IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Paur v. Providence Health Care, |
| 2015 BCSC 1695 |
Date: 20150921
Docket: S126934
Registry:
Vancouver
Between:
Michael Jason
Paur, by his Committee, Jacqueline Rita Shak
Plaintiff
And
Providence Health
Care, Dr. Tracy Ann Pickett,
Sheona Yard,
Trevor Eichel and Theresa (a.k.a. Tess) Chevrette
Defendants
And
Dr. Tracy Ann
Pickett
Third
Party
Before:
The Honourable Madam Justice S. Griffin
Reasons for Judgment
Counsel for Plaintiff: | Barbara E. Daniel F. Corrin; Yvonne Wong; Talya Schapiro |
Counsel for Defendants Providence Health Care, Sheona | John G. Dives, QC; Robin J. Harper |
Counsel for Defendant and Third Party Dr. Tracy Ann | Cameron B.P. Elder; Natalie Parsonage |
Place and Dates of Trial: | Vancouver, B.C. March 2-6, 9-13, |
Place and Date of Judgment: | Vancouver, B.C. September 21, 2015 |
Table of Contents
THE PARTIES AND EXPERT WITNESSES
Witnesses Who Gave Expert Opinion
Evidence
Hospital Defendants Expert Witnesses
Expert Witnesses for Dr. Pickett
How Long was Mr. Paur
Unmonitored in the Hospital Bathroom
Nurses Evidence Regarding Timing
Timing of Hanging Related to Nature
of Injury
Conclusion on Length of Time Patient
was Unmonitored
Foreseeable Risks Regarding
Mr. Paur
Foreseeable Risks Regarding Suicidal
Intoxicated Patients
Foreseeable Risks Regarding Suicidal
Patients Attempting Hanging in Hospital
Foreseeable Risks Regarding Nursing
Policies
Conclusion re Foreseeable Risks of
Harm
Other Factors: Gravity of Harm, Costs
of Prevention, Ordinary Caution
Other Factors Considered In Respect
of Hospital Liability
Suicidal Intoxicated Patients Kept in
General ER
The Need for Privacy and Dignity
No Knowledge of Bathroom Risks
Legal Principles Applicable to
Damages
Total Lifestyle versus Incremental
Approach
Nature of Injuries and Prognosis
History of Patient Post-Discharge
from SPH
Summary of Patients Day-to-Day
Living Problems
Supportive Living After Age 67
Electric Toothbrush and Dental
Cleaning
Total Future Care Costs Applying
Multipliers
Committeeship and Tax Gross-up
Loss of Earning Capacity Claim
INTRODUCTION
[1]
Michael Paur (Mr. Paur) suffered a brain injury when he attempted
suicide by hanging in a bathroom at St. Pauls Hospital (SPH), Vancouver in
the early morning hours of May 24, 2011. He was 36 years old at the time. This
claim is brought on his behalf by his mother, Ms. Shak.
[2]
Mr. Paur had been brought into the emergency department (ER) of
SPH by police close to midnight on May 23, 2011 and was certified by the
ER physician under the Mental Health Act, R.S.B.C. 1996, c. 288 [MHA]
because he had suicidal thoughts. Mr. Paur was intoxicated and the plan
was to hold him overnight while he sobered up, and then assess him in the
morning.
[3]
Mr. Paur was kept in an area of the ER where patients can be
closely watched by ER nurses. That area is known as the Comox Unit. When two of
the nurses were on duty and the third was on break, Mr. Paur went into the
bathroom, locked himself in, opened up the ceiling tiles and hung himself by a
hospital gown. When he did not come out of the bathroom some minutes later, one
of the nurses investigated and could not open the locked door. Her co-worker
was able to open the door and they then discovered Mr. Paur hanging and
unconscious.
[4]
The first issues in this case concern whether SPH, the ER physician or
any of the nurses were negligent in not keeping Mr. Paur safe from
self-harm. If there was negligence, there are issues concerning the appropriate
quantum of damages.
[5]
There are no allegations of contributory negligence.
CONCLUSIONS ON
LIABILITY
[6]
I have conclude that SPH was negligent because, in summary:
a) as part of its
patient mix, SPH had a large number of suicidal, intoxicated patients treated
in the ER who were certified and held involuntarily, many of them held in the
Comox Unit;
b) SPH knew or
ought to have known of the real risk that a suicidal, intoxicated certified
patient might attempt suicide by hanging in the hospital;
c) SPH knew
or ought to have known that the bathroom in the Comox Unit was unsafe for such
a patient as the bathroom had not been made ligature-proof;
d) SPH knew or
ought to have known that the risk to a patient who attempts hanging is a very
grave risk, as serious irreversible brain damage can be done to the patient
quickly, within the range of five minutes, and the hanging can be fatal beyond
ten minutes; and
e) SPH had no
policies or protocols for nursing staff in place to ensure that such patients
were not permitted to be unmonitored in an unsafe locked bathroom for a period
of time approaching five minutes or more.
[7]
This is not a case where, in the exercise of clinical judgment as to the
degree of suicide risk Mr. Paur presented, medical professionals made a
decision to allow Mr. Paur the freedom to be unmonitored for a period of
time in an environment in which he might attempt hanging. Because he was
intoxicated, Mr. Paurs level of suicide risk had yet to be assessed
beyond the fact that he was a suicide risk.
[8]
Nor is it a case where, after weighing the known risks, costs and
benefits, SPH made a decision as to how to deal with the risk of suicidal
patients attempting suicide by hanging in the bathroom in the Comox Unit,
either by designing the bathroom a certain way or by instituting nursing
policies to deal with the risk. Rather, this is a case where SPH ought to have
known there was a significant risk to suicidal patients posed by the bathroom
in the Comox Unit and by the lack of protective policies concerning bathroom
use, but did nothing about this risk.
[9]
Mr. Paur was left unmonitored in the bathroom for a long enough
period to be able to wrap a hospital gown around his neck, open up the ceiling
tiles, tie the gown around fixtures in the ceiling, and hang himself to the
point of unconsciousness, causing brain damage.
[10]
It would have been relatively simple and not too costly for SPH to
design the bathroom facilities safely to prevent the risk of suicide by
hanging; or, alternatively, to establish policies to mitigate the risk of a
suicidal patient being left alone in the bathroom unmonitored for a
sufficiently long period of time as to cause serious harm from hanging.
[11]
I have concluded that the ER physician involved in Mr. Paurs care
was not negligent.
[12]
As for the nurses, it cannot be forgotten that but for their
intervention, Mr. Paur might be dead. It had to be extremely upsetting to
them to have this incident occur. Their profession, and chosen place of work,
the ER at SPH with a high mix of distressed mentally ill patients, is extremely
challenging. Nurses in such a setting deserve admiration for the services they
give to people in need.
[13]
The nurses were not assisted in their task by the lack of hospital
policies regarding monitoring of patients in the Comox Unit bathroom.
[14]
Nevertheless, in the circumstances of this case I find that the two
nurses on duty at the time of the hanging incident failed to meet nursing
standards of care for observing Mr. Paur. Their primary task in looking
after him that evening was to keep watch over him to ensure he stayed safe.
They lost track of him and did not know how long he was in the bathroom before
checking. They thus allowed a situation where Mr. Paur was unsafe because
he had sufficient amount of time alone and unmonitored to seriously harm
himself. The nurse who finally checked on him also did not know how to
immediately unlock the door, which should have been basic knowledge.
[15]
I will now explain the reasons for my conclusions on liability,
following which I will address damages.
THE PARTIES AND EXPERT
WITNESSES
[16]
The plaintiff, Ms. Jacqueline Shak, is Mr. Paurs mother and
his committee.
[17]
Providence Health Care (Providence) operates SPH, located in the urban
centre of Vancouver. Nurses Sheona Yard, Trevor Eichel and Theresa Chevrette
work at SPH and were working on the Comox Unit on the evening and morning in
issue. It is accepted that Providence is vicariously liable for any negligence
of the nurses and for any negligence of SPH. Together Providence, SPH and the
nurse defendants will be referred to as the Hospital Defendants.
[18]
Dr. Pickett is the ER physician who treated and certified Mr. Paur.
[19]
The parties called a number of witnesses who testified as experts,
qualified to give opinion evidence in their respective fields.
[20]
Also, the parties entered into a document agreement, admitting certain
medical records as accurately recording on the day in question (but not late
entries): physical observations, information given by the party being seen by
the medical professional and prescribed treatments and medications. These
medical records were not admitted for the truth of any opinion contained in
them.
Witnesses Who Gave
Expert Opinion Evidence
[21]
I did not find any of the expert witnesses to lack independence or to
engage in advocacy for the party who retained them, but there are factors which
I considered in determining what weight to give the opinions. I preferred the
opinions which were based on assumed facts that most closely reflected my
conclusions as to the facts after hearing all of the evidence.
Plaintiffs Expert Witnesses
[22]
Dr. Hugh Anton is a medical doctor with a specialist
certification in physical medicine and rehabilitation since 1987. His practice focuses
on rehabilitation and he sees many patients with brain injuries, at Vancouver
General Hospital (VGH) and G.F. Strong Rehabilitation Centre, and is a
clinical professor in this specialty at the University of British Columbia. He
examined Mr. Paur and provided a report as to the nature and extent of his
injuries, prognosis, and recommendations for future treatment and care.
[23]
Dr. Donald Cameron is a neurologist with considerable
experience in determining the nature of brain injuries. He examined Mr. Paur
on September 16, 2014 at the request of the plaintiffs counsel. He
gave an opinion regarding the brain injury suffered by Mr. Paur as a
result of the hanging.
[24]
Robert Carson is an economist. He provided opinions on the
quantification of future care costs and past and future loss of earnings.
[25]
Sharyle Jewett is an occupational therapist who has assessed and
treated clients and worked in rehabilitation settings and home care settings.
She conducted an occupational therapy assessment of Mr. Paur and provided
her opinions as to Mr. Paurs future care needs and costs.
[26]
Charles Kierulf is an architect registered in BC. He has over 23
years of experience including 19 years experience in the design and
development of significant projects. He and his firm have been involved in the
architectural design and development or renovation of a number of hospital and
medical care institutions, including the AC Centre at Royal Jubilee Hospital in
2004-2006. He provides an opinion as to the design process for a hospital,
certain standards that apply to areas housing certified suicidal patients, and
whether the design of the bathroom in the area within which Mr. Paur was held
at the time of his suicide attempt met the standards for a BC hospital.
[27]
Dr. Shao-Hua Lu is a psychiatrist on staff at VGH. He has
additional training and experience in addiction psychiatry, including a one
year clinical fellowship in addiction psychiatry at Harvard University, and
qualifications under the American Board of Psychiatry, with a subspecialty in
addiction psychiatry in the United States (not a subspecialty in Canada at
present). He has experience in determining the degree of contribution to a
patients problems from various sources, be it addictions, concussion, or
exposure to a wartime bomb blast. He has treated patients with anoxic brain
injury as well as traumatic brain injury, and often looks after patients who
have concurrent psychiatric and addiction issues. He also has past experience
dealing with patients who present at emergency with psychiatric problems.
[28]
Dr. Lu provided an opinion that the hanging caused Mr. Paur to
suffer an anoxic brain injury leaving him with residual impairments and
requiring life-long supportive living.
[29]
Dr. William Rife is a family doctor with a certification in
family medicine. He became the family doctor for Mr. Paur after the
hanging, beginning in February 2012. He gave evidence identifying Mr. Paurs
medical conditions consistent with an anoxic brain injury.
[30]
Dr. James Schmidt has a Ph.D. in clinical psychology and is
a board certified clinical psychologist, registered in BC. He evaluated Mr. Paur
and provided an opinion as to Mr. Paurs neuropsychological and
psychological status and functioning, the relationship of his limitations to
the brain injury caused by the hanging, and his prognosis and recommendations
for future treatment and care.
[31]
Dr. Stanley Semrau is a medical doctor who has been
qualified and practicing as a psychiatrist since 1984. He was a former clinical
assistant professor in the department of psychiatry at UBC. He has worked as a
staff psychiatrist at a number of in-patient psychiatric facilities, including
six in BC. He provides opinion evidence explaining typical characteristics and
behaviour of patients who are in positions similar to the position
Mr. Paur was in when he was taken to the hospital and certified under the
MHA and detained in the hospital. He also provides opinions as to the
clinical assessment and management of, and responsibility toward, similar patients.
[32]
Kathy Sinclair is registered nurse who has worked as an ER nurse
for 22 years in a variety of urban hospitals including VGH from 1999-2006
where in her last year she held the position of nurse clinician. She holds
a certification in emergency nursing. She gave evidence as to the standard of
care of the nurses who cared for Mr. Paur.
[33]
Dr. Gordon Wallace has a Ph.D. in clinical psychology with
extensive experience in rehabilitation psychology assessment. He assessed Mr. Paurs
residual employability potential and provided an opinion that Mr. Paur is
not competitively employable but may be employable in a supportive work
environment.
[34]
Dr. Stephen Wheeler has been an ER physician since 1987
practicing at a variety of hospitals, with the longest period at Royal Jubilee
Hospital and Victoria General Hospital. Amongst other positions, he was the medical
director of emergency and trauma Services for the Vancouver Island Health
Authority (VIHA), with responsibility to determine the best practices to
optimize patient care for the approximately 12 hospitals on Vancouver Island.
He also was director of trauma for the VIHA and member of the VIHA Medical
Advisory Committee, looking at the quality of care in emergency and trauma for
the region.
[35]
Dr. Wheeler was past chief of emergency medicine for the VIHA-South
Island and in that capacity he worked with the quality assurance committee and
doctors, nurses and administrators to address issues regarding flow of patients
and improve quality of care. He explained that these types of committees exist
in every hospital, and consider standards of emergency care, policies and
training of staff as well as the environment in which doctors and nurses will
be providing care.
[36]
Dr. Wheeler was vice chief of emergency medicine at Royal Jubilee
Hospital in the period of 2005-2006 when they did renovations and added on a
psychiatric emergency department known as the Archie Courtnall Centre [AC
Centre].
[37]
Dr. Wheeler gave opinion evidence regarding the standard of care
applicable to caring for Mr. Paur in emergency.
[38]
Dr. Gordon Wood is an anaesthetist and intensivist with
Victoria General Hospital and Royal Jubilee Hospital, in Victoria, BC, and has
been since 1999. He has been the medical director and department head of
Adult Intensive Care, VIHA, since September 2011. He has extensive experience
as head of the intensive care unit and thus in dealing with seriously ill
patients, including those in cardiac arrest.
[39]
Dr. Wood provided an opinion on the timing and mechanism of Mr. Paurs
injuries.
Hospital Defendants Expert Witnesses
[40]
Mark Gosling is an economist who provided opinions regarding the
costs of future care and lost earnings.
[41]
Kathleen Kennedy is a registered nurse with experience in
educating nurses in the classroom and hospitals and with experience in
emergency nursing. She is an author of the emergency nursing curriculum at
the British Columbia Institute of Technology and program head of the
Emergency Nursing Speciality there. She gave opinions regarding
nursing standards of care in emergency.
[42]
Tania Percy is an occupational therapist with experience working
with brain-injured clients. She gave opinions on future care recommendations
and costs.
[43]
Dr. Paul Sobey is a medical doctor who practiced as a family
doctor and did additional training in addiction medicine, obtaining American
Board certification in the latter field. He provides ongoing care to persons
with addictions including running a methadone clinic. He provided an opinion on
the impact Mr. Paurs addiction issues would have had on his life, in the
absence of the hanging, including the risk of further suicide attempts and the
impact of his addiction on employment.
[44]
Dr. David Strauss has a Ph.D. and expertise in statistical
analysis and life expectancies. He provided an opinion regarding Mr. Paurs
life expectancy based on statistical analysis.
Expert Witnesses for Dr. Pickett
[45]
Dr. Roderick McFadyen is an emergency physician with
experience in clinical teaching and broader administrative duties as well. He
provided an opinion as to the standard of care provided by Dr. Pickett to Mr. Paur.
[46]
Dr. George Pawliuk is a psychiatrist who has experience in
dealing with patients who are suicidal presenting at high volume emergency
departments. He is a consultant psychiatrist at Royal Jubilee Hospital in
Victoria, BC and has a busy clinical practice. He gave evidence on the standard
of care of a reasonably prudent ER physician.
OVERVIEW OF FACTS
[47]
The evidence establishes the following facts which were for the most
part undisputed.
