) ) DR. X Plaintiff – v. –, 2013 ONSC 6134

CITATION : Dr. X v. Everson, 2013 ONSC 6134 COURT FILE NO.: 08-2778 DATE: 20130930 RE-RELEASED: 20131003 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) DR. X Plaintiff – and – JENNIFER EVERSON, HAMILTON HEALTH SCIENCES CORPORATION and McMASTER UNIVERSITY MEDICAL CENTRE Defendants ) ) ) ) ) ) ) ) ) M.B. Fraleigh and M. Swan, for the Plaintiff M. Veneziano and J. Lefebvre, for the Defendants ) ) ) HEARD: November 13,14,15,16,20,21, 2012 and January 18, 2013 PUBLICATION BAN tHE HONOURABLE mR. JUSTICE ROBERT B.

REID Introduction: [ 1 ] The plaintiff claims damages arising from negligence and false imprisonment in an action which proceeded against the defendant Jennifer Everson alone. [ 2 ] The alleged negligence arose from the defendant’s completion of an application for a psychiatric assessment of the plaintiff under s. 15 of the Mental Health Act [1] (using Form 1 [2] ), which in turn led to the immediate and involuntary detention of the plaintiff for that assessment. [ 3 ] As discussed below, the factual matrix of this case involves elements of several different relationships, including doctor- patient, employer-employee, parent-child, and husband-wife.

The dramatic constellation of these relationships creates a compelling backdrop to the legal issues that is worthy of a television script. Synopsis: [ 4 ] The plaintiff is a research cardiologist. She was a first-time mother. [ 5 ] The plaintiff became concerned for her baby’s health and sought medical advice.

The symptoms persisted, and she came to believe that she was being labeled as an anxious mother by the treating physicians. [ 6 ] In an attempt to get a timely referral to a new specialist outside the circle of care within the Hamilton Health Sciences group of hospitals, she requested an appointment with the defendant, who was Vice-President Medical at the Hamilton Health Sciences Corporation (“HHSC”).

At that appointment, and to the plaintiff’s surprise, the defendant “formed” her and she was taken involuntarily to an emergency psychiatric unit for a psychiatric assessment. [ 7 ] As a result of the event, the plaintiff alleges that she suffered psychological trauma. She was unable to carry on her work normally and claims damages for loss of income as well as general damages. Legal Issues:

(

a) To determine whether the defendant was negligent in the completion of the Form 1 “Application for Psychiatric Assessment”: • Did the defendant owe the plaintiff a duty of care? • Did the defendant’s actions breach the standard of care? • Did the plaintiff sustain damages? • Were any damages caused by the defendant’s breach? • If so, what is the measure of damages suffered by the plaintiff arising from the defendant’s negligence? (

b) As to false imprisonment/unlawful detention: • Did the defendant’s actions in completion of the Form 1 cause the plaintiff to be falsely imprisoned/unlawfully detained? • If so, what is the measure of damages suffered by the plaintiff arising from the false imprisonment/unlawful detention? • Are any damages for false imprisonment/unlawful detention independent from damages for negligence? Background: The plaintiff: [ 8 ] Dr. X has been a cardiologist with Hamilton Health Sciences Corporation since 1997. She is a career scientist who maintains a clinical as well as a research component to her work. Dr.

X is also an assistant professor at the McMaster University Medical Centre (“MUMC”) which is part of the HHSC. [ 9 ] As with other cardiologists, her clinical duties include caring for patients on referral and follow-up, administering and supervising testing, and reading echocardiograms. She was part of a regular on-call rotation at the hospital. [ 10 ] The plaintiff achieved considerable success writing grant applications.

That success led to her scientific activities, performed with the support of residents and other cardio staff, and to her receipt of several awards and recognitions, including the career scientist award from the Ontario Ministry of Health and Long-term Care. [ 11 ] Dr. X’s strong personality was apparent through her testimony and the evidence of other witnesses for both parties. She can be described as intelligent and assertive. She has high standards for herself and others, particularly in the healthcare field, and can be very critical of others who do not perform to a proper standard.

As befits the research component of her cardiac specialty, she is very thorough and persistent in seeking answers to medical questions. She presented as the kind of doctor that a patient with a complicated cardiac issue would wish to have on his or her side. However, her aggressive nature could be off-putting to others. For example, she would make repeated contacts until her calls were returned, and was openly critical of the behavior of others with whose professional judgment she disagreed. [ 12 ] On the date of the Form 1 incident, June 2, 2006, the plaintiff was about 40 years of age and married.

Her husband, from whom she has since separated, was employed as a biostatistician. [ 13 ] The plaintiff has a close relationship with her parents who reside in Montréal. For reasons that will become obvious, it is relevant to note that her father is a retired paediatrician and former President of the Paediatric Committee of the Royal College of Physicians and Surgeons of Canada. Her mother is a retired occupational therapist and child psychologist who had significant experience working with children in a school setting. The defendant: [ 14 ] Jennifer Everson is a family physician and medical administrator.

She has maintained a part-time clinical family medicine practice since 1997. From 2003 to 2005, she was Chief of Staff at the HHSC providing direction to the Chiefs of Department. In her position, she also chaired the Medical Advisory Committee which had oversight in matters of patient care quality in the hospital. [ 15 ] As a result of a re-organization in 2005, the defendant’s position was divided into two: Vice-President Medical (which she assumed) and Chair of the Medical Advisory Committee. From 2005 to 2008, her job description included oversight of medical affairs and patient safety.

Through the Chiefs, she was required to ensure adequate supervision of any member of the professional staff when concerns arose about quality of care. [ 16 ] Dr. Everson and Dr. X were acquainted from approximately 2002, when they interacted during the preparation by Dr. X of a research grant application. Prior to the Form 1 incident on June 2, 2006, they had never engaged in a doctor-patient relationship. Dr. Everson had not seen Dr. X for about a year prior to that event. Pregnancy and Post-partum Issues: [ 17 ] The plaintiff became pregnant with her first child in late 2004.

She continued to be active with her professional responsibilities until 4 to 6 weeks before the delivery.

[ 18 ] The baby was born August 29, 2005. [ 19 ] From birth, the baby was described as being very irritable. There were feeding and constipation issues. He was inconsolable and would cry or scream for 18 to 20 hours per day. [ 20 ] Initially, the plaintiff stayed home with the child during her pregnancy leave and when she returned to work, her husband took a parental leave from his employment. [ 21 ] The plaintiff’s parents, as well as her husband’s parents, spent extended time at home with the baby. [ 22 ] The plaintiff testified that her father said he had never seen a child cry like that.

Based on his paediatric experience, she gave his opinion significant weight. The baby seemed to the plaintiff to be suffering global delays and unknown medical issues. [ 23 ] The child was referred to a paediatrician at the MUMC who made a diagnosis of acid reflux. However, the usual medication did not seem to be effective and the irritability, constipation, and poor sleeping continued. A second opinion was sought, and ultimately there was a referral to a paediatric gastroenterologist at MUMC, Dr.

Robert Issenman. [ 24 ] The plaintiff became anxious and sleep deprived as a result of the baby’s irritability and the lack of a satisfactory diagnosis. [ 25 ] Based on her medical training and the advice received through her father, the plaintiff sought reasons other than acid reflux for the baby’s condition. [ 26 ] By February 2006, there was no noticeable improvement in the baby’s behavior. However, according to the plaintiff, Dr. Issenman advised her that the baby would outgrow the problems and that she should not worry. [ 27 ] When no improvement occurred, the plaintiff requested that Dr.

Issenman perform an endoscopy. Although he did not testify, it appears from the evidence of both the plaintiff and the defendant that Dr. Issenman agreed to the procedure, together with a multi-day hospital admission for observation, on the condition that the plaintiff see a psychiatrist. When the treatment was offered, Dr. Issenman had already contacted Dr. Dody Bienenstock, a senior psychiatrist within HHSC, to make an appointment for the plaintiff. [ 28 ] Dr. X felt that Dr.

