of the harm: School Division ofAssiniboine South, No. 3 v. Greater Winnipeg Gas Co., (MB CA), [1971] 4 W.W.R. 746 (Man. C.A.), at p. 753,affirmed, (SCC), [1973] 6 W.W.R. 765 (S.C.C.), [1973] S.C.R. vi; Ken Cooper-Stephenson, Personal InjuryDamages in Canada (2nd ed. 1996), at p. 748. 20. This position is entrenched in our law and there is no reason at present to depart from it.

If the law permitted apportionmentbetween tortious causes and non-tortious causes, a plaintiff could recover 100 percent of his or her loss only when the defendant’snegligence was the sole cause of the injuries. Since most events are the result of a complex set of causes, there will frequently be non-tortious causes contributing to the injury. Defendants could frequently and easily identify non-tortious contributing causes, so plaintiffswould rarely receive full compensation even after proving that the defendant caused the injury.

This would be contrary to establishedprinciples and the essential purpose of tort law, which is to restore the plaintiff to the position he or she would have enjoyed but for thenegligence of the defendant. THE EVIDENCE: [67] The nature of the evidence before the Court can be compartmentalized into two distinct areas, namely, the events leading up to andincluding April 5, 1997 and the expert evidence offered by both parties. Although they certainly interrelate by necessity, it is helpful toaddress them separately.

A) THE EVENTS LEADING TO APRIL 5, 1997 [68] As Ms. Anderson alleges that the actions of the Defendants on April 5, 1997 were negligent and resulted in her current condition,significant evidence was called at trial relating to that day. This included the evidence of Ms. Anderson, the Defendant doctors, hospitalstaff, and others who had the opportunity to make observations as to Ms. Anderson’s circumstances and condition on April 5, 1997. [69] The Court is mindful that all witnesses were asked to testify about events which occurred almost 15 years earlier. As such, it wasnot surprising to find certain inconsistencies in the evidence presented on behalf of both parties.

VICTORIA ANDERSON: [ 70 ] Ms. Anderson testified at trial with the assistance of her care giver, Lorraine Carter. Ms. Carter testified as to the system she has utilized over the past 11 years to communicate with Ms. Anderson. With the use of a simple letter board, Ms. Anderson can spell out words by looking up for “Yes”, and down for “No”. Ms. Carter was sworn to serve as an interpreter for the Court. Having been provided with a letter board, the Court could readily follow along as Ms. Anderson testified with Ms. Carter’s assistance. [ 71 ] With the consent of the Defendants, a Will Say Statement, prepared by Ms.

Anderson in 2005, again with Ms. Carter’s assistance, was entered into evidence. Ms. Anderson testified that although she has had access to her hospital chart, she did not review it while preparing the Will Say Statement. She indicated the statement was entirely from her own recollection of events in April 1997. She confirmed at trial she had recently reviewed the contents and confirmed its accuracy, other than incorrectly identifying Dr. Doucet, the surgical resident who saw her on April 3 and 4, 1997, as “Dr. Doucy” in her Statement. [ 72 ] Ms.

Anderson testified that she had, in 1996, received a central line placement while in the QEII hospital, to receive TPN. This was done on the right subclavian vein, and she suffered no ill-consequences. When transferred to the QEII in 1997 from the Cape Breton Regional Hospital, Ms. Anderson had met with both Dr. Love, her gastroenterologist, and Dr. Stone, a surgeon. She understood that the treatment plan was for her to again receive TPN by central line, with the hopes this would prevent the need for surgery. [ 73 ] In her Will Say Statement, Ms.

Anderson describes the cannulation attempts undertaken during her hospital stay. With respect to April 3, 1997 she writes: “Later, Dr. Schep arrived around 3 pm and informed me that Dr. Daucie and an intern (Dr. Pasley) were going to put in a Central Line because having a Central Line would cut down on IV use. In other words, the Central Line was necessary for them to do what they needed to do. Dr. Schep said it would be easier on me. Dr.

Schep had asked me if I ever had a Central Line put in before and I told him I was familiar with this procedure because I had a Central Line put in a year and an half ago prior to this, under the request of Dr. Love, for the purpose of getting nutrients, while my bowel healed. So, this whole procedure was something I had done successfully before. I had no fear of it. So, Dr. Schep left after we had discussed this, around 3:45pm. After Dr. Schep left, I rested until 6pm, a nurse (?) Arrived and started to prepare the equipment for the Central Line procedure. Then, around 6:30pm, Dr. Daucie and the intern (Dr.