[48]
On May 23, 2011, Mr. Paur was brought to SPH by ambulance following
an arrest by the Vancouver Police Department (VPD) pursuant to s. 28 of
the MHA.
[49]
Mr. Paurs wife had called police to report concern about her
husband. He had checked himself into a hotel room on a high floor following a
fight with her. He then either called her and said or texted Bye before
throwing his phone off the balcony. This was set out in the ambulance report.
[50]
The police located Mr. Paur at the hotel, apprehended him under the
MHA, and accompanied him in an ambulance to SPH.
[51]
The ambulance report set out the history obtained by the paramedic, that
Mr. Paur drank a 2 litre cooler and 2 shots of whisky and had taken 1 mg
clonazepam. He was noted to be healthy but had a history of a previous suicide
attempt with a clonazepam overdose.
[52]
At the ER of SPH, Mr. Paur was triaged and seen quickly by Dr. Pickett.
[53]
Prior to assessing him, Dr. Pickett reviewed the ambulance report
and Mr. Paurs chart, which included his PharmaNet printout. The PharmaNet
record included the following:
a recent prescription for tylenol
with codeine
a recent prescription for clonazepam
a prescription for effexor, an anti-depressant, filled in February 2011
a 2010 prescription for lithium
a prescription for oxycodone
[54]
Dr. Pickett also checked the computer for recent visits by Mr. Paur
and realized she had seen Mr. Paur in the ER the week before when he
presented in an intoxicated state with a lacerated knee. Dr. Pickett had
sutured the knee laceration but Mr. Paur left without having the
recommended knee x-ray.
[55]
Dr. Pickett could see Mr. Paur in the waiting room, not
handcuffed, chatting and jovial with the police. He was not hunched over
looking distraught.
[56]
Dr. Pickett next went and saw Mr. Paur. She first stopped and
spoke to the police officer who told her that the police had been called by Mr. Paurs
wife who indicated that Mr. Paur had gone to the hotel because of a
marital disagreement and was threatening suicide. At the hotel Mr. Paur
was cooperative with the police.
[57]
Dr. Pickett next spoke to Mr. Paur, asking him to step aside
with her to a quiet area of the waiting room. Mr. Paur was able to stand
and walk. In response to her questions, Mr. Paur denied having any
thoughts of harming himself or others. He admitted having consumed alcohol that
night. When asked about the message Bye and why he threw his cell phone off
the balcony, he stated: I was mad and I didnt want to talk anymore. While he
did not slur his words, his answers were short and abrupt. Dr. Pickett
described him as short-tempered but not aggressive or agitated. He was a little
slow in answering as though he was trying to think what the correct answer
would be.
[58]
Dr. Pickett noted that Mr. Paur confirmed he had been drinking
but denied taking any other medications, including street drugs. He denied having
any medical problems. Dr. Pickett was not sure he was telling the truth,
given the PharmaNet history plus the ambulance report which noted he had taken
clonazepam.
[59]
Dr. Pickett did a brief examination of Mr. Paur. He was
appropriately dressed. He was alert and oriented. His pupils were equal and
reactive. From her examination, she was not concerned that he had already tried
to hang himself or taken an overdose. He had old slash mark scars on his arms,
which Dr. Pickett assumed could relate to a past suicidal act. Dr. Picketts
assessment of his mental status examination was that he was annoyed,
short-tempered, co-operative, denied suicidal or homicidal ideation, [and was]
frustrated cant go to work [because he was] certified.
[60]
Dr. Pickett formed the opinion that she had grounds to certify Mr. Paur
under the MHA and that this would be the safest thing to do until he
could sober up and be reassessed. She thought that he had implied suicidal
intent and she was worried about his impulsivity, because of his intoxication,
and did not think he would be safe if she discharged him as he could be a
danger to himself. She also had some concern for Mr. Paurs wifes safety
if she released him. The intoxication also meant that she could not get a valid
picture of him and whether he was telling the truth when he denied being
suicidal or was just telling her what he thought she wanted to hear.
[61]
Dr. Pickett explained to Mr. Paur that she was concerned about
his safety and so was going to certify him, keep him there for a few hours to
sober up and sleep it off, and would do her best to come back and reassess him
before her shift finished around 6 a.m. Dr. Pickett felt that while he was
intoxicated he was unreliable and impulsive and she could not tell where he was
in the spectrum of being suicidal. When she returned to reassess him, it could
result in him being discharged, or in a referral for a
psychiatric assessment.
[62]
Mr. Paur protested Dr. Picketts decision, explaining that he
had to go to work in the morning. When asked, he told Dr. Pickett that he
worked as a glazier, in construction. She did not change her mind but repeated
that she would come back to reassess him and see where they would go from
there. Dr. Pickett felt that Mr. Paurs demeanour became more shut
down after this and he did not want to talk to her.
[63]
After completing the form required for certification of Mr. Paur
under the MHA, Dr. Pickett ordered blood work. This came back to
show that his alcohol level was four times the legal limit for driving. Dr. Pickett
also ordered Lorazepam 2 mg to be given immediately and every hour prn (meaning
as needed). These orders were placed at 0019 hours on May 24, 2011.
[64]
Dr. Pickett also talked to the triage nurse so that a bed could be
arranged. The triage nurse subsequently advised her that stretcher 21 in the
area of the ER known as the Comox Unit was available. It was the only bed
available in the Comox Unit. The Comox Unit is also known as Acute 3.
[65]
Dr. Pickett spoke to the nurses then on duty in the Comox Unit,
explaining the basic facts that Mr. Paur was certified, suicidal,
intoxicated, and she would return to assess him before the end of the shift,
and that she had ordered Lorazepam 2 mg. From her perspective Mr. Paur was
not presenting any differently than the thousands of patients seen at the ER of
SPH who are intoxicated and have suicidal ideation.
[66]
Mr. Paur remained in the waiting room with the police officer until
he was admitted to stretcher 21 in the Comox Unit.
[67]
The Comox Unit was composed of two sections, behind a set of locked
doors:
a. One
section contained four individual seclusion rooms, each of which could be
locked. These rooms were designed to be ligature-proof, with hard ceilings, a
mattress on the floor, and a wall-mounted toilet and sink. There is a window in
the door of each room and video surveillance visible at the nursing station.
b. The
other section contained four ER stretchers (21-24) separated by curtains, with
access to a shared bathroom. The practice was not to allow patients to use the
curtains for privacy.
[68]
A glassed in and locked nursing station is directly across from
stretchers 21‑24. There is a pillar that can partially obstruct the view
of stretcher 21, but nurses can see it if they move around to look.
[69]
There is one common bathroom in the Comox Unit for the four patients on
the stretchers. The bathroom is not visible from the nursing station. The
bathroom had a lock on the door, which could be set by the person inside the
bathroom. The security guards had a key to open the door. Also, there was a
release on the door which could be used by someone outside the bathroom to
unlock the door. Of the nurses, Nurse Chevrette was aware of how to release the
lock but Nurse Yard was not.
[70]
There are usually three nurses on duty in the Comox Unit for a maximum
of eight patients. When one of the nurses is on a break, there are two nurses
in the Comox Unit. Usually at least one of the three nurses is a psychiatric
nurse. The night in question was one of the rare occasions when all three
nurses were ER nurses and there was no psychiatric nurse on duty.
[71]
The nurses had a regular practice of one of them leaving the nursing
station to approach the stretchers in the Comox Unit to more closely check on a
patient. This could involve observing that the patient is breathing normally,
or if awake asking the patient how he or she is doing.
[72]
The evidence was inconsistent as to how often these checks occurred.
Nurse Yards evidence was that these were hourly checks, on the hour. Nurse
Chevrettes evidence was that she used to check on the patients every 30
minutes.
[73]
On the night in question the seclusion rooms of the Comox Unit were
full. Patients in seclusion rooms required visual checks by the nurses through
a window every 15 minutes, as well as being monitored by video surveillance at
the nursing station. Nursing charting on these patients is required to be done
every 15 minutes.
[74]
A police officer accompanied Mr. Paur from the waiting room to stretcher
21 and remained until Mr. Paur was settled and lying on his stretcher. The
nurses could see that Mr. Paur seemed to have good rapport with the police
officer.
[75]
Mr. Paur was given Lorazepam 2 mg after he was admitted to the
Comox Unit.
[76]
Charting is supposed to be done once per hour on these patients.
However there was no charting of Mr. Paur that evening other than charting
by Nurse Yard that he was given Lorazepam at 0040 hours. Mr. Paur was
cooperative in taking the medication and in lying down on the stretcher.
[77]
Sometime before Mr. Paurs final visit to the bathroom, he was seen
by the nurses walking by to use the bathroom a couple of times. The nurses say
they were not particularly concerned as it was their understanding that he had
consumed at least two litres of cider.
[78]
A brief time after Mr. Paurs final visit to the bathroom (the
amount of time is in issue) Nurse Yard went to check on him. When he did not
respond to her knock on the door, she tried the door and it was locked. She did
not know how to release the lock. She returned to the nursing station, entering
it through its locked door, and asked her colleague, Nurse Chevrette, to call
security. While Nurse Chevrette called security, Nurse Yard returned to the
bathroom door and knocked again. Nurse Chevrette came out of the nursing
station and when there was no answer at the bathroom door, she was able to
release the door lock and open the door.
[79]
When they opened the door Mr. Paur was hanging above the toilet
with a blue hospital gown wrapped around his neck. He had pushed the ceiling
panels to the side and tied the gown around some metal wires that were
anchoring the lights.
[80]
Nurse Chevrette stood on the toilet. She is 54 tall and was able to
reach up into the ceiling. She tried to undo the knotted gown. Nurse Yard tried
to lift Mr. Paur to take some of the pressure off of his neck. A security
guard arrived quickly and assisted in lifting Mr. Paur. This helped
release the pressure on the noose and Nurse Chevrette was then able to untie
the three or four knots holding the gown.
[81]
The nurses and security guard lowered Mr. Paur to the floor.
[82]
Mr. Paur was not breathing and did not have a pulse, meaning
neither his lungs nor his heart were working. The nurses began CPR. Dr. Pickett
arrived having heard the call for security.
[83]
Someone had called a code blue. The code team soon arrived and took
over. The code team uses a crash cart but it could not fit into the bathroom
given the layout and the door. An engineer was called who arrived to take the
door off the hinges. When the door was removed, Mr. Paur was brought out.
He did regain a pulse after intervention but did not resume breathing on his
own and so continued to need support with breathing. He was supported in
the intensive care unit.
[84]
Mr. Paur suffered a significant permanent brain injury from the
hanging.
[85]
The experts who gave evidence at trial used the terms hypoxic and anoxic
interchangeably to describe the type of brain injury suffered by Mr. Paur
as a result of the hanging, meaning it was caused by either a partial lack of
oxygen or complete lack of oxygen, leading to brain cell death. Dr. Lu
explained that these terms exist within the same continuum. As Dr. Cameron
explained, the difference in the use of the terms is largely semantic because
either type of oxygen deprivation causes the same damage to the brain.
[86]
Mr. Paur eventually regained consciousness but required treatment
as an in-patient in SPH until November 2011, with some weekend or day passes
near the end of his stay in the hospital.
How Long was Mr. Paur
Unmonitored in the Hospital Bathroom
[87]
One significant factual issue at trial had to do with how long Mr. Paur
was in the hospital bathroom, unmonitored, before the door was opened and he
was found hanging and unconscious. He had been in the Comox Unit just over an
hour when this occurred.
[88]
There was evidence at trial estimating the timeline of the unfolding
events on May 23-24, 2011.
[89]
The police officer involved, Cst. Harriman, documented that police
located Mr. Paur at the hotel at 2310 hours on May 23, 2011.
[90]
On the BC Ambulance Service (BCAS) Patient Care Report, it is
documented that BCAS arrived at the hotel at 2325 hours on May 23, 2011.
[91]
The police record indicates that Mr. Paur was apprehended at 2332
hours. This could have been in the hotel room or in the ambulance.
[92]
The BCAS records indicate that the ambulance left for SPH at 2335 hours,
arriving at SPH at 2340 hours.
[93]
Dr. Pickett documented that she saw Mr. Paur at 2355 hours.
After this she spoke to the triage nurse about where to place Mr. Paur,
and then spoke to the nurses in the Comox Unit. Dr. Pickett entered her
orders into the hospital computer at 0019 hours. It was after this that Mr. Paur
was brought into the unit.
[94]
The police records indicate that SPH staff confirmed at 0030 hours on
May 24, 2011 that Mr. Paur would be admitted for observation. This
was around the time Mr. Paur was brought into the Comox Unit.
Nurses Evidence Regarding Timing
[95]
After Mr. Paur was brought into the Comox Unit of the ER, Nurse
Yard instructed Mr. Paur to change out of his clothes into a hospital gown
and give his belongings to her. She then took his belongings away.
[96]
Nurse Yards nursing notes indicate that Mr. Paur was given
Lorazepam 2 mg in the Comox Unit at 0040 hours on May 24. Her evidence was that
she gave him the medication after she returned from taking his belongings away,
which was soon after his admission into the Comox Unit.
[97]
When Mr. Paur was admitted into the Comox Unit, the two nurses on
duty were Nurses Eichel and Yard. Nurse Chevrette was on her break, from
midnight to 1 a.m.
[98]
After Mr. Paur was admitted, Nurse Eichel started his one-hour
break when Nurse Chevrette returned around 1 a.m. He was therefore not present
at the time of Mr. Paurs suicide attempt.
[99]
Nurse Chevrette learned from Nurse Yard that Mr. Paur had been
admitted, that he had been brought in by police under s. 28 of the MHA
after calling or texting someone threatening to harm himself, that he had been
assessed by a physician and was certified with the plan to reassess him in the
morning. She knew that Mr. Paur had suicidal ideation and was intoxicated
and could be impulsive. She understood she had an obligation to monitor him.
[100] The first
time Nurse Chevrette noticed Mr. Paur was when he walked by
the nurses station to go the bathroom. She did not recall how long he was
in the bathroom or when he returned to his bed, and whether Nurse Yard was
present. Nurse Chevrette had no general expectation as to how long people will
be when they use the bathroom, noting that it varies and could be anywhere from
two to five minutes.
[101] Nurse
Chevrette next noticed Mr. Paur when he walked by the nurses station to
go to the bathroom another time. She did not think this was unusual because she
knew he had consumed a lot of alcohol. After he was in there for a period of
time, Nurse Yard got up to check on him and went to the bathroom door and
knocked. This was what ultimately led to discovering Mr. Paur hanging.
[102] In her
direct evidence, Nurse Chevrette said she did not know how long Mr. Paur
was in the bathroom before Nurse Yard went to check on him, but estimated two
to three minutes or less. I did not find Nurse Chevrettes estimate of time
reliable for a few reasons:
a) Nurse Chevrette
did not document how long Mr. Paur was in the bathroom before his suicide
attempt was discovered. There was no record of this at the time or in the
immediate aftermath. Several years have since passed. On examination for
discovery she could not give an estimate of how long Mr. Paur was in the
bathroom before she went to open the door. Her memory in direct examination of
two to three minutes is more likely to be a reconstruction influenced by this
proceeding, with a natural tendency to want to give an estimate that minimizes
the time and thus minimizes nursing responsibility.
b) Nurse Chevrette
could not estimate the time from when she returned to the Comox Unit from
her break and when the incident happened. Nurse Chevrette is not sure about how
long Mr. Paur was in the bathroom on the earlier visit. This shows she was
not paying much if any attention to time that shift.
c) Nurse
Chevrette testified that her practice was to walk around and check on the
patients every 30 minutes. She did not suggest that she made such a check in
the time between when she returned from her break and saw that Mr. Paur
was admitted into the Comox Unit, around 1 a.m., and his suicide attempt which
is documented as occurring just before the code blue was initiated which was
around 1:45 a.m. Indeed, it is likely she did not do such a check or she would
have mentioned this as being another occasion when she saw Mr. Paur. This
casts further doubt on the accuracy of Nurse Chevrettes memory.
d) None of the
nurses were assigned to keep an eye on any particular patient. They were not always
looking at the patients on the stretchers.
e) On Nurse
Chevrettes evidence there was nothing unusual about Mr. Paur using the
bathroom a second time or about a patient spending as much as five minutes in
the bathroom. There was therefore no reason for her to be concerned about Mr. Paur
or for her to note that Nurse Yard checked on him if, as she claims, only two
or three minutes had passed since Mr. Paur went in the bathroom.
f) In
cross-examination Nurse Chevrette admitted she did not know exactly how long Mr. Paur
was in the bathroom before Nurse Yard went to check on him. She briefly laughed
in a self-conscious way when questioned about the time, and the impression she
gave is that she had just been guessing and had no true recollection of the
timing.
