IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140610

Docket: S133199

Registry:
New Westminster

Between:

Tony Werner

Plaintiff

And

Fraser Health
Authority

operating a public
hospital under the name

Chilliwack General
Hospital

Defendants

Before:
The Honourable Mr. Justice Bernard

Reasons for Judgment

A.       Overview

[1]            
On February 18, 2009, Tony Werner attended Chilliwack General Hospital
(CGH) for a CT scan of his abdomen. This procedure required the intravenous
introduction of a contrast dye; thus, a heparin lock (“hep-lock”) was inserted
into a vein in Mr. Werner’s arm, by a CT technician, in preparation for
the scan.

[2]            
After the insertion of the hep-lock, Mr. Werner returned to his
changing cubicle to await the scan. As he sat he reviewed a laminated copy of a
patient consent form he had signed just prior to the hep-lock insertion. This
form described possible complications from dye injection, and included the
following words:

Rarely, more severe life-threatening reactions can occur,
including a drop in blood pressure, irregularities of the heartbeat and cardiac
arrest, which may lead to death.

[3]            
Shortly after reading these words Mr. Werner rose to his feet and
lost consciousness. He fell headlong through the curtain of the changing
cubicle to the hospital floor. Nothing broke his fall and he suffered a
lacerated chin, a broken jaw, and extensive damage to his teeth.

[4]            
Mr. Werner seeks compensation for his injuries, which he claims
were due to the negligence of CGH. More specifically, he says that the CGH CT
technician, Yvonne Snow, failed to meet the standard of care of a CT technician
when she failed to address his anxiety and left him unattended after inserting
the hep-lock. He seeks awards of $60,000 for non-pecuniary losses; $72,200 for
costs of future care (dental implants); and $3,047 for special damages.

[5]            
The defendant’s liability and the quantum of damages were both
contentious issues at trial. In relation to liability, the defendant’s position
is that Mr. Werner has failed to establish: (a) that the standard of care
was not met; or, (b) that there is a sufficient causal connection between Mr. Werner’s
fall and the alleged breach of the care standard. In relation to damages, the
principal head of damage in contention was the costs of future care. A duty of
care is conceded.

B.       Liability

(i)       Evidentiary synopsis

[6]            
Tony Werner is a 50-year old dairy farmer. In 2008 he saw his family
physician, Dr. Bright, about discomfort in his lower abdomen. Mr. Werner’s
family health history was on his mind. His mother had colon cancer and when Mr. Werner
was fourteen his father died of pancreatic cancer. Mr. Werner was referred
to a specialist who recommended that he have a colonoscopy; however, Mr. Werner
did not like the idea of having either the procedure or the anaesthetic. A CT
scan was then discussed as an alternative, and agreed upon.

[7]            
Dr. Bright referred Mr. Werner to CGH for the scan. He
completed the necessary requisition form requesting a CT scan of the abdomen,
and under the section with the heading “IF PATIENT IS HAVING INTRAVENOUS
CONTRAST PROCEDURE, PLEASE COMPLETE” he indicated that Mr. Werner was not
allergic to contrast dye.

[8]            
Mr. Werner’s scan was scheduled as a “CT Abdomen Double”, for
February 18, 2009. “Double” indicated a scan “without and with” contrast dye.
In preparation for the CT scan Mr. Werner took a barium solution, as
directed, the evening before his appointment.

[9]            
At CGH reception on the morning of the scan, Mr. Werner was given a
questionnaire to complete. In filling out the form he put a question mark next
to a question about previous reactions to contrast dye solution because he did
not know what contrast dye was. Mr. Werner testified that he was also
given a patient consent form at this time, which he glanced at, signed, and
returned to the receptionist before being escorted to a changing cubicle where
he undressed, donned a hospital gown, and waited.

[10]        
Mr. Werner recalls being greeted by Yvonne Snow, the CT technician.
He said she had intravenous equipment (hoses, needles, and tubes attached to a
column) with her, and this caused him concern.  Mr. Werner testified that
he repeatedly questioned Ms. Snow about the need for contrast dye and that
this question was not satisfactorily addressed.  He testified that the
following exchange then occurred:

TW: Is this for me?

