IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100125

Docket:
S043004

Registry: Vancouver

Between:

Leonora
Forde

Plaintiff

And

Interior
Health Authority, operating a public hospital under the name
Royal Inland Hospital, Dr. Majid Faridi, Dr. Geoff Newell,
Dr. Jeffrey R. Oyler and John Doe

Defendants

And

Dr. Majid Faridi and Interior Health Authority, operating a public
hospital
under the name Royal Inland Hospital

Third Parties

Before: The Honourable Madam Justice Sinclair Prowse

Reasons for Judgment

(I)       NATURE OF THE PROCEEDINGS

[1]            
The Plaintiff, Leonora Forde, is a quadriparetic
which means that she has partial paralysis in both of her arms and legs.  The
degree of this paralysis is such that although she can stand with support and
walk short distances with a walker, she is wheelchair dependent.  Furthermore,
she suffers from frank incontinence – that is, she has lost control of her
bladder function.  These injuries are permanent.

[2]            
The immediate cause of these injuries was a
posterior fossa dural anteriovenous fistula (“AV fistula”).  That is, some of
the veins in that portion of her dura inside her skull immediately adjacent to
the top of spinal cord became congested.  This congestion, in turn, stopped or
slowed the flow of blood into tissue, resulting in the death of that tissue and
these injuries.

[3]            
As Dr. Moulton (the neurosurgeon tendered by the
Plaintiff) explained in his evidence, once there has been a decrease in spinal
function as the result of tissue damage caused by the decrease or cessation of
blood flow “that function often does not recover or recovers poorly.  It is
therefore in the patient’s best interests to intervene as soon as possible once
the diagnosis has been made”.  The necessary intervention is surgery to repair
the structural damage.

[4]            
In this case, Mrs. Forde contends that by the
time the diagnosis of an AV fistula was made, her initial symptoms had
evolved into her present injuries, injuries which could not be reversed even
with subsequent surgical intervention.

[5]            
Furthermore, she contends that the delay in
diagnosis was the result of the negligence of the Defendant Dr. Majid Faridi,
the neurosurgeon to whom she was referred, and the Defendant Interior Health
Authority operating as the Royal Inland Hospital (the “Hospital”), the facility
responsible for arranging and performing the various medical tests ordered by
Dr. Faridi.

[6]            
Specifically, Mrs. Forde contends that Dr.
Faridi failed to ensure that the tests needed to identify the cause of her
symptoms were conducted in a timely manner and the Hospital failed to have in
place a system that did these tests in a timely manner.

[7]            
To put these claims in context, Mrs. Forde’s
first symptom of a possible AV fistula or, more generally, spinal cord
dysfunction was the urinary trickling that she began to experience in late May
2002 and the one episode of incontinence that she experienced at that time.  She
was referred to Dr. Faridi shortly thereafter.  On June 20, 2002, he forwarded
an order to the Hospital, requesting that they book Mrs. Forde for a
particular test (namely, a spinal myelgoram), the purpose of which was to rule
out a cord compression.

[8]            
The diagnosis of AV fistula was not made until
November 15, 2002, almost 5 months after the first test was ordered.  Mrs.
Forde did not undergo any tests for the first 3½ months – that is, until
October 8, 2002.  That test was of minimal, if any, assistance as it was of her
lower spinal cord whereas the AV fistula is at the top of her spinal cord. 
Rather, it was as the result of the 4 tests done over the 2-week period
extending from October 29 through November 15 that the diagnosis of an AV fistula
was made.

[9]            
Mrs. Forde contends that by the time these last
tests were done and the diagnosis made she had developed her present permanent
injuries.

[10]        
With respect to the other Defendants set out in
the Style of Cause, prior to the commencement of this trial Mrs. Forde had
consented to the dismissal of the claims against Dr. Jeffrey R. Oyler (a
neurologist to whom Mrs. Forde was referred) and Dr. Geoff Newell (her
family doctor).

(II)      ISSUES

[11]        
As far as the legal principles governing these
claims are concerned, with respect to the Hospital and Dr. Faridi (“the
Defendants”), Mrs. Forde must prove that they each respectively owed her a duty
of care; that they each breached that duty of care; and that their breach
caused her injury.

[12]        
There is no dispute with respect to the first
element; each of the Defendants owed Mrs. Forde a duty of care.

[13]        
The pivotal issue was whether Dr. Faridi
breached his duty of care to Mrs. Forde.  All of the parties agreed that
if he did not breach his duty, the Hospital could not have breached its duty.

[14]        
With respect to the specific legal principles
governing the duty of care owed by the Defendants to Mrs. Forde, as a
specialist, Dr. Faridi’s duty of care is as set out by the Supreme Court of
Canada in ter Neuzen v. Korn, [1995] 3 S.C.R. 674 at para. 33:

In the case of a specialist, such
as a gynecologist and obstetrician, the doctor’s behaviour must be assessed in
light of the conduct of other ordinary specialists, who possess a reasonable
level of knowledge, competence and skill expected of professionals in Canada,
in that field.  A specialist, such as the respondent, who holds himself out as
possessing a special degree of skill and knowledge, must exercise the degree of
skill of an average specialist in his field …

[15]        
Dr. Faridi’s conduct is to be viewed in the
context of doctors “in similar communities in similar cases”: Wilson v.
Swanson, [1956] S.C.R. 804.

[16]        
A failure to reach a diagnosis in a timely
manner may constitute a breach of that standard of care.  However, arriving at
the correct diagnosis or arriving at a diagnosis in a timely way must “be
answered in the context of the average skill, knowledge, and judgment applied
to the pertinent facts existing at the time of his examination and treatment”: Scrimgeour
v. Singer, [1988] B.C.J. No. 31 (S.C.).

[17]        
Furthermore, the standard of care is not a
standard of perfection: Scrimgeour and Carlsen v.
Southerland, 2006 BCCA 214.

[18]        
As far as the Hospital is concerned, the
standard of care required of it is the skill and diligence ordinarily used by
hospitals in a similar locality under similar circumstances.

[19]        
In particular, a hospital has an obligation to
meet the standard reasonably expected by the community it serves in the
provision of competent personnel and adequate facilities and equipment.  It is
not responsible for the negligence of physicians who practice in the hospital,
but it is responsible to ensure that staff doctors are reasonably qualified to
do the work they might be expected to perform: Bateman v. Doiron
(1991), 118 N.B.R. (2d) 20 (Q.B.).

[20]        
A hospital not only has a duty to establish the
necessary system and protocols to promote patient safety but also to take
reasonable steps to ensure that its staff comply with protocols:  Ellen I.
Picard and Gerald B. Robertson, Legal Liability of Doctors and Hospitals
in Canada, 4th ed. (Toronto: Thomson Carswell, 2007).

[21]        
As was touched upon earlier, the pivotal issue
in this action is whether the evidence proved that Dr. Faridi breached his duty
of care to Mrs. Forde.  Specifically, whether the knowledge, competence and
skill that he exercised with respect to the timeliness of the tests conducted
on Mrs. Forde was less than that of the average specialist in his field in a
similar community in similar circumstances.

[22]        
For reasons that follow, I have concluded that
the evidence did not prove that he breached his duty of care.  As a result, I
have dismissed the claims of Mrs. Forde against both of the Defendants.

(III)     MRS. FORDE’S INJURY

[23]        
To put the issue in context it is essential to
understand Mrs. Forde’s injury.  It was undisputed that her injury is very
uncommon and that her presentation of symptoms was very rare.

[24]        
As Dr. Moulton attested, Mrs. Forde suffered “a
posterior fossa dural AV fistula that was producing venous congestion and
ischemia in the upper cervical spinal cord.”

[25]        
“AV fistula” refers to the type of injury while
“posterior fossa dural” refers to the location of the injury.  “Ischemia”
refers to blood supply to tissue that is below the level required for the
normal functioning of tissue or the viability of the tissue.  If the ischemia
is sufficiently severe, the tissue dies.

[26]        
Addressing the location of the injury, the
“dura” is the thick membrane that covers the brain and the spinal cord.  The
dura contains blood vessels.  Posterior fossa is the area of the skull that is
immediately adjacent to the top of the spine.  It houses the cerebellum and the
brain stem.  The posterior fossa and the upper cervical cord are adjacent to
one another.  The blood vessels in these two areas communicate.  Therefore, a
problem with the posterior fossa can be transmitted to the upper cervical cord.

[27]        
In other words, the injury in this case occurred
in the area of Mrs. Forde’s skull immediately adjacent to the top of her spinal
cord.  The injury did not occur in her spinal canal.

[28]        
The spinal cord is the neurological part of the
spine (the nervous system runs from the brain down through the spinal cord).  The
spine refers to the bones.  Inside these bones is the spinal canal and inside
the spinal canal is the spinal cord.  The spinal cord does not run the full
length of the vertebrae; rather, it runs from the brain stem to about the L1
vertebral level.

[29]        
As far as the injury itself is concerned, AV
fistula (also known as an arteriovenous fistula or AVF) refers to the abnormal
connection between the artery and a vein.  The “A” refers to arterial and the
“V” refers to venous.

[30]        
As Dr. Moulton explained in his evidence:

Blood flows into the tissue through the
arteries. The arteries subdivide and eventually become small enough; they
become capillaries. The tissue is actually perfused through the capillary bed,
and then the capillaries start to form into small veins – very very small veins
and larger veins and eventually drains back to the heart through very large
veins, so that the distal part of the circulation on the way back to the heart
and the capillary bed is the venous system. …

Normal tissue profusion depends on the flow
of oxygen and glucose into the tissue through the capillary bed … the removal
of carbon dioxide and other metabolites also occurs through the capillary bed.
So the capillaries are what nourish tissue everywhere in the body, including
the brain and spinal cord.

So what drives the blood through the
capillary bed is that there’s pressure on the arterial side caused by the heart
beating, that drives blood in this direction through the capillary bed and then
back through the venous system … the pressure here is about 90 millimetres of
mercury, the pressure of the capillary bed is about 30, and the pressure on the
venous side is about 10 millimetres of mercury, and as long as that pressure
differential is maintained, the blood will flow in the right direction through
the capillary bed and nutrition of the tissue will take place. 

Venous congestion occurs when there is some
sort of obstruction or failure of flow on the venous side, the system becomes
congested that is the flow slows through the capillary bed or comes to a stop –
when this happens the amount of oxygen and glucose being delivered to tissue
becomes insufficient and the tissue starves. …

Venous congestion means there is an abnormal
communication between an artery and the vein.  The high pressure blood from the
arteries flows into the venous side without an intervening capillary bed, so
there’s little or no pressure drop across the vessel here … the vein develops
a much higher pressure end. The normal pressure grade no longer exists … the
blood can’t flow normally through the capillary bed, so it backs up like a sink
backing and flow greatly slows or even stops in the capillary bed and on the
venous side. That’s the congestion.

The veins that
are in communication with the fistula become greatly distended and they have
higher pressure in them. … the blood cannot flow through the capillary beds or
some portion of the capillary beds within the spinal cord.

[31]        
To summarize, Mrs. Forde suffered an AV fistula
in the area of her skull just adjacent to the top of her spinal cord.  In
particular, an abnormal connection developed between the artery and the vein in
this area resulting in the blood flowing directly from a large artery into a
large vein without first going through the smaller arteries and veins and
without going through an intervening capillary bed.  As a result of this
abnormality, tissue in that area died, resulting in her present symptoms:  some
paralysis in all 4 limbs and frank incontinence.

[32]        
The symptoms of AV fistula most commonly occur
in a progressive fashion; one symptom would occur and then after a period of
time another symptom would occur.  In other words, the symptoms do not appear
all at once.  The period between the occurrence of the symptoms varies.  Included
in the symptoms of AV fistula in the posterior fossa are loss of bladder
function, loss of ability to ambulate, and loss of function in the arms.

[33]        
The treatment for an AV fistula is to remove it
surgically and correct the structural defect.  However, when there has been a
loss of spinal cord function as a result of tissue damage caused by the
reduction or cessation of blood flow the spinal cord often does not recover or
recovers poorly.

[34]        
During this trial as well as in some of the
medical documents, Mrs. Forde’s injury was referred to as an AV malformation or
AVM rather than an AV fistula.  Nothing turns on this alternate description.  AV
fistula is simply the more precise description of her injury.