[103] As part of
everyday language, a person casually estimating a short period of time can
readily state two to three minutes without really having any idea about the
precise length of time and I have concluded this is what Nurse Chevrette did in
her evidence. I have concluded that Nurse Chevrette does not have any memory of
the timing of when Mr. Paur went into the bathroom and when Nurse Yard
went to check on him, or of the total time he was in the bathroom before Nurse
Chevrette eventually opened the door.
[104] As for
Nurse Yard, she was the one nurse in the Comox Unit there from Mr. Paurs
arrival through to his suicide attempt.
[105] Nurse Yard
recalls that it took approximately 20 minutes from the time Mr. Paur was
admitted, changed and given medication until he was settled into bed. She said
it was then close to 1 a.m. and time to do the hourly checks on the patients
and charting.
[106] Nurse Yard
cannot recall what she told Nurse Chevrette when she came back from break
around 1 a.m. but it was normal practice to verbally update other nurses on new
patients.
[107] Nurse
Yards evidence was that she saw Mr. Paur pass by the nurses station on
the way to the bathroom just after 1 a.m., when Nurse Chevrette was back from
break and Nurse Eichel had taken his break.
[108] Nurse Yard
recalled another time when she heard Nurse Chevrette comment that Mr. Paur
was going to the bathroom again and they commented on the fact he had a lot of
cider to drink and so they were not surprised.
[109] Nurse Yard
admitted that she had hoped and expected that Mr. Paur would sleep after
giving him the medication, but by 1:15 or 1:30 knew that was not happening
because he had been up to the bathroom a couple of times. She might have been
busy doing other things, like the 15 minute checks on the patients in the
seclusion rooms, and not seen him have other visits to the bathroom.
[110] Nurse Yard
said on a third occasion she was looking at the stretchers and noticed that Mr. Paur
was not there. She testified in direct that she gave him a couple of minutes,
and when he did not come out she went to the bathroom and knocked on the door.
There was no reply and so she called out Mr. Paurs name. She then jiggled
the bathroom door and Mr. Paur still did not reply.
[111] Nurse Yard
testified that she then quickly went back into the nursing station and told
Nurse Chevrette to call security to open the door. Nurse Yard returned to the
door and kept knocking on it. Nurse Chevrette soon followed, tried the door,
was able to release the lock and open it. This was estimated as taking
approximately ten seconds.
[112] According
to Nurse Yards evidence, once the bathroom door was opened and she saw Mr. Paur
hanging, she ran to Mr. Paur and lifted him up. A security guard came and
assisted in lifting Mr. Paur higher. Nurse Chevrette hopped on the toilet
and was able to get the gown undone. They lowered Mr. Paur to the floor,
she checked for a pulse and did not feel it, and started chest compressions
right away. She heard a code blue called, and someone else took over the
chest compressions.
[113] Nurse
Yards evidence that she went to check on Mr. Paur after he was in the
bathroom for a couple of minutes is not a reliable indicator that this is the
amount of time Mr. Paur was in the bathroom, for several reasons:
a) Nurse Yard was
not timing Mr. Paur and admits this is just an estimate of the time she
allowed to pass after noticing him gone. She does not know when he went in the
bathroom.
b) Nurse Yard had
written no clinical notes prior to the hanging other than the note about giving
Mr. Paur the medication. Sometime after the hanging, later that day or the
next day, she was asked to complete the charting. She did not chart the amount
of time Mr. Paur was in the bathroom.
c) Further,
Nurse Yards late chart entries are blurry as to timing of events and somewhat
self-serving. Her first late entry was written referencing the time of 0145
a.m. on May 24, 2011. The sense of her evidence on examination for discovery
was that had the incident not happened, she expects she would have charted
patients at 2 a.m. and so she essentially worked backwards and just picked the
time of 0145 am as the time for the entry of this note. This entry is written
to suggest that Mr. Paur was settled at that time.
d) Nurse Yards
discovery evidence revealed that her purpose for writing the note was to show
that Mr. Paur had gone up to the bathroom and was resettled in bed prior
to the last third time when she found he was not in bed. It strikes me as self-serving
that Nurse Yard chose to use the word settled, given that he had been out of
bed twice already and on her evidence, she was not watching him when he got up
from his bed soon after this to go back to the bathroom. Also, she had no
conversation with him to explore his mood and had only spoken to him at the
time of his admission.
e) Nurse Yards
next entry in the late-entry clinical records is at 0210, and is her summary of
what happened in relation to the hanging. In this entry she uses the time of
0145 as the time Mr. Paur was not in his bed, leading to her investigation
of him in the bathroom and ultimately the discovery of him hanging. Why she
picked the time of 0145 as when he was noted as not in his bed is curious as
there was nothing in her evidence to suggest that she could be so precise and
it is the same time she used to note that he was settled in bed.
f) The
choice of such an exact time as 0145 raises a question as to whether it was an
attempt to match the time of the code blue noted in other hospital records or
to minimize the amount of time between when Mr. Paur was noticed missing
and the code blue. Dr. Picketts records indicate that the code blue was
at 0145 a.m.
g) There is no
evidence that Nurse Yard asked Nurse Chevrette if she had seen and noted the
time when Mr. Paur went into the bathroom. Nurse Yard did not explain why
she thought it necessary to check on Mr. Paur if he was only in the
bathroom for a couple of minutes.
h) The phrase a
couple of minutes was used repeatedly by Nurse Yard and in my view, this was
deliberate so that she could rely on the vague meaning of the phrase. This
phrase can mean two minutes, but in conversation it is often used to mean a
short time without any precision at all.
[114] In any
event, Nurse Yards evidence cannot be relied upon to estimate the amount of
time Mr. Paur was in the bathroom before being discovered. If her evidence
is accepted without question, she does not know when he went into the bathroom,
but once she noticed he was not in his bed she allowed him at least a couple
of minutes before going to check on him. This still does not tell us how long
he was in the bathroom unmonitored.
[115] Counsel
for the Hospital Defendants submits that Mr. Paur must have only been in
the bathroom for a very short time or the nurses would have noticed him gone
and taken action. I do not agree that this is the only available inference. The
nurses gave no evidence as to what in fact they were doing just before or at
the time that Nurse Yard noticed Mr. Paur missing. Mr. Paur was able
to go into the bathroom more than once without both nurses seeing him. They
could not see him in his bed just by glancing up from where they were sitting
in the nurses station; they had to move around to see around the pillar
located between their viewpoint and his bed.
[116] The fact
is that the nurses were not thinking they needed to note the time that Mr. Paur
was in the bathroom and they did not do so. Nurses Yard and Chevrette have reconstructed
the events of that night and their evidence as to the amount of time that Mr. Paur
was in the bathroom is unreliable.
[117] I accept
that after noticing Mr. Paur was not in his bed, Nurse Yard did not
immediately go and check on Mr. Paur in the bathroom. Instead, not knowing
how long he had been in the bathroom, she waited for at least two minutes
before leaving the nursing station to check on him.
[118] The
logical inference is that Nurse Yard only went to knock on the bathroom when
she became concerned because Mr. Paur had been out of sight for a period
of time longer than a mere couple of minutes.
[119] I would
estimate at least 30 seconds to one minute would have then gone by before the
bathroom door was unlocked, taking into account the time for: Nurse Yard to
leave the nursing station to walk to the bathroom door; knock on the door and
call out to Mr. Paur and try the door handle; return to the nursing
station, enter it and ask for assistance from Nurse Chevrette because she did
not know how to open the door; Nurse Chevrette to call security, then come out
of the nursing station, reach the door and unlock it.
Timing of Hanging
Related to Nature of Injury
[120] The
evidence is overwhelming that Mr. Paur suffered irreversible brain damage
from the hanging incident. The hanging went on long enough that the lack of
supply of oxygen to his brain caused brain cell death.
[121] There is
convincing medical evidence that suggests that Mr. Paur was hanging for a
minimum of five minutes to cause the damage that was caused; but he was
likely hanging for less than ten minutes or he would have been dead.
[122] Dr. Wood
has considerable experience in dealing with patients who have suffered serious
injuries as a result of the heart stopping and as a result of lack of oxygen to
the brain. Not only does he deal with many patients who have suffered cardiac
arrest, he also cares for patients who have suffered a brain injury as a result
of a non-fatal hanging, dealing with one or two such patients per year
approximately.
[123] In Dr. Woods
opinion, Mr. Paur suffered a hypoxic-ischemic brain injury as a result
of the hanging. Dr. Wood explained that the reason the brain is injured in
hanging is because the brain does not get enough oxygen. In Dr. Woods
opinion, brain cells start to die after five minutes when blood flow and oxygen
to the brain cease. The longer the period of no blood flow, the greater the
degree of brain injury, such that most people will never regain consciousness
after ten minutes. In his opinion, even a delay of 30 seconds would have a
clinically significant impact on the neurologic outcome, and a delay of two
minutes would have a profound influence on the degree of permanent injury.
[124] While Dr. Wood
testified in direct that there is a debate about the precise mechanism of
injury, he stated that most opinions consider it is because the weight of the
hanging body puts enough pressure on the carotid and vertebral arteries to
occlude them so that the blood cannot get through. In his opinion this occurs
almost immediately after the hanging begins, causing a severe or total
reduction in oxygen getting to the brain cells.
[125] However, Dr. Woods
opinion was not limited to this being the only mechanism. His opinion also
explained that hanging causes a reduction of oxygen in the blood generally
because of compression of the trachea preventing air from getting into the
lungs.
[126] Dr. Woods
opinion, based on the significant neurological deficits Mr. Paur has been
left with, was that Mr. Paur was hanging for a period of between five to
ten minutes. He agreed that not every patient is identical, but the
differences can be in relation to the severity of the injury. On average,
permanent brain damage will occur if the brain is without oxygen for five
minutes and there is less likely to be a significant injury if the lack of
blood flow to the brain is less than that time, perhaps give or take 30
seconds. If Mr. Paur had no brain injury, Dr. Wood would be of the
view that he was hanging less than five minutes.
[127] Dr. Lu
also found the fact that Mr. Paur required resuscitation and intensive
care unit support indicates that it was a life-threatening and severe anoxic
brain injury.
[128] Dr. Lu
gave evidence that it is generally accepted, and supported by medical research
and clinical experience, that significant irreversible brain damage can occur
when the brain is significantly deprived of oxygen for as little as five
minutes. In cross-examination he agreed that these numbers are not so precise
that no one could say with certainty that a vulnerable individual would not
suffer irreversible brain damage after only four minutes of a complete loss of
oxygen.
[129] Dr. Semraus
evidence was that in a medically healthy person, you can expect serious medical
harm after five minutes of hanging with increasing amounts of brain damage over
time, and a high risk of death after ten minutes of hanging.
[130] Dr. Antons
evidence was that when the brain is deprived of oxygen for a period of time,
generally thought to be around five minutes or more, that leads to permanent
brain damage. The brain can be deprived of oxygen in more than one way: one way
is to cut the blood flow; the other is to reduce the oxygen in the brain, for
example, if the person has a problem breathing. These problems can occur
simultaneously.
[131] Dr. Anton
agreed in cross-examination that the time of five minutes for brain damage to
take place is a rough number and that people can suffer permanent brain damage
in less time and some can have longer periods with no residual effects. He
agreed with the proposition that one cannot look at the residual effects of a
brain injury and calculate the period of time they suffered from anoxia or
hypoxia, although one can infer what happened. Dr. Wheeler agreed with
this evidence.
[132] I do not
take Dr. Antons evidence in this regard to undermine Dr. Woods
opinion that Mr. Paur was likely hanging for at least five minutes. While
no one can calculate with scientific certainty the precise length of time of
hanging, on a balance of probabilities the inference can be drawn from Mr. Paurs
brain damage that it is more likely than not that the hanging decreased the
oxygen to his brain for a period of approximately five minutes.
[133] Dr. Wood
was challenged on his opinion in cross-examination by counsel for the Hospital
Defendants, who suggested that the period of hanging could have been three
minutes, followed by two minutes before Mr. Paur was resuscitated, to add
up to the five minutes in which brain injury could occur. Dr. Wood agreed
that such a scenario could cause brain injury. However, he explained that the
reason he thought Mr. Paur was hanging for five minutes was because there
was no pulse: if he had been hanging for only two or three minutes he would
expect the heart to still be working because it is unusual for the heart to
give up that quickly.
[134] Counsel
for the Hospital Defendants also suggested to Dr. Wheeler and he agreed
that one could expect some degree of hypoxia during the time it took to bring Mr. Paur
down from the hanging, when he was given CPR, and before a pulse was achieved,
and this could contribute to any residual effects from the injury.
[135] Dr. Pickett
gave evidence under questioning from her own counsel that she arrived in the
Comox Unit after hearing the call for security. The call for security happened
before the bathroom door was opened. When Dr. Pickett arrived she saw Mr. Paur
on the bathroom floor and the nurses giving CPR. She noted that Mr. Paur
was cyanotic, quite purple in colour. She had the nurses stop the CPR, and
checked for a carotid pulse, and found that he had no pulse. The nurses
restarted CPR and someone got a bag valve mask and began using it to get air or
oxygen into Mr. Paurs mouth. Dr. Pickett noticed that his colour
improved after a minute or so, she asked for CPR to be halted again, and now
was able to feel a pulse. He remained unresponsive and they continued with
using the bag valve mask to ventilate him.
[136] Regardless,
in relation to his evidence that Mr. Paur must have been hanging for five
minutes because he had no pulse, Dr. Wood explained that he has observed
hearts continue beating for quite a while after a person stops breathing. In
his direct evidence he gave the example of turning off ventilator life support,
and although the person stops breathing the heart can sometimes continue
beating for ten to 15 minutes. I found Dr. Woods evidence in this
regard to be credible.
[137] Dr. Wheeler
also found it quite significant that Mr. Paur had cardiac arrest and
respiratory arrest, and even after Mr. Paur was taken down from the
hanging and his heart was resuscitated, he did not have any respiratory drive
and was still not breathing on his own. In his opinion, this indicated a very
significant anoxic brain injury and that Mr. Paur had been without oxygen
to his brain for at least five minutes.
[138] Dr. Woods
evidence that the mechanism of the brain injury caused by the hanging was most
likely by occlusion of the arteries, cutting off blood flow, was challenged by
counsel for the Hospital Defendants. But if the mechanism was otherwise and
there was still some blood flow going to the brain, it would have taken longer
for the brain injury to have occurred, and this would mean Mr. Paur was
hanging for more than five minutes, as Dr. Wood explained under
cross-examination by counsel for Dr. Pickett.
[139] Of course
that scenario, a longer period of hanging, would not reflect well on the
nurses responsibility for monitoring Mr. Paur.
[140] Dr. Cameron
was cross-examined about the mechanism of injury. In his view the trachea is
more susceptible to damage from hanging than is occlusion of the arteries, but
the latter can happen.
[141] Dr. Cameron
gave the opinion that Mr. Paur suffered a brain injury as a result of the
hanging, caused by insufficient oxygen in the blood. In his opinion this can be
because of insufficient blood flow, insufficient hemoglobin to carry the
oxygen, or insufficient oxygenation because of cessation of breathing. He noted
that a CT scan performed soon after the hanging confirmed loss of the normal
gray-white interface, or change in tissue density between the gray and white
matter within the brain, due to the brain injury.
Conclusion on Length of
Time Patient was Unmonitored
[142] As I have
reviewed above, the evidence of Nurses Yard and Chevrette is not reliable for
determining how long Mr. Paur was in the bathroom before Nurse Yard went
to the door.
[143] It is
reasonable to assume that Mr. Paur also required some time to fashion the
noose and secure it in the ceiling. However, it is possible that Mr. Paur
did these preparations on one of his earlier trips and left the noose in the
ceiling, ready for a return visit.
[144] I find on
the all the evidence, including the medical evidence related to the state Mr. Paur
was found when discovered, and his injuries, that it is more likely than not
that he was hanging for at least five minutes before he was discovered, at a
minimum.
[145] I turn now
to consider the liability of the defendants.