Issenman’s conditional agreement to perform an endoscopy was inappropriate, and that he had acted unprofessionally in contacting a psychiatrist on her behalf. She was offended that he appeared to be focused on her qualities as a mother rather than on her son’s medical issues. As result, the endoscopy was not performed and the psychiatrist was not seen. [ 29 ] In April 2006, the plaintiff requested and received a referral to Dr. Tony Ford-Jones, a paediatrician in private practice, in order to take her son’s care outside the HHSC community. [ 30 ] According to the plaintiff’s evidence, Dr.

Ford-Jones advised her that she had too much knowledge and he considered her to be an anxious mother, telling her to relax. [ 31 ] The plaintiff’s family doctor was Dr. Camille Tittley, who she consulted from time to time. Post-partum, Dr. Tittley prescribed a mild sedative to help the plaintiff’s anxiety and lack of sleep. [ 32 ] In late May or early June 2006, the plaintiff determined that, since her baby’s symptoms were not improving and since she had not received a definite diagnosis for his problems, she should seek a second opinion from another paediatric gastroenterologist. She was referred to Dr.

Ana Sant’Anna who practiced within the HHSC. The response to the plaintiff’s inquiries indicated that there would be a significant delay in securing an appointment. As well, Dr. X was convinced that she had been labeled as an anxious mom by Dr. Issenman and that he had shared his impression with colleagues. Therefore, she felt it would be impossible to receive an objective assessment within the HHSC. She turned to the defendant for assistance, asking that the defendant use her influence to arrange for an urgent referral to another paediatric gastroenterologist, Dr. Persad, who was in private practice.

The Meeting between the Plaintiff and the Defendant: Preparation for the Meeting: [ 33 ] The plaintiff called the defendant’s office in the afternoon of June 1, 2006 and spoke to the defendant’s administrative assistant. She provided detailed information outlining her concerns with her child’s health, the involvement of various doctors, her frustration with their failure to provide an acceptable diagnosis, and her belief that she had been labeled as an anxious mom within the HHSC community.

She advised that she was seeking a meeting to secure the defendant’s intervention on her behalf to arrange a timely appointment with Dr. Persad. [ 34 ] When no immediate reply was received from the defendant, the plaintiff left a further telephone message. She followed up with a detailed email to the defendant outlining her request, her son’s medical history, and her concerns. The plaintiff had her secretary call the defendant in the morning of Friday, June 2 at approximately 8:15 AM to follow up the meeting request, and a message was left accordingly.

The plaintiff herself called the defendant’s office at approximately 9:00 AM, 1:15 PM and 1:35 PM on June 2. The plaintiff sent a second email to the defendant on June 2 at 10:29 AM. [ 35 ] In response, and without communicating her intentions to the plaintiff, the defendant sought information about the plaintiff’s situation by telephone from Dr. Issenman. According to the defendant, he provided a history of his involvement with the plaintiff and the baby. He also provided information as to his understanding of the plaintiff’s involvement with Dr. Ford-Jones and another paediatric

gastroenterologist. [ 36 ] The defendant then made a telephone call to Dr. Tittley and received information from her about her involvement with the plaintiff, the plaintiff’s family history, and the sedative prescription prescribed for the plaintiff. [ 37 ] The defendant then contacted Dr. Dody Bienenstock, with whom the tentative appointment had been made for the plaintiff by Dr. Issenman. In her note of that conversation, the defendant indicated that Dr.

Bienenstock “was well aware of [the] case and was extremely concerned and felt the only way that this mother was going to get a psychiatric evaluation was to form her.” Presumably, Dr. Bienenstock was “well aware” based on her previous conversation with Dr. Issenmen. [ 38 ] In cross-examination, the defendant testified that she did not convey any information received from Drs. Tittley or Issenman to Dr. Bienenstock, since Dr. Bienenstock already knew more about the situation than did Dr. Everson.

Her note went on to state that: “I discussed my concerns as a colleague having to form a patient and she felt that with the information that I had reviewed with her, I had not [sic] choice.” Dr. Everson was less definitive in cross-examination, indicating that she asked for Dr. Bienenstock’s advice and was told that the only way to find help for the plaintiff was to complete a Form 1 application. [ 39 ] Next, Dr. Everson made contact with the Emergency Psychiatric Team (“EPT”) at St. Joseph’s Hospital about how to make arrangements for the psychiatric assessment.

She accepted the advice that she could contact the Crisis Outreach and Support Team (“COAST”), which she did. As a result, two members of the team, a Hamilton Police Service plainclothes officer and a mental health worker, attended at her office. [ 40 ] The plaintiff was contacted by the defendant’s assistant and required to attend for a meeting at 4:30 PM on June 2. The plaintiff protested that 4:30 PM was a difficult time for her, due to her

schedule to go home and relieve her husband from his childcare duties. However, she testified that she was told she had no choice but to show up at that time for the meeting. [ 41 ] The defendant contacted hospital chaplain, Victoria O’Connor, who was known to be a support person for the plaintiff and required her attendance at the meeting as well. The defendant recorded in her notes that Ms. O’Connor advised that both she and the plaintiff’s father were concerned about the plaintiff’s welfare. [ 42 ] Ms. O’Connor gave evidence that she had not met or spoken with Dr. Everson on previous occasions.

She recalled being paged to attend the meeting but did not recall speaking to Dr. Everson, although she could not be certain that no conversation took place. She was certain that she did not express a concern about the plaintiff’s personal safety. Her testimony was that the plaintiff’s care for her child was “impeccable”. Ms. O’Connor said that she had absolutely no concerns for the baby’s safety. She did admit being concerned that the plaintiff was anxious and exhausted through the combination of lack of sleep and work responsibilities. Ms. O’Connor met the plaintiff and they proceeded to the meeting together.

The “Forming” [ 43 ] The plaintiff arrived at the meeting to seek the defendant’s assistance in facilitating the urgent referral of her child to Dr. Persad. [ 44 ] The plaintiff recalls the defendant asking her what was going on with her son, to which she gave a detailed explanation of the problems that she had experienced since the child’s birth. She explained the results of her consultations with Dr. Issenmen, but noted that the same gastrointestinal issues persisted and therefore she felt a consultation with Dr. Persad was necessary. It took 10 to 15 minutes for the plaintiff to tell her story. [ 45 ] Dr.

X recalled the defendant then advising her that she was about to be “formed”. The plaintiff offered instead to see her family doctor or a psychiatrist the following week, but that offer was not acceptable to the defendant. The plaintiff testified that the members of the COAST team then entered to escort her to St. Joseph’s Hospital. [ 46 ] The plaintiff recalled being overwhelmed but calm. She asked about the referral of her son and was told by the defendant that Dr.

Peter Steer, the Chief of Paediatrics at HHSC whose office was in the same suite, would speak to her and that if it was necessary to have the child assessed, they would cooperate. [ 47 ] The defendant testified she was worried about the plaintiff and that the purpose of the meeting was to figure out what was going on with her through a conversation. She recalls the plaintiff providing a detailed history of the child’s health issues and medical care.

The defendant said that she simply listened. [ 48 ] As to the conduct of the meeting, much of the defendant’s evidence was not significantly different from that of the plaintiff. She dictated notes of the meeting shortly after its completion.

She agreed with the plaintiff’s testimony that the plaintiff offered to see a psychiatrist voluntarily the following week but that the delay was not acceptable. [ 49 ] Although not recorded in her notes, the defendant testified that she asked the plaintiff if she would consider hurting or harming herself, and that the plaintiff said she would not answer because she knew what the defendant would do with that information. The defendant stated she was not reassured by the answer but asked no follow-up questions.

Neither the plaintiff nor Victoria O’Connor recalled that question being asked. [ 50 ] Also absent from her notes but included in her testimony was evidence from the defendant that she asked the plaintiff what she was prepared to do to prove that there was something wrong with her child. She recalled that the plaintiff answered to the effect that she did not know what she could do to convince others that something was wrong. Again, the defendant was not reassured by that answer. No follow-up questions were asked.