(IV)     BACKGROUND CIRCUMSTANCES

[35]        
Mrs. Forde is now 53 years old.  She was 46
years old when this injury occurred.  She has not had a particularly easy life.
She and her husband separated shortly after they and their two daughters moved
to Salmon Arm from the Lower Mainland 14 years ago.

[36]        
Since their separation and divorce, both of their
daughters have gone through some very difficult times.  The daughters are now
adults, being 24 and 22 years old respectively.  The oldest daughter lives in
Prince Albert, Saskatchewan.  The youngest daughter lives in Salmon Arm,
spending much of her time caring for Mrs. Forde.

[37]        
Prior to the development of the injuries that
are the subject of this action, Mrs. Forde had various medical conditions.
Throughout her life, Mrs. Forde has suffered from periodic migraine headaches.
Shortly after moving to Salmon Arm, Mrs. Forde developed carpal tunnel
syndrome in both wrists.  Although surgery relieved some of the symptoms, she
has experienced numbness in her right hand and forearm ever since.  Because of
this ongoing problem, she withdrew from the workplace (she had been working in
clerical positions most of her adult life) and in 1996 went on long-term
disability leave.  In particular, she was unable to use her right arm and was
having trouble dressing herself, driving, and preparing food.  Some of these
functional difficulties had lessened by the time she developed the injuries
that are the subject of this action.  For example, by at least 2001 she was able
to drive a motor vehicle without difficulty.

[38]        
In addition to the ongoing numbness in her right
hand and forearm, in 1997 Mrs. Forde began to experience problems with high
blood pressure.

[39]        
In the late spring of 2000, Mrs. Forde began to
experience chronic pain in her lower back and left leg.  In December 2000,
after a fall, this pain worsened and she began to experience numbness in the
toes of her left foot.  Her family doctor, Dr. Newell, referred her to Dr.
Faridi for “further assessment of this possible lumbar disc problem.”

[40]        
Dr. Faridi saw Mrs. Forde on August 2, 2001.  He
attributed these symptoms to myofascial back pain or possibly lumbosacral
spondylolisthesis at L5/S1 (spondylolisthesis is the shifting of the vertebrae against
each other).  He booked her for a CT scan of the lumbar spine.  In addition, he
suggested that she be referred to Dr. Cleveland who practices in Salmon Arm for
an epidural cortisone treatment.

[41]        
In October 2001, Dr. Cleveland gave her an
epidural cortisone shot which provided her some pain relief.

[42]        
On May 6, 2002, Mrs. Forde underwent the CT scan
of her lumbar spine.  This test disclosed that she did have spondylolisthesis
at L5/S1.  It also disclosed that there was no indication of nerve root
impingement.

[43]        
On May 29, 2002, Mrs. Forde went to see Dr.
Cleveland for another epidural injection.  During that appointment, she advised
him that the constant tingling and numbness that she had been experiencing in
her feet had now moved up through her ankles to her knees.  In addition, she
was having trouble with constipation and periodic incontinence, although she generally
was not having trouble with urination.

[44]        
That same day, in addition to giving her the
epidural injection, Dr. Cleveland arranged to have Mrs. Forde see Dr. Myers (a
neurologist at the Shuswap General Hospital in Salmon Arm) on an urgent basis.  Dr.
Myers saw her that day.  In his Consultation Report, Dr. Myers opined that:

The patient doesn’t have any obvious neurological
sequelae. However, she has increasing symptoms. For this reason I would ask Dr.
Newell to send a letter to have her seen by a neurology service in Kamloops in
the near future, and she should be reassessed before then if the appointment is
delayed. If she does have any increasing falls or difficulties she will come
back to the hospital.

I should mention
also that I did a rectal examination, and the rectal tone was completely
normal, again going along with the rest of the examination that she doesn’t
have any impending catastrophe neurologically, but she should be followed
closely in view of her suggestive complaints of progressive problems.

[45]        
In response to this report, on June 3, 2002, Dr.
Newell wrote to Dr. Faridi requesting to see her again, specifically advising
him that:

A few days ago
she was seen at the office at which time she was complaining of persistent
numbness in her feet and increasing difficulty with control of the bowel and
bladder function. I would like you to arrange to see her again to advise on the
significance.

[46]        
Dr. Faridi saw Mrs. Forde 2 days later on June
5, 2002.  He set out in his reporting letter to Dr. Newell:

This patient is having urinary incontinence
which most likely is unrelated to her back since there is no spinal canal
compression. This has been going on for about 2-3 months. … basically from the
time of the CT scan which was on May 6.

In order to clear this up, I have requested
a consultation from Dr. Stewart and his office was kind enough to give me an
appointment for June 13, hopefully for cytoscopy and cystometrogram.

This patient, at the present time, is mainly
having mechanical back pain. She has not responded to epidural cortisone which
has been done 3 times. She may be a candidate for percutaneous facet rhizotomy
which I have explained to her and her friend. She is going to give me a call
and if Dr. Stewart’s examination does not indicate a neurogenic bladder then I
will be glad to go ahead with percutaneous facet rhizotomy.

Also, she most likely requires lumbar
laminectomy at L5-S1 and I am doing another lumbosacral X-ray with
reflexion/extension views to see if there is any movement between
flexion/extension. Sometimes these people need fusion as well. The fusion can
be done at the same time or if she doesn’t improve with the lumbar laminectomy
of the L5/4 and part of the L4, the fusion can be done later on. Practically, I
had more good results from the laminectomy alone than with the laminectomy and
the fusion.

I have advised
Leonora that if she develops frank urinary incontinence [complete loss of
bladder control], she should come to the hospital emergency room. Considering
the normal CT scan, basically with spondylolithesis on May 6, I don’t believe
that this is the case.

[47]        
On June 13, 2002, Dr. Stewart (a urologist)
performed the cystometrogram on Mrs. Forde and in his report concluded:

[T]his woman
could have a neurogenic bladder. She has a severely hypertonic bladder which is
seen with upper motor neuron bladders or sometimes seen with chronic lower
motor neuron problems. I think that symptomatically she will need to be treated
with anticholinergics such as Ditropan or Detrol and I have told her to see her
family doctor, Dr. Newell, about this. She is going to see Dr. Faridi soon as
well.

[48]        
As is set out in his letter to Dr. Newell dated
June 20, 2002, upon receiving the results of the cystometrogram Dr. Faridi
decided that Mrs. Forde should undergo some diagnostic tests to rule out the possibility
of cord compression.

[49]        
Diagnostic tests were scheduled and performed by
the Hospital.  Included in the diagnostic equipment available at the Hospital
was:  a general x-ray; a CT scanner; 6 ultra sound machines; 1 mammography
unit; and 2 nuclear medicine scanners.  At that time, they did not have their
own MRI machine.  Rather, they had access to a mobile MRI which at that time
was available for the periods of:  June 3 to June 15; June 23 to August 10;
August 25 to September 14; September 22 to October 19; and October 27 to
November 16.

[50]        
As far as the procedure for ordering tests was
concerned, tests could only be ordered by physicians and, generally in 2002, it
was only specialists that could order CT scans and MRIs.  There were about 50
specialists using the diagnostic services of the Hospital.

[51]        
To order a test, the doctor completed a
requisition form.  In 2002, there were two types of requisition forms:  Examination
Order Form – Part A (“Form A”); and Examination Order Form – Part B (“Form B”).
The type of form used depended on the type of test requested.

[52]        
Form A pertained to tests for radiography,
mammography nuclear medicine, and ultrasound.  The equipment and staff needed
to perform these tests was readily available and consequently it was not
necessary to prioritize these tests because the wait lists were reasonable or
non-existent.

[53]        
Form B, on the other hand, pertained to CT
scanning and MRI tests.  It was necessary to protocol them as the demand far
exceeded the equipment and the staff needed to do them.

[54]        
Because of the need to protocol these tests,
Form B included boxes in which the doctor was required to indicate the urgency
of the procedure:  whether it was “Emergent”; “Urgent”; or “Elective”.

[55]        
An Emergent test was done as soon as possible, usually
on the same day or the next day.

[56]        
The Elective classification pertained to a
situation in which there was no urgency; a situation that did not require it to
be given any priority other than on a first-come first-served basis.  During
the period from June to December 2002, the waiting list for Elective MRIs was
about 11 to 12 months and for Elective CT scans was about 7 to 9 months.

[57]        
The Urgent classification fell in between Emergent
and Elective.  It did not have a definite time frame other than it should be
done sooner than it would be done on an Elective basis.  More often setting a
test on an urgent basis resulted in the cancellation of a test that had been
set for another person on an Elective basis.

[58]        
In addition to the classification given by the
doctors as to the manner in which the Form B tests should of prioritized, the
Hospital (through the radiologists) would further prioritize the tests within
each of the categories in the “Rad Notes”.

[59]        
Once the doctor had completed the respective form,
it was delivered to the Hospital by faxing, mailing, or delivering it by hand.  Whatever
method was used, it was collected on a daily basis by the diagnostic imaging
receptionist who date-stamped the back of each of the forms and separated the
orders into the various modalities (for example, ultrasound, CT, MRI, et cetera).

[60]        
Each of the modalities had an individual booking
clerk.  If the requested test did not require protocoling (for example, a
request for a mammogram), the receptionist would forward it directly to the
respective booking clerk who, in turn, would schedule the test and contact the
patient.

[61]        
If however the requested test required
protocoling (for example, a request for CT scan or MRI), the forms would be
forwarded to the radiologists for protocoling.  The practice at the Hospital was
that the radiologists had final say in the protocoling of the diagnostic tests,
which is the practice throughout Canada.  However, it was not uncommon for
doctors to call the radiologist to advise them of the particular circumstances
of a case and to then discuss the appropriate timing for the particular test.

[62]        
After the radiologist had protocoled the test,
the form was brought to the booking clerk assigned to the particular kind of
test ordered.  If the tests were Emergent or Urgent the clerk booked them
immediately.  Sometimes the radiologist would provide a timeframe for an Elective
test (for example, within 2 months) but generally the tests were done on a first-come
first-served basis.

[63]        
Once the test was booked, the requisition was
filed by modality.  (That is, if it was for a CT scan, it was placed in the CT
file. If it was for an MRI, it was placed in the MRI file).  Within the
modality file the requisitions were filed alphabetically by the patient’s last name.

[64]        
Although the information pertaining to the
timing of a test was available to the doctor (should the doctor call and
inquire), the doctors were not called to advise on the date of that
appointment.

[65]        
Each patient was given their own identification
number and each test was given an individual number.  After a test was
completed, the results were placed in a film bag which was assigned to that
patient and into which the results of all tests done on that patient were placed.

[66]        
If an ordered test did not take place because it
was cancelled or changed to another test, the order form for that test was
either destroyed or returned to the doctor who requested the test.

[67]        
On June 20, 2002, having received the results of
the cystometrogram, Dr. Faridi forwarded a Form A order to the Hospital
requesting that it arrange to do a spinal myelogram on Mrs. Forde.  As was set
out on the face of this requisition, the purpose of this test was to “rule out
cord compression” as a possible cause of her hypertonic bladder.  Specifically,
he requested a:

spinal myelogram

screen for cord compression

CT as indicated

back pain leg pain – hypertonic [underlined
twice] bladder [underlined once] –  lumbar CT spondylolytheis

R/O [rule out]
cord compression

[68]        
A hypertonic bladder or neurogenic bladder is
one sign of possible spinal dysfunction.  Neurogenic bladder means a loss of
bladder function because of a compression of the spinal cord at any level.

[69]        
To perform a myelogram, dye is injected directly
into the spinal canal. Pictures are then taken of this area of the body.  The
difference between a myelogram and CT myelogram lies in the instrument used to
take the picture of the spinal canal once the dye is injected:  with a myelogram
the picture is taken using a x-ray machine; whereas with a CT myelogram the
pictures is taken using a CT scanner.  The CT scanner is able to provide a more
detailed picture than the x-ray machine as it shows the inside of the spinal
canal and, therefore, any compression of the spinal cord within that canal.  It
also reveals the inside of the spinal cord.

[70]        
A myelogram does not require protocoling whereas
a CT myelogram does.  The CT myelgoram is the superior test because it provides
a more detailed picture.

