2013 ONSC 5771, 2013 ONSC 5771

Hanson v. St Joseph’s Healthcare CITATION : 2013 ONSC 5771 COURT FILE NO.: 08-5130 DATE: 2013-09-13 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Dee Hanson, plaintiff AND: St Joseph’s Healthcare, Doug Hiltz and Dan Marshall, defendants BEFORE: Mr Justice Ramsay COUNSEL: Mr Robert Hooper for the plaintiff; Ms Leslie Wright for the defendants HEARD: September 9-12, 2013 ENDORSEMENT [ 1 ] The plaintiff was a patient in the emergency room of the defendant hospital. During her stay in the emergency room on August 27, 2006, a doctor detained her for a psychiatric assessment under s.15 of the Mental Health Act – a “Form 1”.

She was restrained by security guards employed by the hospital. She was then sedated taken for kidney surgery which resolved a life-threatening issue. The plaintiff is suing the hospital and the security guards for battery in connection with the restraint, not the operation. [ 2 ] I am required to decide three questions: a. Did the defendants commit the tort of battery? b. Did the physical restraint of the plaintiff by the security guards cause an injury to the plaintiff’s right shoulder? and c. What damages would compensate her for that injury? [ 3 ] The latter two questions are readily answered.

Causation [ 4 ] I agree with Mr Hooper’s submission that causation is a red herring. The plaintiff testified that before the incident her shoulder did not bother her. I believe her because she never complained of any such injury in all the years she saw her family doctor, while she did complain during those years of many other ailments. On her first trip to the doctor after the incident, on September 7, 2006, the plaintiff complained about the way she had been treated in the emergency room.

On her next visit, September 21, 2006, she complained to her doctor of pain to her right shoulder and she associated it with the incident in the emergency room. It has since been determined by imaging technology that the plaintiff’s rotator cuff is seriously injured. The plaintiff infers that the injury occurred during the incident of which she complains. Her expert, Dr Richards, draws the same inference and so do I. The defendant’s expert, Dr Axelrod, gave the opinion that the injury is the result of a pre-existing degenerative condition. He assumed certain facts, however, that are not supported by the evidence.

He said that no particular force was applied to her right shoulder, while Mr Hiltz, the security guard, says that he did give her a push on that side. Dr Axelrod thinks that the plaintiff would have complained of pain sooner if she had been injured in the emergency room. I do not agree. She was immediately after anaesthetized for surgery, and she remained on painkillers for some time. Her first complaint to her doctor coincides more closely with her attempt to return to work. I find on the preponderance of the evidence that the restraint in the emergency room caused the injury to the plaintiff’s right shoulder.

It would not have taken a great deal of force. In this respect the plaintiff is the classic thin-skulled plaintiff. She may well have had some pre-existing degenerative condition, but it was not bothering her at all. For it to start bothering her all of a sudden right after the visit to the emergency room without any contribution by the restraint used during that visit is too much of a coincidence for me. Damages [ 5 ] The complainant had serious deficits before the incident. She had a bad back and problems with her left wrist and hip. She used her right side to compensate.

After the injury she was no longer able to do so. This caused her considerable, lasting pain. Her unavoidable use of her right side caused further injury. I fix general damages at $100,000. She lost what little employability she had. I fix the value of that loss at $20,000. She needed housekeeping assistance and will need such until age 75, at which point I think she will be in some form of assisted living, probably with one of her two grown children. I fix her damages for past housekeeping at $25,000 and for future housekeeping at $15,000, a total of $40,000.

Liability [ 6 ] The plaintiff says that the guards had no right to lay hands on her and in the alternative that they used excessive force. The defendant says that the guards’ acts were justified under s.15 of the Mental Health Act and at common law. The evidence [ 7 ] Five witnesses testified to the events in the assessment room: the plaintiff, the two security guards and the two doctors. I

considered their evidence in the light of all the evidence and the documentary evidence that exists. I concluded that the plaintiff herself was not reliable as to what happened in the incident. She was correct about the broad framework of what happened, but I think that the fever, the illness and the medicine impaired her perception and her ability to recall. I found some of her account fantastic. For example, she said that once she was restrained, someone injected her with a sedative in her neck. That cannot have happened.