Neither the plaintiff nor Victoria O’Connor recalled that question being asked. [ 51 ] The defendant testified that the plaintiff was very upset, perhaps crying, and that based on the content of the meeting and the

previous information provided by Drs. Tittley, Issenman, Bienenstock and Victoria O’Connor, she decided to complete the Form 1. [ 52 ] The defendant assured the plaintiff that the circumstances of the “forming” and the Form 1 itself would remain confidential. [ 53 ] Victoria O’Connor was the third person present at the meeting. She observed but did not participate. She recalled Dr. Everson asking the plaintiff how she was doing, including her work duties and taking care of herself, and asking about the baby. Ms.

O’Connor recalled that the plaintiff was typically forthright in expressing her concerns about the baby. She recalled no questions from Dr. Everson about the plaintiff potentially harming herself or her child. [ 54 ] Ms. O’Connor recalls the plaintiff being asked by Dr. Everson if she would accept going immediately to St. Joseph’s Hospital to get help and the plaintiff’s reply that she could not go immediately. She recalls that suddenly the Form 1 was presented and the plaintiff was advised that she was being sent to St. Joseph’s. The two COAST representatives attended at that point.

The defendant signed the Form 1 at 5:05 PM. [ 55 ] Ms. O’Connor felt the “forming” was beyond belief, inappropriate, and unnecessary based on her close dealings with the plaintiff. She had no idea that it was a possible outcome of the meeting. She recalls the plaintiff appearing to be stunned and completely taken aback. [ 56 ] The COAST representatives gave evidence that they understood they were being required to attend at the defendant’s office in order to escort a person to the emergency psychiatric unit at St. Joseph’s Hospital since that person was about to be “formed”.

Their file notes confirmed that understanding, and in fact the mental health worker who attended was also the one who took Dr. Everson’s initial call. Dr. Everson’s evidence was that arrangements were made for the COAST representatives’ attendance in case it was necessary to “form” the plaintiff. [ 57 ] After the meeting with Dr. Everson ended, Dr. Steer (who had been in his office nearby ) and the plaintiff spoke briefly. She asked him to secure the appointment for her baby with Dr. Persad. [ 58 ] The plaintiff was allowed to go to her office to pick up personal belongings.

The COAST representatives accompanied her. She testified that she telephoned her husband to advise him of the situation. She passed two resident doctors who asked if she was okay or if there was anything they could do, but she said she could not talk. She testified that she felt humiliated. After attending at her office, the plaintiff was escorted to a waiting unmarked police car for transportation to St. Joseph’s. [ 59 ] Dr. Everson called the plaintiff’s husband at home and confirmed that she was being escorted to St. Joseph’s Hospital for a psychiatric assessment.

She advised him of the possibility that the plaintiff would be transferred to Homewood in Guelph. Analysis of the Issues: Did the defendant owe the plaintiff a duty of care? [ 60 ] The essential first step in a claim of negligence is a finding that the defendant owes the plaintiff a duty of care. [ 61 ] It is trite law that a physician owes his or her patient a legal duty of care. Typically, that relationship is obvious from the patient requesting and the doctor accepting the establishment of a doctor-patient relationship. [ 62 ] In this case, Dr.

Everson has admitted that she acted as a family physician with respect to the plaintiff during their meeting of June 2, 2006, and that she completed the Form 1 in that capacity. [ 63 ] The plaintiff testified that her purpose in meeting with Dr. Everson was solely to seek assistance with her baby’s care. The establishment of a doctor-patient relationship between herself and Dr.

Everson was not within her contemplation, nor at any point did she consent to that relationship. [ 64 ] Although creating a doctor-patient relationship by consent may be the norm, it is reasonable to suppose that in some cases, such as emergency treatment or in situations where the individual is unable to give consent to treatment, a doctor-patient relationship can be established by the doctor’s actions alone. [ 65 ] Here, especially in view of Dr. Everson’s admission, I am satisfied that the relationship was established, at least for the limited purpose of considering the application for psychiatric examination.

As a result, the plaintiff has satisfied her onus to show that a duty of care was owed to her by the defendant.

Did the defendant’s actions breach the standard of care? [ 66 ] Once the duty of care is established, the plaintiff must establish on a balance of probabilities that the conduct of the defendant fell below the required standard of care. [ 67 ] In the field of medicine, physicians have a duty to make medical decisions for patients in accordance with the conduct of a “prudent and diligent doctor in the same circumstances.” [3] [ 68 ] Establishing the standard of care in this case is different from the usual medical negligence situation.

Typically, the standard of care required by a physician is determined by considering medical norms and determining whether the medical procedure, treatment, or diagnosis in question fell below those norms. Expert evidence is required because determining the standard required of a doctor, as with many other professionals, is not within the expertise of the trier of fact.

[ 69 ] Here, the required standard of care is based on compliance with the legal requirements imposed by the Mental Health Act . Expert evidence is necessary only to the extent that statutory compliance requires

interpretation through the lens of prudent medical practice. Mental Health Act Requirements [ 70 ] The starting point for establishing the applicable standard of care is a review of

section 15 of the Mental Health Act , since the claims of negligence and false imprisonment against Dr. Everson are both premised on the proposition that she did not comply with

section 15 when she signed the Form 1. [ 71 ] The relevant portions of

section 15 of the Act read as follows: 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. R.S.O. 1990, c. M.7, s. 15 (1) ; 2000, c. 9, s. 3 (1) . … (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. R.S.O. 1990, c. M.7, s. 15 (2) ; 2000, c. 9, s. 3 (3) . (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. R.S.O. 1990, c. M.7, s. 15 (3) ; 2000, c. 9, s. 3 (4) . (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. R.S.O. 1990, c. M.7, s. 15 (4) ; 2000, c. 9, s. 3 (5) . (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. R.S.O. 1990, c. M.7, s. 15 (5) ; 2000, c. 9, s. 3 (6) . [ 72 ] Form 1 mirrors the language of

section 15, reorganized to provide the physician with guidance as to how the form is to be used. A copy is attached as Appendix “A” to these reasons. [ 73 ] Form 1 begins with an instructing rubric taken from s. 15(1),(2) and (4) as follows: You may only sign this FORM 1 if you have personally examined the person within the past seven days.

In deciding if a Form 1 is appropriate, you must complete either Box A (serious harm test) or Box B (persons who are incapable of consenting to treatment and meet the specified criteria test) below. [ 74 ] Only Box A is relevant to this case. [ 75 ] Box A characterizes the physician’s assessment under the provisions of s. 15 as the “serious harm test”. Within it, there are two sub-tests called the Past/Present Test, and the Future Test. [ 76 ] For the Past/Present Test to be established, there must be reasonable cause to believe that one or more of the behaviours in s.

15(1) (a), (

b) or (

c) exists. Form 1 requires the physician to set out the basis of his or her belief, distinguishing between personal observations and facts communicated by others. [ 77 ] Then the physician must be of the opinion that the person is apparently suffering from a mental disorder of the nature and quality that will likely result in one of three serious situations (the Future Test), identified in s. 15(1) (d), (

e) and (f). Again, the basis of the opinion must be shown, distinguishing between personal observations and facts communicated by others. [ 78 ] At the end of the Form 1, the physician certifies it by signing, dating, and timing it under the following attestation: I have made careful inquiry into all the facts necessary for me to form my opinion as to the nature and quality of the person’s mental disorder. I hereby make application for a psychiatric assessment of the person named. [emphasis added] The Completed Form 1: [ 79 ] In this case, Dr.

Everson ticked the last two boxes in the Past/Present Test portion of Box A, indicating that she had reasonable cause to believe that Dr. X had caused or was causing another person to fear bodily harm from her, and that she had shown or was showing a lack of competence to care for herself. [ 80 ] Dr. Everson’s own observations were not noted in that portion of the form. [ 81 ] She indicated under the heading “facts communicated to me by others” that, in the wording of the form, she based her reasonable cause for belief on the following information: FMD Dr. C.