[71]        
In this case, because Dr. Faridi requested that
the myelogram be done using a CT scanner if indicated, the request went to the
radiologist.  The radiologist, in turn, determined that a CT myelogram should
be done.  The test was booked for July 13, 2002, but that test was
subsequently cancelled by the Hospital because of a staff shortage.  Then for a
period of time in late July and early August 2002, the CT scanner was not
available because it was being upgraded and replaced with a more recent model.

[72]        
On July 19, 2002, Mrs. Forde saw Dr. Newell at
which time she advised him that the pain was getting worse.  Although she was still
booked for a CT myelogram, she had no idea as to when that test would be
conducted.  Three days later on July 22, 2002, Mrs. Forde called Dr. Faridi
requesting that the CT myelogram be expedited.

[73]        
On July 23, 2002, Dr. Faridi forwarded a further
requisition to the Hospital, this time requesting that they expedite the CT myelogram.
He described it as urgent as per Mrs. Forde’s request.

[74]        
This CT myelogram was then set for August 21,
2002, but was subsequently cancelled by Dr. Faridi as arrangements had been
made to have Mrs. Forde undergo an MRI rather than CT myelogram.

[75]        
Specifically, on August 13, 2002, Mrs. Forde and
Dr. Bilbey, one of the radiologists at the Hospital, jointly requested that Dr.
Faridi change this test to an MRI.  There was no dispute that the MRI was a
much better test as it provided a more complete picture than a CT scan; however,
the waiting lists for MRIs were long.

[76]        
On the same day, Dr. Faridi agreed to the change
and completed a requisition for an MRI.  On the face of that requisition he
wrote:

Spinal MRI screening

Low back pain with hypertonic bladder

R/O cord
compression or lesion

He did not indicate on the requisition form
the priority classification to be given to this test:  Emergent, Urgent or Elective.

[77]        
As was explained in the evidence, a lesion is an
abnormality in a tissue or an organ that cannot be characterized without
further investigation.  It is a non-specific term.

[78]        
On August 14, 2002, Dr. Bilbey faxed Dr. Faridi
a copy of his requisition seeking clarification as to whether the spinal MRI
was to be of “whole spine vs lower thoracic/lumbar?”.  As he explained in his
evidence, Dr. Faridi wanted an MRI of Mrs. Forde’s whole spine.  However, his
response to the Hospital’s question was confusing as he simply wrote “yes”
beside this question, circling this yes.  He also completed the priority
classification, checking the Urgent category and circling it.

[79]        
On September 5, 2002, Mrs. Forde saw Dr. Newell.
At that time, she advised him that the pain in her back was very bad.  She was
going to apply for handicap status (presumably for a parking sign for her vehicle).

[80]        
In response to this visit, on September 10, 2002,
Dr. Newell wrote to Dr. Faridi advising him that:

This woman
continues to have enormous amount of problem with pain in her back; your
request for myelogram was changed to a MRI. I understand that this is to be
done at some as yet undetermined time in her future. The patient is asking me
to confirm with you that it is indeed necessary to wait for the MRI before planning
any definitive procedure.

[81]        
In response to this letter, Dr. Faridi wrote to Dr.
Bilbey on September 12, 2002, asking that Mrs. Forde’s MRI scan be upgraded to
within the next 3-4 weeks.  He explained that he had two reasons for making
this request:  first, that the cystometrogram done by Dr. Stewart showed that
“this patient has a hypertonic bladder which he believes is neurogenic bladder
due to upper motor neuron involvement rather than lower motor neuron
involvement”; and second that “Dr. Geoff Newell has written me a letter on
September 10, 2002 and indicates that this patient is having quite significant
pain.”

[82]        
During the trial, Mrs. Forde testified that she
became frankly incontinent about the middle of September 2002.  Mrs. Forde
attested that she advised Dr. Newell of this situation during her appointment
in mid-September.  Dr. Newell’s notes regarding this appointment on September
16, 2002, are less than clear.  In particular, he wrote “Poor control [cannot
read next word] ditropan – no effect” (ditropan is the medication that Mrs.
Forde was taking for her bladder problems).

[83]        
Most significantly, assuming that Mrs. Forde did
become frankly incontinent at this time, she did not tell Dr. Faridi of that
change in her symptoms although he asked her to report that to him if it did
happen.  Furthermore, if Mrs. Forde did tell Dr. Newell, he did not advise
Dr. Faridi of this fact.

[84]        
On October 8, 2002, an MRI was done of Mrs. Forde’s
lower spine.  Although Dr. Faridi had intended that it be of whole spine, because
of the confusing manner in which he completed the requisition, Dr. Bilbey
understood it was only to be done on her lower spine.  The results of that MRI
were similar to, if not the same as, the CT scan taken on May 6, 2002:  it
revealed some spondylolisthesis at L5/S1 but no cord compression.

[85]        
On October 22, 2002, Dr. Faridi saw Mrs. Forde. 
The purpose of this appointment was to discuss the results of the October 8, 2002
MRI.  At this point, Mrs. Forde understood that a lumbar laminectomy was being
considered to address her spondylolisthesis.  During that appointment on
October 22, 2002, Mrs. Forde advised Dr. Faridi that she had become frankly
incontinent and that she was now experiencing some pain and numbness in both of
her arms.

[86]        
Dr. Faridi immediately completed a requisition
to have her undergo an MRI of her full spine.  The contents of this requisition
disclose that he must have called Dr. Bilbey to arrange to have it done
the next week.  (The MRI machine was not available until then because it was
being used in a different city.)

[87]        
Also on October 22, 2002, Dr. Faridi also wrote
to Dr. Newell advising him of Mrs. Forde’s current status.  Specifically
he reported:

She is having quite severe pain and is not
able to move around very well. The pain appeared to be more mechanical back
pain. She has tenderness around the L3-L4 region. She has spondylolysis and
moderate spondylolisthesis. I am not sure if there is any instability at this
time.

I am asking for an x-ray with
flexion/extension view. My main concern is her incontinence. I have spoken to
the radiologist and they agreed to do an MRI scan of the cervical and dorsal
region on her next week. The machine is not here this week. We should rule out
the possibility of spinal cord compression.

…The patient
complained of having some pain and numbness in the arm which could be related
to the cervical spine. In any case, hopefully I will see her next week and
possibly we will arrange for a hospital admission.

[88]        
There was a delay in forwarding this requisition
to the Hospital because Mrs. Forde had inadvertently taken all copies of
it home with her.  However, this delay did not result in a delay in the taking
of the test.  The test was conducted on October 29, 2002, the same day that Dr.
Faridi forwarded a replacement request, this time including the comment, “patient
deteriorating”.

[89]        
The MRI of October 29, 2002, identified an
abnormal signal increase lesion in the upper cervical cord region.  The MRI
report stated:

Differential
diagnosis would include transverse myelitis or ischemia. A cord tumour is
considered less likely but would also be included in the differential
diagnosis. Mild disc bulge is present at C6-7 level.

[90]        
In his Consultation Report dated October 29,
2002, Dr. Faridi summarized his conclusions regarding this test in the
following manner:

An urgent MRI scan of the cervical and
dorsal spine was requested and this was done today, October 29/02. Unfortunately
this shows an abnormal lesion in the upper part of the cervical cored almost
starting from the medulla and extending to the upper end of C3. The lesion is
present on T1 weighted views but not on T2. I do not believe this is a
syringomygelai but it is a possibility. This is most likely a tumor or vascular
lesion.

The lesion is
quite high in a dangerous area and the patient is becoming progressively worse.
So I believe the patient needs to be admitted to the hospital for further
investigation. I have requested admission to the hospital next week and a
consultation with the neurologist on call.

[91]        
Dr. Faridi made arrangements for Mrs. Forde to
be admitted into hospital on October 31, 2002.  Between this admission and the
MRI on October 29, 2002, Mrs. Forde fell at home (her legs suddenly gave
way), becoming trapped between two pieces of furniture and unable to raise
herself up for an hour.

[92]        
On the day that she was admitted to hospital,
Dr. Oyler saw her and, as was set out in his report, concluded that:

Leonora Forde
presents with a clinical picture and an MRI picture consistent with transverse
myelitis of the high cervical cord. She has become progressively worse over the
last several weeks with regards to level of numbness and leg weakness. However,
there is a longer background history of numbness involving the legs, creeping
upwards. The onset of the transverse myelitis would thus be suspected to be
some time earlier in the summer. The main diagnostic considerations include
both multiple sclerosis as well as postviral demyelination. … We will also
obtain an MRI of the brain to look for evidence of demyelination elsewhere
within the CNS. … Further investigation beyond the MRI head may be required
for a more definitive diagnosis.

[93]        
As was explained during the trial, transverse
myelitis is an inflammation that transverses the complete cross-section of the
spinal cord, both white and grey matter.  It is a descriptive term rather than
a diagnosis.  Most frequently it results in a diagnosis of MS, but it also can refer
to a viral condition or be used as a catchall term when a patient is rendered a
quadriplegic or paraplegic and there is no other explanation.

[94]        
Although Mrs. Forde was using a wheelchair when she
entered the hospital, she was still able to walk.  As was noted by the
physiotherapist in the hospital, she used a cane when she was walking around
the bedroom but generally she was safer using a walker.

[95]        
Dr. Oyler ordered that the Hospital arrange for
Mrs. Forde to undergo MRIs of her head.  These tests were done on November 2,
2002.  Dr. Bilbey reported on November 4, 2002, that these tests showed:

Abnormal high
signal intensity lesion is again seen in the superior cervical cord region. …
An aneurysm of the left SCA is present. CT angiography is recommended for
further evaluation. A small ependymal cyst is incidentally noted related to the
left temporal horn of lateral ventricle.

[96]        
On November 4, 2002 (the same day that he
received the MRI report), Dr. Oyler arranged with Dr. Bilbey for Mrs.
Forde to undergo a CT angiogram of her head.  The test was performed that day.  As
was set out in his report dated November 8, 2002, Dr. Bilbey advised that the
result of that test was:

Abnormal
vascular structure in the posterior fossa likely represents a dural AVM.  Conventional
cerebral angiography is recommended for further evaluation.

[97]        
Mrs. Forde was discharged from the hospital on
November 7, 2002.  In his discharge summary, Dr. Oyler reported that:

At the time of
her discharge, Leonora is now ambulating independently, although she is not yet
back to normal. She received physiotherapy and occupational therapy attention
while in hospital, and this will be continued as an outpatient. A follow-up MRI
of the C-spine will be planned for two months’ time. She has been asked to see
Dr. Oyler in his office in three months’ time. Follow-up appointments with Dr.
Faridi and Dr. Stewart will be arranged by their respective offices. Follow-up
of the incidental aneurysm will be carried out by Dr. Faridi.

[98]        
Dr. Faridi followed up on this “incidental
aneurysm” immediately by requisitioning the Hospital that same day to do
further tests on Mrs. Forde.  In particular, he ordered a catheter angiogram
(also known as a cerebellum angiogram).  As was explained in the evidence, this
test is more invasive than the CT angiogram, but it provides a better picture
of the blood vessels.

[99]        
Dr. Faridi wrote on the face of the requisition
for this test:  “[r]ecommended by Dr. Bilbey urgent 1 week”.  This note
indicates that Dr. Faridi had spoken to Dr. Bilbey before completing this
requisition and that Dr. Bilbey had agreed that it would be done in a week. Dr.
Faridi also wrote on the face of this requisition “transverse mylelitis? Post
cerebellum aneurysm or aneurysms”.

[100]    
On November 15, 2002, Mrs. Forde underwent the catheter
angiogram.  As described in the report of Dr. Walter dated November 18, 2002,
this test disclosed:

Arteriovenous
malformation with venous aneurysms in is drainage. Because of the overlap of
the vessels I am unsure of the total number of feeders supplying. Its drainage
does seem limited to the channels described.

[101]     Therefore, as of the catheter angiogram done on November 15, 2002,
there were two possible diagnoses of Mrs. Forde’s neurological symptoms:  transverse
myelitis or an AV malformation (an AV fistula).

[102]    
On November 26, 2002, Dr. Faridi phoned Mrs.
Forde and spoke to her for approximately 12 minutes regarding the outcome of the
test.  Afterwards he phoned the office of Dr. Toyota, a vascular neurosurgeon
in Vancouver, and spoke to someone for 2½ minutes.  Following this
conversation, Dr. Faridi wrote the following letter to Dr. Toyota seeking
his assistance with respect to the AV fistula.  Specifically, he wrote:

I would appreciate it very much if you could
assess this patient and advise or arrange for treatment.