Pasley) came in and attempted the Central Line. I didn’t think it was really going to work because Dr. Daucie kept trying unsuccessfully to get it in. I remember although it wasn’t working it wasn’t hurting that bad, not enough for me to say anything about it. During this time Dr. Daucie was discussing with the intern (Dr. Pasley) the trouble he was having getting the Central Line in. So, after about a half an hour Dr. Daucie gave up trying. Once Dr. Daucie stopped he asked me if I was okay and I told him I was fine. Dr. Daucie said he couldn’t get the Central Line in and that they would try again tomorrow.

So, Dr. Daucie left and the intern (Dr. Pasley) left around 7:30pm.” [ 74 ] As to the April 4 attempt she writes: “I am not sure what time the nurse (?) Came in to prepare for the Central Line. Somewhere between 4pm - 6pm. The reason I know this is because Janet came in the hospital around 6pm and I had told her that the Central Line again had not worked. I remember Dr. Daucie and the intern (Dr. Pasley) had tried the Central Line procedure again. Dr. Daucie informed me, after about a half an hour of trying, that they could not get the Central Line in, Dr. Daucie told me they would have to try another day.

By then I was frustrated because nothing was working I had no pain at this time, it was just uncomfortable having this procedure done twice with no results.” [ 75 ] At trial, Ms. Anderson was asked about the two attempts undertaken by Dr. Doucet. She testified that both where in the same side, she believed the right subclavian. She testified that she did not experience any pain or problems following either attempt. With respect to the events of April 5, Ms. Anderson indicates: “Janet arrived 4:30 pm and we were just chatting when around 5pm, Dr. Gee and Dr. Sharmon arrived and introduced themselves and

said they were going to do the Central Line. Dr. Sharmon mentioned that he knew this was the third attempt at putting in a Central Line, Dr. Sharmon said they would be back shortly to start. Dr. Gee and Dr. Sharmon then left. When they left I got in bed and waited for them to return. Janet was still there. When Dr. Gee and Dr. Sharmon came back around 5:20pm, they had brought some students with them, there was also a nurse (?). Janet left the room saying she would stay outside the room till the doctors were done. So, Dr. Sharmon proceeded to place a cloth on my neck, I was in a laying down position, Dr.

Sharmon and Dr. Gee told me they were now starting. First, Dr. Sharmon gave me some freezing on my neck. Dr. Sharmon proceeded to insert the needle, Dr. Sharmon tried for about 15 minutes, to get the Central Line in, it failed. So, Dr. Gee tried to get the Central Line in for about 15 minutes, and that didn’t work. By then I told them to stop because I had pain in my neck and down my arm. I also felt a warm liquid, like blood, run in my neck, felt like it was beneath my skin. I remember one of the students holding my hand, trying to comfort me. Even though I was asked them to stop, Dr.

Sharmon tried again to get the Central Line in for another 15 minutes. For a total of 45 minutes, both doctors tried with no success. The whole time they, Dr. Sharmon and Dr. Gee, had been trying to get the Central Line in, they discussed the fact that they couldn’t hit the vein, necessary to get the Central Line working. Dr. Sharmon, finally said, okay, this isn’t working, we will have to come back another day to put it in...” [ 76 ] Ms. Anderson provided evidence as to how she felt following the April 5 cannulation attempt. She indicated that she was “feeling miserable”, with pain in her neck and down her arm.

Ms. Anderson testified she had a chest x-ray undertaken around 7 p.m.. In her statement she writes: “After the X-ray, I was back and forth to the bathroom because I felt like I was going to vomit, but I didn’t. I then asked Janet to buzz the nurse because I was in a lot of pain, my neck and back was killing me. Tracy buzzed the nurse, the nurse whom I remember, Brian, came in right away. I informed him of my pain and Brian made the comment on how the pain could last up to 2 weeks. Brian then left and returned a few minutes later with Demorral.

Jimmy and Ruby MacDougall arrived shortly after my first Demorral shot, it was around 8:15. I was telling them about my ordeal with the Central Line, and that I had just got a needle for the pain. Janet, Tracy, Jimmy, Ruby and I chatted, although I felt no better. Around 8:30pm, Jimmy, Ruby and Janet left. Janet said she would be back sometime tomorrow. Tracey was still with me. I was telling Tracey something isn’t right, I am still sick to my stomach and I still have that pain in my neck, back and arm.