Tittley = nine months postpartum, PM x depression, obsessed re-baby, anxious, wt. loss? sleep disorder Dr. Bob Issenman = baby specialist, ++ anxious, obsessed, sleep disorder, panic. Victoria O’Connor - hospital chaplain, worried re: safety pt., pt father spoken to her, worried re: his daughter’s health [ 82 ] Dr. Everson ticked three boxes in the Future Test portion of Box A, indicating that she was of the opinion that Dr.

X was apparently suffering from mental disorder of a nature or quality that would likely result in serious bodily harm to herself, serious bodily harm to another person, and serious physical impairment of herself. [ 83 ] According to her notations on the form, Dr. Everson based her opinion under the Future Test portion on her own observations as follows: “thin, obsessed with infant, sleep deprived”. As to the facts communicated by others, she referred back to those set out in the Past/Present Test portion which I have noted above.

Expert Evidence: [ 84 ] The expert evidence was directed to the standard of care for the proper completion of Form 1, especially the requirement for a personal examination, the basis for a “reasonable cause to believe” under the Past/Present Test, the basis for the physician’s opinion under the Future Test, and the requirement to make a careful inquiry into all the facts necessary to form an opinion as to the nature and quality of the person’s mental disorder. [ 85 ] Dr. Walter Rosser testified for the plaintiff.

He is a senior and well respected family physician who combines an active clinical practice in family medicine with teaching duties as a professor at Queens University in Kingston. [ 86 ] Dr. Michael Paré testified for the defendant. He has a designation as a general practitioner and holds certificates in psychotherapy, with extensive experience treating patients with mental disorders. His medical practice is mainly referral-based.

He teaches and mentors family physicians in the field of psychotherapy. [ 87 ] It is interesting to note that both experts, despite their lengthy experience, have completed a Form 1 only a few times. Dr. Paré testified that he had completed several such applications, over the course of seeing thousands of patients. Dr. Rosser indicated that he had signed a Form 1 on five or six occasions in his career and that on each of those occasions either the patient or the patient’s family was well known to him. Apparent psychosis is the usual cause for “forming”. [ 88 ] Dr.

Rosser expressed three main concerns with the procedure adopted by the defendant in completing the Form 1, as a result of which he opined that Dr. Everson did not meet the required standard of care. First, the third-party information solicited by Dr. Everson was ad hoc . Second, she did not establish the dates on which the other doctors saw the plaintiff and was therefore not aware whether the information was current. Finally, he felt that an adequate personal examination of the plaintiff was not conducted. [ 89 ] Dr.

Paré came to the opposite conclusion, testifying that the standard of care was met by the defendant in her completion of the Form 1. He noted that there is no requirement that a doctor seek third-party input and no requirement as to the timeliness of that information, if sought.

Likewise, the nature of the personal examination need not be in any particular format, as long as the doctor actually sees the patient and is ultimately satisfied that he or she has made a careful inquiry and has sufficient facts necessary to form his or her opinion. [ 90 ] In reviewing the position of the experts, I have concluded that there is no respectable body of opinion on either side of this standard of care issue. As noted, even the experts have had minimal direct involvement with the completion of Form 1 applications.

Both of them attempted to interpret the statutory language of the Mental Health Act and apply it to the facts of this case. They agreed that there are no standards within the medical profession relating, for example, to the required length of a personal examination or as to any specific questions that must form part of the examination. They agreed that, generally, deference should be accorded to a doctor considering a Form 1 application as to what information is necessary to give reasonable cause for belief, and for an opinion under the Past/Present and Future tests respectively.

In other words, there is virtually no accepted standard of care within the profession.

Analysis and conclusion as to standard of care: [ 91 ] In considering the question of whether a defendant’s conduct fell below the required standard of care, the court must not view the conduct through the lens of hindsight, looking at the result. The exercise of medical judgment may prove to be wrong, but that does not necessarily make it negligent. In this case, the fact that Dr.

X was released after a full psychiatric examination does not necessarily lead to the conclusion that the defendant was negligent in deciding that a psychiatric assessment was warranted. [ 92 ] For the reasons set out below, I find that the defendant did breach the standard of care required in the completion of a Form 1. This is based on a mixed question of fact and law. [ 93 ] The Mental Health Act gives significant powers to doctors when dealing with patients who are or appear to be suffering from mental illness.

Those powers include the apprehension of a person and detention in a psychiatric facility for a maximum of 72 hours, pursuant to a Form 1 application for psychiatric assessment. The restraint on a person’s liberty is no less intrusive than arrest and detention in a criminal context. [ 94 ] It is not surprising that there are safeguards built into the Act to prevent misuse of the power of apprehension and detention. [ 95 ] One of the safeguards is the requirement for there to be a personal examination. This means that a doctor cannot proceed with an application based only on third-party evidence.

There needs to be direct contact between the doctor and the patient in order for the doctor to come to a proper conclusion or, using the words of Form 1, to make a careful inquiry into all the facts necessary to form an opinion about the nature and quality of the person’s mental disorder. [ 96 ] Dealing with the requirement for an examination under the B.C. Mental Health Act , [4] Kirkpatrick J.A. of the British Columbia Court of Appeal in Mullins v. Levy [5] stated as follows: Having regard to the views of the physicians, the purpose of the Act , and the

interpretation of the word in its ordinary usage in the medical context, in my opinion the term “examination” must be given a broad

interpretation so as to be applicable in the myriad of circumstances that confront physicians called upon to make the serious decision to involuntarily commit persons to a psychiatric facility. “Examination”, in this context, must mean observing the person, reviewing the patient’s chart (if there is one), reviewing the available history and the collateral information, and where possible (in the sense that the person complies) and necessary (in the sense that the information to be gained is not available from other sources) conducting a personal interview with the person to be admitted. [ 97 ] I agree that it is not appropriate to define the nature of an examination too restrictively.

It must be appropriate in the circumstances. It is quite possible to imagine a situation where the patient’s mental state would make it impossible to have a meaningful conversation as part of an examination. In such a case, an adequate personal examination might well be restricted to direct observation of the patient’s behavior. Conversely, where the observed behavior is inconclusive, and where there is no impediment to a detailed personal interview, surely it is necessary for a meaningful conversation to occur. [ 98 ] Here, the conversation was essentially a monologue on the part of Dr.

X as she described her concerns about her child and the reasons for her request for the referral to Dr. Persad. [ 99 ] Dr. X did not recall any questions directed to whether she had caused or was causing another person to fear bodily harm from her, or whether she had shown or was showing a lack of competence to care for herself.

Victoria O’Connor testified to the same effect. [ 100 ] The defendant’s evidence, while not confirmed in her contemporaneous notes of the conversation, was that she asked the plaintiff if she would consider hurting or harming herself and that the plaintiff said she would not answer because she knew what the defendant would do with that information. The defendant went on to testify that she asked the plaintiff what she was prepared to do to prove that there was something wrong with her child.

She recalled that the plaintiff answered to the effect that she did not know what she could do to convince others that something was wrong. She agreed that no follow-up questions were asked. [ 101 ] There was nothing preventing the conversation, even if it did include the questions and answers as recalled by the defendant, to have been extended in order for a more comprehensive examination of such an important area to be undertaken. [ 102 ] Determining whether Dr.

Everson actually asked the questions and got the answers that she recalled, despite failing to note them and despite the failure of the plaintiff or Victoria O’Connor to recall them, is not critical. Either the questions were not asked and should have been, or they were asked and should have been followed up. [ 103 ] The proper conduct of the personal examination is not a topic about which expert medical evidence necessarily is required. The statutory requirement for a personal examination implies an obligation for the examination to be performed properly in the circumstances.