In summary, she presented in August 2001
because of back pain. She had spondylolisthesis of the lumbar spine. In any
case, conservative treatment continued. She complained of loss of bladder
control in June which was not significant. A cystometrogram showed she has a
spastic bladder, possibly upper motor neuron. Following that she started to
have difficulty walking. Subsequently an MRI scan showed she had transverse
myelitis of the upper cervical cord. Following that she was referred to Dr.
Oyler who did an MRI of the head which was consistent with an aneurysm of the
left C8. Following that she had a CT/angiogram which was suspicious of a dural
AVM. Subsequently she had a carotid angiogram which showed an arteriovenous
malformation with venous aneurysm in its drainage.

Because of the overlap of the vessel it is
not possible to say the number of feeders supplying. Its drainage seemed
limited to the right petrous ridge venous aneurysm which is about 1 cm in
diameter.

I am sending all
her films for your review. She is quite anxious and will be glad to come to see
you in Vancouver. Otherwise I will follow her up with your advice.

[103]     Mrs. Forde was not seen by a vascular neurosurgeon until April 2003.

[104]     In the meantime, in early December 2002, Dr. Toyota’s office
contacted Dr. Faridi advising him that that Mrs. Forde’s films had not
been forwarded to it.  Dr. Faridi immediately responded to this
notification by making arrangements to have the films sent.

[105]     On January 3, 2003, Dr. Faridi spoke to Dr. Toyota’s office.

[106]     On January 8, 2003, Mrs. Forde underwent an MRI of her cervical
spine.  As Dr. Bilbey stated in his report:

The cervical
cord lesion is again seen with mild cord expansion and abnormal signal increase
extending from the foramen magnum to lower C3 level. The appearance has not
changed from the previous study. In this clinical setting, this most likely
represents edema [softening of the cord] /myelomalacia related to cord ischemia
although transverse myelitis or even cord tumor could have a similar
appearance.

[107]    
Dr. Faridi saw Mrs. Forde on that date and in
his letter to Dr. Newell, which he copied to Dr. Oyler and Dr. Toyota, he
advised that:

This woman came in today. She continues to
have severe deficit because of very high cervical myelopathy. The MRI scan done
today again shows the presence of the cervical myelopathy in the upper cervical
region and lower medula. I do not have the old MRI but from what a I remember I
believe the pictures are the same. I am not sure if we are supposed to see any
improvement on the MRI scan.

From a functional point of view, she is
wheelchair bound but she is able to stand up with help. She is able to walk a
few steps. She uses a cane and also she uses help.

… She continues to have a neurogenic
bladder. She may improve with Ditropan. I gave her a prescription … Most
likely she needs self- catheterization. I think that she should be referred to
the hospital for training regarding self-catheterization

At the present
time until her condition gets better, I am not planning to do anything for her
low back pain or spondylolisthesis.

[108]    
Mrs. Forde also saw Dr. Oyler on January 8,
2003.  As is set out in his letter to Dr. Newell dated January 9, 2003, it was
his opinion that the cause of Mrs. Forde’s injuries was transverse
myelitis, already described in para. 92.  He also observed that she had shown
some improvement in her symptoms as result of steroids and physiotherapy
treatments.  Specifically, he reported:

…As you know, I had attended her while she
was in hospital for transverse myelitis. She developed transverse myelitis of
the upper cervical cord, and was treated with a course of pulse steroids.
Further investigation including MRI of the head, showed no evidence of
demyelination elsewhere. CSF studies were also undertaken, and also showed no
evidence to suggest MS. The presumed etiology at this point would be an
idiopathic transverse myelitis, likely on the basis of post viral autoimmune
injury.

She enjoyed some definite recovery following
the pulse of steroids, and was also noticing a definite benefit from
physiotherapy. Unfortunately, she has not been using any sort of therapy on a
regular effective basis. She has noted a significant fluctuation in her
symptoms and ambulation since discharge from hospital. She’s able to ambulate
slowly with a cane.

…

Leonora has experienced a transverse
myelitis of the upper cervical spine. She has had definite improvement from the
onset, but obviously has not experienced full recovery. Recovery for transverse
myelitis can be very prolonged, and of course is not always complete. Her
recovery is further complicated by a pre-existent history of significant back
pain. She is no longer in an acute phase of her illness, and has moved into the
rehabilitation phase. Further intervention with steroids beyond the course she
has had in hospital is not indicated, and there’s no supporting literature that
this will improve her eventual outcome or rate or recovery at this point. I
have tried to be as encouraging as possible. She really needs to focus on
rehabilitation at this point. Physio and occupational therapy, in addition to
daily home exercise will be very important to her.

… Dr. Faridi is also aware of the AV
malformation discovered incidentally on MRI, and he’s planning to see her in
follow-up in this regard. I have thus deferred further investigation and
management of her AVM to his expertise.

As the current
management of her transverse myelitis will center around rehabilitation, and I
do not have further medical interventions to offer her, I have not made plans
to her in follow-up. Of course, I would be happy to see her in review as
required for additional concerns. Referral to a rehabilitation medicine
specialist will likely be useful to her. Please let me know if I can help
facilitate a referral within Kamloops.

[109]     On April 9, 2003, Dr. Redekop saw Mrs. Forde (he had tried to
arrange an earlier appointment with her but she was unable to come then because
of a family matter).

[110]     Dr. Redekop is a nationally recognized vascular neurosurgeon.  He
and Dr. Toyota share office space and the decision was made at some point
for Dr. Redekop to see Mrs. Forde rather than Dr. Toyota.

[111]     As a result of that appointment (as is set out in his letter of
April 14, 2003), Dr. Redekop concluded that the probable cause of Mrs.
Forde’s neurological symptoms was the AV fistula rather than transverse
myelitis.  Specifically, he opined that:

This unfortunate woman has two significant
neurological problems. She has low back pain and some radicular disturbance
resulting from lumbosacral spondylolisthesis. Her symptoms have been present,
gradually progressive, for several years. More significantly, she has a high
flow dural AV fistula in the posterior fossa region, with retrograde venous
drainage and aneurysm formation, as well as venous hypertensive myelopathy. I
do not think that she has inflammatory transverse myelitis. The most likely
explanation for the signal change in the cord is inadequate perfusion and venous
hypertension due to the retrograde venous drainage from her fistula.

She requires further investigation with
super-selective angiography and either surgical or endovascular occlusion of
her fistula. This is the most important problem to deal with and should be done
on an urgent basis. Depending on her course subsequently, she may also require
consideration of surgical decompression and stabilization of her
spondylolisthesis.

I have
recommended that she come to the hospital immediately for angiography and
intervention. Because of social issues primarily relating to the care of her
teenage daughter, she was unable to be admitted immediately but as soon as
arrangements for the care of her daughter are made she will return to Vancouver
for angiography, with a plan to deal with her dural AV fistula either
surgically or with interventional methods.

[112]    
On April 24, 2003 (10 days after this letter was
written and about 2 weeks after Dr. Redekop saw Mrs. Forde), Dr. Redekop
operated on her and repaired the AV fistula.  As was set out in the
Operation/Procedure Report:

The dural
arteriovenous malformation nidus was apparent readily, with a dilated venous
aneurysm and complex pattern of venous drainage evident. The venous drainage
appeared to all emergent from a single focal point.

[113]     As was set out in his letter to Dr. Newell (copied to Dr. Faridi) of
May 20, 2003, this surgery repaired the AV fistula in that the blood flow in
this area returned to normal.  Specifically Dr. Redekop reported that:

Leonora Forde underwent posterior fossa
craniotomy and repair of her dural arteriovenous malformation on April 24,
2003. Angiography had demonstrated extensive retrograde venous drainage to the
spinal venous network. Postoperative angiography demonstrated complete
elimination of the AVM.

She continues to suffer from a high cervical
myelopathy as a result of the hemodynamic problems in her upper cervical cord.
She has been making a gradual recovery and was discharged to the G. F. Strong
Rehabilitation Centre last week.

The lumbosacral
spondylolisthesis has not been addressed at this point in time. She does have
some low back pain related to this but her neurologic symptoms I believe are
related to the upper cervical abnormality. She can be reassessed for consideration
of treatment of her spondylolisthesis following her period of rehabilitation.

[114]     Unfortunately, Mrs. Forde has not recovered to the extent that her
treating physicians anticipated.  To the contrary, she has become worse.

[115]     As is set out in the Consultation Report of April 28, 2003, her
treating physicians thought that some of the functional losses she had suffered
in her arms and legs were attributable to a loss of muscle strength.  It was
therefore anticipated that through rehabilitation programs she would regain
this strength; increase the mobility of her legs (perhaps even move to the use
of a walker or even a cane rather than a wheelchair); and increase the
dexterity of her right arm.

[116]     This did not occur.  Mrs. Forde has remained wheelchair bound.  Her
participation in the various rehabilitative programs offered to her has been
minimal at best.  In particular, a review of GF Strong’s records indicate that
she refused to participate in many of their rehabilitative programs during the
period of May 15 to June 30, 2003, at which time she was a resident.

[117]     She discharged herself from this facility 6 months sooner than
recommended.  She said she did it because one of her daughters was having some
significant problems and she wanted to be with her.  GF Strong tried to
accommodate Mrs. Forde’s concerns by advising her that they would provide
her with outpatient accommodation sufficient for her and her daughter in the
Lower Mainland area so that she could continue her rehabilitative program.  Mrs.
Forde, however, was not agreeable to this proposal and she returned home to
Salmon Arm.

[118]     Arrangements were then made for Mrs. Forde to receive physiotherapy
and rehabilitative treatments in Salmon Arm.  Again her participation was
minimal at best.

[119]     One of the explanations provided for this reluctance to participate
in rehabilitative programs was depression and, in particular, a reluctance to
accept her injuries.  To address this concern, one of her treating doctors
recommended that Mrs. Forde take antidepressants but she was unwilling to do
this.

[120]     During the 6-year period since her AV fistula surgery, her symptoms
have worsened.  She has not regained any mobility in her legs or any further
dexterity in her right arm.  Although she can stand and walk very short
distances with her walker, she is dependent on her wheelchair for mobility.

[121]     Furthermore, she has developed edema (swelling in her feet and
ankles), bilateral neck pain and stiffness, and stiffness and throbbing in both
her hands.

[122]    
On June 1, 2004 (just over a year after the
surgery), Mrs. Forde saw Dr. Redekop.  In his letter to Dr. DeWet (Mrs.
Forde’s new family doctor as Dr. Newell had retired), Dr. Redekop reported:

A postoperative angiogram demonstrated
complete occlusion of the vascular lesion.

She presented in a fairly debilitated state
and at the end of her period of rehabilitation she is still in a wheelchair
which she continues to use. She has weakness in the upper extremities, right
more than left, as well as weakness and numbness in her legs. She cannot stand
or balance for any period of time. She doesn’t have bowel or bladder control
and has been wearing Depends.

The examination today is in fact quite
similar to that which I documented at the time of her original consultation in
April 2003. She feels that she is progressively deteriorating. I am not really
clear as to whether this is a de-conditioning effect or progression of her
neurological syndrome.

She is known to
have lumbosacral spondylolisthesis but this would not account for current
neurological symptoms in the upper extremity and I suspect that she is
continuing to suffer from the myelopathy related to her original vascular
pathology. I have recommended that she have an MRI scan of the brain and
posterior fossa to rule out an obvious reversible etiology. Because of her
significant disability and the distance for her to travel, I offered her
admission today to get these investigations done as an inpatient, but it was
her preference to return home and to have an outpatient study as soon as it can
be arranged. We will proceed with this as quickly as possible.

[123]     Since then, the possible progression of her neurological syndrome
has been investigated through an MRI on June 29, 2004, and an examination by a
neurologist in March 2005.  Her syndrome has not progressed.

[124]     Alternative explanations have also been explored but no medical
condition has been identified to explain the progression of her symptoms.  Specifically,
she has been seen by a rheumatologist, a physiatrist, and an internist, who
have respectively opined that her new symptoms are not the result of arthritis,
joint problems, lower extremity venous thromboemboli, or occult right
ventricular failure.