So, me and Tracy chatted for quite a while and around 10pm, Tracey asked me how I felt and I told him a little better and if he wanted to leave it was fine, plus I was tired and thought maybe I could sleep. I didn’t get to sleep, but I did feel better until around 11pm, I started to vomit. I buzzed the nurse, Brian, who came in right away. I told Brian I was still sick to my stomach and I vomited again. So, Brian went to get a shot of Demorral and Gravol for me. Brian gave me that shot around 11:15pm-11:25pm. [ 77 ] Ms.

Anderson describes the early morning hours of April 6 as follows: “About 12:30am it struck again, and I started to vomit. I then kept going back and forth to the bathroom, throwing my guts up....I continued to vomit. Finally, I buzzed Brian, around 2:30am. When Brian came in, I told him I had been throwing up for quite sometime and I thought something was wrong. Brian replied that there couldn’t be anything wrong because nothing showed up on your X-ray. Brian then went and got me another shot of Demorral and Gravol.

I settled in bed for about half an hour, then it struck again, around 3am I went to the bathroom to vomit and by the time I came out to get in bed I had to run back to vomit again. By now I am feeling weak from going back and forth to the bathroom. The pain in my neck and arm has become worse. I manage to get in bed, hoping I could get some rest. I didn’t buzz Brian because I had just got a shot of Demorral and Gravol and I knew Brian couldn’t give me anymore.” [ 78 ] At trial, Ms.

Anderson testified that over the above days, April 3, 4 and 5, her colitis symptoms had remained the same, she did not feel she was deteriorating, but she was getting frustrated that the TPN was not being started. She acknowledged she was still experiencing abdominal pain associated with her colitis. [ 79 ] With respect to her interaction with the Defendants, Ms. Anderson testified that upon entering her room, they explained the nature of the procedure, they did not, however, explain the risks or complications.

They did not discuss their respective experiences with undertaking an internal jugular cannulation. [ 80 ] In her testimony at trial, Ms. Anderson described four separate attempts undertaken by the Defendants. She testified that during the entirety of the procedure her chin was rotated completely to the left shoulder.

[ 81 ] Ms. Anderson also testified that the nausea she experienced following the procedure undertaken by the Defendants was much different than that she had suffered earlier in her hospital admission. Although she had felt nauseated before the procedure, she had not actually vomited, unlike what occurred following the internal jugular cannulation attempt. [ 82 ] Ms. Anderson also testified that prior to April 5, 1997, she had no history of blood related issues, nor is there a family history of such problems.

She had not experienced clotting problems at any time in the past, including during previous colitis flare-ups. [ 83 ] On cross examination, Ms. Anderson confirmed that should there be discrepancies between the written Statement and her trial testimony, that the Statement would constitute a more accurate reflection of events. Further, on cross examination, Defence Counsel questioned Ms. Anderson about a number of inconsistencies in her evidence, when compared to the information recorded in the hospital chart. This included identifying a Dr. Paisley as the resident assisting Dr.

Doucet on April 3 and 4; adamantly asserting Nurse Beaton gave her pain medication following the April 5 procedure, despite an alleged lack of entry of same on the hospital chart; and that she did not have chest x-rays undertaken on April 3 or 4, despite the hospital chart suggesting otherwise. CATHERINE BEATON, RN [ 84 ] Cathy Beaton is a Registered Nurse, and worked at the QEII Hospital - Victoria General site in April of 1997. She had transferred to that location from the Infirmary Hospital a short time before. Ms.

Beaton was working in April of 1997 at the time Victoria Anderson was a patient at the QEII, in ward 9B. She had direct interaction with Ms. Anderson, and worked April 5, 1997 from 7 a.m. to 7 p.m. Ms. Anderson was one of her assigned patients. [ 85 ] During the course of her testimony, Ms. Beaton was referenced to notes made by her following the events of April 5, 1997. She confirmed that for the most part, her recollection of events is based upon said notes which were entered into evidence. Ms. Beaton testified the notes were made at the request of her Nurse Manager, a week or two following Ms.