YS:  Yes.

TW: Why would I need it?

YS:  It is for the procedure.

[11]        
Mr. Werner said Ms. Snow began prepping him as he sat in a
chair between the cubicles. He said “before I knew it, the intravenous line was
in”. He said as Ms. Snow prepped his arm he asked why he would need
anything other than the barium solution he had taken, to which she simply replied
that it was part of the procedure.

[12]        
Mr. Werner said he did not ask Ms. Snow to stop because he was
in a hospital and he assumed that he was safe; although, he added that he was
“more shocked than anything” and got no answer to his question other than that
it was part of the procedure. He believed he would have had a wide-eyed look
and a raised voice in this brief encounter with Ms. Snow.

[13]        
Mr. Werner testified to feeling anxious, but not dizzy or
light-headed, after the hep-lock was inserted. He said he stood up from the
chair to return to the cubicle. He testified that Ms. Snow gave him a
laminated card at this time and asked him to read it. He said the part about
“death” on the card caused him to re-read it and look at the back of it. The
next thing he said he recalls is waking up on the floor and spitting up teeth.
His assumption is that he got up to leave and then fell flat on his face. He
said there were no warning signs that he was going to faint.

[14]        
In cross-examination, Mr. Werner agreed that he had a morphine
injection in October 2008, a blood test in November 2008, and that he had no
difficulty with the insertion of a needle for these purposes. He also agreed
that he had no history of fainting or negative reactions to needles and thus,
no reason to advise anyone of such.

[15]        
Mr. Werner agreed that he signed the consent form entitled “consent
to imaging procedures which require the injection of contrast media”. In
response to being asked whether he read the form, he said, “I don’t recall
seeing these words, but I signed it – it was a standard consent form. I believe
I signed it before I went into the cubicle.”

[16]        
Mr. Werner said he did not recall Ms. Snow: (a) reviewing the
questionnaire with him and asking about the question mark he wrote; (b)
reviewing the consent form with him; or, (c) asking if he was “okay” to go
ahead with the procedure in the consent form.

[17]        
Mr. Werner said that he indicated to Ms. Snow that he did not
want the intravenous injection by asking her, “[w]hy do I need this?” He
testified that he was anxious at the time and that this anxiety must have been
evident in his face.

[18]        
Mr. Werner agreed that he did not call for assistance when he
became alarmed by the reference to death in the laminated form. He said he had
no reason to do so. He also said that he left the curtain open as he sat in the
cubicle after the hep-lock; however, he was unaware that Ms. Snow and
other patients were nearby.

[19]        
Yvonne Snow testified twice: first as an adverse witness for the
plaintiff, and then as a witness for the defendant.

[20]        
 Ms. Snow has been a duly qualified and certified CT technologist
at CGH for 24 years. In the course of her regular work-day she prepares
approximately 15 patients for CT scans.

[21]        
Ms. Snow recalls Mr. Werner as one of her patients on February
18, 2009. After he fainted she made some personal notes of her dealings with
him, at the suggestion of her supervisor. She kept these notes in her work
locker and refreshed her memory from them prior to testifying.

[22]        
Ms. Snow described the standard procedure for patients who require
contrast dye for a CT scan as follows:

(a)        all patients report to the medical imaging clerk
at reception;

(b)        the
clerk registers patients and gives them a questionnaire to complete;

(c)        after
the questionnaire is completed and returned to the clerk, patients are given a
laminated copy of a two-sided consent form to read while waiting in the
changing cubicle;

(d)        patients
are escorted by the clerk to the changing cubicle where they change into a
hospital gown;

(e)        when
the CT technologist is ready for the next patient, the documents relating to
the patient are reviewed by the technologist. These documents are: the general
requisition, the doctor’s requisition, lab work results, the questionnaire, and
a priority sheet;

(f)         the
technologist obtains a blank consent form, crosses out the inapplicable
sections and draws arrows where signatures are required;

(g)        the
technologist goes to the cubicle area and calls the name of the patient;