[125]     By process of elimination, the probable explanation remaining for
the worsening of her symptoms is her de-conditioned state and consequent weight
gain, which may well have been avoided had she followed the directions of her
treating physicians regarding rehabilitative programs.

[126]     Regardless of this fact and of the fact that she probably would have
regained some of her mobility in her legs and some of the dexterity in her
right arm had she participated in the recommended rehabilitative programs in a
meaningful way, Mrs. Forde has suffered permanent injuries as the result
of a posterior fossa dural AV fistula.  In particular, she has suffered some
paralysis in both her arms and her legs and urinary incontinence.

(V)      LIABILITY – ANALYSIS AND
DECISION

[127]     As was set out at the beginning of this judgment, all of the parties
agree that, in the circumstances of this case, if Dr. Faridi did not breach his
duty of care with respect to the timing and follow-through of Mrs. Forde’s
tests, the Hospital could not have breached its duty of care with respect to
devising systems and protocols to ensure that tests are performed in a timely
manner.  Consequently, the pivotal issue in this action was whether the
evidence proved that Dr. Faridi breached his duty of care to Mrs. Forde.

[128]     In other words, was the knowledge, competence and skill that Dr.
Faridi exercised with respect to the timing and follow-through of the tests
done to investigate Mrs. Forde’s spinal cord symptoms less than that of the
average neurosurgeon in a similar community in similar circumstances?

[129]     Mrs. Forde claims that Dr. Faridi fell below the standard of care in
two different ways – namely:

(1)      he failed to
follow-through and ensure that the investigation of her spinal cord was
completed in a timely fashion; and

(2)      he failed to pay
sufficient attention to the alternative diagnosis of AVM (that is AV fistula)
after the diagnosis of transverse myelitis in October 2002.

[130]     For reasons, which are set out subsequently, I have concluded that
the evidence does not support either of these claims.

(A) Claim
1:  Dr. Faridi Failed to Follow Through and Ensure that the Investigation of
Mrs. Forde’s Spinal Cord was Completed in a Timely Fashion

[131]    
To prove this claim, Mrs. Forde relied on the
expert evidence given by Dr. Moulton, a neurosurgeon.  Specifically,
he made the following factual assumptions: that by June 20, 2002,
Dr. Faridi had established the likelihood of an urgent spinal cord condition;
that Dr. Faridi had laid out an appropriate timeframe of 1 to 2 weeks to
investigate this through an MRI (which is the optimal procedure) or myelogram
(reasonable substitute for suspected but undiagnosed spinal cord pathology if
the MRI was not available); that Dr. Faridi did not follow-up to ensure that
the investigation was done; and that the investigation was not done until 4 months
later (rather than 2 weeks) by which time Mrs. Forde had lost a significant
amount of spinal cord function.

[132]     Based on these assumptions, he concluded:

In my opinion,
the failure to follow through and make sure that the investigation of the
spinal cord was completed in a timely fashion fell below the standard of care.

[133]     Most,
if not all, of the material facts on which this opinion is
based were not proven in the evidence.

[134]     Specifically, it was not proven that by June 20, 2002, Dr. Faridi
had established the “likelihood” of an urgent spinal cord condition.  Rather,
it was proven that he had concluded that there was a “possibility” of spinal
cord dysfunction – the sole symptom of that possible dysfunction being a
hypertonic or neurogenic bladder.

[135]     Moreover, the evidence proved that Dr. Faridi’s conclusion was
appropriate and that her symptoms went no further than indicating a possibility
of spinal cord dysfunction.  Although a hypertonic bladder could be the result
of an upper neuron problem (that is a problem with the nerves anywhere along
the spinal cord), the vast majority of the time bladder dysfunction is unrelated
to the nervous system and therefore the spinal cord.  Also, Mrs. Forde did not
have any other neurological symptoms.  This was the opinion of not only Dr.
Faridi but also Dr. Myers who examined her on May 29, 2002.

[136]     In addition, it was not proven that Dr. Faridi had laid out what he
thought to be an appropriate timeframe of 1 to 2 weeks to investigate this
condition and, perhaps more significantly, it was not proven that he should
have laid out that timeframe.

[137]     Although Dr. Faridi attested during his Examination for Discovery
that he anticipated that the myelogram (without CT scan) would be completed
within 2 weeks, as he explained in his evidence at trial, this was because
it was the usual length of time that it took to have that type of test done (because
it required less staff and the equipment was readily available).  He did not
attest that he concluded that the test needed to be done within 2 weeks.

[138]     Neither Dr. Moulton nor Dr. Padilla (the expert neurosurgeon who was
tendered by the Defendants) opined that Dr. Faridi should have ensured that the
tests were done in 1 to 2 weeks.  In addition, the evidence did not prove that,
given her symptoms, Dr. Faridi should have ensured that the tests were
completed by the third week in August (the date set for the rescheduled CT
myelogram).

[139]     The evidence proved that Dr. Faridi concluded that the investigative
tests should be performed on an Urgent basis, which does not mean that they have
to be done as soon as they can possibly be done (namely on an Emergent basis),
but that they should be done sooner than they would be done on an Elective
basis.

[140]     The evidence further proved that Mrs Forde’s tests were processed on
an Urgent basis.  (Specifically, they were done in a third of the time than
they would have been done on an Elective basis.)

[141]     As for the prioritizing of tests being done on an Urgent basis, in
keeping with the system across Canada, the final say for the priority to be
given to tests rested with the radiologist at the Hospital – that decision, in
turn, being made in the context of her symptoms and the progression of those
symptoms.

[142]     For approximately the first 3 months (that is from June 20, 2002
until September 12, 2002), the only symptoms of which Dr. Faridi and
consequently the radiologist were aware were the hypertonic bladder (which as
far as they knew was still limited to trickling urine with no other incidents
of incontinence other than the one that occurred in May 2002) and lower back
pain associated with her spondylolisthesis.

[143]     As of September 12, 2002, the only symptomatic change of which Dr.
Faridi was aware was that Mrs. Forde was experiencing increased back pain.  That
is, there were no reported changes in her hypertonic bladder nor were there any
additional neurological symptoms.  Even so, because of her increased pain, Dr. Faridi
requested that the radiologist move Mrs. Forde’s test up the Urgent list so
that the test could be done within 3 to 4 weeks.  This was done.

[144]     Once Dr. Faridi became aware of the progression of her symptoms (namely,
that her hypertonic bladder had progressed to frank incontinence and the
development of numbness going up her arms), he immediately conveyed that
information to the Hospital.  The tests to be done on Mrs. Forde were thereafter
reclassified as Emergent or at least put at the top of the Urgent list.  Specifically,
her tests were done on October 29th which was 2 days after the MRI was returned
to Kamloops; the tests ordered on October 31st were done on November 2nd;
the tests ordered on November 4th were done on November 4th; and the tests
ordered on November 7th were done on November 15th.

[145]     The assumption of Dr. Moulton that Dr. Faridi did not follow-up to
ensure that the investigation was done was not supported by the evidence.  Rather,
as soon as Dr. Faridi became aware of the progression of her symptoms, he not
only ensured that her tests were done in an expeditious manner by contacting
the radiologist directly about these changes, but he also arranged to have Mrs.
Forde admitted to hospital so that she could be seen by another specialist –
namely, a neurologist whom he considered would be able to assist in identifying
the next steps that should be taken to reach a diagnosis.

[146]     On November 7, 2002, that neurologist (Dr. Oyler) recommended that
Dr. Faridi arrange for a further test to be done:  the catheter angiogram.
That same day, Dr. Faridi forwarded the requisition for the test, having
spoken to the radiologist already to ensure that the test was done within the
next week.

[147]     Within 11 days of Mrs. Forde undergoing the catheter angiogram (the test
done on November 15, 2002, that identified the AV fistula as a possible cause
of her symptoms), Dr. Faridi referred the matter to vascular neurosurgeons in
Vancouver for their assistance as there were no other tests that could be
performed in Kamloops that would assist in the securing of a definitive
diagnosis.

[148]     The evidence proved that Dr. Faridi followed the standard practice
of neurosurgeons when ordering investigative tests.  However, Mrs. Forde argues
that nevertheless he should be found negligent because these standard practices
are inherently flawed and place the patient at unnecessary risk.  Specifically,
Mrs. Forde argued that the fact that the tests were not done in time to prevent
her injuries was, in itself, evidence of this situation.

[149]     The evidence did not support this argument.

[150]     As became apparent during the course of this trial, the supply of sophisticated
testing resources such as CT scans and MRIs is significantly less than the
demand for them.  As a consequence, to reduce the risks to patients, the
testing system is designed to give priority to patients in accordance with the
severity of their symptoms.

[151]     The standard practices imposed on neurosurgeons with respect to this
testing is that they are required to keep the radiologist current with a
patient’s symptoms so that that patient’s testing is prioritized appropriately.
Initially, the symptom information is provided through the requisition orders.
If the patient’s symptoms change (and in particular if they worsen), the
standard practice requires the neurosurgeon to advise the radiologist
immediately so that the patient’s test priority can be changed in accordance
with their symptoms.

[152]     Because her hypertonic bladder indicated the possibility of a severe
injury – namely, a 1-2% chance of spinal cord dysfunction, from the outset her
testing was categorized as Urgent rather than Elective.

[153]     Rather than developing on a gradual basis, her symptoms did not
change for a long time and then they changed quickly and dramatically.  That
is, her hypertonic bladder remained her only neurological symptom until mid-September
2002.  During that period, that symptom did not worsen, rather it remained constant
– namely, trickling urine and one incident of incontinence in May 2002.  Even
if Dr. Faridi had contacted the radiologist during this period, there was no
basis on which to persuade the radiologist to increase her testing priority as
there was no change in her symptoms.

[154]     In mid-September not only did her hypertonic bladder symptom worsen
into incontinence but other symptoms, such as tingling going up her arms and a
loss of mobility in her legs, happened in quick succession.

[155]     In keeping with the standards of practice, when he learned of the
progression of her symptoms Dr. Faridi immediately advised the radiologist wherein
the priority of her testing was changed.  In accordance with the severity of
her symptoms and the corresponding priority given to her testing, within the
next 3-week period (that is the period extending from October 22 through
November15) Mrs. Forde underwent 4 different tests and the AV fistula was
identified as a possible diagnosis.

[156]     This evidence does not establish standards of practice that are inherently
flawed because they put a patient unnecessarily at risk.  To the contrary, it
discloses standards of practice that are designed to ensure that the limited
testing resources are allocated to give priority to patients in accordance with
the severity of their condition as evidenced by their symptoms.  In other
words, the standard practices are designed to avoid unnecessary risk to the
patients.

[157]     Unfortunately, Mrs. Forde had a very uncommon injury with a very
rare presentation of symptoms.

[158]     Given all of these findings, the evidence does not prove that Dr. Faridi
breached his duty of care and, in particular, that he failed to follow through
and ensure that the investigation of Mrs. Forde’s spinal cord was completed in
a timely fashion.

[159]     Having reached this conclusion, this claim is dismissed.

(B)  Claim 2:  Dr. Faridi Failed to Pay Sufficient Attention
to the Alternative Diagnosis of AVM (AV fistula) after the Diagnosis of
Transverse Myelitis in October 2002

[160]     With respect to this claim, Dr. Moulton opined:

Once Mrs. Forde
was hospitalized in October 2002 with a diagnosis of transverse myelitis, there
was, in my opinion, insufficient attention paid to the possibility of an
alternative diagnosis (vascular injury to the spinal cord) even though this
alternative had been mentioned in the MRI report. Furthermore, there were
vascular investigations done in October and November 2002 that indicated the
presence of a vascular abnormality adjacent to the affected spinal cord.
Ultimately the patient was referred on to Vancouver for definitive diagnosis
and treatment in the spring 2003.

[161]     This
opinion is not supported by the evidence.

[162]     Mrs. Forde was admitted to hospital on October 31, 2002.  On that
day (in spite of the transverse myelitis diagnosis) a further MRI was ordered
to further investigate the abnormal lesion identified in the October 29, 2002
MRI.  It was performed on November 2, 2002, and showed something that was taken
to be an aneurysm.  Although an aneurysm could not have been the cause of her
symptoms, nevertheless arrangements were made to have Mrs. Forde undergo a CT
angiogram to investigate further.  This test, in turn, showed a possible AVM
(AV fistula).