LIABILITY OF HOSPITAL
[146] There are
two general theories of liability as against SPH:
a) that it was
negligent in the provision of the hospital facilities, by not making the
bathroom in the stretcher area of the Comox Unit ligature-proof so as to
minimize the foreseeable risk of hanging by suicidal patients; and, or
b) that it was
negligent in failing to ensure proper policies and procedures for nurses
working in the Comox Unit in the care of suicidal patients, especially when the
bathroom was unsafe for suicidal patients, so as to minimize the foreseeable
risk of hanging by suicidal patients.
Duty of Care
[147] The claim
against SPH is based on the Occupiers Liability Act, R.S.B.C. 1996,
c. 337 [OLA] as well as on common law principles of negligence.
[148] Section 3
of the OLA imposes a duty of care on an occupier of premises to take
that care that in all the circumstances of the case is reasonable, in relation
to both the condition of and activities on the premises, to see that a
person on the premises will be reasonably safe in using the premises.
[149] A hospital
has a duty to maintain safe systems, including adequate facilities and
competent personnel: Granger (Litigation Guardian of) v. Ottawa General
Hospital, [1996] O.J. No. 2129 at para. 37 (C.J.) [Granger].
[150] In Mullins
v. Levy, 2009 BCCA 6 at para. 147 [Mullins], in the context of
approving the notion that medical personnel at a hospital dealing with a
psychiatric patient have a duty to take steps to keep the patient safe from
self-harm and from harming others, our Court of Appeal cited with approval the
trial decision in Conway v. Fleming, [1996] O.J. No. 1242 (Div.
Ct.), affd (1999), 43 O.R. (3d) 92 (C.A.) [Conway].
[151]
The following passage from the trial judgment in Conway was cited
at para. 149 of Mullins, referring to the evidence that health care
staff had injected an agitated psychiatric patient with medication,
against his will, to calm him down:
On the basis of the reasoning in the decisions of Stewart
v. Extendicare Limited, [1986] 4 W.W.R. 559, and Wellesley Hospital v.
Lawson (1977), 76 D.L.R. (3d) 688, and the very useful article by G.
Robertson, Mental Disability and the Law in Canada (Toronto) Carswell, 1987,
I am satisfied that there was authority for the injection at common law.
At p. 386, it was stated: Psychiatrists and other health
care professionals involved in the care and treatment of a patient are under a
legal duty to exercise reasonable care to ensure that the patient does not harm
himself. Also at p. 389:
A psychiatric patient may pose a
danger not only to himself but also to others in the hospital. The
hospital must respond to that risk by providing and maintaining a reasonable
level of supervision and security. That responsibility is not limited to
the protection of patients. As an occupier of premises, a hospital is under a
duty to take reasonable care for the safety of all persons who are lawfully on
the premises.
[Emphasis added.]
[152] There was
abundant evidence of medical experts and witnesses at trial that once
Mr. Paur was certified as an involuntary patient, SPH assumed
responsibility for his health and safety. This evidence is consistent with
common sense and I accept it.
[153]
SPH had a duty to protect Mr. Paur from an objectively unreasonable
risk of harm. As held in Agar v. Weber, 2014 BCCA 297 at para. 30:
The standard of care under the OLA
and at common law for negligence is the same: it is to protect others from an
objectively unreasonable risk of harm. Whether a risk is reasonable or
unreasonable is a question of fact.
[154] Distilling
the principles down, considering s. 3 of the OLA, common law
principles, and the authorities of Agar, Waldick v. Malcolm, [1991] 2 S.C.R. 456, Foley v. Imperial
Oil Limited, 2011 BCCA 262, and Downey v. St. Pauls Hospital,
2007 BCSC 478, and considering the expert evidence in the case, it
is easy to conclude and I find that SPH had a duty of care to take reasonable
steps to keep Mr. Paur safe while being held against his will in the
hospital, including a duty to provide adequate supervision and adequate
premises and adequate policies to keep Mr. Paur reasonably safe from
self-harm.
Foreseeable Risks of
Harm
[155] Considering
whether a risk is objectively reasonable or unreasonable includes taking into
account the likelihood of harm or foreseeable harm, the gravity of the harm,
the burden or costs that will be incurred to prevent the injury, and whether
the defendant used common or ordinary caution in the circumstances: Agar at paras. 54-57, citing Lawrence
v. Prince Rupert (City), 2005 BCCA 567 and G.H.L. Fridman, The Law
of Torts in Canada, 2nd ed. (Toronto: Carswell, 2002) at 387-388 [Law
of Torts].
[156] Dr. Pawliuk,
a psychiatrist called as an expert witness on behalf of Dr. Pickett, gave
the opinion that Mr. Paurs attempted suicide by hanging in the bathroom
of SPHs ER was not predictable.
[157] However,
predictability does not equate to the legal test of foreseeability.
[158] Suicide
attempts by their nature are irrational and unpredictable (here I am not
commenting on the case of a terminally ill patient seeking to avoid a painful
and frightening disability and death). There is no evidence that anyone in SPH
on the night in question thought that Mr. Paur was likely to attempt
suicide. However, all of the hospital staff involved knew he had some risk of
suicide because that is why he was certified and held against his will.
[159] Dr. Pawliuk
agreed in cross-examination by counsel for the plaintiff that it is impossible
to predict who will commit suicide, but that should not stop an ER physician
and a hospital from taking steps to prevent someone from attempting suicide
when they present to the hospital as intoxicated and suicidal.
[160]
The question of what is a foreseeable risk does
not require the exact event to have been predictable or likely. It is enough if
one can foresee in a more general way a real risk of harm that is not far-fetched,
as summarized by Schultes J. in Bendzak v. Bohnet, 2013 BCSC 435 at
paras. 44-48:
[44] The test is not whether anything could
have been done to prevent the injury using 20/20 hindsight, but rather whether
the steps taken by the occupier were reasonable in all the circumstances: Duddle
v. Vernon (City), 2004 BCCA 390 at para. 16.
[45] Although it is not specifically
mentioned in the section, the common law requirement of reasonable
foreseeability of harm remains part of the analysis of liability under the act:
Rendall v. Ewert (1989), 38 B.C.L.R. (2d) 1 (C.A.) at 9.
[46] For a risk to be foreseeable it is not
required that it be more likely than not to occur or that there needs to be
some particular degree of statistical probability attaching to it. In Mustapha
v. Culligan of Canada Ltd., 2008 SCC 27,
at para. 13, Chief Justice McLachlan described the correct approach:
Much has been
written on how probable or likely a harm needs to be in order to be considered
reasonably foreseeable. The parties raise the question of whether a reasonably
foreseeable harm is one whose occurrence is probable or merely possible.
In my view, these terms are misleading. Any harm which has actually occurred is
possible; it is therefore clear that possibility alone does not provide a
meaningful standard for the application of reasonable foreseeability. The
degree of probability that would satisfy the reasonable foreseeability
requirement was described in The Wagon Mound (No. 2) as a real
risk, i.e. one which would occur to the mind of a reasonable man in the
position of the defendan[t] . . . and which he would not brush aside as
far-fetched (Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty.,
[1967] A.C. 617 (P.C.), at p. 643). [Emphasis in original.]
[47] It is also not necessary that the exact
type of injury that occurred be foreseen. As Mr. Justice Dickson explained
in Assiniboine School Division No. 3 v. Hoffer (1971), 21 D.L.R.
(3d) 608 (Man. C.A.), at page 614:
It is enough to
fix liability if one could foresee in a general way the sort of thing that
happened. The extent of the damage and its manner of incidence may not be
foreseeable if physical damage of the kind which in fact ensued is foreseeable.
[48] In R. v. Côté, [1976] 1 S.C.R.
595, at p. 604 Mr. Justice Dickson elaborated on this principle:
It is not necessary that one foresee the
precise concatenation of events; it is enough to fix liability if one can
foresee in a general way the class or character of injury which occurred.
[161] The
question that must be explored is whether, contrary to SPHs duty of care to
take reasonable steps to keep Mr. Paur safe, there was a real and
unreasonable risk of harm to him, by housing him in an area of the ER which had
a bathroom where he could hang himself, in a situation where there were no
policies in place to prevent him from entering the bathroom unseen by the
nursing staff, and from remaining in it unmonitored for an unspecified period
of time.
[162] I will
first address foreseeable risks of harm and then will address the other factors
that go into assessing whether the duty of care was breached by SPH.
[163] In
considering foreseeable risks of harm known to the hospital, the evidence can
be broken down into: information regarding Mr. Paur himself; information
regarding certified suicidal intoxicated patients generally; information
regarding hospital facilities servicing suicidal patients; and information
regarding nursing policies.
Foreseeable Risks Regarding Mr. Paur
[164] After Mr. Paur
was brought to SPH, hospital staff learned and had available to them the
following information:
a) he was
apprehended by police under s. 28 of the MHA because he had a
dispute with his wife, checked into a high floor of a hotel, said bye to his
wife and threw his phone over the balcony;
b) he had consumed
2 litres of alcoholic cooler and 2 shots of whiskey, and 1 mg of clonazepam;
c) he had a
history of a previous suicide attempt with an overdose of clonazepam;
d) he had been to
SPH ER one week earlier with a laceration and was intoxicated at that time;
e) his list of
prescriptions available on PharmaNet indicated treatment for mental health
problems as his medications included an anti-anxiety drug, a mood stabilizing
agent, and an anti-depressant;
f) he
had healed linear scars to his forearms that suggested past self-harm gestures;
g) in response to
the ER physician, Dr. Pickett, he denied having thoughts of hurting
himself but was not considered reliable given his history, the fact he denied
any significant past medical history yet the ambulance report indicated his
past recent suicide attempt, and given his presentation as intoxicated; and,
h) Dr. Pickett
certified him as an involuntarily patient under the MHA because she was
concerned for his safety and the possibility he might try to harm himself due
to suicidal ideation and because she could not get an accurate assessment of
him until he sobered up.
[165] All of
these factors meant that SPH staff knew that Mr. Paur was at a foreseeable
risk of making a suicide attempt.
[166] The reason
Mr. Paur was certified and kept in the hospital on an involuntary basis
was because of his suicide risk and because it was felt that the appropriate
plan was to keep him safe in hospital until he sobered up and could be
reassessed.
[167] There was
varying evidence as to the degree of risk Mr. Paur presented. Dr. Pawliuk
suggested the factors indicated only a slight risk, but agreed that
Mr. Paur presented enough risk to be certified and kept in the hospital,
and that because it is impossible to predict when someone is going to make a
suicide attempt, the patients in this position are treated equally.
Foreseeable Risks Regarding Suicidal Intoxicated Patients
[168] SPH is
located in the urban centre of the city of Vancouver. The evidence is that SPH
sees a large number of psychiatric patients in the ER, the majority of whom are
intoxicated. In the 2011 to 2012 time range there could be approximately one
patient seen each shift in the ER, who was apprehended under the MHA,
roughly four or five per week in Dr. Picketts experience and sometimes
this many in a shift. A good percentage of these patients are certified because
of suicidal ideation (as opposed to another mental health issue).
[169] Some
mental health patients come into the ER of SPH on their own or are brought in
by family or friends.
[170] Sometimes
admission to hospital can calm a suicidal patient down. To this end, it is
appropriate for hospital staff to try to keep the patient calm and to not cause
any emotional upset to escalate.
[171] While
there was no direct behaviour at SPH to indicate that Mr. Paur was
actively planning a suicide attempt at the hospital, this did not mean that SPH
staff could or did assume there was no risk.
[172] The
evidence at trial was that it is well known by trained medical personnel
dealing with suicidal patients, that intoxication makes such patients extremely
impulsive and unpredictable, and that the suicidal intent of these patients can
fluctuate.
[173] It was Dr. Semraus
opinion that the practice is to be universally stringent with these patients
until there is a better opportunity to assess them. The level of their suicide
risk cannot be assessed while they are intoxicated and so cannot be assumed to
be low. I accept this evidence which is consistent with common sense and
evidence of other medical professionals at trial.
[174]
As well, it is well known that suicidal patients are highly resourceful
in looking for means to commit suicide. As described by Dr. Semrau in his
report, which evidence I accept:
Patients who are suicidal, particularly if somewhat
intoxicated, are highly unpredictable. Although suicidal intent fluctuates, it
must be considered an immediate danger, particularly if the patient is
intoxicated, which amplifies unpredictability.
Patients with acute suicidal intent can often be highly
resourceful, determined and effective in their self-harmful endeavors,
notwithstanding that they suffer from a mental disorder. Intense focus on a
suicidal objective will often result in scanning their environment for means
and methods of lethally harming themselves.
Within a typical secure, locked psychiatric facility,
patients are searched for and deprived of objects and materials such as knives,
drugs, etc. which could be used to harm themselves or others. It is also
virtually universal that obvious methods of self-harm such as easily-opened
windows on upper floors of buildings will have been secured in various ways in
order to remove most means of self-harm.
However given the very focused and determined nature of
suicidal intent, despite the obvious precautions, many suicidal patients will
nevertheless diligently and resourcefully scan their environment for any
reasonable opportunity to engage in self-harm. This must always be anticipated
in terms of potential suicidal behavior.
When suicidal patients are held involuntarily with any
facility, their suicidal risk will gradually be assessed in a more
sophisticated fashion through interviews with psychiatrists and other staff.
Generally over a number of hours or days, the various parameters of suicidal
risk can be understood in greater detail and various treatment and intervention
measures can be employed to minimize suicidal risk, almost always gradually
moving toward a situation of reasonable patient safety and eventual release to
the community, usually with ongoing psychiatric follow-up.
However as of the evening of May
23, 2011, there had been no reasonable opportunity to engage in any of the
further assessment, treatment or intervention measures which would have been
necessary in order to establish diminished or manageable suicidal risk. Thus as
of the evening of May 23, 2011, Mr. Paur would have been in a state of
ongoing high suicidal risk.
[175] Dr. Pawliuk
agreed that patients are ingenious in finding ways to try to commit suicide,
and that it is almost impossible to predict when one particular patient will do
so. The impossibility of prediction is why intoxicated suicidal patients are
kept in the hospital.
[176] Because of
the risk that Mr. Paur might attempt suicide, the hospital nurses took
safety measures, such as requiring him to undress and get into a hospital gown,
and requiring him to provide them with his belongings for safe-keeping. As
well, patients in that area of the Comox Unit were not permitted to close the
curtains around their hospital beds and were directly across from the nurses
station in relatively easy view of the nurses.
[177] The nurses
in the Comox Unit knew that it was important to closely observe Mr. Paur
and that the reason for this was to keep him safe.
Foreseeable Risks Regarding Suicidal Patients Attempting
Hanging in Hospital
[178] There was
uncontradicted evidence at trial that it is well known in the psychiatric
medical community that while suicidal patients can be very resourceful in
seeking out methods of suicide, hanging is an extremely common method.
[179] There was
also uncontradicted evidence that it is well known in the psychiatric medical
community that hanging is a method of attempting suicide that is particularly
dangerous, because it can be lethal in a short time, and even if discovered and
interrupted before death, a patient can be left with very serious long-term
brain damage. In contrast an overdose or self-cutting in hospital can result in
prompt medical attention with less harm to a patient.
[180] It is for
these reasons — the unpredictability of patients and the commonality of and
dangers of hanging — that it was Dr. Semraus opinion that prevention of
hanging is an important safety measure for certified intoxicated suicidal
patients.
Hospital Facilities
[181] In 2009,
SPH renovated what was known as the Comox Unit part of its ER, as part of
an overall renovation of the emergency department.
[182] By that
time hospitals had started to have what are known as secure rooms, also known
as seclusion rooms, for some psychiatric patients. These were rooms for a
single patient where a patient could be locked in and observed through a window
in the door and a camera. These rooms were designed so that the ceilings and
walls would be hard and the toilet fixtures would be visible to the observer.
The design was intended to prevent or quickly attend to attempts at hanging and
other self-harm.
[183] Secure
rooms are seen as the most extreme restriction on patient liberty, and are
usually used for aggressive psychiatric patients, to prevent them from harming
others.
[184] Somewhat
down the scale and less restrictive than a secure room are locked psychiatric
areas. In these areas, the lock is intended to assist in preventing the escape
of involuntary patients. These areas could involve several hospital beds.
[185] The
evidence established that it is well-accepted that medical personnel and
hospital facilities seek to balance the need to restrain a psychiatric patient
with the need to treat a patient in a way that enhances the patients feeling
of dignity, including by respecting the patients privacy. Thus the degree of
restraint measures employed with a certified psychiatric patient can vary from
putting the patient in a secure room, to using restraints to tie the person onto
a hospital stretcher, to putting the psychiatric patient in an ordinary
hospital bed with a high degree of nursing monitoring.