This did not happen in the plaintiff’s case. [ 104 ] I reject the evidence of the defendant that the purpose of the meeting was to speak with the plaintiff and figure out what was going on with her, since making a serious and good faith effort to do so would have required a more expansive conversation. [ 105 ] The defendant did comply with the additional requirement that the personal examination must occur within seven days of the completion of the Form 1.

The experts agreed that where a patient’s state of mental health is at issue, there may be significant changes over the course of time that would make an application for psychiatric assessment more or less appropriate.

Although there is no similar requirement for the relative contemporaneity of the information received from third parties, it is reasonable to imply that the reliability of that information should be an important consideration to the doctor if it is being used to satisfy the ultimate requirement that there be a careful inquiry prior to completing the Form 1. [ 106 ] It is quite true, as observed by Dr. Paré, that there is no necessity for a doctor to use third-party information to support a conclusion of reasonable cause for belief or an opinion as to mental disorder under the Past/Present Test or the Future Test.

It is also obvious that the doctor may choose to do so, in which case the facts must be recorded on the Form 1.

[ 107 ] I do not accept the evidence of Dr. Paré that there is no need for the doctor to check on the reliability of the third-party information if it is to be used as part of the Form 1 requirements. Was the information received directly by the third-party from the patient or from others? How reliable was the source? When did the information come to the attention of the third-party? Reliability must be considered and taken into account. [ 108 ] In this case, I have concluded that the third-party information was highly relevant to the defendant’s decision to complete the Form 1.

I find that her decision to complete the application for a psychiatric assessment was made even before the personal examination occurred, for the following reasons: a. Before her conversation with the third parties, the defendant had full knowledge of the reason that the plaintiff was requesting a meeting with her, namely the request for an urgent referral to an independent pediatric gastroenterologist. The emails from Dr.

X on June 1 and 2 were quite detailed about the child’s medical history, the reflux diagnosis, the request for a review of that diagnosis, and the plaintiff’s concern about being labeled as an overly anxious mom. The plaintiff admitted that she and her husband were exhausted as a result of sleep deprivation. The plaintiff’s telephone message to Dr. Everson’s assistant on June 1, which was transcribed for the defendant, covered the same area in even more detail.

No new information was provided by the plaintiff at the meeting other than, according to the defendant, in answer to the few questions about harm to herself and proof of her child’s illness to which I have already made mention. b. In total, the plaintiff or her assistant sent two emails and made six telephone contacts with the defendant’s office over the course of 24 hours. c. As a result of the plaintiff’s repeated requests, Dr. Everson made telephone contact with Drs. Issenman and Tittley on June 2.

She received information about their involvement with the plaintiff and the baby, as well as second-hand information from Dr. Issenman about the plaintiff’s relationship with a pediatrician and another G.I. pediatrician. Information from those sources was recorded on the Form 1 and referred to in both the Past/Present Test and the Future Test components. d. The defendant then contacted Dr. Bienenstock and, according to the defendant’s note, was advised that she had no choice but to complete a Form 1 for the plaintiff. e. Dr.

Everson contacted the EPT to ensure that the plaintiff could be seen discreetly if she was referred there. f. Dr. Everson was referred to the COAST and requested their assistance. They recorded her intention to “form” a person, not the possibility of that happening. g. According to the plaintiff’s husband, Dr. Everson advised him by telephone on June 2 (after the meeting) that there was a chance that his wife might be sent to Homewood Hospital in Guelph. The same destination was mentioned to the plaintiff by a member of the psychiatric staff at St. Joseph’s.

Those arrangements could only have been made by or at the request of the defendant in anticipation of the Form 1 being completed, and on the defendant’s presumption that the psychiatric assessment would result in the plaintiff being admitted to hospital as a voluntary or involuntary patient under the Act . h. The personal observations were minimal and inconclusive (about which I will say more below). [ 109 ] Since I have found that the third-party information was highly relevant to the defendant’s decision to complete the Form 1, determining its reliability is a crucial part of the requisite careful inquiry.

The defendant’s fact gathering from third-party sources was deficient in that she did not ascertain whether the information received was current, and therefore its reliability could not be measured by her. [ 110 ] According to the evidence of the defendant, Dr. Issenman gave her information by telephone on June 2 about the plaintiff’s involvement with pediatrician Dr. Ford-Jones. The only evidence at trial about the timing of contact with Dr. Ford-Jones was from the plaintiff who saw him with the baby in early April 2006, approximately 2 months before the event.

As well, and at best, any information received by the defendant from Dr. Ford-Jones was filtered through Dr. Issenman’s understanding. She did not choose to contact Dr. Ford-Jones directly. [ 111 ] Dr. Issenman apparently provided information to Dr. Everson about his own interactions with the plaintiff and the baby without reference to the timing of the contacts. According to the notes made by the defendant of that telephone conversation, the child was reported to be a happy baby, although Dr. Issenman was apparently concerned that the plaintiff was stressed out and that her anxiety was affecting the child.

He described the incident where he had agreed to perform an endoscopy on the child as long as the plaintiff met with a psychiatrist and that the deal was not acceptable to Dr. X. [ 112 ] According to the defendant’s notes, she found out through a conversation with Dr. X’s family physician, Dr. Tittley, that the plaintiff had an episode of depression and that her father was in a depressed episode. Dr. Tittley had provided sleeping medication. She felt that Dr. X had lost weight, was extremely anxious, and completely focused on the baby. The notes indicated that Dr.

Tittley did not consider the baby to be in jeopardy but felt that the level of anxiety, with or without postpartum depression or an obsessive-compulsive disorder, would have an impact on the baby’s health. It is interesting to note that Dr. Everson asked about Dr. X’s safety; that is, whether she had suicidal ideation. The reply was that Dr.

Tittley had not been able to discuss that issue with the plaintiff since she felt that the plaintiff would not answer, but admitted that it was a possibility when a mother is so focused on an infant. [ 113 ] The plaintiff testified that she had not seen her family physician since November 2005 (approximately 7 months before the event), although she had some subsequent telephone contact. According to the plaintiff, and there is no evidence to the contrary, Dr. Tittley never suggested psychiatric care, nor was any concern expressed to the plaintiff about her own or her baby’s safety.

There was no evidence about when Dr. Tittley received the information from the plaintiff to which Dr. Everson referred on the Form 1. [ 114 ] As I have noted, the defendant did mention information received from Victoria O’Connor on the Form 1. Although Dr. Everson indicated on the Form 1 and in her evidence that Ms. O’Connor was worried about the safety of Dr. X, that information was not

contained in the notes made by the defendant. Ms. O’Connor testified that she was certain that she did not express a concern about the plaintiff’s personal safety. Her testimony was that the plaintiff’s care for her child was “impeccable” and that she had absolutely no concerns for the baby’s safety. [ 115 ] Ms. O’Connor’s evidence was given clearly and without equivocation. She had no stake in the outcome of the case and in fact has had a falling out with the plaintiff over her employer-mandated silence prior to court about the incident. To the extent that her evidence conflicts with that of the defendant, I prefer that of Ms. O’Connor. [ 116 ] In

summary, the defendant placed heavy reliance on the third-party information from doctors without regard to its contemporaneity. She relied on second-hand information from Dr. Ford-Jones through Dr. Issenman. [ 117 ] The defendant’s personal observations made during the meeting were recorded only in the Future Test box.

None of those observations are remotely capable of being the basis for concluding that the plaintiff was apparently suffering from a mental disorder, let alone one of the nature and quality that would likely result in serious bodily harm to herself or to another or serious physical impairment of herself. [ 118 ] The defendant recorded that the plaintiff was “thin”. Thinness is not an indication of mental disorder. The experts agreed that even loss of weight is not necessarily a symptom of mental disorder, although it can be indirectly related. In any event, Dr. Everson had not seen Dr.

X in a year and therefore could make no valid observation about her comparative weight. This is an example of how additional questions could have resolved the issue, one way or another. [ 119 ] The defendant recorded that the plaintiff was sleep deprived. Not only was this admitted and explained by the plaintiff, but it was consistent with the email and telephone contact by the plaintiff and with the plaintiff’s description of the baby’s medical condition.