[163]     Dr. Faridi then ordered that Mrs. Forde undergo a catheter angiogram
on an Emergent basis.  Dr. Moulton agreed that this was appropriate.  It was this
catheter angiogram that Mrs. Forde underwent on November 15, 2002, that confirmed
an AV fistula as a possible diagnosis.

[164]     Specifically, in his report dated November 18, 2002, Dr. Walter (the
radiologist) noted that the test showed an “arteriovenous malformation with
venous aneurysm with venous aneurysms in drainage”.

[165]     On November 26, 2002 (11 days after taking the test and 8 days after
the report setting out the findings of that test), Dr. Faridi contacted
vascular neurosurgeons in Vancouver asking that they assess Mrs. Forde in
regard to the AV fistula and advise and arrange for treatment.

[166]     Furthermore, as soon as Dr. Faridi learned in early December 2002
that Mrs. Forde’s films had not been forwarded with his letter, he
arranged to have them sent immediately.

[167]     In January 2003, he not only called the neurosurgeons but forwarded
a copy of the letter that he had written to Dr. Newell, setting out the
findings of the January 8, 2003 MRI.

[168]     Although the vascular neurosurgeons in Vancouver did not do an
assessment of Mrs. Forde until early April 2003, this was not because of
any delay on Dr. Faridi’s part.  He referred the matter to them in November
immediately after the AV fistula was identified.

[169]     All of these circumstances prove that the alternative diagnosis of a
vascular injury was investigated thoroughly on an Emergent basis once the
diagnosis of transverse myelitis was made and Mrs. Forde was admitted to
hospital.  Shortly after the AV fistula was identified, the matter was referred
to the vascular neurosurgeons in Vancouver for further assessment and advice.

[170]     Given this evidence, Dr. Faridi’s conduct after her admission to
hospital in October 2002 did not fall below the standard of care.  This claim
is dismissed.

(C) Conclusion

[171]     To summarize, the evidence falls short of proving that Dr. Faridi
breached his duty of care.  As Dr. Faridi did not breach his duty of care, the
Hospital did not breach its duty of care.  Therefore, the claims against both of
these Defendants are dismissed.

[172]     As far as the Hospital is concerned, quite apart from the position
of the parties that if Dr. Faridi was not liable that the Hospital was not
liable, the evidence did not prove that the Hospital had breached its duty of
care in any event.

[173]     Although Mrs. Forde led evidence that in the United States there are
testing systems that have clearer forms and more checks and balances than the testing
system utilized by the Hospital, the evidence fell short of proving that these
differences constituted a breach in the standard of care and, in particular,
that the Hospital’s systems and protocols fell below the standard of care
expected of a hospital in a similar locality under similar circumstances.  Rather,
this evidence went no further than to show that more complete systems exist
elsewhere than the system used by the Hospital.

[174]     If I am wrong in these conclusions and the Defendants were negligent
(that is that they did breach their respective duties of care), these claims
should nevertheless be dismissed because the evidence fell short of proving
that their negligence caused Mrs. Forde’s injuries.

[175]     As was set out earlier in this Judgment, to succeed with her claims Mrs. Forde
must not only prove that the Defendants were negligent but must also prove that
that negligence caused her injuries.

[176]     Causation may be proven in two ways – that but for the negligence of
a defendant the plaintiff’s injury would not have occurred or that a
defendant’s negligence materially contributed to a plaintiff’s injury: Athey
v. Leonati, [1996] 3 S.C.R. 458.

[177]     However, as was clarified by the Supreme Court of Canada in Resurfice
Corp. v. Hanke, [2007] 1 S.C.R. 333 at para. 22, the predominant test
for determining causation is the “but for” test.

[178]     The material contribution test is only to be used in special
circumstances – namely, in cases in which it is impossible for the plaintiff to
prove causation using the “but for” test and in which that impossibility is due
to factors outside the plaintiff’s control.  Also, there must be proof of
negligent conduct on the part of the defendant, which materially increased the
risk of injury, and proof that the injury did in fact occur: Resurfice
at paras. 24-25.

[179]     Applying these principles to the present case, Mrs. Forde must prove
either that but for the negligence of the Defendants she would not have
suffered her injuries or, alternatively, that this is a case in which the
material contribution test is appropriate and upon applying that test, the evidence
proves that the Defendants’ negligence materially contributed to her injuries.

[180]     There are two components to the successful treatment of an AV fistula
injury:  not only does the AV fistula have to be diagnosed in a timely manner,
but also the reparative vascular surgery has to be completed before the
abnormal blood flow results in tissue damage and, thereby, permanent injuries.

[181]     Given that Mrs. Forde began to suffer permanent injuries in
mid-September 2002, to avoid any injuries the reparative surgery would have to
have been done in early September 2002 and to avoid some of her injuries they
would have to have been well before the end of October.  (Mrs. Forde took the
position that her permanent injuries occurred prior to her admission to hospital
at the end of October 2002.)

[182]     Assuming that the Defendants were negligent because they did not
complete the necessary diagnostic testing within 2 weeks of the original requisition
order or, alternatively, because they did not complete the necessary diagnostic
testing within the timeframe scheduled for the second CT myelogram, the
reparative surgery would have to been completed within 2 months or
alternatively within 2 to 3 weeks respectively.

[183]     Although notified soon after the diagnosis of a possible AV fistula,
the vascular neurosurgeons did not do the reparative surgery on Mrs. Forde for
5 months – that is, until April 24, 2003.

[184]     The Defendants say that even if they breached their duties of care
by not completing Mrs. Forde’s diagnostic testing by the beginning of July or
by the third week in August, the evidence falls short of proving that the
necessary reparative surgery would have been done before her injuries happened.
That is, the Defendants submit, the evidence did not prove that even if the
diagnostic testing had been done earlier, the reparative surgery would have
been done sooner than 5 months after the diagnosis was made – specifically,
that it would have been done in early September thereby preventing any of her
injuries or before the end of October 2002 thereby preventing some of her
injuries.

[185]     Upon reviewing the evidence, I am not satisfied that the evidence
proves that, even if the testing and the diagnosis had been made earlier (even
as early as mid to late August), the reparative surgery would probably have
been done in time to prevent all or even some of her injuries.

[186]     Given these conclusions, assuming that the Defendants were negligent,
the evidence falls short of proving that but for their negligence Mrs. Forde
would not have been injured.

[187]     As far as the material contribution test is concerned, it is not applicable
to the circumstances of this case.  This is not a situation in which it is
impossible to prove negligence using the “but for” test.

[188]     In summary, even if I am wrong with respect to my finding that the
Defendants did not breach their duties of care, Mrs. Forde’s claims should nevertheless
be dismissed because the evidence fails to prove that that negligence caused
her injuries.

(VI)     DAMAGES

[189]     Although I have concluded that the liability claims against the
Defendants have not been proven, if I should be found to have been wrong in
that conclusion, the following are my findings with respect to damages.

[190]     Mrs. Forde’s damage claims were limited to claims for costs of
future care and for general damages.

[191]     As is true in all cases, the Defendants are only liable for the
losses arising from their negligence.  Therefore, the first damage issue to be
addressed is the extent of the injuries arising from that negligence.

(A) The Extent of Mrs. Forde’s Injuries Arising from the
Defendants’ Negligence

[192]     Under this heading, there are two matters to be addressed:  the
injuries that Mrs. Forde suffered as a result of the Defendants’ negligence and
the effect, if any, of those injuries on her life expectancy.

(1)      Mrs.
Forde’s Injuries Arising from the Defendants’ Negligence

[193]     Mrs. Forde’s present injuries include:  partial paralysis in both
her legs and her arms; ongoing tingling and numbness in both her arms and legs;
ongoing pain in all her limbs, including throbbing pain in her hands; ongoing
pain in her lower back; periodic migraine headaches; loss of bladder and bowel
control (and in particular, urinary incontinence); edema in her feet and
ankles; and depression.

[194]     The Defendants contend that the losses arising from their negligence
are modest.  Specifically, they argue that some of Mrs. Forde’s injuries are
pre-existing; that some post-date their negligence and are unrelated to it; that
most, if not all, of her AV fistula injuries would have arisen in any event;
and that the extent of some of her injuries is greater than it would otherwise be
because of her failure to mitigate.

[195]     There is no dispute that some of the numbness in her right hand and
forearm, some of her lower back pain, and her periodic migraine headaches were
symptoms that she had prior to the development of her AV fistula symptoms.

[196]     The Defendants contend that most, if not all, of Mrs. Forde’s symptoms
in her right arm and hand and in particular her loss of function should be
attributed to her earlier injury – the carpal tunnel syndrome.  I do not agree.

[197]     Although this pre-existing injury was severe enough to render her
unemployable, I am satisfied that she had recovered sufficiently from that
injury that she was able to function.  For example, for a period of time after
her carpal tunnel injury, she was unable to drive a vehicle or to prepare
meals.  However, prior to her AV fistula injuries, she regained sufficient
function in her hands and arms to drive a vehicle and to cook, although she
never regained sufficient function to perform clerical work.  The functional losses
that she claims in this action arise from her AV fistula injuries.

[198]     Furthermore, although some of the pain in her lower back existed prior
to the AV fistula injury, some of it was caused by nerve root impingement at or
near the site of her spondylolitheis.  This impingement was not the direct result
of the AV fistula injury, but I am satisfied that it would probably have been
surgically prevented or, at the very least, rectified but for the complications
presented by her AV fistula injury.  Dr. Faridi was looking into treating
the problems in her lower back surgically in the fall of 2002 but that
treatment was set aside when the AV fistula was identified.

[199]     For these reasons, I have included her lower back pain arising from
the nerve impingement as being an injury arising from the Defendants’
negligence.

[200]    
The evidence fell short of proving that the
edema Mrs. Forde developed in her ankles and feet resulted from the Defendants’
negligence.  The doctors appear to be at a loss as to its cause.  For instance,
Dr. Main, the internist to whom Mrs. Forde was referred, opined:

There is no
explanation for her severe bilateral pitting edema.  The differential includes
lower extremity venous thromboemboli, which seems very unlikely, versus occult
right ventricular failure. I also consider this to be unlikely. If these causes
are excluded, then she would have idiopathic peripheral edema.

[201]     The Defendants argue that, at the most, no more than 20% of Mrs.
Forde’s AV fistula injuries can be attributed to their negligence.  This
argument is essentially the same as the argument made with respect to liability
– that the reparative surgery would probably not have been done in time to
prevent Mrs. Forde from suffering the AV fistula injuries even if the diagnosis
and testing had been done earlier.

[202]     The damage portion of the Judgment is based on the premise that
liability has been proven.  In keeping with that assumption, I am proceeding on
the basis that causation was proven and that the reparative surgery would
probably have been completed before any injuries had occurred (namely before
the middle of September).  If I am wrong in that conclusion and a percentage of
her injuries would have occurred in any event, that percentage can be easily
applied to my findings.

[203]     There is no dispute that as a result of her AV fistula injuries Mrs.
Forde has suffered partial paralysis in both her legs and arms.  The Defendants
contend that the extent of this injury is greater than it otherwise would have
been because of Mrs. Forde’s failure to mitigate and, in particular, her
failure to follow the recommendations of her doctors regarding rehabilitative
exercises.

[204]     There is no dispute that “a plaintiff cannot recover from the
defendant damages which he himself could have avoided by taking reasonable
steps”: Janiak v. Ippolito, [1985] 1 S.C.R. 146 at para. 36.  A wronged
plaintiff is entitled to recover damages for the losses he has suffered, but
the extent of those losses may depend on whether he has taken reasonable steps
to avoid their unreasonable accumulation.  The Defendants, therefore, must
prove on the balance of probabilities that in all the circumstances Mrs. Forde
did not act reasonably to reduce her loss.

[205]     Some of Mrs. Forde’s symptoms have worsened since the surgery.  She
has lost strength and mobility in her legs; has lost strength and dexterity in
her arms and hands (particularly her right arm and hand); and has increased
pain in all of her limbs.  With respect to her mobility, although Mrs. Forde
does still use a walker for short periods, she is now wheelchair dependent,
being primarily dependent on her power wheelchair.