[186] As of
2009, SPH had four secure rooms in the Comox Unit. The very existence of these
rooms, designed to be ligature-proof, is some evidence that SPH knew that in
some situations it is necessary to address architectural design of a room to
protect an ER patient from trying to hang himself.
Charles Kierulf
[187] The
plaintiff called as an expert witness Charles Kierulf, an architect with
considerable experience in the design of hospitals with a psychiatric
component, including the AC Centre at Royal Jubilee Hospital in 2004-2006.
[188] In Mr. Kierulfs
opinion, in 2009 when the Comox Unit was renovated, the standard of care in BC
for an area where certified suicidal patients would be held required amongst
other things: the bathroom to be in the direct line-of-sight of the nursing
station for monitoring; electronic locks on any doors that patients would have
access to, allowing immediate access by staff; tamperproof and anti-ligature
fixtures and fittings; and solid gypsum board ceilings with tamperproof access
panels in all patient areas.
[189] Mr. Kierulf
explained that the typical design process for a hospital, including a
renovation, involves discussions between the health authority and design team
to determine the needs of the patient population and supporting standards. As
well, any standards would be reviewed and discussed between the design team and
a user group of hospital representatives to develop a project-specific approach
to patient and staff safety.
[190] It was Mr. Kierulfs
opinion that the bathroom in the area of the Comox Unit where Mr. Paur was
held and then hanged himself, did not meet the architectural standards expected
in a BC hospital caring for certified suicidal patients and other patients in
psychiatric distress in 2011. In particular: the bathroom door was not in the
direct line-of-sight of the nursing station; the door had a standard lock
allowing Mr. Paur to lock himself in, restricting the ability of staff to
respond quickly to assist Mr. Paur when required; the fixtures were
standard and not anti-ligature fixtures; and the ceiling was a loose-laid T-bar
type suspended acoustic ceiling with lay-in electrical and mechanical fixtures
and diffusers.
[191] Mr. Kierulf
relied in his opinion both on his experience and on certain publications
including a document entitled Standards for Hospital-Based Psychiatric
Emergency Services: Observation Units, published by the BC Ministry of
Health and Ministry Responsible for Seniors in March 2000 (the MOH
Standards). He acknowledged that the MOH Standards were written in
respect of secure rooms and observation rooms and not in respect of other
areas such as bathrooms in an open ward environment. However, it was his
opinion that the standards in all areas caring for certified patients would be
to the same level as the MOH Standards.
The MOH Standards
[192] A major
point of contention for the Hospital Defendants in the trial was the relevance
of the MOH Standards.
[193] Under
s. 3(2) of the MHA, the Province may designate hospitals as
psychiatric units or observation units. These form part of the definition
of a designated facility, capable of detaining for involuntary treatment,
persons certified under s. 22 of the MHA.
[194] In April
2005, SPH was designated as a psychiatric unit, as were several other city
hospitals such as Royal Jubilee Hospital and Victoria General Hospital in
Victoria. Also in April 2005, certain rural hospitals were designated as
observation units, for example, hospitals in Grand Forks and Fort Nelson, BC.
[195] The MOH
Standards were written with rural observation units in mind. The cover page
message from the deputy minister stated that these standards had to be met by
hospitals designated as observation units.
[196] The MOH
Standards addressed two components: quality of care standards for safe
management of psychiatric patients, including staff education and training; and
technical standards for a psychiatric secure room.
[197] The
technical standards for a psychiatric secure room, set out in the MOH
Standards, included physical design measures to preclude attempts at hanging.
The physical measures included: an electro-mechanical lock on doors, to be
operated remotely from the nurses station with manual key override; hard
flat-surface walls; a preferred ceiling height of three meters (ten feet) in
new facilities; hard ceilings that were abuse resistant; and all fittings and
architectural details had to be of a design that prevented use of ligatures.
[198]
It is clear that the MOH Standards were specifically directed to
secure rooms designed to hold one person alone and to be monitored by video
camera and by windows in the doors. The MOH Standards described the
purpose of the secure room as follows:
The secure room will be utilized
for seclusion of acutely ill certified psychiatric patients who are deemed to
be at risk for self-harm or harm to others. In addition, the secure room may be
used for monitoring of patients who have a dual diagnosis and are
neurologically unstable. Both categories of patients must be deemed to require
some form of restraint/private enclosed area.
[199]
Also as provided in the MOH Standards were clear warnings to
monitor patients and to design rooms to avoid the risk of hanging, all the
while balancing the privacy needs of a patient with safety:
The design and construction of the secure room must prevent
the removal or detachment of building construction materials. All fittings and
architectural details must be of a design that prevents use of ligatures.
Acutely ill psychiatric patients, as a result of impaired judgment, may be at
considerable risk to use whatever means available to potentially hurt
themselves or others.
Balancing the privacy, dignity
and safety needs of the patient are of vital importance. Privacy is essential
to maintain the respect and dignity of the patient.
To prevent injuries and
provide effective care, full visibility to monitor behavior and intervene as
needed is critical. Staff must have the capability of viewing all surfaces of
the secure room.
[200] There were
no such standards published for the hospitals designated as psychiatric units,
nor did the MOH Standards provide specific building standards for more
general wards housing certified patients.
[201] The court
must give considerable weight to the evidence of experts who interpret and
apply the standards when considering their relevance: Downey at para. 88.
[202] Despite
the fact that the MOH Standards specifically referenced secure rooms, it
was Mr. Kierulfs opinion that these standards informed design teams
for hospitals building or renovating psychiatric units for ancillary uses
for certified suicidal patients.
[203] In
cross-examination, Mr. Kierulf admitted he was not aware of the fact that
under the MHA the Ministry of Health designated different types of
facilities in which patients can be involuntarily held. He agreed that he
considered the subject area of the Comox Unit to be intended as some kind of
observation unit, however it was clear he was not using this as a statutory
designation but as a description of the patient care in that area.
[204] Mr. Kierulf
agreed in cross-examination that certified patients could be held in places
that do not meet the building standards, but he pointed out that if the
physical space was not secure there would then need to be operational measures,
by which it was clear he meant levels of nursing observation necessary to
protect patients and staff. This is consistent with the MOH Standards
and common sense, as well as the evidence of other expert witnesses, all to the
effect that patient safety should be addressed both from the point of view of
monitoring by nurses, and from the point of view of the design of the space
where the patient is being held. Both aspects should work together to ensure
patient safety in the face of foreseeable risks of hanging by a suicidal
patient.
[205] The
Hospital Defendants suggested to Mr. Kierulf in cross-examination that it
was impossible to remove all self-harm potential in the design of psychiatric
facilities. He agreed but pointed out that one still tries to reduce or
eliminate the potential for self-harm as much as possible.
[206] Mr. Kierulf
also gave the opinion that the fact that there was no observation window in the
bathroom door fell below standards. He stated that privacy does not trump life
safety, and if privacy is an issue there needs to be other ways of managing it.
However he agreed that when designing an area for psychiatric patients he tries
to make the environment as nurturing and friendly and autonomous and private as
possible, given the consideration of safety risks and client instructions.
[207] Dr. Semrau
agreed in cross-examination that it would not be appropriate to have an
observation window in a bathroom on a ward.
[208] Mr. Kierulf
was subjected to rigorous cross-examination. I found him to be a credible,
careful witness. While I do not accept that the bathroom in the Comox Unit
needed to have a window if other protective measures were in place I find his
evidence establishes this point: that at the time of the renovation of the
Comox Unit in 2009 and afterwards, SPH administrators ought to have known of
the MOH Standards, and that if the intended or actual use of the space
was to house and monitor certified psychiatric patients, it ought to have been
foreseeable to them that if the bathroom was not made ligature-proof it would
present a risk of hanging.
[209] The conclusion
that SPH knew of the existence of the MOH Standards is consistent with
the evidence of the architect involved in the renovation in 2009, Mr. Ted
Feenstra, who was subpoenaed and called as a witness by the plaintiff.
Ted Feenstra
[210] Mr. Feenstra
has been practicing architecture since 1990, and his practice has included work
for hospitals. He was involved in the architectural work for the renovations of
the ER of SPH between 2006 and 2010.
[211] He
explained that SPH renovated the ER while keeping it open, and so did the
renovations in phases. The value of the work for the phase which included the
Comox Unit was $7.4 million. The renovation was completed in 2010.
[212] As part of
the design of the renovation of the Comox Unit, Mr. Feenstra met with user
groups including people who would be working in the areas being renovated. At
the beginning of the project, there was not a plan to include a bathroom in the
stretcher area of the Comox Unit but SPH staff later asked that the bathroom be
added. Mr. Feenstra understood that the reason was that this area of the
unit was separated from the secure area that held the four separate secure
rooms, and so they required a bathroom.
[213] The
bathroom in the stretcher area of the Comox Unit was designed just as other
bathrooms in the ER were designed, and not as designed in the four secure rooms
of the Comox Unit.
[214] The four
secure rooms of the Comox Unit pre-existed the renovation and were essentially
unchanged by the renovation. They had solid ceilings.
[215] The
renovation of the rest of the area of the Comox Unit, including the bathroom,
was designed and finished with acoustic tile ceilings.
[216] At the
time of the renovation planning, Mr. Feenstra understood that the
stretcher area of the Comox Unit had the same intended use as the other acute areas
of the emergency department, as ER stretchers.
[217] Mr. Feenstra
had done other design work for SPH in earlier years, including psychiatric
areas of SPH in approximately 2002 or 2003. At that time he was designing a
secure room and staff of SPH made him aware of the MOH Standards and
that those standards applied to the project.
[218] Mr. Feenstra
testified in direct examination that no one from SPH told him that the
stretcher area of the Comox Unit was going to be used for involuntary detention
of mental health patients who might be homicidal, suicidal or psychotic. His
evidence is that if this was raised he would have then had further discussions
as to what would have been required for those patients and developed a design
on that basis.
[219] It was
suggested to Mr. Feenstra in cross-examination that he was told there
would be a mix of substance abuse and psychiatric patients in this area. He
denied this. He agreed that the Comox Unit was designed with a lockable door
but he said the discussion was that the door would be open most of the time.
[220] It was
brought out in evidence that SPH had unsuccessfully sought to add Mr. Feenstra
as a third party to this lawsuit. This might make him naturally adverse to SPH,
but countering this was the fact that Mr. Feenstra sees SPH as an
important client. I accept that Mr. Feenstra cannot be considered a
completely uninterested witness. Nevertheless, Mr. Feenstra was consistent
in his evidence that when designing the stretcher area of the Comox Unit he
understood that the use was going to be the same as the other general areas of
the ER and he was not told that it would be used to house certified psychiatric
patients. I found him to be credible.
[221] The most
knowledgeable representative for SPH produced for examination for discovery was
Mr. Christopher Dunsford. He was a project coordinator involved in the
2009 renovation of the ER. The plaintiff read-in some of his discovery evidence
at trial but he was not called as a witness. He did not recall whether, in the
construction and planning of the Comox Unit, he understood it was going to be a
secured unit where people would be involuntarily held. He did not recall any
discussion about the goal of the unit being to house people who were
experiencing mental health crises, including potentially suicidal patients. He
did not recall any discussions about making the bathroom in the stretcher area
of the Comox Unit ligature-safe.
[222] The
Hospital Defendants called as a witness another hospital employee involved in
the renovations, Diane Kierstead. Currently employed in an administrative
capacity with SPH since February 2011, prior to that she was employed as a
clinical nurse leader in the ER. In the spring of 2008 until the renovations
completed in 2010, she was one of the clinical people working with Mr. Feenstra
in discussing the types of patients and patient flow, equipment and staff and
safety issues that would be relevant for the ER renovation.
[223] Ms. Kierstead
testified that the original intentions for the four-stretcher area of the Comox
Unit were to use the four stretchers for any emergency patient, which could
include mental health patients but others as well. While the unit had the
capability of being locked, it was thought that they would usually leave the
door open.
[224] Ms. Kierstead
agreed that it was not the intention to use the four-stretcher area of the
Comox Unit as a locked unit exclusively for mental health patients but it soon
evolved to become that exclusive use. This evolution happened within months of
the completion of the renovations. She was not certain of the exact timing
because she was not doing much nursing at that time nor did she know whether it
was used exclusively for certified patients by 2011.
[225] Importantly,
Ms. Kierstead was not aware of anyone making a firm decision to turn the
stretcher area of the Comox Unit into a locked unit for psychiatric patients,
and did not know if there was any review by SPH on the appropriateness of
placing these types of patients there.
[226] Dr. Pickett,
who worked at SPH prior to and after the renovations to the Comox Unit,
recalled that once renovated the stretcher area was always used as a locked
area of the ER to hold psychiatric patients, usually certified and involuntary
patients. She considered it the best area to place a certified suicidal,
intoxicated patient in the ER, if a bed was available, although it was often
full. I find her evidence more reliable than Ms. Kierstead, simply because
Dr. Pickett was working full-time in the ER and Ms. Kierstead was
not.
[227] I conclude
that the renovated Comox Unit four-stretcher area was not designed with the
intention of being a locked unit to hold certified psychiatric patients but it
in fact came to be used this way almost as soon as renovations were complete.
[228] It is clear
that SPH administration was aware of the MOH Standards but there is no
evidence they addressed their mind to the safety of the design of the stretcher
area and bathroom of the Comox Unit for certified suicidal patients.
[229] In 2014 Mr. Feenstra
was asked to make further renovations to the bathroom in the stretcher area of
the Comox Unit. The ceiling was converted to a hard ceiling, and the sink was
changed to an anti-ligature sink, plus there were some other changes to the
area outside the bathroom. The cost of these changes was approximately $65,000,
a sum that is relatively modest when compared to the cost of hospital equipment
and other specialized hospital facilities.
[230] On the
totality of the evidence I conclude that in 2011 SPH should have known that
there was a foreseeable risk that a certified suicidal patient in the Comox
Unit might attempt self-harm by hanging when unobserved in the bathroom, and
that the bathroom was not designed to prevent such an attempt.
Foreseeable Risks Regarding Nursing Policies
[231] The weight
of the evidence indicated that standards for monitoring patients in the Comox
Unit and the ER of SPH fall to the nurses and hospital protocols.
[232] If the
bathroom was not safe for suicidal patients, that issue could be addressed by
nursing practices and policies to limit the opportunity for a patient to have
enough time alone in the bathroom to hang himself and cause serious damage.
[233] There were
no such practices or policies in place for the Comox Unit at SPH at the time in
question. There was no policy in place to check on patients after a period of
time in the bathroom.
[234] In
cross-examination by counsel for the Hospital Defendants, Dr. Semrau
disagreed that a nursing protocol involving checking Mr. Paur every five
minutes would be sufficient for a typical intoxicated suicidal patient, if
there is a risk of hanging. In his opinion, you would need constant nursing
observation of a patient who is at risk of hanging, because of the time needed
to notice the patient and successfully intervene if the person does attempt to
hang himself.
[235] Dr. Semrau
was taken in cross-examination to a case in Manitoba in which his evidence was
quoted, namely Levesque v. Health Sciences Centre (1996), 108 Man.
R. (2d) 145 at para. 10. In the passage quoted, Dr. Semraus opinion
was that five minute checks on a patient could abort a serious suicide
attempt by hanging.
[236] I did not
consider the above evidence in the Manitoba case to contradict and undermine Dr. Semraus
evidence at trial, as the facts in Levesque were distinguishable.
[237] The Levesque
case concerned a patient placed in a seclusion room, not because he was
suicidal but because he was obstreperous. The patient managed to ingeniously
open a locked window and escape, hurting himself in the process. The plaintiff
unsuccessfully argued that the nursing staff had only checked the patient every
ten or 15 minutes and that this was negligent in part because it was in breach
of a written policy to visually check patients every five minutes while in
seclusion. Dr. Semraus evidence was given in support of the five minute
check of a patient in what was considered a safe seclusion room.
[238] My
impression of Dr. Semraus evidence at the trial of the present case was
that his opinion as to the timing of patient observation depended on the
setting: a five minute check on a patient in a seclusion room might be
sufficient because two or three of those minutes would be required by a patient
to set up any hanging device, which would otherwise be visible on every
inspection. Thus a patient could be discovered well before he had been hanging
for five minutes. However, if a patient is in a setting where he has the
opportunity to set up a hanging device in advance, then a five minute check
would not suffice to keep him safe from hanging for five minutes or more.