(h)        when
the technologist and the patient meet, the technologist reviews the
questionnaire with the patient. Where the patient has indicated “yes” or placed
a “question mark” the technologist discusses this with the patient before
obtaining his or her signature on the consent form;

(i)         patients
are asked if they have read the consent form and whether they are willing to
proceed with the scan;

(j)         if
the patient says “yes” then the technologist obtains and witnesses the
patient’s signature on the consent form and then asks the patient to lie down
on the stretcher for insertion of the hep-lock;

(k)        patients
who say “no” are directed to re-read the form and asked if they would like to
consult with their doctor;

(l)         in
some instances, the technologist checks with the radiologist to see if the scan
can be performed without the dye. If dye is required then the hep-lock is not
inserted until the patient has signed the consent form;

(m)       to
insert the hep-lock a tourniquet is used to find a vein, a needle is inserted,
there is a check for backflow, the hep-lock is inserted, a saline solution is
injected to ensure it is in the vein rather than tissue, and the tourniquet is
removed;

(n)        throughout
this process the technologist assesses the patient’s anxiety level. If the
patient shows signs of anxiety then the technologist inquires whether they wish
to proceed;

(o)        after
the hep-lock insertion, if another patient is waiting then the patient is asked
to return to the cubicle or take a seat in a chair to wait for the scan;

(p)        before
patients stand they sit on the edge of the stretcher and the technologist
ensures they are not light-headed before they move to a chair or a cubicle;

(q)        after
patients move to a chair or cubicle they are not monitored by the technologist.
The wait for the scan is typically approximately ten minutes; and,

(r)        contrast dye is not injected until just prior to
the scan.

[23]        
Ms. Snow said she recalled her interaction with Mr. Werner.
Although she could not recall the exact words of any conversation, she said
that she has no reason to believe that she departed from her usual practice
with patients who require contrast dye. Ms. Snow said she recalled that Mr. Werner
was sitting on the stretcher when she obtained his signature on the consent
form. She said she asked him if he had read the form and if he understood the
risks. She said she recalled reviewing the questionnaire with Mr. Werner
and asking him about the question mark he wrote. Although she cannot recall the
precise words spoken, she said that Mr. Werner did not express any
concerns about the IV process. She testified that she has no recollection of
him asking repeatedly, or at all, why he needed an IV or a second contrast
solution. In this regard she said there would be no need for him to ask more
than once because she would have answered his question the first time, had it
been posed. She said she would have explained that the oral solution (barium)
is to show the bowels and the intravenous contrast dye is to show the spleen
and liver.

[24]        
Ms. Snow testified that Mr. Werner neither expressed nor
showed anxiety or fear in her time with him. She said there was no resistance
by him to the process; that if there were she would not have continued. She
recalled that Mr. Werner was quiet throughout and added that quiet
patients are not unusual and mere quiescence is, therefore, not a reason for
concern. She recalled that Mr. Werner responded appropriately. She
recalled that after she sat him up on the stretcher she said, “[i]f you are
feeling okay to move, then we’ll sit you in a chair or in the cubicle.” She said
he got up and she observed him return to the changing cubicle. She noted that
he was not unsteady on his feet and said he expressed no concerns at this time.

[25]        
Ms. Snow said the next thing she heard from Mr. Werner was the
sound of his body hitting the floor. At this time she had just finished
inserting the hep-lock in the next patient. She was approximately seven feet
away from Mr. Werner’s cubicle during this process and a period of 5-10
minutes had elapsed since Mr. Werner had returned to the cubicle to wait
for the scan.

[26]        
Ms. Snow said she has inserted thousands of hep-locks and has never
had a patient other than Mr. Werner faint following either the insertion
or the discussion of the risks of injecting contrast dye.

[27]        
In cross-examination, it was suggested that Mr. Werner was seated
in a chair for the insertion of the hep-lock. Ms. Snow’s response was that
she “definitely” did not insert the hep-lock while Mr. Werner was seated
in a chair. She said this process is never done in a chair. In response to the
suggestion that Mr. Werner repeatedly asked her why he needed a second
contrast material, she said: “I don’t think it was me that he asked. I’ve run
this over in my mind many times. I would never brush Mr. Werner’s concerns
aside. If he asked me one time I would have answered. There would be no need to
ask me four times.” Ms. Snow agreed that if a patient asks the same
question repeatedly then this might suggest anxiety, but she said Mr. Werner
was simply a quiet patient.