[206]     The evidence shows that Mrs. Forde did not follow the directions of
her treating physicians with respect to rehabilitative programs designed to
increase the strength and mobility in her legs and the strength and dexterity
in her right hand and arm.  Her lack of participation probably resulted in the
worsening of these symptoms.  However, I am not satisfied that her conduct may
be characterized as a failure to mitigate because I am satisfied that it, in
turn, arose as a result of the depression that she suffered as a result of the
AV fistula.

[207]     As was set out in the Consultation Report following Mrs. Forde’s
surgery in April 2003, the hope of her treating physicians was that through
comprehensive rehabilitative programs, she would regain some of the strength
and mobility in her legs (“the goal being increased mobility to a walker level
or possibly a cane”) and some of the strength and dexterity in her arms and
hands, particularly her right hand and arm.

[208]     Although programs both at GF Strong and at home in Salmon Arm were
devised to try to accomplish this end, Mrs. Forde has participated minimally,
if at all.

[209]     However, the evidence also proved that she has suffered depression as
a result of the Defendants’ negligence.  When she was at GF Strong, she was diagnosed
as having a depressed mood and there was a concern that her conduct, (specifically,
her refusal to participate in any meaningful way in rehabilitative programs),
was attributable to it.  Various other treatment providers also raised
depression as an explanation of her conduct.

[210]     The Defendants do not appear to dispute that Mrs. Forde suffers
depression as a result of her AV fistula injury.  It was one of the factors
that they included in the evidence upon which they relied to prove that she has
a reduced life expectancy.

[211]     For all of these reasons, I am satisfied that the evidence proves
that the probable reason Mrs. Forde did not follow the exercise rehabilitation
program recommended by her doctors was because of the depression caused by the
Defendants’ negligence.

[212]     Given these conclusions, I am also satisfied that the increased loss
of mobility and strength in her legs and the increased loss in dexterity and
strength in her right hand and arm does arise as a result of the Defendants’
negligence and not a failure on Mrs. Forde’s part to mitigate her damages.

[213]     With respect to the increased pain in all her limbs, the evidence
proves that it is neuropathic in nature and arises from her AV fistula.  Specifically,
Dr. Navratil, a rheumatologist, and Dr. Coghlan, a physiatrist, both confirmed
this diagnosis and excluded arthritis and joint problems respectively as the
cause of this ongoing pain.

[214]     Also, Dr. Falconer, the neurologist who examined Mrs. Forde,
confirmed that the increased pain in her right hand and arm arises solely from
her AV fistula injury and not from a reoccurrence of her carpal tunnel
syndrome.

[215]     Given this evidence, I am satisfied that Mrs. Forde’s ongoing
neuropathic pain, including the increases in her lower back pain, all arise as
a result of the Defendants’ negligence.

[216]     There is no dispute that Mrs. Forde’s loss of bladder and bowel control
arise as a result of the AV fistula and, therefore, the Defendants’ negligence.

[217]     To summarize, I am satisfied that Mrs. Forde has suffered the
following injuries as a result of the Defendants’ negligence:  partial
paralysis in both her legs and arms; ongoing tingling and numbness in both her
arms and legs; ongoing pain in her all of limbs, including throbbing pain in
her hands; ongoing pain in her lower back; loss of bladder and bowel control
(and, in particular, urinary incontinence); and depression.

[218]     With the possible exception of the depression (and that is
questionable), these injuries are permanent.

(2)      The
Effect, If Any, of Mrs. Forde’s AVF Injuries on Her Life Expectancy

[219]     Expert evidence was tendered that, as a result of her spinal cord
injury, Mrs. Forde’s life expectancy is likely less than it would
otherwise have been.  The explanation for this is that people with spinal cord
injuries are predisposed to lung infections, bladder and urinary tract
infections, and skin and soft tissue infections leading to septicemia.  The
degree to which life expectancy is shortened varies with the extent of the
injury.  Furthermore, obesity and depression can further reduce life
expectancy.

[220]     The evidence showed that given her present age and the extent of her
spinal injury (that is, partial rather than complete paralysis), the reduction
of Mrs. Forde’s life expectancy is likely in the range of 7.1 to 2.2 years less
than the general population – that is, she will likely live to the age of 76.8
to 81.6 years whereas the life expectancy of the general population is 83.8
years.  The range is based on the extent to which depression and obesity are
factors.

[221]     Given her height, the weight at which obesity would not be an
adverse factor for Mrs. Forde is 194 pounds or less.  The evidence showed that
Mrs. Forde probably weighs more than 194 pounds (although there was no evidence
of her exact weight).  The evidence did disclose that in the mid-1990s, when
she was disabled with carpal tunnel syndrome, her weight was between 230 to 245
pounds.  Although she attested that she did eventually lose some of that
weight, the evidence did not clarify whether that loss brought her weight below
194 pounds and, more significantly, whether it was currently less than 194 pounds.

[222]     Given the weight that Mrs. Forde has been in previous periods of
inactivity and the fact that she is not presently participating in exercise
programs in any meaningful way, I am satisfied that she probably weighs over
194 pounds and that she is therefore obese for the purposes of her life
expectancy calculation.

[223]     As set out in the previous section, I am satisfied that Mrs. Forde
suffers from depression as a result of her injuries.

[224]     Therefore, given the nature of her spinal cord injury, the fact that
she probably weighs over 194 pounds, and her depression, I am satisfied that
Mrs. Forde’s life expectancy is likely to be 76.8 years which is 7.1 years less
than the life expectancy of the general population.

(B) Claim for Future Cost of Care

[225]     In determining future costs of care awards, three elements must be
considered – entitlement to be compensated for the proposed cost, the duration
of the incursion of that cost, and the level of the care to be provided.

[226]     As far as entitlement is concerned, a plaintiff is entitled to be
compensated for all expenses arising from the injuries that are medically
justified and reasonably necessary to preserve their health: Milina v.
Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.), aff’d (1987), 49 B.C.L.R.
(2d) 99 (C.A.).

[227]     In determining whether an expense is medically justified, it is not
necessary to have it confirmed by a medical doctor: Frers v. De Moulin,
2002 BCSC 408.  For example, a paramedical specialist (i.e. a rehabilitation
consultant) may provide evidence of future care requirements where they possess
the “experience, skill and training” to provide expert evidence concerning the
specific care required to sustain or improve the mental or physical health of
the plaintiff: Jacobsen v. Nike Canada Ltd. (1996), 19 B.C.L.R.
(3d) 63 (S.C.).

[228]     In determining whether the incursion of a future cost is reasonable,
the Court must consider whether a reasonably-minded person of ample means would
be ready to incur the expense: Ediger v. Johnston, 2009 BCSC
386.  An aspect of this determination is the amount of the proposed expense
which, in turn, involves a consideration of the level of care to be provided.

[229]     With respect to the level of care, it “must be moderate, and fair to
both parties”: Andrews v. Grand & Toy Alberta Ltd., [1978] 2
S.C.R. 229.  However, moderation does not mean reducing a plaintiff to a
subsistence level: Dube v. Penlon Ltd. (1994), 21 C.C.L.T. (2d)
268 (Ont. Ct. Gen. Div.).  Rather, the Court must determine “what care is
likely to be in the injured person’s best interests”: Krangle v. Brisco,
2002 SCC 9.  As was set out in Mann v. MacCaig-Ross, [1998]
B.C.J. No. 592, a plaintiff’s preferences as to the type and level of care
should be considered.

[230]     The existence of government benefit schemes may also be a
consideration in determining whether it is reasonable to incur a particular
expense.  If a government benefit scheme is only available to plaintiffs who receive
no tort compensation, entitlement to compensation for that future care cost
should be made without any consideration of the benefits received from the
government program: Fullerton v. Delair, 2006 BCCA 339.  However,
if the government benefit scheme is available regardless of tort compensation,
the scheme must be taken into consideration when determining the award: Krangle.
A government benefit scheme, therefore, is a factor in determining the
plaintiff’s available level of care.

[231]     As far as duration is concerned, the Court must determine whether it
is a one-time expense, an expense for a given period of time (for example, the
next 10 years), a periodic expense (for example, every 5 years), and/or a
lifetime expense (that is, an expense that will be incurred for the rest of the
rest of the plaintiff’s life).  A lifetime expense, in turn, requires the Court
to consider the likely post-accident life expectancy of the plaintiff: Mitchell
v. We Care Health Services Inc., 2004 BCSC 902.

[232]     In making these determinations, the Court must consider all real and
substantially possible contingencies and make adjustments to the final award in
accordance with the likelihood of their occurrence: York v. Johnston
(1997), 37 B.C.L.R. (3d) 235 (C.A.).

[233]     Lastly, a flow of income to cover future costs of care will probably
be subject to income tax.  Therefore, the future cost award should be in an
amount that is sufficient to provide for these costs after the taxes have been
paid.

[234]     To facilitate the calculation of the present value of the future
cost expenses both parties tendered expert reports on the calculation of
present value.  The only difference between the reports was that the multiplier
used in the report tendered by Mrs. Forde was based on the life expectancy of
the general population whereas the multiplier in the report tendered by the
Defendants was based on a shortened life expectancy, arising as a result of her
injuries, her obesity, and her depression.

[235]     Because I concluded that Mrs. Forde’s life expectancy probably was
shortened because of these factors, I relied upon the multipliers set out in
the report tendered by the Defendants.

[236]     With respect to the specific future costs claims, all of the parties
tendered a qualified expert to give an opinion on them.  The proposed costs
included costs to be incurred for such items as accommodation, treatments,
services, equipment, and supplies.

[237]     There was little dispute as to Mrs. Forde’s needs.  Rather the
disputes pertained to the level of care needed and the duration.

[238]     With respect to proposed accommodation, the claims ranged from
purchasing a new home for Mrs. Forde, to renovations of her present home, to
arranging an apartment, and to moving into a residential care facility.

[239]     There is no dispute that Mrs. Forde’s present home is unsuitable and
that more suitable accommodation is medically justified and reasonably
necessary.  Mrs. Forde is presently living in a home that she has owned
for a number of years.  It is a double-wide mobile home in which there are different
levels.  As a consequence, there are parts of her home to which she no longer
has access.  It is questionable whether her home could be renovated to meet her
physical needs and, in any event, it would be very expensive.

[240]     The evidence showed that the better and more reasonable option is probably
for her to sell her present home and purchase another mobile home which suits
her physical needs or which can be easily renovated to meet her present needs –
that is, a mobile home that is all on one level and in which all areas are
wheelchair accessible.

[241]     To accomplish this end, Mrs. Forde is awarded $50,000 plus $500 in
moving costs.  The $50,000 is to cover the difference between the value of her
present home and that value of a mobile home with the features needed to meet her
needs.

[242]     Although there are both provincial and federal programs available to
assist with renovations, those programs are based on financial need.  Therefore
I have not considered them.  If I am wrong and they are not based on financial
need, I am still satisfied that the incursion of this cost is reasonable
because it will take some time before these programs could provide the
necessary assistance to Mrs. Forde given their long waiting lists.  The
evidence disclosed that it is medically important that Mrs. Forde reside in an accommodation
suited to her disabilities sooner rather than later.

[243]     The next proposed expense pertains to physiotherapy and occupational
therapy treatments.  There is no dispute that these are medically justified and
reasonably necessary.  Dr. Faridi however suggested that Mrs. Forde secure
these services from the provincial government and, in particular, from the
Interior Health Authority Community Centre (the “Authority”).  As became
apparent in the evidence, although the provision of these resources is not
based on financial need, the ability of the Authority to provide these services
has become limited because it is being required to service a larger area with
fewer staff.

[244]     Mrs. Forde requires these services sooner rather than later and she
requires them on a regular basis.  Consequently, it is reasonable to secure
these services privately.

[245]     I award Mrs. Forde $500 yearly for the services of a
physiotherapist.  With respect to an occupational therapist she is awarded a one-time
cost of $3,750 (inclusive of travel costs) and ongoing costs of $1,500 per year
for the rest of her life.

[246]     The parties also agree that Mrs. Forde would benefit from
psychological or psychiatric therapy to address her depression.  Mrs. Forde
submits that a private assessment at a cost of $800 should be incurred whereas
the Defendants submit that these services could be provided by a medical
referral.  As the evidence did not disclose any shortage of services that would
render the medical referral route inappropriate, I am satisfied that this is
the option that should be pursued.