[239] We do not
know if Mr. Paur secured his hanging device in the ceiling during an
earlier bathroom trip before his final bathroom trip when he hung himself.
[240] One can
imagine all sorts of variables as to possible nursing protocols that could have
addressed the risk presented by bathroom in the Comox Unit: one requiring
patients to request a key to the bathroom, so that the time a patient goes in
can be monitored; one requiring the nursing staff to check on a patient after
every minute in the bathroom, to ensure the patient is still able to speak; one
requiring nurses to listen at the door when a patient goes in the bathroom;
plus training on how to immediately access the interior of the bathroom if a patient
does not respond.
[241] Given the
knowledge attributable to SPH, that suicidal intoxicated patients are impulsive
and that hanging is a preferred method of suicide, that hanging can quickly
kill or cause brain damage, and that the MOH Standards had been developed
to address in part the risk to these patients of hanging in bathrooms, and that
the bathroom in the Comox Unit had not been designed to mitigate these risks,
SPH administrators ought to have known that in the absence of nursing policies
or protocols to mitigate these risks, the risks would remain real and
significant.
Conclusion re Foreseeable Risks of Harm
[242] The
evidence leads to the conclusion that at the time of the 2009 Comox Unit
renovations, SPH knew of the MOH Standards, but did not consider that a
large number of the patients using the Comox Unit might be involuntary suicidal
patients and did not consider whether this needed to be addressed in the design
of the bathroom, making it ligature-proof. By 2011, suicidal patients were
regularly being admitted to the Comox Unit without SPH addressing the risk of
suicide by hanging in the bathroom. At the same time, SPH had to know that the
nurses in the nursing station did not have clear sightlines to the bathroom,
and that there were no specific nursing policies or protocols in place to
monitor a suicidal patients access to the bathroom or amount of time in the
bathroom.
[243] I conclude
on the evidence that in May 2011 there was information known to SPH which
indicated that Mr. Paur was at a foreseeable, real risk of harm by hanging
himself in the bathroom of the Comox Unit, namely: information regarding Mr. Paur
himself that he had suicidal ideation and was intoxicated; information
regarding certified suicidal intoxicated patients generally; information regarding
suicidal patients attempting hanging in hospital and the lack of any
consideration of these risks in the design of the bathroom in the Comox Unit;
and information regarding the lack of any nursing monitoring policy to ensure
that certified suicidal intoxicated patients were not left uninterrupted in the
bathroom for a length of time approaching five minutes or more.
Other Factors: Gravity
of Harm, Costs of Prevention, Ordinary Caution
[244] I will now
address other factors to be weighed in considering liability under the OLA,
namely, the gravity of the harm, the burden or costs that will be incurred to
prevent the injury, and whether the defendant used common or ordinary caution
in the circumstances, as per Law of Torts cited in Agar at
para. 56. Dealing with the latter point first, use of common or ordinary
caution, the court may consider whether there were industry or regulatory
standards that applied.
[245]
As held in Agar at para. 32:
Similarly, in Ryan v. Victoria (City), the Court
described the standard of care for negligence as follows:
[28] Conduct is negligent if it
creates an objectively unreasonable risk of harm. To avoid liability, a person
must exercise the standard of care that would be expected of an ordinary,
reasonable and prudent person in the same circumstances. The measure of what is
reasonable depends on the facts of each case, including the likelihood of a
known or foreseeable harm, the gravity of the harm, and the burden or cost
which would be incurred to prevent the injury. In addition, one may look
to external indicators of reasonable conduct, such as custom, industry
practice, and statutory or regulatory standards.
[Emphasis added.]
[246] Here there
is an absence of evidence of any particular statutory or regulatory standards
regarding bathrooms in ER facilities servicing certified suicidal intoxicated
patients, other than the MOH Standards.
[247] It does
not matter that government did not make the MOH Standards mandatory for
SPH. SPHs knowledge of the MOH Standards is knowledge of the rationale
for them: to protect against a known risk to certified suicidal patients of
attempted hanging in the hospital. This is in part what makes SPHs failure to
protect against the risk, by way of an improved bathroom design or by better
nursing monitoring policies, objectively unreasonable.
[248] The
potential harm posed by the risk is also at the higher end of the scale:
it is very serious, because hanging can cause serious brain damage and be
lethal so quickly.
[249] Further,
the evidence of Mr. Feenstra establishes that there ultimately was very
little cost to improve the bathroom in comparison to other renovation costs
incurred by SPH. I was not given evidence to suggest that the cost of improving
the bathroom to be ligature-proof was ever considered by SPH as unreasonable,
or that there were higher priorities that could not be met if the expense of
renovating the bathroom to be ligature-proof was incurred. Rather, there is no
evidence that SPH administrators ever addressed the issue prior to the hanging.
[250] Further,
it seems obvious that there would be very little cost to train nurses and
establish stronger protocols to avoid a suicidal patient entering a bathroom
unseen, being able to lock himself in, and being unmonitored in the bathroom
for an unspecified period of time.
[251] Given the
foreseeable risk, the seriousness of the potential harm from hanging, and the
relatively low burden of cost to prevent the injury, I find that SPH had a duty
to take reasonable steps to either ensure that the bathroom design was changed
to be ligature-proof or more easily monitored in advance of suicidal patients
being allowed unmonitored access to it, or to institute policies to ensure that
suicidal patients could not be in the bathroom unmonitored or uninterrupted for
any length of time that could allow for a hanging approaching five minutes
before rescue.
[252] SPH did
not take either step to fulfill its duty of care. I find that SPH did not
exercise ordinary caution in the circumstances and breached its duty to keep Mr. Paur
safe.
Causation
[253]
The plaintiff relies on Lyon v. Ridge Meadows
Hospital, 2007 BCSC 1000 in which Stromberg-Stein J. as she then was summarized the legal
principles applicable to causation in medical malpractice cases:
[23] In establishing causation in
medical malpractice cases, the burden of proof lies with the plaintiff. The
plaintiff must prove that the defendants breach of duty of care caused the
injury. The plaintiff has the ultimate burden; however, where the defendant has
failed to put forward evidence to the contrary, the courts may draw a robust
and pragmatic inference of causation, based on the facts, that the defendants
negligence materially contributed to the plaintiffs injury, even though
positive or scientific proof of causation has not been submitted: Snell v.
Farrell (1990), 72 D.L.R. (4th) 289, [1990] 2 S.C.R. 311. The burden of
proof does not shift to the defendant and the plaintiff remains fixed with the
burden of proving causation on a balance of probabilities.
[24] An inference of causation cannot
be drawn without evidence that negligence caused the injury. A substantial
connection between the injury and the defendants conduct must be proven by the
plaintiff. In other words, in order to draw an inference of causation there
must be evidence that the negligence caused, or could have caused, the injury: Jackson
v. Kelowna General Hospital, 2007 BCCA 129 at para. 20.
[25] The primary test for determining
causation in negligence actions is the but for test. The but for test
requires the plaintiff to show that the injury would not have occurred but
for the negligence of the defendant. Under the but for test, a defendant
is liable for the plaintiffs injuries where a substantial connection exists
between the injury and the defendants negligence conduct: Resurfice Corp.
v. Hanke, 2007 SCC 7 at paras. 22-23.
[26] In exceptional cases where the
basic but for test is found to be unworkable, a material contribution test
may be applied. In those special circumstances, where the material contribution
test is applied, there are two requirements:
1.
it must be impossible for the plaintiff to prove
that the defendants negligence caused the plaintiffs injury using the but
for test (e.g. due to limits in scientific knowledge); and
2.
it must be clear the defendant breached a duty
of care owed to the plaintiff, thereby exposing the plaintiff to an
unreasonable risk of injury, which form of injury the plaintiff did suffer.
Where those two
requirements are met, liability may be imposed despite the but for test not
being satisfied: Resurfice at para 25.
[254] The
plaintiff relies on the but for test: but for the negligence of the Hospital
Defendants, Mr. Paur would not have succeeded in hanging himself in the bathroom
of the Comox Unit and suffered brain injury. Alternatively, the plaintiff
submits that the material contribution test is also satisfied.
[255] The
plaintiff also submits that a defendants wrongful conduct
need not be the sole cause of his injury for liability to flow. So long as
a substantial connection between the harm and the defendants negligence beyond
the de minimus range is established, the defendant will be fully
liable for the harm suffered by a plaintiff, even if other causal factors,
which the defendant is not responsible for, were at play in producing that
harm: Farrant v. Laktin, 2011 BCCA 336 at paras. 9
and 11; Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 13-17;
Resurfice Corp. v. Hanke, 2007 SCC 7 [Resurfice].
[256] The
Hospital Defendants sought to emphasize in the questioning of witnesses, and in
submissions, that a patient who is denied one method of suicide may seek out
other methods.
[257] Dr. Semrau
admitted under cross-examination by counsel for the Hospital Defendants that he
was not aware of any study that had compared the rate of attempted suicide in
institutions with anchor points in the ceiling with the rate of attempted
suicide in institutions with ligature-proof ceilings.
[258] One can
imagine it would be difficult to design such a study in a way that would be
ethical and would lead to reliable conclusions.
[259] The point
of the cross-examination of Dr. Semrau was to suggest that removing one
hazard may not limit the risk of suicide because ingenious and determined
suicidal patients will find another way to harm themselves.
[260] Dr. Semrau
agreed that one study of inpatient suicide in Veterans Affairs identified that
patients can also hang themselves from door handles and doors. This may have
involved facilities with hard ceilings preventing hanging from the ceiling.
[261] This is
not an issue in this case because the hanging incident did not occur
by use of a door or a door handle. If the hanging had occurred by use of
the door jamb or by a door handle, then the parties could have called evidence
on the foreseeability of this risk and the known methods, if any, of reducing
this risk. For example, if doors to bathrooms are designed to be observed
carefully it may be that this will limit the risk of suicide because the
observer will be able to see any hanging device jammed in the door. Further,
the time of any hanging might be more limited because on opening the door a
patients hanging device would become loose and fall. Further, a policy
that involves checking on patients in short intervals when using a bathroom
could remove any risk of injury from attempted hanging.
[262] Faucets,
sinks, toilets and ceilings in seclusion rooms at SPH were designed to be
ligature-proof, but the bathroom that was in the Comox Unit at the time was not.
The faucet in the bathroom in which Mr. Paur was found hanging was damaged
and bent. This may have indicated an earlier alternative method of suicide
attempt by Mr. Paur. However, I can give no weight to this possibility as
one can only guess as to whether that is so and whether if so, the attempt was
made on the final bathroom visit (making it a long visit before he was noticed
by the nurses), or was made on an earlier bathroom visit, or perhaps by someone
else at another time.
[263] Dr. Pawliuk,
a psychiatrist practicing with a position at the Royal Jubilee Hospital, agreed
in cross-examination by counsel for the Hospital Defendants that if someone in
a hospital is determined to harm themselves, they can find a way. He agreed
that a hospital is safer because if someone does harm themselves, intervention
and immediate medical care are far more likely.
[264] Dr. Pawliuk
agreed that attempted suicide in hospitals is rare, but that hanging is the
most likely method. He agreed that is why there are solid ceilings in
bathrooms, to prevent patients from hanging themselves. He was not asked nor
did he disagree with Dr. Semraus evidence that hanging is a particularly
lethal form of self-harm and that even with intervention, the damage can be
serious in a very short time, and that this is why precautions are taken in
hospitals to avoid suicide by hanging.
[265] It is
purely speculative to ponder other possible forms of suicide that could have
been attempted by someone like Mr. Paur. There is no evidence in this case
sufficient to persuade me that if hanging had not been possible by accessing
the ceiling fixtures from the interior of the bathroom, Mr. Paur would
have used the door or door handle or some other means to attempt suicide, with
the same result.
[266] The
Hospital Defendants theory also presumes that treatment of Mr. Paurs
suicidal ideation would have failed, in any event, even if a suicide by hanging
in the bathroom was not possible and he was subsequently assessed suicidal when
he sobered up. There is no basis for this presumption.
[267] I am
satisfied that but for the unsafe environment that existed in SPH for Mr. Paur,
due to the breaches of SPHs duties as I have found, Mr. Paur would not
have had the opportunity to hang himself in the bathroom of the Comox Unit to
the point of unconsciousness.
[268] The
evidence is overwhelming that the hanging incident caused Mr. Paur to
suffer brain damage. I will describe these injuries in more detail in the
damages section of this judgment. I am satisfied that the plaintiff has proven
that SPHs negligence caused Mr. Paurs injuries.
[269] I find
therefore that Providence is liable for Mr. Paurs injuries.
Other Factors
Considered In Respect of Hospital Liability
[270] Before I
reached the conclusions on the liability of SPH set out above,
I considered a number of other factors raised by the Hospital Defendants
in examination of medical witnesses and submissions. I found that these points
did not defeat the plaintiffs claim.
Suicide in Hospitals is Rare
[271] One
argument submitted by the Hospital Defendants was that the occurrence of
suicide in hospitals, including ERs, is rare. To the extent this argument is
meant to suggest that therefore the facilities do not need to be designed to
limit suicide attempts, this argument has a significant logical hole.
Successful suicide may be rare in hospitals precisely because most hospital
facilities and staffing protocols are designed to limit the risk of suicide and
to detect any such attempt and rescue a patient before it is lethal.
[272] Many
diseases are rare, but that does not mean that people with them do not get
treated appropriately for the disease when they show up at hospital.
[273] The
distinction between statistics of suicides and statistics of suicide attempts
was apparent in the Hospital Defendants cross-examination of Dr. Semrau. Dr. Semrau
agreed that he could not recall a patient successfully committing suicide in a
hospital he worked in, but he was aware of many occasions when patients made
attempts at suicide in hospitals. It was his view that attempts at suicide were
a reasonably common occurrence in hospitals.
[274] Dr. Pawliuk
agreed with the proposition suggested to him, in a friendly cross‑examination
by counsel for the Hospital Defendants, that suicide and suicide attempts
in hospitals are rare. It was his evidence that of approximately 30,000
suicides in the United States in a given year, approximately 6% are by patients
in hospitals. He offered the point that in places where nurses and observation
have been increased they have reduced the risk of suicide by patients in hospitals.
[275] In Royal
Jubilee Hospital, it is Dr. Pawliuks experience there is approximately
one suicide per year over the last four years, not necessarily in the ER. He
did not suggest that suicides take place in the AC Centre, which has hard and
high ceilings, or where patients known to be suicidal are placed under constant
or close observation.
[276] There was
abundant evidence to suggest that hospitals are tasked with keeping patients known
to be suicidal safe. The fact that many hospitals succeed in doing so does not
diminish the basis for liability against SPH here.
Other Hospitals
[277] There was
some effort during examination of medical witnesses to compare and contrast
other hospitals emergency facilities to that of SPH.
[278] One
comparison was Royal Jubilee Hospital in Victoria, BC and its AC Centre.
[279] Dr. Semraus
evidence was that the ceilings of Royal Jubilee Hospital short-term assessment
psychiatric unit were high, approximately nine feet, and the walls and ceilings
were of hardened surfaces, not like acoustic tiles, with fixtures mounted right
into the wall in a tamper-proof fashion.
[280] Dr. Pawliuk
agreed that the ceilings of the AC Centre are hard, because hanging is the
greatest danger to patients trying to kill themselves in the hospital.
[281] Dr. Pawliuk
also testified that the vast majority of intoxicated, certified, suicidal
patients are held in the ER of Royal Jubilee Hospital until they are
sufficiently sobered up to be reasonably coherent and assessed by a
psychiatrist, and only then would they be transferred to the AC Centre. He
agreed in cross-examination by counsel for the Hospital Defendants that the
emphasis with such patients is to settle them and let them sleep it off.
[282] Dr. Semraus
evidence was that when he practiced psychiatry at BC hospitals, his orders to
care for suicidal patients would take into account the facility and environment
as well as protocols for patient observation.
[283] Dr. Semrau
gave the example that if there was a suicidal patient he would order that patient
to be placed in a secure room. If those rooms were all filled, he would order
that the patient be placed in a non-secure room but with one-to-one nursing
observation.
[284] Other
physicians did not agree with Dr. Semraus evidence in this respect. Dr. Semraus
evidence on this point was somewhat inconsistent with the fact that he had no
criticism of Dr. Pickett with respect to her assessment and plan for the
patient. Dr. Pickett gave no orders regarding the level of monitoring nor
did she order Mr. Paur put in a secure room.