I think that much of her account is the product of her imagination. [ 8 ] I found Dr Tisdale reliable. He said that at the crucial time he was at the nursing station and he saw the plaintiff come out the door of the room. I think he is mistaken to the extent that he thinks the plaintiff actually got out of the room, but not otherwise. The plaintiff’s daughter testified that she got three telephone calls from Dr Tisdale in quick succession between 11 am and noon. Dr Tisdale said that he did not speak to the daughter on the telephone. I believe Dr Tisdale and I do not believe the daughter.

I found her evidence implausible from the start. She said that Dr Tisdale told her that her mother was seriously ill and needed to be sedated, and that she, the daughter replied, “absolutely not”. I found that unlikely. When Dr Tisdale said that he had not talked to the daughter my initial impression of the daughter’s evidence was confirmed. I think she was trying to gild the lily. [ 9 ] Mr Marshall, the security guard, struck me as professional, well-trained and compassionate. But I do not think he has any clear memories of the details of the event. He lost his notebook.

The report he filled out the same day or the next day is devoid of details of the incident. He was added to the action late. I think that it was in 2010 that he was first called upon to think back to 2006. By that time it was too late. He says that on reflection he has remembered more details even since discovery, but I think he is mistaken. I do not think it wise to rely on his evidence. [ 10 ] Mr Hiltz on the other hand has his notes and his report. They both contain reasonable detail.

They are not as complete an account as I would expect from a police officer, but they seem reasonable for a private security guard. He made a good impression on me as a witness and I choose to rely on his account. [ 11 ] Dr Hatcher was similarly impressive. His memory is clearer on the aspects of the drama upon which he was focused, that is to say, the medical aspects and the conversation with the patient, as opposed to the details of the restraint. On the Form 1, he made two omissions.

He set out that he had examined the patient himself, which was correct, but he checked the box that indicated that he had not received information from anyone else. This, of course, was incorrect. He had been briefed by Dr Tisdale and he had seen the CT report, or been told about its contents. Also, he checked the boxes that indicated that he considered the patient to be likely to suffer injury or impairment. He also considered her to be a likely to cause injury to others if she got in her car and drove, but he did not check that box.

Looking at all the evidence, these omissions do not seem to me to be of great importance and they do not shake my confidence in Dr Hatcher’s credibility. Between Dr Hatcher and Mr Hiltz I think that I have a reliable account of the important events and I make my findings of fact based on their evidence. Dr Tisdale was not in the room at the crucial moment, although he was near by. The facts [ 12 ] I find the following facts to be proven on the preponderance of the evidence. On August 27, 2006 the plaintiff, then age 61, woke up with a fever and nausea.

She went to the emergency department of the defendant hospital. She was triaged at 7:25 and assessed at 8:30. She had a fever of 102. She had thrown up and she complained of pain in her flank. She was given fluids and sent for a CT scan. At 9:44 am the radiologist reported that he had found a 19 mm kidney stone that was blocking the ureter and could be infected. Dr Tisdale, the urology resident, was consulted. He examined the plaintiff and was informed of the CT result. In his opinion the plaintiff needed immediate surgery to drain the kidney. He regarded it as a potentially life-threatening condition.

He described the stone in his notes as “huge”. [ 13 ] He told the plaintiff that she would need immediate surgery and that she would be in hospital 3 or 4 days. The plaintiff said that she wanted to leave and take her car from where it was parked on Charlton Street, and drive to the home of Dr Sheppard, an elderly retired doctor whom she took care of. Dr Tisdale told her that she was not fit to drive safely and urged her to stay put. He consulted Dr Hatcher, the emergency room doctor. [ 14 ] Dr Hatcher is a specialist in emergency medicine.