The experts agreed that sleep deprivation is not necessarily an indication of mental disorder in the circumstances. [ 120 ] The defendant recorded that the plaintiff was obsessed with her infant. The evidence at trial was clear that the plaintiff was indeed focussed on the baby’s health, and she had given a full review of her concerns in the telephone message to Dr. Everson’s assistant, in the emails, and in the meeting itself. Dr. X was at that meeting, as she thought, for one purpose only: to secure an immediate referral to Dr. Persad through Dr. Everson.

The facts do not support a finding that the plaintiff’s focus on her baby is indicative of mental disorder. [ 121 ] Whether one crosses the line between focussed and obsessed may well be a medical opinion, and whether an obsession is a fact which illuminates the nature and quality of a mental disorder is certainly within the medical realm to determine. In either case, proper questioning is required and was absent in this case.

This is particularly so in view of the evidence from the plaintiff’s husband and Victoria O’Connor that the child was receiving excellent care and there was no indication to the contrary from the third party doctors. [ 122 ] At trial, the defendant testified that she noticed rosacea (acne) on the plaintiff’s face during the meeting.

The experts agreed that there is no connection between such a condition and mental disorder. [ 123 ] Ultimately, the certification by the physician at the end of Form 1 is that he or she has made a “ careful inquiry into all the facts necessary for me to form my opinion as to the nature and quality of the person’s mental disorder.” [emphasis added] [ 124 ] There must be a reasonable basis for a medical opinion as to the nature and quality of a mental disorder from which the patient is suffering, even if there is no requirement for the doctor to make a diagnosis of a specific mental disorder.

It is quite possible that a physician who is not a psychiatrist would not be in a position to make a diagnosis. I accept that the reasonable basis for a medical opinion falls squarely within the traditional realm of experts when examining the standard of care. Here, the defendant concluded that there was evidence of depression. [ 125 ] The issue of whether a careful inquiry has been made is not as obvious an area for the application of medical expertise.

While it is proper for a doctor to determine, medically, what information is relevant to his or her opinion in a specific situation, determining the carefulness of the inquiry requires a more objective analysis in order to provide the protection anticipated by s. 15 of the Act . [ 126 ] In my view, Dr. Everson failed to make a careful inquiry. She failed to question the third parties accurately so as to ensure the reliability of the information received. She failed to adequately explore critical issues in the examination. Dr.

X was cooperative and could easily have been asked questions designed to elicit relevant information. The observed behavior and condition of the plaintiff was insufficient to allow Dr. Everson to form an opinion as to the nature and quality of a possible mental disorder in the plaintiff, and the third-party information was insufficiently reliable. Did the plaintiff sustain damages? Attendance at St. Joseph’s Hospital: [ 127 ] The plaintiff testified that during the 10 to 15 minute drive to St. Joseph’s Hospital she felt she was in shock. She was speechless and attempted to collect her thoughts.

Since she did not know what to expect, she asked several questions about the procedure at St. Joseph’s. [ 128 ] On arrival, the COAST representatives escorted her inside where she was registered. At that point she realized she was being brought into the locked psychiatric area. She sat in the waiting room with the police officer and was then brought into a secure area in which each room was individually locked.

She was asked by the nurses to hand over all her personal belongings, remove all her clothes, and change into a hospital gown to await the attending doctor. [ 129 ] The plaintiff described the feeling of being imprisoned. She said she felt humiliated and that it was the most horrible experience

in her life. [ 130 ] Eventually, her husband was allowed into the room, and later Victoria O’Connor visited. [ 131 ] The plaintiff’s husband testified that when he saw her, she was upset but calm. [ 132 ] Ms. O’Connor described a similar scene: she observed the plaintiff dressed only in a hospital gown, open at the back, with bare feet and shivering. There was no furniture in the locked room except a cot.

The plaintiff was very quiet and appeared emotionally “beaten”. [ 133 ] According to the plaintiff, a resident doctor told her to expect a psychiatric examination and that the hospital was in the process of organizing her transfer to Homewood. The plaintiff learned that Homewood is a hospital in Guelph, Ontario where individuals, including healthcare professionals, are sent for rehabilitation from substance abuse and treatment of mental health issues.

She formed the impression that the evaluation was just a formality prior to her transfer to Homewood. [ 134 ] The doctor assured her that her chart would remain confidential. [ 135 ] The plaintiff received a full psychiatric examination from a psychiatric resident and gave permission for the doctor to speak to her husband and to Ms. O’Connor. [ 136 ] At about 10:30 PM on June 2, the plaintiff was discharged from St. Joseph’s Hospital. Effects of the Form 1 Application: [ 137 ] The plaintiff testified that on her return home, she felt humiliated and sad. She was overwhelmed with events.

She sought psychiatric counselling and was referred to Dr. Claudio Soares from whom she received treatment every 2 to 3 weeks for about a year, which was the maximum time allowed in the particular women’s health programme in which she was involved. She saw Dr. Soares twice in 2008, and then in the fall of 2008 consulted another psychiatrist, Dr. Joan Nagy, who testified at trial. Dr. Nagy noted that the plaintiff had a chronic high level of stress and prescribed medication for insomnia and anxiety at a low dosage.

Those consultations continued until the summer or fall of 2009, by which time she needed no more medication. [ 138 ] The plaintiff testified that during the year following the incident, she was unable to perform normal household tasks. She could not attend the grocery store and it was difficult even to take her child to the playground. She was worried that she would meet people from the hospital whom she feared would be aware of the June 2, 2006 incident. She required her husband to drive her to and from work due to nausea, which apparently was a side effect of the medication.

Help was hired to provide services at her home when her husband returned to work from his parental leave. The incident created additional stress on the plaintiff’s marriage. [ 139 ] Professionally, she was not able to see as many clinical patients as was the case before her pregnancy leave: she would see about eight per clinic as opposed to the normal 15 to 20. Dr. X’s reduced patient load continued until approximately June 2008. Her attendance at the echocardiogram labs was reduced because she was unable to concentrate. Her colleagues covered for her.

For a similar reason, she was unable to write grant applications as was typically done at home during evenings in the summer. She was removed from the on-call roster at her hospital until she began a gradual re-entry in September 2006, leading to a full reintegration in February 2007. [ 140 ] The plaintiff felt unable to discuss the reasons for her inability to perform her work with the Chief of Medicine for fear that the June 2 incident could affect her hospital privileges and even her license to practice medicine.

Therefore, in discussions with him, she related her performance issues at work to anxiety related to her child’s medical condition. [ 141 ] The Chief requested and received periodic written updates from Dr. Soares about Dr. X’s condition. The plaintiff testified that she minimized mentions of the Form 1 incident to Dr. Soares in her sessions with him, lest it be mentioned by him to the Chief and have a negative effect on her work assignments. [ 142 ] Dr. X described her efforts to reduce contact with resident doctors and other hospital staff.

She tried to avoid walking around the hospital since that created stress and anxiety. She limited her movements to the echocardiogram lab, the clinic, and her office. She stopped attending weekly rounds. Dr. X altered her routine so as to avoid public places such as the cafeteria, and would even use an alternative entrance and elevator in order to travel within the hospital in the least conspicuous way. Her colleagues made mention of not seeing her. She felt that people seemed uncomfortable around her and did not talk to her.

The plaintiff was concerned and anxious about the extent to which her colleagues knew of the incident. [ 143 ] Financially, the plaintiff described the reduction in her income because of her inability to generate sufficient funds from research and the delivery of patient services. She was anxious that she was not meeting departmental requirements for productivity.

She had been the main breadwinner in her home and was concerned about her ability to meet family financial commitments. [ 144 ] The plaintiff described that she continued to have feelings of sadness and humiliation at work through 2008 and 2009, suffering flashbacks to the June 2 incident. [ 145 ] The change in the plaintiff’s behavior at home and at work was confirmed by her husband and Victoria O’Connor, respectively. Psychiatric Injuries: [ 146 ] In order to be entitled to general damages for negligence, a plaintiff must have suffered a physical and/or mental injury.