[285] If there
was a general hospital custom to allow suicidal patients unfettered unmonitored
access to bathrooms which are designed with the capability for patients to hang
themselves, the onus would be on the Hospital Defendants to prove such a custom
as a defence to a claim under the OLA: Waldick at 472. They have
not done so.
[286] Neither
side proved that there is a one size fits all standard practice amongst all
hospitals who admit suicidal patients in emergency care, with respect to
monitoring of patients, bathroom use and bathroom design. Rather, the force of
the evidence is that the standard is to take reasonable care to keep such
patients safe, knowing of the risk of suicide by hanging, and what this looks
like will vary depending on the circumstances, including the design of the facilities
and the monitoring practices or policies in place.
Suicidal Intoxicated Patients Kept in General ER
[287] The
Hospital Defendants emphasized in the calling of evidence that it is very
common at SPH, and at other hospitals such as Royal Jubilee Hospital, to keep
certified suicidal intoxicated patients in the general area of the ER until
they sober up and can be assessed by a psychiatrist.
[288] Counsel
for the Hospital Defendants elicited evidence that other acute areas of the SPH
ER have similar bathrooms to the one at issue here, that are not
ligature-proof, and that patients in those areas have no greater levels of
nursing observation and indeed often less nursing observation than in the Comox
Unit.
[289] However
there was evidence that patients in this state may be placed in beds in very
close view of the nursing station, to allow for very close observation and to
supervise their behaviour.
[290] Nurse Yard
identified that the bathrooms in the other acute areas of the ER are right
across from where the clinical nurse leader and coordinator sit. This suggests
that the nursing stations had a better view of the bathrooms in the acute areas
of the ER than they did in the Comox Unit.
[291] Dr. Picketts
evidence in re-examination by counsel for the Hospital Defendants was in my
view the most spontaneous and least rehearsed of all involved witnesses and was
truthful. She was asked to explain her evidence that prior to this incident she
did not know what the bathroom in the Comox Unit was like, but thought that
putting Mr. Paur in the Comox Unit was the safest place for him.
[292] Dr. Pickett
testified that it was her understanding that when the Comox Unit was redesigned
or rebuilt in 2009, it was rebuilt to be used as a psychiatric area for
emergency, and from her recollection it was the only thing it had ever been
used for since that time. Her evidence was that she assumed, as a psychiatric
area in a designated medical facility, that in 2009 it had been designed with
some safeguards in place. She said she was shocked when she went into the
bathroom after the hanging. She thought it was an oversight that she did not
know this before.
[293] The
inference arising from the fact that Dr. Pickett was shocked, when she
found out what the bathroom was like, was that she had expected it to be safe
for suicidal patients and it was not. As an experienced ER physician dealing
with many psychiatric patients, knowing that her hospital was designated under
the MHA to hold certified psychiatric patients involuntarily, and
knowing that the Comox Unit had been renovated in 2009 and used for this
purpose since then, her expectation that the facility would have bathrooms that
were safe for such patients was entirely reasonable.
[294] Dr. Picketts
spontaneous evidence was entirely consistent with the expectations of other
witnesses as to the standard of care to be provided by SPH in terms
of the safety of its facility to hold certified psychiatric patients.
[295] Dr. Pickett
went on to agree that she had not been in the bathrooms in the acute area of
the ER either until this incident; that she has since discovered that they were
the same as the bathroom in the Comox Unit; but despite this she continued to
place certified intoxicated suicidal patients in these areas. While she agreed,
she added that this was because she had no other place to put these patients.
In my view this does not diminish the force of the evidence that SPH has an
obligation to provide safe facilities for suicidal patients. The physicians
responsibility does not extend to providing the hospital facilities.
[296] I do not
find it a compelling argument that if the SPH standards for the ER outside the
Comox Unit are similar to the standards inside the Comox Unit, in terms of
bathroom design and use, that this means there can be no breach of a duty of
care with respect to Mr. Paur when in the Comox Unit.
[297] Mr. Paur
was not placed in a different bed, in the general area of the ER.
I am not required to determine the issues regarding the
appropriateness of the SPH facilities in the acute area of the ER and whether
SPH met the standard of care in respect of bathrooms and bathroom use by
certified suicidal intoxicated patients in that area generally. An analysis of that
issue would have to consider the patient mix in the acute area of the ER,
bathroom use by patients in that area, and other functional issues. There are
too many unknowns regarding the general area of the ER and nursing policies in
place there.
[298] The Comox
Unit was a special unit with a special patient population. By 2010, SPH had
gone some of the way towards addressing the needs of its many mental health
emergency patients by treating this as a full-time locked unit for those
patients. In my view, SPH was required to go further given the foreseeable
risks of an attempted hanging in the bathroom and minimal cost of addressing
that risk through design improvements or stricter nursing monitoring policies
and policies around bathroom use.
The Need for Privacy and Dignity
[299] The
Hospital Defendants emphasized in the evidence that with psychiatric patients,
including patients who may be suicidal, the steps taken for treatment must take
into account the patients needs for dignity and privacy and avoid escalating
the patients symptoms by unduly restraining the patient.
[300] This was a
non-issue. The choice in this case was not between a total restraint on Mr. Paur,
and its accompanied loss of privacy and dignity, versus allowing Mr. Paur
freedom to be in the bathroom as long as he liked. Ultimately most witnesses
agreed with the obvious point that patient safety is more important than
patient privacy. Some patients are required to use bedpans, for example,
because of a risk of falling.
[301] The point
here is that appropriate safety measures could have been taken that would not
have unduly infringed on the patients privacy and dignity and would not have
escalated the patients mood problems. It is not this Courts role to draft
hospital policy, but one can imagine a whole range of policies that would have
taken into account the unsafe bathroom in a way that was respectful of the
patients, including: making the bathroom ligature-proof; having a toilet
enclosed in a bathroom stall as opposed to a lockable bathroom, allowing visibility
above the head or shoulders and below the knees; or instituting a policy as
simple as requiring patients to request a key or permission to use the
bathroom, thereby alerting nurses to the timing of use so that patient access
could be limited and closely monitored.
LIABILITY OF DR. PICKETT
[302] While Dr. Pickett
was named as a defendant, the plaintiff settled with Dr. Pickett before
trial and does not press this claim. The Hospital Defendants have issued a
third party notice against Dr. Pickett. They plead the position that if
there is any liability on their part for failing to properly observe and assess
Mr. Paur (which is denied) then liability should be apportioned as between
them and Dr. Pickett for Dr. Picketts failure to advise them that Mr. Paur
was acutely suicidal.
[303] Dr. Pickett
relies on the principles set out by the Supreme Court of Canada relating to the
standard of care of physicians, namely, that a specialists conduct is 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: ter Neuzen v. Korn, [1995] 3 S.C.R. 674 at para. 33
[ter Neuzen].
[304] In ter
Neuzen, the Court noted the division between claims relating to the
assessment of diagnostic or clinical skills, which require the use and
consideration of expert evidence, and claims in respect to matters not
involving the assessment of diagnostic or clinical skills. The latter type of
claim may not require expert testimony where an accepted practice is fraught
with obvious risks such that anyone is capable of finding it negligent. These
cases include circumstances such as omission to inform a patient of risks,
failure to remove a sponge, an explosion set-off by an admixture of ether
vapour and oxygen, or injury to a patients body outside the area of treatment.
These cases are an exception to the general rule that compliance with approved
practice will normally exonerate a doctor: ter Neuzen at paras. 40-41,
51.
[305] Dr. Pickett
obtained her fellowship in emergency medicine in 2000. Her five‑year
residency was at UBC, primarily based at VGH. She has worked in the ER at SPH
since that time. Up to 2005 she also worked in the ER at BC Childrens
Hospital.
[306] As an ER
physician practicing at SPH, Dr. Pickett regularly dealt with psychiatric
patients, including suicidal patients.
[307] It was Dr. Picketts
evidence that approximately 60% of the VPDs mental health arrests under s. 28
of the MHA are taken to SPH and the other 40% are taken to VGH. This
hearsay evidence was not objected to nor challenged.
[308] No expert
opinion evidence criticized Dr. Picketts actions in assessing Mr. Paur.
[309] Indeed,
the medical experts who testified about her actions seemed in agreement that
she met the standard of care in assessing and then certifying Mr. Paur,
because he had sufficient factors, including his history and intoxication, to
pose a suicide risk. The experts agree that it was reasonable for Dr. Pickett
to hold him for observation and to plan to reassess him toward the end of her
shift, ending at 6:00 a.m., when he may have sobered up. She would then have
more information to decide whether to refer him to a psychiatric assessment or
to send him home.
[310] It
appeared to me that Dr. Pickett was thorough in her assessment of Mr. Paur,
including in asking him questions, cautiously weighing his answers, ordering
lab tests of his blood, and in trying to obtain medical records of other
hospitals he had visited.
[311] There are
three areas in the evidence which require more careful consideration in
relation to Dr. Pickett: one is whether she did anything to downplay the
suicide risk in her communications to the nursing staff in the Comox Unit;
another is whether she ought to have done something specific in her orders to
the nurses in respect of the levels of monitoring required for Mr. Paur;
and a third is whether she ought to have known that the bathroom in the Comox
Unit was not safe from attempts at hanging and ought to have taken that into
account in some way in her treatment of Mr. Paur.
Communications to
Nurses
[312] The
evidence at trial suggests that where Mr. Paur fell on the spectrum of
suicide risk was impossible to assess while he was intoxicated.
[313] Although
Nurses Eichel and Yard both gave evidence from which it might be concluded that
Dr. Pickett spoke to them about the admission of Mr. Paur, I did not
find Nurse Eichels evidence to be reliable or informative. He said a number of
things in his direct evidence to suggest he was engaging with Mr. Paur at
length and to suggest that there were signs that would downplay the suicide
risk. In cross-examination he admitted he could not recall if what he was
remembering was just something he considers to be his typical practice, or if
it was Nurse Yard who was engaging with Mr. Paur. He could not recall who
gave Mr. Paur his medication. He agreed he dealt with Mr. Paur
for ten minutes or less.
[314] Nurse
Eichel is one of the few witnesses to claim that his memory had improved over
time. I find his stated recollections to be a reconstruction based on what he
has learned since. Nurse Eichel did ultimately admit that the details of what
happened prior to his break are not very clear in his mind. Nurse Eichel was on
his break when Mr. Paur attempted suicide.
[315] Nurse
Eichel suggested that his conversation with Dr. Pickett left him with the
impression that she was debating whether to certify Mr. Paur, but decided
because of his level of intoxication he was unreliable and she needed to have
him sobered up and reassessed in the morning. This is part of his recollection
of events which I consider unreliable. Regardless, he admitted in
cross-examination that as an ER nurse he knew that intoxicated suicidal
patients need to be sobered up before they can properly be assessed; that
intoxication can make a person impulsive; and it is pretty well impossible to
assess how high or low the suicide risk is with such a patient.
[316] Nurse Yard
gave evidence recalling Dr. Pickett coming into the Comox Unit to give
background on Mr. Paur before Mr. Paur was admitted. She recalled
learning from Dr. Pickett that she had certified him, that he had an
altercation with his wife, left home, rented a hotel room, had alcohol to
drink, and texted or phoned his wife with a message that concerned her and so
she had called 911. Dr. Pickett informed her that she had ordered 2 mg of
Ativan (brand name for Lorazepam) for Mr. Paur to take, hoped he would get
some sleep, and she would come back before her shift ended in the morning, to
possibly reassess him and possibly let him go.
[317] Nurse Yard
testified that after speaking to Dr. Pickett, and then observing Mr. Paur
herself and noting that he was calm and cooperative, made eye contact, and
wanted to go to work the next day so was forward-looking, she was not overly
concerned about Mr. Paur that night; she was watching him regularly but
not constantly. She said she did not get the feeling that Dr. Pickett was
overly concerned.
[318] I conclude
that Nurse Yard did not take the information communicated to her by Dr. Pickett
and form the impression that there was a lesser need to monitor Mr. Paur
or that he was not a suicide risk. It was her experience that ER doctors never
ordered a certain level of monitoring for a patient.
[319] Nurse Yard
is the person who briefed Nurse Chevrette about Mr. Paur when Nurse
Chevrette returned from her break. Nurse Chevrette did not recall anyone
telling her that Dr. Pickett was not very concerned about Mr. Paur.
[320] I find
that the nurses in the Comox Unit all knew that a patient who is intoxicated
can be impulsive and therefore it is difficult to assess suicide risk until a
patient sobers up. They knew that Mr. Paur needed to sober up before he
could be assessed. They knew he was being kept for close observation, because
of his risk.
[321] I conclude
that Dr. Pickett did not miscommunicate with or mislead the nurses as to
the level of risk posed by Mr. Paur.
Lack of Monitoring
Orders
[322] The
evidence does raise the question of whether Dr. Pickett ought to have
given orders to the nurses in the Comox Unit as to the level of monitoring
required for Mr. Paur.
[323] In this
regard, Dr. Semraus evidence suggested that a physician may give orders
as to what room to place a patient in and whether or not to order one-to-one
nursing. Regardless, Dr. Semrau did not criticize Dr. Picketts
assessment and treatment of Mr. Paur.
[324] Dr. Picketts
evidence was that the practice at SPH is that ER physicians do not give orders
specifying the level of monitoring of a patient that is to be provided by
nurses. Dr. McFadyens evidence supported this testimony. He also
testified that there was no reason in this case to change that practice.
[325] The ratio
of nurses to patients in the Comox Unit was higher than in the ER generally,
being eight patients to three nurses (as compared to four patients to one
nurse). Also, the Comox Unit was holding psychiatric patients, and was locked,
making it quieter than some other areas of the ER and thus it would potentially
be a better place to calm Mr. Paur down and would prevent Mr. Paur
from leaving to pursue suicide outside SPH. The patient beds were opposite the
nursing station, allowing for continuous observation by the nurses (if they
chose to do so).
[326] All of
these factors in Dr. Pawliuks opinion meant that Dr. Pickett could
conclude that the level of observation in the Comox Unit was safe and
reasonable for Mr. Paur.
[327] In Dr. Pawliuks
experience, intoxicated suicidal patients presenting in the ER of hospitals
that do not have psychiatric observation units are usually placed in close
proximity to a nursing station, so that they can be frequently observed by the nurses,
but typically orders are not given by the doctor relating to observation
levels. He has only once given orders that a patient be moved, for example,
asking that an alcoholic patient be moved from a bed that was too close to an
area where the patient would be able to secretly consume rubbing alcohol. He
has also asked that certain patients be placed close to the nursing station to
ensure a higher level of observation.
[328] The
experts did not suggest that Mr. Paur presented in such a way as to
justify putting him in a secure room or restraining him in his bed. The sense
of the evidence was that these restraints are used only in cases of highly
disruptive patients actively behaving in a way that might cause self-harm or
harm to others.
[329] Mr. Paur
was put in the Comox Unit because that is the location the triage nurse
determined was suitable and available for him. Dr. Pickett did not
determine this bed placement, but thought it was a good place for him.
[330] Dr. Pawliuks
evidence was that given the circumstances of the Comox Unit and the close
nursing observation that could be provided there, Dr. Pickett was not
required to give the nurses specific instructions regarding the level of
observation they should give Mr. Paur. He assumed that the observation was
essentially a constant level of observation.
[331] This was
also Dr. Picketts belief, that Mr. Paur would essentially be
constantly observed by nurses in the Comox Unit.
[332] The nurses
in the Comox Unit were experienced ER nurses. There was usually a psychiatric
nurse on duty in the unit as well, but there was not one on duty that evening.
No evidence was called to suggest that the absence of a psychiatric nurse
contributed to the harm that occurred.
[333] The
totality of the evidence leads to the conclusion that monitoring Mr. Paur
was the responsibility of the nurses, and if they required more information
they could seek clarification from a physician. Dr. Pickett was entitled
to rely on the nurses fulfilling their responsibilities, just as in the example
of Granger at paras. 32-36.
[334] Dr. Pickett
did not fall below the standard of care by not giving the nurses direct orders
regarding the degree of monitoring that they should give Mr. Paur. She was
entitled to rely on the nurses to fulfill their monitoring function once Mr. Paur
was in the Comox Unit.
No Knowledge of
Bathroom Risks
[335] This
brings me to the question of Dr. Picketts lack of knowledge of the
dangers the bathroom in the Comox Unit might present.