[28]        
In relation to the laminated form Mr. Werner said he read as he
waited for the scan, Ms. Snow said this form may have been left in the
cubicle while she inserted the hep-lock. She could not specifically recall
taking it from Mr. Werner when she first met him. She was certain,
however, that she did not give him the laminated form to take with him when he
returned to the cubicle after the hep-lock had been inserted.

[29]        
Ms. Snow described the changing cubicle as approximately four feet
wide by four feet deep with one curtained wall, a wooden bench, and an
emergency pull-cord.

[30]        
Jolene Andreas is a medical imaging clerk at CGH. She books appointments
and registers patients for contrast and non-contrast CT scans. She said all
patients having a contrast scan have “blood work” done. She said she gives
these patients a questionnaire to complete and then places it into a box for
the CT technologist to pick up. She said she also gives these patients a
laminated copy of the consent form to read while they wait in the changing
cubicle. Ms Andreas testified that after she has escorted a patient to the
cubicle her role with the patient ends.

[31]        
Ms. Andreas said the patient reception area is “around the corner”
from the scan area. She testified that in the 5.5 years she has worked as a
medical imaging clerk she has never seen a patient fall or have an adverse
reaction in the course of the registration process.

[32]        
Brenda Chutter is the Patient Services Coordinator at UBC Hospital.
Among her duties she trains and supervises personnel who insert hep-locks for
CT scans as part of their duties. Ms. Chutter was qualified by the Court
as an expert in the insertion of hep-locks for CT scans, and permitted to give
opinion evidence in relation to the standard of care for “the process of
intravenous initiation for CT scan patients”. Ms. Chutter prepared an
expert’s report which was entered as a trial exhibit.

[33]        
In Ms. Chutter’s report she described, in detail, the “normal
procedure for IV insertion prior to a CT scan at UBC Hospital”. She also
considered a factual scenario consistent with the testimony of Ms. Snow in
relation to Mr. Werner on February 18, 2009, and opined that Ms. Snow
met the standard of care of a CT technologist practising in the Vancouver
Coastal Area, in that scenario.

[34]        
The “normal procedure”, described by Ms. Chutter is as follows:

(a)        Patient
is identified by name and birth date against requisition. Requisition is
reviewed to confirm type of scan requested. Blood work is reviewed to ensure
within normal limits, and if abnormal, proper precautions have been followed
prior to proceeding with the intravenous insertion. For example; any necessary
pre-medications to be given.

(b)        Patient
is brought into the anti-room to lay on the stretcher for the IV insertion.
(Occasionally IV’s are started when the patient is sitting in a chair or
wheelchair.)

(c)        Patient
is assessed for anxiety, past IV experience etc.

(d)        Nurse/Technologist
washes own hands, gloves applied

(e)        Tourniquet
applied to appropriate arm, and veins are assessed

(f)         Skin
over vein puncture site is cleansed with alcohol swab

(g)        Supplies
are readied giving time for the alcohol to evaporate from the skin

(h)        Venipuncture
is performed.

(i)         Sterile
dressing applied

(j)         Saline
line attached and catheter flushed to ensure patency and that catheter is
intraluminal. Ensuring the catheter has not gone interstitial.

(k)        Patient
is assessed re response to IV puncture ie: skin color changes (pale), facial
expression, skin temp changes (cool), diaphoresis, decreased level of
consciousness etc (all potential signs of a vasovagal reaction)

(l)         patient
is asked to sit up at the edge of the bed

(m)       patient
is again assessed for any potential signs of a vasovagal reaction

(n)        patient
is asked if they are feeling ok, before requesting them to stand

(o)        documentation
of insertion completed on requisition and/or chart

(p)        if
there are no contraindications, patient is accompanied and walked to the
waiting area to sit and await their scan, or brought directly into the CT
scanning room. A camera is positioned to observe patients in the hall when the
CT technologists are in the control room (where the camera monitor is located).
Observation of the monitor is done by the technologists on an ad hoc basis.