[247]     There was no dispute that Mrs. Forde does require assistance with homemaking
and her personal care.  (Most, if not all, of this assistance is presently
being provided to Mrs. Forde by her youngest daughter.)  Included in the tasks
with which she needs assistance are heavier housework, some cooking and food
preparation, and her personal hygiene.  Although the Authority endeavours to
provide people with some of this type of assistance, the extent of the services
it provides has been reduced.  For example, at one time it could provide
assistance with food preparation but that service is no longer available.  Given
this situation and Mrs. Forde’s need for these services, I am satisfied that sufficient
funds should be provided to ensure that she can retain private services.  I am
further satisfied that a reasonable costs for these services is $12,000 per
year for personal care assistance and some of the homemaking assistance and
$700 per year for the heavier homemaking tasks.

[248]     As far as the duration of this assistance is concerned, Mrs. Forde
seeks this award until she is 65 years old.  At that age, she submits, her
entitlement to these expenses should end because she would probably require
assistance in these areas in any event even if she had not incurred her AV
fistula injuries.

[249]     The Defendants, on the other hand, contend that the assistance she
will require in these areas will reduce significantly after she moves into more
suitable accommodation; the evidence did not support that contention.  Rather,
the evidence proved that her need for this assistance will only lessen slightly,
if at all.

[250]     Upon considering the evidence I am satisfied that she should be
granted the present value of the necessary funds to finance these expenses
until she is 65 years old.

[251]     Mrs. Forde submits that the expense associated with having a vehicle
that has been appropriately modified so that she can drive should be allowed as
a future cost of care expense.  I agree.

[252]     The medical evidence disclosed that keeping Mrs. Forde as
independent as possible was beneficial to both her physical and her mental
health.  Having her own means of transport is in keeping with that objective.

[253]     As far as the cost of this expense is concerned, Mrs. Forde submits
that she should be awarded $65,000 (which is the cost of a new adapted vehicle)
and sufficient funds to replace that vehicle every 8 to 10 years.  The
Defendants, on the other hand, contend that this cost should be $1,000 which is
the amount required to equip her present vehicle with hand controls.

[254]     Given that Mrs. Forde presently has a vehicle and given that it
could be adapted to meet her present needs at a cost of $1,000, I have
concluded that the award should be made in that amount.  There will also be an
amount awarded to provide for the replacement of this equipment every 4 years.  The
duration of this expense is her lifetime.

[255]     A few years after her AV fistula injuries, Mrs. Forde’s family
doctor concluded that from a physical point of view she was not capable of
driving, but this position was not based on her driving an appropriately
modified vehicle.  All of the parties agreed that if Mrs. Forde has an
appropriately modified vehicle, driving lessons are medically justified and reasonably
necessary.

[256]     Both Mrs. Forde and Dr. Faridi estimated the cost of these
lessons to be $2,500 while the Hospital estimated them to be $1,811.  As the
reason for the Hospital’s lower rate estimate was never explained, I have
concluded that the more reliable cost is $2,500 and the award will be made in
that amount.

[257]     There was no dispute that as far as equipment is concerned, Mrs. Forde
will require a manual wheelchair, a power wheelchair (and battery supplies), a
hospital bed, and miscellaneous equipment.  I am satisfied that a reasonable
cost to be incurred for these expenses is a one-time expense of $3,000 with
repair and maintenance cost of $500 per year for the manual wheelchair, $4,000
with a replacement cost every 7 years and $400 per year for the battery and
maintenance for the power wheelchair, and $2,000 for the hospital bed.  The
duration of these expenses is Mrs. Forde’s lifetime.

[258]     Further, there was no dispute that there were miscellaneous
equipment costs and expenditures that she would incur which include costs for a
bedside commode; homemaking and cooking aides; bath transfer bench; and
incontinence supplies.  A reasonable cost to be incurred for these expenses is
$1,000 per year with a replacement every 5 years.  The duration of this expense
is her lifetime.

[259]     Lastly, Mrs. Forde sought an award to cover her prescription
medication.  I am satisfied that the reasonable cost to be incurred for this
expense is $1,950 per year.  The duration of this expense is her lifetime.

[260]     The present value of these services and equipment before any
consideration of contingencies other than reduced life expectancy is about $340,000.

[261]     As far as a consideration of income tax is concerned, I am satisfied
that there should be an increase in the award of 30% to address that
anticipated expense.

[262]     The cost of future care award is made in the amount of $442,000.

(C) Claim for General Damages

[263]     In keeping with their respective positions on the extent of the
injuries suffered by Mrs. Forde as a result of the Defendants’ negligence, Mrs.
Forde contends that an award at the upper limit of non-pecuniary damages (that
is, in the range of $305,000 to $375,000) is appropriate while the Defendants
contend that an award in the range of $50,000 to $75,000 is appropriate.

[264]     Given my assumption that all of Mrs. Forde’s AV fistula injuries are
to be attributed to the Defendants’ negligence, the question to be addressed
with respect to the general damage award is whether those injuries fall within
the category of those that call for the upper limit award.

[265]     The general rule is that plaintiffs who have suffered a catastrophic
(that is, a severe or devastating injury) are entitled to an upper limit award:
 Andrews and Lindal v. Lindal, [1981] 2 S.C.R. 629.

[266]     As was summarized by this Court in Izony v. Weidlich,
2006 BCSC 1315 at para. 45:

In Lindal,
the Court expressly confirmed that the upper limit derives primarily from
policy considerations and does not bear a direct relationship to the nature or
severity of the injuries, once they reach the “catastrophic” threshold. The
upper limit thus applies equally to a plaintiff with serious brain injury but
little physical impairment, and to a plaintiff rendered quadriplegic with no
cognitive impairment. The Court also emphasized that non-pecuniary damages be
assessed on the understanding that any ascertained or ascertainable pecuniary
loss will be compensated under the appropriate heads of pecuniary damages.

[267]     Once the plaintiff’s injuries are found to be “severe” or “devastating”,
it is not open to the Court to give less than the upper limit merely because
those injuries are different from or less severe than those in the trilogy
cases: Blackstock v. Patterson Estate (1982), 35 B.C.L.R. 231 at
para. 10 (C.A.).  In other words, “[t]he British Columbia Court of Appeal has
made it clear that the upper limit of non-pecuniary damages is appropriate in
any case in which the plaintiff has sustained ‘devastating’ injuries.  There is
no basis for drawing fine distinctions between different types of severe
injuries”: Cojocaru v. British Columbia Women’s Hospital, 2009
BCSC 494 at para. 256.

[268]     Ken Cooper-Stephenson in Personal Injury Damages in Canada,
2nd ed. (Toronto: Thomson Canada Ltd., 1996) states that plaintiffs who are
“severely” injured are prima facie entitled to the upper limit of
non-pecuniary damages, subject to “exceptional circumstances” justifying a higher
or lower award (at 508).

[269]     A review of the case law reveals that the Courts have granted upper
limit awards for the following injuries:

(1)      quadriplegia: Andrews and Thornton v.
Prince George School District No. 57, [1978] 2 S.C.R. 267;

(2)      serious brain injuries: Macdonald v. Neufeld
(1994), 85 B.C.L.R. (2d) 129, Lindal, Arnold v. Teno,
[1978] 2 S.C.R. 287, and Coutler v. Leduc, 2005 BCCA 199; and

(3)      multiple injuries: Blackstock and Fenn
v. Peterborough (City) (1979), 25 O.R. (2d) 399.

[270]     Courts, however, have been reluctant to award the upper limit in
cases of incomplete quadriplegia. Grewal v. Brar, 2004 BCSC 1157,
was the only decision I could find in which the Court awarded the upper limit
of non-pecuniary damages to a plaintiff with incomplete quadriplegia and, in that
case, the plaintiff also suffered a traumatic brain injury and a sexual
function disorder.

[271]     Generally the greater the consequences of the injury, the greater
the need for damages and therefore the higher the award:  Cooper-Stephenson, supra
at 514.  As was clarified by the Supreme Court of Canada, the purpose of
non-pecuniary damages is not compensatory but, rather, is to provide a
substitute for lost amenities in an effort to improve the plaintiff’s condition
and to make the plaintiff’s life more bearable: Lindal at 637 and
Lee v. Dawson, 2006 BCCA 159 at para. 76.

[272]     Some of the consequences of an injury that the Courts have found
support the granting of a higher award include:

(1)      if the plaintiff is in substantial pain: Bunce v.
Flick (1991), 93 Sask. R. 53 (C.A.) and Grewal at 133;

(2)      if the plaintiff has experienced a significant loss of enjoyment
or, in other words, the “whole life style and future” has been adversely
affected: Godin v. Bourque (1980), 32 N.B.R. (2d) 45 at 60
(C.A.), Andrews, and Grewal at para. 133;

(3)      if the loss is more than that of the ordinary plaintiff who
has “other abilities and capacities to fall back upon”: Moody v. Windsor
(1992), 64 B.C.L.R. (2d) 83 (S.C.);

(4)      if the duration of the distress will be long because the
injury is likely to affect the plaintiff throughout his or her lifetime and his
or her life expectancy is likely to be long (this, of course, is also relevant
to the cost of future care and loss of earning capacity): Bunce,
Wallace v. Taylor Estate, [1990] B.C.J. No. 2825 (S.C.), rev’d on
other grounds (1992) 73 B.C.L.R. (2d) 296; and Cojocaru; and

(5)      if the plaintiff appreciates the loss he or she has
suffered as opposed to if, for example, the plaintiff was permanently comatose:
 Izony at para. 47 and Cooper-Stephenson at 516-17 and, in
particular, if the plaintiff suffers from humiliation, depression and/or anger
issues because of the injury: Grewal, at para. 133 and Cojocaru,
at para. 255.

[273]     Applying these principles to the circumstances of this case, I am
satisfied that although Mrs. Forde’s injuries are serious, they do not fall
within the ambit of the severity of injury calling for a general damage award
in the upper limits.

[274]     However, based on the authorities presented, I am satisfied that her
injuries are sufficiently serious that an award in the higher end of the non-upper
limit awards is appropriate.  Mrs. Forde is awarded $280,000 in general
damages.

[275]     In determining the quantum of this award, the factors to be
considered include:  the age of the plaintiff; the nature of the injury; the
severity and duration of the pain; the disability; the emotional suffering; the
loss or impairment of life; impairment of family, marital, and social
relationships; impairment of physical and mental abilities; and the loss of
lifestyle: Stapley v. Hejslet, 2006 BCCA 34 at para. 46,
leave to appeal ref’d [2006] S.C.C.A. No. 100.

[276]     As a result of the Defendants’ negligence, Mrs. Forde suffers
permanent injuries that leave her partially paralyzed in all of her limbs and in
ongoing pain.  She was 46 years old when these injuries occurred.  Her life
span has been shortened.

[277]     As became apparent during these proceedings, being independent is
important to Mrs. Forde.  Although her independence had been somewhat
compromised before her AV fistula injuries as a result of her carpal tunnel
syndrome, the AV fistula injuries have compromised her independence even more.  As
she attested in her evidence, she can no longer do activities that she could do
before, such as carpentry and woodworking.

[278]     In addition to her loss of independence, these injuries have exposed
her to humiliating circumstances.  For example, her urinary incontinence often
leaves her smelling of urine.  Further, episodes of incontinence have occurred (and
will in the future occur) at awkward moments.  For example, she became
incontinent during the course of one her medical examinations.  Although the
doctor described her as accepting it with grace, it was nevertheless
humiliating for her.

[279]     To summarize, the Defendants’ negligence has resulted in Mrs. Forde
suffering serious injuries which have reduced and will continue to reduce her
quality of life significantly.  For all of the reasons set out above, I am
satisfied that Mrs. Forde should be awarded $280,000 in general damages.

(VII)    COSTS

[280]     Costs were not addressed during this trial.

[281]     In the event that either party wishes to apply for an order for
costs, I am not seized of the matter.  Rather, that application may be heard by
any judge on this Court.

(VIII)   CONCLUSION

[282]     This is a sad case.  Mrs. Forde has suffered serious permanent
injuries.

[283]     However, although I have addressed damages in the event that my
conclusions on liability are wrong, for the reasons set out in this Judgment,
the responsibility for her injuries does not rest with the Defendants.  They
were not negligent.

[284]     Rather, the evidence showed that Mrs. Forde is the tragic victim of
a very uncommon injury with a very rare presentation.

“SINCLAIR PROWSE J.”