Anderson’s stroke. She was aware of what had occurred, and attempted to be as accurate as possible when she prepared them. She testified she did not have the hospital chart available to her when the notes were prepared. [ 86 ] The notes prepared by Ms. Beaton, include the following description of events and observations: “Chart → TPN orders written Progress note by J. Doucett stated tried C.L. insertion but unable to. ~1400 → No doctors in to see. Paged Dr. Sharma who was GI medical resident on call. (She was GI med patient; no instructions to call anyone else).

I explained the situation to him over the phone, told him it was not urgent but would appreciate it if he could visit sometime this afternoon. ~1530 → Dr. Sharma came to unit, discussed the same. I pointed out progress note written by Dr. J. Doucett April 4 (surgery resident). We both read it together, writing messy & hard to interpret. I stated Dr. Ysohama was also on call for surgery today (senior resident) & suggested he call her. Dr. Sharma stated no, that they would attempt the C.L. insertion first & if successful they would then call surgery for assistance.

Stated if he called them ac he tried himself it would be like “passing the buck” & he didn’t like to do this. ~1600 → Dr. Sharma returned č Senior GI medicine resident (oriental Caucasian č glasses). She too read the progress note by J. Doucett & was aware of the difficulty.

I asked if they would like me to assist č insertion but they stated no that they & 2 clinical clerks would be there. The 2 clinical clerks came to the unit & the 4 of them sat @ the Nsg. Station discussing the procedure. The senior resident did most of the talking, explaining the procedure. I have put all the supplies @ bedside & 1 extra sterile gown as requested by senior resident. Patient was sitting up in bed č no voiced concerns. The doctor then went to the bedside. Curtain was then pulled. - Patient was place in reverse Trendelenburg (assisted). During the procedure I was in & out of the 4 bed ward.

At one point I was present for ~ 10 min. consistently while making a bed. During this time doctors voices stopped from behind the curtain, there was silence. The senior resident pulled on extra gown (I was able to see this in between curtains). Approx. 5 min. later Dr. Sharma came from behind curtain & disrobed. He stated they were unsuccessful. - Patient was taken out of R.T. & was placed in up right sitting position. She voiced concerns of pain @ attempted insertion site but refused pain med when asked by myself She stated she would wait to see if pain decreased.

I asked twice after this & she refused again stating the pain was better. - There was a small bandaid on ® side of neck. There were no signs of swelling @ site. Res. were deep & regular & effortless. Family were waiting in hall & quickly came to bedside when allowed. - The bedside was left clean & neat by doctors. Used equipment was left in dirty utility room by them. I saw it there but did not look closely @ the tray. - 2 clinical clerks left. 2 residents came to nsg. station. - ordered portable C xR. (Done 20 min. later). Also ordered C.L. insertion to be done in x-ray on Mon. (Reg. was filled out).

Progress note written by resident. ~ 1815 - Dr. Schep arrived on unit. Dr. Schep spoke č both residents for ~ 10 min. They showed him the progress notice (I was sitting @ nsg. Station during this time). Dr. Schep was aware of both C.L. insertion attempts (Friday & today). Stated he would discuss having insertion done in x-ray on Monday č patient. ~1830-1845 - Dr. Schep returned to nsg. Station pc talking č pt. ~ 15-20 min. Stated he felt she didn’t need TPN & would probably start PPN & ↑diet. - Patient remained sitting up in bed č family. - Reported to in coming staff nurse what Dr.

Schep was planning to do. [ 87 ] On cross examination, Ms. Beaton confirmed that the above referenced notes were prepared at the direction of her Manager, who also advised her to contact the Nurse’s Liability Protective Organization. [ 88 ] When questioned about the events of April 5, 1997, Ms. Beaton confirmed she had spoken to Ms. Anderson several times throughout the day, and she was “keen” to have the TPN started as she was weak, and was anxious to get home and plan her wedding. [ 89 ] Ms.

Beaton advised that prior to April 5, 1997 she did not know the Defendants or the status of their experience or rotations. She

confirmed that there was a Nursing Supervisor available to be called should a nurse be fearful about a patient’s safety or if hospital policy was being breached. She made no such contact on April 5. [ 90 ] Ms. Beaton confirmed that the TPN had been prepared and ready to be used, and must be utilized within 24 hours. She viewed it as reasonable to have the line started that afternoon. [ 91 ] During the procedure itself, Ms. Beaton indicated the curtain was drawn around Ms. Anderson, and she did not go inside, or observe any of the cannulation attempts. [ 92 ] Ms. Beaton testified Ms.