[35]        
To this procedure she added the following:

In consultation with my cohorts at Vancouver General
Hospital, Richmond Health Sciences and Lions Gate Hospital, their practice of
IV insertion is the same with the following exception. These sites do not have
cubicles directly outside of the CT scan area. Instead, the patients awaiting
their scans sit on chairs in the hall or in the waiting room area, outside the
CT scan room. A camera is positioned in the hallway to observe the waiting
patients, and the monitor for the camera is observed by the technologists on an
ad hoc basis.

[36]        
In relation to a patient fainting, Ms. Chutter wrote:

Fainting would normally occur at the time of the IV insertion
or shortly thereafter. In my experience signs and symptoms of a vasovagal
response would occur within seconds and may become worse when the patient
attempts to ambulate. A patient would normally pass the risk of fainting within
three minutes. In my experience, I have never seen a patient faint after ten
minutes of an IV start.

The usual signs or symptoms that a patient would exhibit
prior to fainting would include: skin pallor, c/o feeling dizzy, lightheaded,
nauseated, cool and clammy skin, [and] decreased pulse rate.

[37]        
In her testimony, Ms. Chutter added that the normal trigger for
fainting is a noxious stimulus, such as the insertion of a needle. She also
said:

(a)        that a
chair (vs. stretcher) is used only when a patient cannot tolerate lying down;

(b)        that
mere silence or anxiety without any accompanying physical signs would not be cause
for concern because most patients do not like needles; and,

(c)        that
she would have no concern that a patient was sitting unobserved for a period of
time after the insertion of a hep-lock if there were no signs of a vasovagal
response.

[38]        
In cross-examination, Ms. Chutter said she was not aware of a
“known standard for testing the anxiety of patients”. She agreed that a
patient’s questions should be fully answered and that a patient has the right
to terminate the process if they are not comfortable with the answers. She agreed
that if a patient is showing signs of anxiety then one would want to keep them
in view; however, she added that IV insertion is a routine procedure and that
supervision throughout the CT scan process would be very expensive to the
health care system. She could not agree that fainting is a foreseeable
consequence of the process.

(ii)      Discussion

[39]        
The plaintiff’s case rests principally upon Mr. Werner’s testimony
that he repeatedly questioned Ms. Snow about the need for contrast dye and
that this question was not satisfactorily addressed. His position is that from
this questioning Ms. Snow ought to: (a) have recognized that Mr. Werner
was anxious; (b) given him a satisfactory answer; (c) stopped the process; (d)
invited him to consult with his physician; and, (e) kept him under supervision
after the hep-lock insertion. The plaintiff argues that by these failures, Ms. Snow
fell below the requisite standard of care of a CT technologist. In the result, Mr. Werner’s
anxiety remained unaddressed, causing him to faint and injure himself.

[40]        
The requisite standard of care is not a matter of controversy in this
case. It is established by the evidence of Ms. Chutter and Ms. Snow,
both of whom essentially agree that a CT technologist is expected to monitor
and address anxiety in patients, and that repeated questioning by a patient is
a sign that the patient may be anxious.

[41]        
At this juncture, it is noteworthy that Mr. Werner’s evidence of
signs of anxiety is realistically limited to his repetitious questioning of the
need for contrast dye. Mr. Werner did not suggest that he explicitly
expressed his anxiety at any time, or that he exhibited any of the vasovagal
reaction signs described by Ms. Chutter. He did not say he experienced any
difficulties in walking to the cubicle after the hep-lock insertion or that he
had any warning signs that he might faint. Finally, while Mr. Werner said
he believed that he would have had a “wide-eyed” look when he was questioning Ms. Snow,
it is evident that this was merely an assumption on his part.

[42]        
Ms. Snow testified that the questioning of her, as alleged by Mr. Werner,
did not occur. She described him as a quiet patient who showed no signs of
anxiety. Notably, her testimony of the procedure she followed with Mr. Werner
also differed, in various material aspects, from that described by Mr. Werner.