In this case, the focus is on whether the plaintiff suffered from a mental injury. Such an injury is sometimes referred to as a psychological or psychiatric illness.

[ 147 ] Chief Justice McLachlan, writing for the court in Mustapha v. Culligan of Canada Ltd . made it clear that psychological upset is not the same as a psychological disturbance that rises to the level of personal injury. She noted that: The law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury.

I would not purport to define compensable injury exhaustively, except to say that it must be serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept. … Quite simply, minor and transient upsets do not constitute personal injury , and hence do not amount to damage. [6] [emphasis in original] [ 148 ] The judicial treatment of compensation for psychological injuries was reviewed by Sharpe J.A., writing for a five judge panel of the Ontario Court of Appeal in Healey v.

Lakeridge Health Corp . [7] He quoted Justice Iacobucci in a decision of the Supreme Court of Canada in Odhavji Estate v. Woodhouse [8] , that “it is well-established that compensation for psychiatric damages is available in instances in which the plaintiff suffers from a ‘visible and provable illness’ or ‘recognizable physical or psychopathological harm’.” [9] [ 149 ] The court in Healey affirmed the policy reasons for imposing a threshold on entitlement to monetary compensation for mental distress and upset.

To remove that threshold would open the door to recovery for “all manner of psychological insult or injury.” [10] In that case, referring back to the language of Mustapha , the alleged psychological harm was “not “serious trauma or illness” that amounted to more than “upset, disgust, anxiety, agitation or other mental states that fall short of injury” or that was “serious and prolonged and [rising] above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept.”” [11] [ 150 ] Justice Sharpe acknowledged the prevailing, although not unanimous, judicial and academic opinion that “recognizable psychiatric illness” is the basis for establishing entitlement to damages for mental or psychological injury.

In response to the appellants’ request in that case for the court to relax the threshold requirement, he wrote: Second, I do not wish to be taken as saying the possibility of any change in the formulation of the test should be foreclosed once and for all. The precise manner in which the threshold is defined or identified is a matter of legitimate debate and the “recognizable psychiatric illness” test has attracted criticism from the authors I have already cited as being unduly rigid and dependent upon shifting medical opinion.

However, as the nature of the appellants’ complaints in this case falls below what I would regard as a minimum acceptable threshold for compensable claims for psychological injury, this case does not provide a proper factual foundation for any reconsideration of the traditional “recognizable psychiatric illness” test. [12] [ 151 ] Here, I find that the effects of the Form 1 application on Dr. X were serious and prolonged.

They were not minor or transient and certainly did rise above the ordinary annoyances, fears and anxieties that one would expect to endure. [ 152 ] In his first assessment on June 28, 2006 under the heading of “diagnostic impression”, Dr. Soares noted under Axis 1 (major psychiatric disorders) that Dr. X had “adjustment disorder, with anxiety features and depressive symptoms”. As well as discussing with Dr. X her concerns around her child’s health, he noted that she was demoralized by the experience of being “formed at the EPT”. [ 153 ] In her report dated March 9, 2009 and confirmed in her evidence at trial, Dr.

Nagy indicated under Axis I: “no diagnosis. Sub- syndromal symptoms of anxiety and sadness, mild symptoms of post-traumatic stress disorder not meeting full criteria.” She confirmed in her evidence that from her first session with the plaintiff in October 2008, mention was made of the Form 1 incident and its after- effects including her self-consciousness at work. Dr. Nagy noted that the plaintiff still choked up and became more agitated and bewildered when discussing the recurring theme of being “formed”. [ 154 ] Dr.

Nagy indicated in her evidence that for a definitive diagnosis according to the then-current DSM-4 [13] , it was necessary to have confirmation of a specific number of symptoms. She was not able to make a definitive diagnosis because the full criteria were not met by Dr. X, hence the reference to sub-syndromal symptoms and PTSD not meeting full criteria. [ 155 ] One reading of the “recognized psychiatric illness” threshold is to require a definitive psychiatric diagnosis in order to establish injuries sufficient to attract damages.

In my view, that is too narrow a reading of the test. [ 156 ] Using the language of the court in Odhavji Estate , I am satisfied that there is a visible and provable illness identified in both Dr. Soares’ notes and Dr. Nagy’s report and evidence. The various references to anxiety, sadness, mild symptoms of PTSD and to adjustment disorder, with anxiety features and depressive symptoms, are proof of recognized psychiatric illness even without a definitive diagnosis. [ 157 ] The policy reasons for maintaining a threshold are not offended by my conclusion in that the symptoms experienced by Dr.

X go well beyond those that could be construed as minor, transient, or to be ordinarily expected during the vagaries and vicissitudes of one’s life. Were any damages caused by the defendant’s breach? [ 158 ] The fourth component of a negligence claim is for the plaintiff to establish that the damages sustained were caused by the defendant’s breach of the standard of care. [ 159 ] On the balance of probabilities, the plaintiff typically must show that the damages would not have occurred but for the negligence of the defendant.

This determination is a matter of fact and law. [ 160 ] In this case, the defendant argued that the plaintiff’s mental and physical symptoms existed before the Form 1 application was made. Dr. X admitted to being sleep deprived and anxious as a result of her child’s undiagnosed medical problem. The consultation notes of Dr. Soares referred to the plaintiff’s symptoms being triggered by her child’s developmental problems and he noted tension between the plaintiff and her husband. [ 161 ] As I set out above, Dr. Soares also recorded that the plaintiff was demoralized by her experience of being “formed”.

He recorded that her parents were particularly concerned about her career and the potential damage caused by the forming and the EPT

assessment. [ 162 ] The pre-existence of a condition does not preclude the defendant’s responsibility for damages. As Justice Rouleau wrote in M.B. v. 2014052 Ontario Ltd., (Deluxe Windows of Canada), [14] quoting from an

article on causation in tort: “Successive and cumulative injury cases, including those involving pre-existing conditions, can also satisfactorily meet the “but for” test”. This is because a “defendant’s negligence need only be “a” cause, not “the” cause [of the injury].” [ 163 ] I am satisfied that the plaintiff did experience a psychological injury arising from the negligence of the defendant based on the plaintiff’s evidence to which I have referred. That evidence was supported by the plaintiff’s husband and Victoria O’Connor. The plaintiff’s concerns were noted by Dr. Soares as well as by Dr.

Nagy in her consultations with the plaintiff that began in October 2008, over two years after the incident. Although the ongoing anxiety and concern of the plaintiff surrounding proper care for her child both preceded and followed the forming, I have no doubt that the forming was “a” cause of the plaintiff’s injury and that the full extent of the injury would not have occurred but for the defendant’s negligence. [ 164 ] Unless the probability of harm which results in damages is found to be reasonably foreseeable, the damages are considered at law too remote to be the responsibility of the defendant.

As Chief Justice McLachlin wrote: “The degree of probability that would satisfy the reasonable foreseeability requirement was described in The Wagon Mound (No. 2) as a “real risk”, i.e. “one which would occur to the mind of a reasonable man in the position of the defendant…and which he would not brush aside as far-fetched”.” [15] [ 165 ] Chief Justice McLachlan continued: …[t]he law of tort imposes an obligation to compensate for any harm done on the basis of reasonable foresight, not as insurance.

The law of negligence seeks to impose a result that is fair to both plaintiffs and defendants, and that is socially useful. In this quest, it draws the line for compensability of damage, not at perfection, but at reasonable foreseeability. Once a plaintiff establishes the foreseeability that a mental injury would occur in a person of ordinary fortitude, by contrast, the defendant must take the plaintiff as it finds him for purposes of damages... I add this.