He has training in urology and psychiatry, particularly as those issues might present in an emergency room. He was briefed by Dr Tisdale and made au courant of the CT scan. In Dr Hatcher’s opinion, the plaintiff was in immediate danger. He knew that her kidney was blocked and thought that sepsis was probable. The fact that her temperature by now had gone down to 99 and her blood pressure to 116 over 67 to him did not signal improvement. To him, it signalled the beginning of the failure of the body’s defences and impending shock. He thought she could go into shock in 30 minutes.

He discussed this with the plaintiff but she was adamant that she wanted to do these errands before surgery. He thought that her insight was impaired by the sepsis and that she was acting irrationally. He decided to “put her on a Form 1” and told her and the guards so. The guards’ presence in the examination room had already been arranged. I find that the plaintiff was out of bed or nearly out of bed at that point. Once the Form 1 was announced, she tried to take out her intravenous line and moved toward the exit. The guards grasped her gently around her wrists.

Mr Hiltz directed her to the bed with slight pressure on her shoulder. They got her into bed. Dr Hatcher gave her a sedative through the intravenous line. The plaintiff very quickly fell asleep. She was taken to the operating room and underwent a successful operation to drain the kidney. The application for a mental examination was not pursued further. The law and its application to the facts [ 15 ] The relevant portions of the Mental Health Act , RSO 1990 c. M.7, are as follows:

(1) In this Act, “mental disorder” means any disease or disability of the mind; (“trouble mental”) “psychiatric facility” means a facility for the observation, care and treatment of persons suffering from mental disorder, and designated as such by the Minister; (“établissement psychiatrique”) “restrain” means place under control when necessary to prevent serious bodily harm to the patient or to another person by the minimal

use of such force, mechanical means or chemicals as is reasonable having regard to the physical and mental condition of the patient; (“maîtriser”) 15.

(1) Where a physician examines a person and has reasonable cause to believe that the person, (

a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself; (

b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or (

c) has shown or is showing a lack of competence to care for himself or herself, and if in addition the physician is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in, (

d) serious bodily harm to the person; (

e) serious bodily harm to another person; or (

f) serious physical impairment of the person, the physician may make application in the prescribed form for a psychiatric assessment of the person.

(2) An application under subsection (1) or (1.1) shall set out clearly that the physician who signs the application personally examined the person who is the subject of the application and made careful inquiry into all of the facts necessary for him or her to form his or her opinion as to the nature and quality of the mental disorder of the person.

(3) A physician who signs an application under subsection (1) or (1.1), (

a) shall set out in the application the facts upon which he or she formed his or her opinion as to the nature and quality of the mental disorder; (

b) shall distinguish in the application between the facts observed by him or her and the facts communicated to him or her by others; and (

c) shall note in the application the date on which he or she examined the person who is the subject of the application.

(4) An application under subsection (1) or (1.1) is not effective unless it is signed by the physician within seven days after he or she examined the person who is the subject of the examination.

(5) An application under subsection (1) or (1.1) is sufficient authority for seven days from and including the day on which it is signed by the physician, (

a) to any person to take the person who is the subject of the application in custody to a psychiatric facility forthwith; and (

b) to detain the person who is the subject of the application in a psychiatric facility and to restrain, observe and examine him or her in the facility for not more than 72 hours. [ 16 ] The plaintiff submits that Dr Hatcher did not act in compliance with the legislation in a number of respects. [ 17 ] First, she submits that there is no proof that the defendant hospital is a psychiatric facility designated by the minister. I find that there is. Dr Hatcher testified that St Joseph’s is the regional health facility. I infer that it was designated by the minister. It would not operate long without that designation.