Anderson complained of pain in her neck at the insertion site, but that she did not make any other complaints of pain. [ 93 ] During cross examination, Ms. Beaton was directed to a “Medication Record” found within the hospital chart. Ms. Beaton testified that this document is utilized to document the medication being provided to a patient, and is completed by nursing staff. This information would be reviewed when nursing staff come on shift, in order to know what medication had been provided to the patient. [ 94 ] Ms. Beaton confirmed she would have seen and utilized this record while caring for Ms. Anderson.

It documents the dosages of gravol (for nausea) and Demerol (for pain) given to Ms. Anderson from April 2 through April 6, 1997. Ms. Beaton advised that the medication was on “PRN” which meant when requested by the patient. Ms. Beaton confirmed that from her reading of the Medication Record, Ms. Anderson received no gravol on April 2 or 3, one dose on April 4, and two doses on April 5 and 6 respectively. She did not give any of those medications. [ 95 ] With respect to the Demerol, Ms.

Beaton advised the Record appeared to suggest pain medication was administered twice on April 2 and 3, three times on April 4 and 5, and twice on April 6. She testified she gave one of the dosages on April 5 at 11:15 a.m. Ms. Beaton testified that she understood the pain medication was being administered for Ms. Anderson’s abdominal pain. [ 96 ] Both on cross examination and re-direct, Ms. Beaton was questioned as to another document on the hospital chart entitled “Nursing Basic Care Flow Record”. Ms.

Beaton testified that this form is used by nursing staff on a daily basis to record the patient’s status and any occurrences. This is also reviewed by nursing staff coming on shift, as a means of being aware of a patient’s circumstances. Ms. Beaton was directed to a number of notations she had made in relation to Ms. Anderson, including pain and abdominal assessments at various times during her admission. BRIAN JACKSON, RN: [ 97 ] Brian Jackson, now retired, was a Registered Nurse, having started working on ward 9B of the Victoria General/QEII in 1977.

He had worked in that position consistently up to and including April of 1997. [ 98 ] Mr. Jackson described that ward 9B was a general surgery unit, however, it also housed 10 medical beds. Mr. Jackson testified that he worked the day shift (7 a.m. to 7 p.m.) on April 3, and the night shift (7 p.m. to 7 a.m.) on April 4 and 5 respectively. During these times, Ms. Anderson was assigned as one of his patients. [ 99 ] Mr. Jackson testified that he does still have some personal recollection of his interactions with Ms. Anderson in April of 1997, due to the unfortunate circumstances that occurred.

He does however, rely on notes made several days following his last shift with Ms. Anderson, for the details of her condition and treatment. The notes, entered into evidence, and dated April 20, 1997, were undertaken at the request of Mr. Jackson’s nursing supervisor. Mr. Jackson testified that he prepared these notes based solely upon his recollection, without the benefit of the hospital chart. [ 100 ] Mr. Jackson’s note reads in its entirety.

“I have been requested by my supervisor, Janet Mullock, to recall from memory any details about the condition of Victoria Anderson on the night of April 5th which might bring forth any more information about her condition than that which appears in her patient record. The care of Victoria Anderson was assigned to me on two succeeding night shifts April 4th and 5th. On the second evening, when I first entered room 9B 005, the person who appeared to be Victoria’s mother informed me that Victoria had a pain behind her right scapula.

I asked Victoria if she thought that the pain might be from a roll of towel or cloth that is usually placed between the shoulder blades during a central line insertion. Victoria said, “No”. I administered an analgesic as was ordered. Victoria’s parent(

s) left without voicing any further concerns. Victoria’s vital signs were unremarkable at bedtime. Between midnight and one o’clock, Victoria was up to the bathroom and had a bowel movement. Shortly thereafter she brought up some tenacious thick mucous secretions from her stomach, began wretching and vomited about 100 ml of bilious liquid. I believe at that time that she was medicated again with morphine and dimenhydrinate. She seemed to settle, but still had occasional short bouts of wretching. At about three o’clock Victoria stated that she had a headache.