[43]        
There is no independent evidence directly supporting Mr. Werner or Ms. Snow
in relation to the questioning; accordingly, the reliability of the testimony
of these competing witnesses has been placed squarely in issue.

[44]        
Mr. Werner argues that support for his version of events may be
found in the unchallenged evidence of Mr. Werner’s worries about his
health, and his active involvement in the choice of the diagnostic processes;
in particular, his preference for a CT scan rather than a colonoscopy. The
plaintiff says, in essence, that the evidence shows that Mr. Werner was
the sort of man who would have questioned the need for contrast dye.

[45]        
Ms. Snow’s version of events finds some support in the evidence of
the standard procedure for CT scans, as described by Ms. Snow and
corroborated in material aspects by Ms. Andreas and Ms. Chutter. For
example, contrary to Mr. Werner’s recollection that he signed the patient
consent form at reception, Ms. Andreas testified that she does not handle
consent forms at reception; moreover, it is evident from the consent form
signed by Mr. Werner that it was Ms. Snow – not Ms. Andreas – who
witnessed Mr. Werner’s signature. Ms. Andreas testified that it is
one of her duties to give contrast dye patients a laminated copy of a consent
form (to read in the changing cubicle) that they will later be asked to sign.
It is evident that Mr. Werner was given this laminated form by Ms. Andreas;
on his own testimony, this was the document he was reading in the cubicle just
prior to fainting.

[46]        
Mr. Werner testified that when he was greeted by Ms. Snow she
had IV equipment with her and that she inserted the hep-lock as he sat in a
chair just outside the cubicle. Ms. Snow was adamant that this
recollection of Mr. Werner is faulty. She testified the hep-lock was
inserted as Mr. Werner reclined on a nearby stretcher, and that the IV
equipment was on a trolley located next to the stretcher. Ms. Snow
identified the stretcher in photographs. Aside from Ms. Snow’s standard
practice of using the stretcher, she claimed to have a specific recollection of
using the stretcher for Mr. Werner. This recollection included him sitting
on the stretcher’s edge and watching him walk from the stretcher to the cubicle
after the hep-lock insertion. Notably, Ms. Chutter testified to a standard
practice in which it is only a patient who cannot tolerate reclining who is
seated for the insertion of a hep-lock, and there is no evidence or suggestion
that Mr. Werner was such a patient.

[47]        
Mr. Werner’s description of the hep-lock insertion is surprisingly
short on detail. He explains this by saying, in essence, that it all happened
very quickly; yet, it is evident that there are several steps to the procedure
and that it is not completed within a few seconds. In Mr. Werner’s version
of events, his time with Ms. Snow was surprisingly short. In his memory, Ms. Snow
appeared at the cubicle with the IV equipment, sat him in a chair immediately
outside the cubicle, inserted the hep-lock “before he knew it”, and then he
immediately returned to the cubicle – a move that would seem to have been
unnecessary if he had been sitting in a chair where he could wait for the scan.
Significantly, it is within this very brief encounter that he claims to have
repeatedly questioned Ms. Snow about the need for contrast dye, and it is
evident that he also signed the consent form despite it not being an aspect of
his memory of his time with Ms. Snow.

[48]        
Ms. Snow testified to a virtually invariable practice with patients
who need contrast dye; moreover, she testified to having a specific
recollection of her dealings with Mr. Werner.

[49]        
In relation to the former, there is no suggestion of any unusual occurrence
or reason why Ms. Snow might have strayed from her standard routine with Mr. Werner.
For example, there is no evidence or suggestion that she was pressed for time,
distracted, or unfamiliar with the standard procedure. It is notable that the
practice is long-standing, not complex, and is logical in its sequence and
purpose. I find that the signed consent form is some reliable independent
evidence that the usual procedure was followed with Mr. Werner, despite
his recollection otherwise.