It is well known by anyone who lives in Hamilton or Niagara that St Joseph’s is the regional psychiatric facility and has been for some time. [ 18 ] I am required in any event to take judicial notice of O.Reg. 616/00 under the Mental Health Act as well as s.32.1 of the Public Hospitals Act , and the list of designated facilities at http://www.health.gov.on.ca/en/common/system/services/psych/designated.aspx#one. [ 19 ] Next it is submitted that the plaintiff was not suffering from a mental disorder.

Deciding to decline medical intervention does not constitute a mental disorder, no matter how unwise such a decision might seem. The plaintiff was able to point to 11 aspects of the evidence which could be proven entirely on the evidence of the defence witnesses that showed some level of presence of mind and logical thinking. They were matters such as the plaintiff’s ability to give the name and telephone number of her client, to use a telephone, to express her refusal of consent, to tell the guards to be careful with her bad wrist, to tell them that she would sue them and so on.

There is no doubt that the plaintiff had a functioning mind. The doctor was, however, entitled to consider whether she had a “disability of the mind” arising from her fever and infection. If her organic condition impaired her ability to understand her illness and to make judgments based on that understanding, she would be suffering from a mental disorder within the meaning of the Act , even if some degree of cognition, logic and judgment remained.

Given the totality of the circumstances I conclude that the doctor had reasonable cause to believe that the plaintiff was showing a lack of competence to care for herself, that he was of the opinion that she was apparently suffering from mental disorder of a nature or quality that likely would result in serious bodily harm and serious physical impairment to her, and that it was reasonable for him to form that opinion. I note in particular that the plaintiff was not simply refusing surgery.

She wanted to delay surgery while she attended to some relatively unimportant errands that could easily be taken care of without her direct involvement, even though she had been told that her condition could kill her if not treated urgently. It was only reasonable for the doctor to think that she was not just unwise, but irrational. [ 20 ] It is not for me to say whether he was correct. It would be difficult to do that in the complete absence of any expert evidence

on the subject. But I can say that the doctor met the requirements of the Act to form opinions based on reasonable cause. [ 21 ] The plaintiff also argues that the resort to s.15 was abusive.

Section 15 is designed to confine a person in a mental facility for up to 72 hours so he can be examined by a psychiatrist. In the present case no such examination was made. Therefore I should infer that Dr Hatcher resorted to s.72 for the ulterior motive of dispensing with consent to surgery. [ 22 ] I do not draw that conclusion. I think that Dr Hatcher applied for an examination in good faith, but the immediate surgery obviated the need to pursue it. The infection was being treated and whatever the patient’s mental state she was no longer at risk of bodily harm or impairment.

To have continued the detention at that point would have been abusive. [ 23 ] Finally, it is argued that the restraint was not “minimal” within the meaning of the Act . I disagree. The gentle force that was applied was just enough to accomplish the purpose of keeping the patient in bed. The guards had no way to know that the plaintiff had a weak shoulder. She also had a weak wrist, and they did not injure it. [ 24 ] It is not argued in this way, but I note that Dr Hatcher did not comply with paragraph (3) b of s.15 . He did not distinguish on the signed form between his own observations and what he had been told.

I do not think that this omission invalidates the restraint. In any event, the defendants could not be held accountable for this omission, which took place after their acts, in the seven days provided by subs. 15 (4) for the doctor to sign the form. Knowing that a doctor ordered a Form 1 on an apparently irrational patient, the hospital and its agents were obliged to act. They could not wait and inspect the signed form to make sure that it was complete. [ 25 ] I find that the restraint of the plaintiff was justified by the legislation. It did not therefore constitute a battery.

I do not need to consider the defendant’s argument on their common law duty to restrain a dangerous patient. [ 26 ] I give judgment to the defendant. The parties may make written submissions to costs, the defendant within 10 days and the plaintiff within 5 days thereafter. The parties may wish to keep in mind the lack of any real prospect of collecting costs from the plaintiff, as well as my tentative opinion that the defendant by contesting causation caused both parties to spend an inordinate amount of time and money unnecessarily. J.A. Ramsay J. Date: 2013-09-13