She had just returned from the bathroom after another bowel movement. She vomited about 200 ml of bilious liquid with the same thick tenacious mucus. I inquired whether her headache was frontal or in the back of her head above her neck. She replied that it felt like “it was in the top of my head”. She was medicated again with an analgesic and an anti-emetic. She was uncomfortable until about three twenty and then fell asleep. Near six o’clock, she was awake, no longer wretching, having some nausea and still some residual headache. I took her pulse and blood pressure. Her vital signs showed no change.

Her pulse pressure was not wide but had not changed in amplitude over the past thirty-six to forty-eight hours. I told Victoria that I would give her another injection when it was due at seven. I returned at seven and Victoria rolled to her right side and I administered the same dosage of analgesic and antiemetic. She showed no neurological deficits. She was alert and oriented.” [ 101 ] Mr. Jackson also recounted that he specifically recalled Ms.

Anderson having back-pain and expressing that she was experiencing a tingling sensation in her right arm during his even shift on April 5. [ 102 ] On cross examination, Mr. Jackson confirmed that although the majority of central line placements undertaken on unit 9B were undertaken by surgical residents, medical residents did so as well. [ 103 ] Mr. Jackson was also directed to Dr. Schep’s order of April 5, 1997 on the hospital chart.

He confirmed that during the evening shift of April 5, he would have had the opportunity to review this order, which included cancelling the central line, a direction that PPN be started, Ms. Anderson was to move from “clear fluids” to “full fluids”, and to cancel Ms. Anderson’s daily blood work requisition. [ 104 ] Mr. Jackson explained that full fluids included items such as milk, puddings, applesauce, instead of clear liquids. [ 105 ] Further on cross examination, Mr.

Jackson was asked about his recollection regarding back pain and tingling in her arm, and acknowledged that neither appeared in the nurse’s progress notes, or elsewhere in his nursing rotations on the chart. Mr. Jackson advised that these symptoms appeared to resolve by the end of his shift, and he felt no need to document them. Mr. Jackson felt these symptoms where compatible with Ms. Anderson’s bowel issues, and felt there was no need to follow up further, as the pain and tingling had resolved by 10:30 p.m. [ 106 ] Mr. Jackson was directed to Ms.

Anderson’s Will Say Statement, and in particular, his comment that “I buzzed Brian around 2:30 a.m.. When Brian came in, I told him I had been throwing up for quite sometime and I thought something was wrong. Brian replied that there couldn’t be anything wrong because nothing showed up on your x-ray.” Mr. Jackson indicated he would not have re-assured a patient in such a manner as the chest x-ray would not have shown the stomach. [ 107 ] On cross examination Mr. Jackson confirmed that pain, nausea and vomiting are consistent with an obstructed bowel. On re- direct, Mr. Jackson confirmed that Ms.

Anderson continued to show a soft abdomen upon assessment, which would be contraindicative of a bowel obstruction.

Others [ 108 ] Piney Horechuk testified. She is Ms. Anderson’s older sister, being 7 years her senior. As she resides in Sydney, she is, and was, very close to Ms. Anderson. Prior to April 1997, they spoke to each other on a daily basis. Ms. Horechuk testified that as a child, Ms. Anderson was diagnosed with an inflamed bowel, and later with colitis as an adult. Although Ms. Anderson needed to monitor what she ate, her bowel condition was not a “real issue” in the family, with Ms. Anderson living a full life. [ 109 ] Ms.

Horechuk was aware of a colitis flare-up in 1996 which required hospitalization at the QEII Hospital in Halifax, and again in March of 1997 when she was admitted to the Cape Breton Hospital. She did not view these as being “severe”, although she acknowledged on cross-examination that Ms. Anderson may not have advised her of the full extent of her symptomology. [ 110 ] Janet Trimm is Victoria’s oldest sister. She has resided in Dartmouth for 25 years, and was living there in 1997. At that time Ms. Trimm worked as a medical secretary, subsequently becoming an LPN in 2000. She had the opportunity to visit with Ms.

Anderson during her April 1997 hospitalization, normally arriving most evenings around 6:30 to 7:00 p.m., after she had finished her family meal. She did not work on April 5, so arrived earlier, around 5 p.m. [ 111 ] Ms. Trimm recounted that on the evening of April 2, 3, and 4, 1997, Ms. Anderson seemed stable, but was exhibiting abdominal cramping and diarrhea which she felt were the usual symptoms of a colitis flare-up. Ms. Trimm understood that

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