[50]        
As to the latter, it is clear that Ms. Snow had a compelling reason
to recall her dealings with Mr. Werner. He was the first patient in her 20
years of practice to have fainted; moreover, she knew of it immediately and she
made notes while her dealings with Mr. Werner were fresh in her memory. In
the result, most of Ms. Snow’s testimony about her time with Mr. Werner
comes from her memory rather than her standard practice. For example, Ms. Snow
said she specifically recalled reviewing the questionnaire with Mr. Werner,
obtaining his consent, inserting the hep-lock on the stretcher, and then
watching him walk to the cubicle. She also specifically recalled that he was
quiet and showed no signs of anxiety throughout the process. In relation to the
alleged questioning of her, she said it did not occur. Significantly, she
explained that such repeated questioning would have made no sense because the
answer was simple and she knew it. In other words, there was no reason for her
not to answer Mr. Werner’s question if it had been posed.

(iii)     Conclusions

[51]        
Having regard to all the foregoing, I conclude that Ms. Snow’s
memory of events is more reliable than that of Mr. Werner and is to be
preferred. Mr. Werner’s account does not accord with other reliable evidence or
common sense. More specifically, I am not persuaded that the repeated
questioning Mr. Werner purports to recall actually occurred. I found both Mr. Werner
and Ms. Snow to be sincere and honest witnesses. In my assessment,
neither’s credibility is in issue. In relation to Mr. Werner, I am satisfied
that he honestly believes that to which he testified; however, I find that it
is neither a very plausible version of events nor does it accord with other reliable
evidence.

[52]        
It would seem that Mr. Werner has subconsciously reconstructed the
events which led to him fainting. In this regard, his ultimate loss of
consciousness suggests that he may well have been anxious throughout the
process whether or not it was evident to others. It is likely that this anxiety
adversely affected his perception or memory, or both.

[53]        
It does not follow, however, from Mr. Werner’s anxious state that
such was, or ought to have been, apparent to Ms. Snow. I accept Ms. Snow’s
testimony that Mr. Werner was a quiet patient who showed no signs of
anxiety when she dealt with him, including the repeated questioning he alleged.
I am satisfied that mere quiescence is an insufficient basis upon which to
infer anxiety.

[54]        
In Mr. Werner’s case, it became apparent only after he had fainted
that he was an anxious and vulnerable patient. The fact that he passed out from
the mere reading of the possibility of death as a complication from an intravenous
injection of contrast dye, when it had yet to be injected, speaks volumes in
this regard; however, in the absence of Mr. Werner showing or expressing
anxiety, I am not persuaded that it can reasonably be maintained that Ms. Snow
fell below the requisite standard of care of a CT technologist, in relation to
her care of Mr. Werner.

[55]        
 There is no question that a CT technologist is expected to read and
address signs of anxiety, but Mr. Werner exhibited no such signs. In such
a circumstance there would be no logical reason for Ms. Snow to stop the
procedure, to ask Mr. Werner if he wished to consult with his physician,
and to monitor him after the hep-lock insertion.

[56]        
It may be arguable that the requisite standard of care might oblige a CT
technologist to be more vigilant or inquisitive with a patient known to be
vulnerable such as a child, an adult with obviously compromised physical or
mental health, or a patient whose ability to communicate is limited; however, Mr. Werner
was not such a patient. He was a robust 46-year old English-speaking man without
apparent physical or mental deficits or communication issues, who was about to
undergo a routine, non-intrusive, and low-risk diagnostic procedure; moreover,
the contrast dye which apparently worried him had yet to be injected and,
therefore, it was open to him, as an adult of free will, to opt out at any time
prior to the injection.

[57]        
I conclude that it was not reasonably foreseeable, in all the
circumstances, that Mr. Werner might faint while waiting in the cubicle
for his CT scan. The plaintiff‘s case falls well short of establishing that the
care he received fell below the requisite standard.  Given this failure, the
claim in negligence cannot succeed and it is not necessary to address the causation
issue raised by the defendant.

C.       Disposition

[58]        
The plaintiff’s claim is dismissed for failure to prove liability. In
view of this result, an assessment of Mr. Werner’s losses would be an academic
exercise.

[59]        
If the parties cannot resolve the issue of costs by agreement then they
may make written submissions.

“The
Honourable Mr. Justice Bernard”