In those cases where it is proved that the defendant had actual knowledge of the plaintiff’s particular sensibilities, the ordinary fortitude requirement need not be applied strictly. If the evidence demonstrates that the defendant knew that the plaintiff was of less than ordinary fortitude, the plaintiff’s injury may have been reasonably foreseeable to the defendant. [16] [emphasis in original] [ 166 ] Dr.

Everson admitted in her evidence that the consequences of signing the Form 1 could have significant consequences for the plaintiff and that the EPT was a very unpleasant place. [ 167 ] The defendant was well aware of the plaintiff’s situation: she was anxious about her child’s health; she was sleep deprived; she was frustrated about the lack of a diagnosis for the child and about being labeled as an anxious mom within her hospital community. [ 168 ] In addition, based on the responses to her inquiries, the defendant had information from other doctors about the plaintiff.

Although I have found that the defendant fell below the required standard of care in making a careful inquiry, she certainly had enough information about the plaintiff’s “particular sensibilities” that consequential harm arising from the dramatic event of the “forming” should have come as no surprise. [ 169 ] I therefore find that the damages suffered by the plaintiff were foreseeable and not too remote.

What is the measure of the plaintiff’s damages arising from the defendant’s negligence? [ 170 ] Damages are designed to repair the harm caused by the defendant by putting the plaintiff into the same position that he or she would have been but for the defendant’s fault, to the extent that money can do so. [ 171 ] A collateral principle is that the plaintiff should not be put into a better position than was originally the case before the harm was suffered.

This requires an analysis of the extent of the plaintiff’s other issues, in this case surrounding the concern for her child, as distinct from the injuries caused by the defendant’s negligence. [ 172 ] The analysis in this case requires a consideration of two related doctrines: the “thin skull” and the “crumbling skull”. In Athey v. Leonati , [17] Justice Major summarized the two as follows: The “crumbling skull” doctrine is an awkward label for a fairly simple idea.

It is named after the well-known “thin skull” rule, which makes the tortfeasor liable for the plaintiff’s injuries even if the injuries are unexpectedly severe owing to a pre-existing condition. The tortfeasor must take his or her victim as the tortfeasor finds the victim, and is therefore liable even though the plaintiff’s losses are more dramatic than they would be for the average person. The so-called “crumbling skull” rule simply recognizes that the pre-existing condition was inherent in the plaintiff’s “original position”.

The defendant need not put the plaintiff in a position better than his or her original position. The defendant is liable for the injuries caused, even if they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing condition that the plaintiff would have experienced anyway.

The defendant is liable for the additional damage but not the pre-existing damage…Likewise, if there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant’s negligence, then this can be taken into account in reducing the overall award… [ 173 ] Here, the plaintiff was obviously under considerable stress as a result of her child’s undiagnosed condition prior to the incident on June 2, 2006. The observations made by Drs. Tittley, Ford-Jones, and Issenman as they were reported to the defendant have been

noted. At the conclusion of the psychiatric assessment pursuant to the Form 1 on June 2, the attending psychiatric resident made a diagnosis under Axis I of adjustment disorder with anxiety and depressed mood indicating the pre-existence of mental health issues. [ 174 ] Despite her pre-existing conditions, Dr. X had not been prescribed anti-depressant medication: that came later. She admitted to being sleep deprived, but not to insomnia: that came later.

Although she was at times emotional concerning her child’s condition, about which she was quite open with staff and patients, it was only after the incident that she avoided peer contact and restricted her movements in the hospital. Only after the incident was she unable to attend the parks with her child or do grocery shopping. [ 175 ] In short, while there was clearly anxiety and stress stemming from her child’s situation, with spin-off effects on the plaintiff’s sleep, activities of daily living and spousal relations, the Form 1 experience significantly exacerbated her condition.

As discussed above regarding remoteness, the plaintiff was known by the defendant to be in an emotionally vulnerable position. She was “thin skulled”. [ 176 ] The evidence of the plaintiff, her husband, and Dr. Nagy indicated that the negative effects of the incident continued to have a detrimental effect on the plaintiff for several years, with the most severe symptoms occurring over the first two years post-incident.

There continued to be a residual effect on the plaintiff’s emotional well-being, according to her evidence, by way of flash-backs, even at trial over six years later. [ 177 ] The plaintiff’s situation does not involve the “crumbling skull” rule. The plaintiff was coping with the issues of her child’s health.

There was no reason that she could not have continued to do so, but for the defendant’s negligence. [ 178 ] Although establishing the quantum of general damages for personal injury is an inexact science, to say the least, I consider that a reasonable measure of those damages is $50,000. [ 179 ] The plaintiff also claims special damages up to June, 2008 arising from her loss of income as a result of the psychological injuries.

She quantified these through an accountant in the amount of $125,210. [ 180 ] The amount was based on a comparison between the average of the plaintiff’s 2009 and 2010 income and the income earned during the period June 2006 to June 2008 factoring in an adjustment for changes to the Consumer Price Index. According to her evidence, Dr.

X’s income was reduced in the two post-incident years due to lower clinical billings, diagnostic services billings through the echocardiogram lab, and less research funding. [ 181 ] As with the general damage claim, the lost income damages for the plaintiff should not put her into a better position than would have been the case had the incident not occurred. Unlike the general damage claim, however, the quantum of the lost income can be more carefully measured in view of the plaintiff’s circumstances both before and subsequent to the event. [ 182 ] Dr.

X testified that she returned to work from her pregnancy leave on May 15, 2006. That was just over two weeks prior to the incident. Her husband was able to stay home with the baby on a parental leave. [ 183 ] On her return to work, the plaintiff had eight patients per clinic which was a reduced number from the normal level prior to her pregnancy leave. She returned to the on-call rotation and did a bit of echocardiogram reading.

As well, the plaintiff was working on the closing phase of a Heart and Stroke Foundation study and was engaged as normal with her professional colleagues. [ 184 ] When the plaintiff emailed the defendant on June 1, she indicated that both she and her husband were exhausted as a result of the child’s lack of normal sleeping.

In the telephone message taken from the plaintiff by the defendant’s administrative assistant on June 1, the plaintiff apparently said that she was depressed, anxious, upset, and frustrated. [ 185 ] According to the plaintiff’s husband, she was not able to do her research work during her pregnancy leave as a result of the sleep deprivation and the care needed for their child. He did indicate, however, that she was excited to go back to work because of the need for extra stimulation. [ 186 ] I have already reviewed the changes in Dr.

X’s behavior after the incident of June 2 under the heading “Effects of the Form 1 Application”. She reported and her husband confirmed that her anxiety increased, she became more pessimistic in her outlook on life, and her sleep worsened. She would wake up crying and suffering flashbacks to the forming.

She was not able to do research work at night. [ 187 ] In the two years after the incident, it is also fair to say that the plaintiff and her husband continued to spend substantial amounts of time with their child, attempting to secure medical care inside and outside of Canada. [ 188 ] Based on all the evidence, comparing the plaintiff’s experience postpartum prior to the June 2 incident to the two years following, I am not able to conclude that the entire loss of income was due to the negative effects of the forming.

It is reasonable to assume that a portion of the loss would have been incurred regardless of the June 2 event and its aftermath. This conclusion is on the basis of the admitted sleep deprivation and the ongoing time and effort needed by the plaintiff to care for her child. [ 189 ] I consider that the loss of income claim for which the defendant is responsible should be reduced by one third and I therefore award the plaintiff the sum of $83,473 for lost income.

Was the Plaintiff falsely imprisoned by the defendant’s actions? [ 190 ] The tort of false imprisonment requires proof by the plaintiff of three elements: a. the person must have been totally deprived of liberty;

b. the deprivation must have been against the person’s will; and c. the deprivation must have been caused by the defendant. [18] [ 191 ] If the plaintiff proves the three elements on a balance of probabilities, the onus shifts to the defendant to prove that the deprivation was justified. [ 192 ] I am satisfied that the plaintiff has proved the three elements this case. [ 193 ] From the moment that the Form 1 was signed and the COAST representatives took control of the plaintiff, she was totally deprived of her liberty

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