[336] There was
no evidence to suggest that hospital bathroom design should be known by
physicians and taken into account in orders that they give nursing staff in
respect of certified patients. This may well be because of an expectation that
hospital facilities will be designed safely for the patient population. This
expectation would be consistent with the duties of hospitals that exist under
the OLA.
[337] Certainly
the physicians working in hospitals are not occupiers pursuant to the OLA and
so it is perhaps not too surprising that they do not take on responsibility for
the premises.
[338] There were
other physicians who testified who did not have a clear idea of the design of
the bathrooms in the hospital facilities where they worked.
[339] I have
concluded that design of hospital bathrooms, and whether they are
ligature-proof, is not commonly taken into account by ER physicians in the
instructions they give staff with respect to certified patients.
[340] I conclude
that Dr. Pickett did not fail to meet the standard of care of a competent
ER physician with respect to her assessment of Mr. Paur and instructions
to nursing staff regarding him.
LIABILITY OF NURSES
Monitoring of Mr. Paur
[341] The
plaintiff relies on the following principles with respect to the standard of
care of nurses, which are not contested.
[342] Nurses are professionals who possess special skills and knowledge
and the same principles apply to them as to doctors and other professionals.
They have a duty to use their skill in making appropriate assessments of
patients: Granger at para. 26.
[343]
In Tekano (Guardian ad litem of) v. Lions
Gate Hospital, [1999] B.C.J. No. 1763 (S.C.), Macaulay J. held:
[109] Nurses will be held to the
standard of care expected of a registered nurse of average competence. As with
physicians, nurses will not generally incur liability in negligence for errors
in judgment: Heidebrecht v. The Fraser-Burrard Hospital Society, [1996]
B.C.J. No. 3042, (October 10, 1996) Vancouver C933456 (B.C.S.C.) at 46.
Generally, expert evidence is required to establish the standard of care
expected of a registered nurse of average competence. As Henderson J. stated in
Heidebrecht, supra, at para. 121:
Nursing is an independent profession with
its own practices, procedures, and standards of competence.
[344] The main
issue with respect to the claim against the nurses has to do with whether they
met nursing standards of care for monitoring Mr. Paur. The plaintiff
claims that they did not.
[345] The
Hospital Defendants plead as part of their defence that the room in which Mr. Paur
was placed was being constantly observed by nursing staff of the Hospital.
[346] Nurse
Eichel was not on duty at the time of the incident and there is nothing in the
evidence which links what happened to Mr. Paur to any lapse on his part.
[347] The two
nurses who were on duty were Nurses Yard and Chevrette.
[348] There were
two competing nursing expert opinions at trial regarding whether or not the
nurses met the standard of care for ER nurses, that of Ms. Sinclair and Ms. Kennedy.
[349] While at
first glance the nursing opinions may seem at odds, at closer look the opinions
were not so far apart as to the standards of care applicable to nurses.
[350] In Ms. Sinclairs
opinion, nurses are responsible for observing patients and maintaining a safe
environment. The nurses working in the Comox Unit that night knew that Mr. Paur
was certified as being a danger to himself, had made a suicide threat, and was
intoxicated. According to Ms. Sinclair, nurses have to assume a patient in
such a situation is suicidal until the patient is assessed to be otherwise.
Nurses should know that a person who does not appear to be suicidal can
impulsively activate a suicide plan within moments.
[351] This
evidence was entirely consistent with the evidence of other expert witnesses at
trial.
[352] Ms. Sinclairs
opinion is that because of the highly unpredictable nature of such a patient, a
reasonable and prudent nurse would watch such a patient constantly.
[353] As noted
above, that the nurses would constantly observe Mr. Paur was consistent
with Dr. Picketts and Dr. Pawliuks expectations.
[354] Dr. Pawliuk
was not asked to give an opinion on nursing standards. However, he assumed that
Mr. Paur had been constantly observed by the nurses, who saw him every
time he got up to go to the bathroom and knew how long he was in there, and
that one of the nurses monitoring him on the last occasion went to check on him
when he did not come out in two or three minutes. These are not the facts of
this case.
[355] The
evidence does not support a conclusion that because Mr. Paur denied to Dr. Pickett
that he was suicidal, that this was reliable and trustworthy and justified a
lesser level of monitoring. Dr. Pawliuk agreed in cross-examination with
the proposition supported by the majority of the experts, namely, that the fact
Mr. Paur denied suicidal ideation would have to be treated cautiously, as
a patient may mislead the caregiver or not understand his own level of risk or
be capable of predicting his own future condition, and his mood and actions
could change quickly due to his intoxication and impulsivity.
[356] Also, in Ms. Sinclairs
opinion, a reasonable and prudent nurse would assess environmental risks, which
in this case, means assessing the risk the bathroom in the Comox Unit could
present to such a patient. Here, the bathroom had regular fixtures, a grab bar,
removable acoustic ceiling tiles, no window for observation, and a door that
could be locked by the patient. In Ms. Sinclairs opinion, the nurses
should have realized that the bathroom was an area of risk for self-harm by the
patient.
[357] Diane
Kierstead, a former clinical nurse leader in the SPH ER, agreed in
cross-examination that when deciding on the level of care a patient needs, the
nurse needs to look at the environment where the care is being provided as well
as the patients presentation. She agreed that suicidal patients need to be in
an environment that is safe for them, that the level of observation of such
patients depends on the environment, and that if the environment had risky
features, she would expect that a suicidal patient would be monitored very
closely.
[358]
In Ms. Sinclairs opinion, the nurses in charge of caring for Mr. Paur:
had one job to do and that was
to monitor Mr. Paur closely and keep him safe until he could be fully
assessed in the morning by Dr. Pickett and psychiatry.
[359] In Ms. Sinclairs
opinion, the nurses on shift at the time of the suicide attempt failed to meet
the standard of care in a number of ways:
a) the nurses did
not observe Mr. Paur constantly;
b) the nurses
should have realized that the area of the bathroom was an area of risk for Mr. Paur,
and should have watched him going to the bathroom and told him not to lock the
door;
c) Nurse Yard
should have immediately checked on Mr. Paur when she noticed he was
missing, instead of waiting another couple of minutes before checking the
bathroom;
d) Nurse Yard
should have known how to unlock the bathroom door.
[360] Ms. Kennedy
was of a different opinion as to whether the standard of care was met. She did
not disagree that the nurses had a responsibility to closely observe Mr. Paur.
However, she was of the opinion that the nurses met the standard of care for
observing the patient.
[361] I prefer
the evidence of Ms. Sinclair to that of Ms. Kennedy for a number of
reasons.
[362] First, Ms. Kennedys
opinion is based on assumed facts that do not match the evidence, namely, that
the nurses did in fact closely monitor Mr. Paurs bathroom use, knowing
when he went in there and for how long, and how many times.
[363]
Ms. Kennedy set out as assumed facts in her first report:
Between 0040 and 0145, the nurses in Acute 3 [the other name
for the Comox Unit] observed Mr. Paur get up and apparently go into the
bathroom on approximately 2 occasions. On each of those occasions he
appeared to be in the bathroom for 2-3 minutes and returned to the
stretcher.
[Emphasis added.]
[364]
Ms. Kennedy in her conclusions left out the word approximately
with reference to how many times Mr. Paur was seen going into the
bathroom. She stated in her first report:
The nurses continued to meet the [nursing] standard by
observing the patient up to the bathroom x2. … When the patient went to the
bathroom the third time the nurses recognized escalating behavior as
evidenced by the patients inability to settle. The nurse responded within
minutes to check on the patient. The nurses observation skills coupled with
their ability to recognize a psychiatric emergency allowed for a timely
intervention of Mr. Paurs suicide attempt.
[Emphasis added.]
[365] The way Ms. Kennedy
stated her opinions leaves little doubt that she was under the assumption that
the nurses saw Mr. Paur go into the bathroom three times and timed him in
there, including on the third and last time.
[366]
Ms. Kennedy repeated her conclusions in her second report, relying
on the same assumptions:
In review, in approximately 1 hour the nurse[s][sic]
observed three separate events by Mr. Paur, they observed the number of
visits as well as the amount of time he was in the bathroom. If they were not
closely monitoring or observing him they would not have been aware of the
number of visits to the bathroom nor would they have reacted so quickly after
the third visit.
They observed his behavior in the hour in which he was in
their care. The[y] intervened quickly using their insight and judgment to note
that he had had 3 visits to the bathroom and the last visit he had been in
there for 2-3 minutes.
[Emphasis added.]
[367] However,
the facts as I have found them are that the two nurses did not know how many
times Mr. Paur went to the bathroom or how long he was in there on prior
occasions, nor did they see him go in there or know how long he was in there
the third and final time, nor did they think, according to Nurse Yards after-the-fact
charting, that Mr. Paur was showing escalating behaviour, an inability to
settle or that he was having a psychiatric emergency. All of these facts are to
the contrary of that assumed by Ms. Kennedy as the basis for her opinion.
[368] On Ms. Kennedys
logic, the fact that the nurses lost sight of Mr. Paur, did not know how
many times he went to the bathroom or how long he was in there, would indicate
that the nurses were not closely monitoring or observing Mr. Paur, which
is consistent with Ms. Sinclairs opinion.
[369] In
cross-examination by counsel for the plaintiff, Ms. Kennedy wavered on her
assumption set out in her written opinions that the nurses knew Mr. Paur
had been in the bathroom for 2-3 minutes before checking on him on his final
bathroom visit. She conceded she did not know if the nurses saw him go into the
bathroom. However, she mistakenly assumed that the nurses had a sightline to
the bathroom door, which they did not. She admitted that her opinion that Mr. Paur
was being closely observed was based on her first-hand experience of how nurses
work in the Comox Unit.
[370] Ms. Kennedys
factual assumptions undermine the basis of her main opinion. I therefore do not
accept her opinion that the nurses met nursing standards by closely observing Mr. Paur.
[371] Second, Ms. Kennedy
disagreed that nurses ought to know that the ceiling tiles were removable and
that a patient could access the space above the ceiling to hang him or herself
in the bathroom. I accept the premise that nurses might not be trained to know
that ceiling tiles can be removed.
[372] However,
that does not end the matter. Ms. Kennedy did not give an opinion that the
nurses would not have known that the bathroom was an area of danger and high
risk for Mr. Paur. Rather, she conceded that they should have known it was
an area of risk of self-harm. She appeared to acknowledge that the grab bar and
sink and toilet could be dangerous to a suicidal patient.
[373] Further, Ms. Kennedy
was not an entirely neutral witness. As a nursing instructor, she taught Nurse
Yard and so assumed she was a well-trained knowledgeable nurse. She has worked
at SPH in the ER, including in the Comox Unit, but was unfamiliar with the
bathroom herself. This would make it difficult if not impossible for her to
conclude that other nurses should have been familiar with the features of the
bathroom. She also worked with Nurse Chevrette in the past and assumed she was
an experienced, competent ER nurse. In giving an opinion, she relied on her
personal impression of SPH as being a good hospital, with a good ER, and good
ER nurses.
[374] I find
that Ms. Kennedys close connection with the nurses at issue in this case
meant that she did not have enough distance to form a reliably objective
opinion. This is also somewhat apparent from her willingness to write her
opinions in a way that assumed facts most favourable for the nurses.
[375] I have set
out above some of the incorrect factual assumptions made by Ms. Kennedy.
She also made some incorrect assumptions regarding authorship of the hospital
clinical records, and that the nurses reviewed other sources of collateral
information about Mr. Paur, which they did not. However, these incorrect
assumptions are not material to the conclusions I have reached.
[376] As another
example of Ms. Kennedys less than neutral view of the facts, Ms. Kennedy
set out in her first report as an assumed fact (her item h), that Dr. Pickett
advised the nurses that she would re-evaluate Mr. Paur at the end of her
shift and possibly discharge him. Later in her report, Ms. Kennedy stated
at p. 6 that Dr. Pickett would likely discharge Mr. Paur. This
was written as though this is what Dr. Pickett communicated to the nurses,
which is incorrect. Ms. Kennedy admitted in cross-examination by counsel
for Dr. Pickett that she was setting out her own opinion that often
these patients are sent home. In my view, this was an attempt by Ms. Kennedy
to downplay the risks associated with Mr. Paur.
[377] The evidence
is overwhelming that the risks associated with Mr. Paur could not be
assessed to any fine degree until he sobered up. Until then, he remained a
suicide risk.
[378] The
evidence of Ms. Sinclair is more closely based on the facts than is the
evidence of Ms. Kennedy.
[379] Nurses
Yard and Chevrette lost sight or track of Mr. Paur as between them; they
allowed him uninterrupted private access to the bathroom for a period of time
that was unknown to them, and which I have found on the evidence was at least
five minutes. Not knowing how long he had been in there already, Nurse Yard
still hesitated for at least a couple of minutes before going to the bathroom
to check on him.
[380] One only
has to watch the clock for five minutes to know that a lot can happen in that
time. It was contrary to the nurses duty to closely observe Mr. Paur to
leave him alone in the locked bathroom for five minutes, without interruption
or any communications with him.
[381] An
additional factor adding to the risk, as noted by Ms. Sinclair, was the
fact that there was a cart with gowns on it near the bathroom. The evidence at
trial was unclear as to whether Mr. Paur obtained an extra gown from the
cart and used it to hang himself or used the gown he was wearing. I find that
regardless of whether the cart with gowns was outside the bathroom, nursing
staff ought to have known that the lockable bathroom without any means to
monitor Mr. Paur presented a risk to Mr. Paur.
[382] Ms. Sinclair
was subjected to a lengthy and vigorous cross-examination by counsel for the Hospital
Defendants. If there can be any criticism of her opinions, it is that she may
have been too rigid when hypotheticals were put to her. For example, she agreed
in cross-examination that it was her opinion that no certified suicidal patient
should be permitted by nursing staff to go by himself into a bathroom that is
not ligature-proof for any length of time, even 20 seconds. The defendants
argue that this sets too high a bar for safety.
[383] In my view
this argument misses the point. It does not in my view detract from the
reliability of Ms. Sinclairs opinion as to the standard of care
applicable to Nurses Chevrette and Yard on the facts of this case. They did
have a duty to provide close levels of observation, taking into account the
risk the bathroom presented to a suicidal patient, and they failed in that
duty.
[384] The
Hospital Defendants criticism really goes to how Ms. Sinclair would
fulfill the nursing duty in the circumstances had she been involved in Mr. Paurs
care on the night in question, which would have been by providing one-to-one
monitoring of his bathroom use. But there can be more than one way to provide
care and still meet standards of care, based on the practices of a hospital and
the patient population they serve as well as the hospital facilities, as
admitted by Ms. Kennedy in cross-examination.
[385] Here it is
clear that one-to-one monitoring could have met the standard of care, but it is
also possible that other methods could have done so, such as requiring Mr. Paur
to request access to the bathroom, not allowing Mr. Paur to lock the door,
and standing and listening outside the door and checking with Mr. Paur
every minute for responsiveness.
[386] I also
note that the evidence of Ms. Sinclair with respect to the need to closely
monitor Mr. Paur, including his bathroom use, was consistent with common
sense.
[387] Cst.
Graham Harriman was the police officer who apprehended Mr. Paur and
brought him to SPH on the night in question. He has been a full-time police
officer for about 12 years, working with the VPD. His evidence was that he is
called at least two or three times per week to deal with someone exhibiting
serious mental health problems. This includes individuals who are reportedly
suicidal.
[388] Cst.
Harriman estimated that he probably apprehends one person every four days under
the MHA. According to other evidence in the trial, these people are
brought by police either to SPH or to VGH.
[389] Cst.
Harriman explained that when he accompanies a person to SPH who has been
apprehended under the MHA, and that person is admitted to the Comox
Unit, he accompanies that patient until the patient has been given a gown and a
bed and Cst. Harriman feels comfortable that the person will not be violent.
Hospital staff then take over.
[390] Cst.
Harriman explained that if, when in the ER accompanying and waiting for a
mental health patient to be admitted, the person asks to use the bathroom, he
monitors the bathroom use in one of two ways. If the person has been violent or
belligerent and needs restraints like handcuffs, he will accompany the person
into the bathroom. If the person is cooperative but just sad, he lets the
person use the bathroom alone but stands outside the door and listens to make
sure that the person is making the expected use of the bathroom, and will knock
on the door and prompt the person if the person is in there for an abnormally
long time.
[391] The police
officer did not purport to need medical training to understand that there is a
possibility of something untoward happening in the bathroom with an unobserved
involuntary psychiatric patient, and to therefore understand that such a
patient needed to be monitored and timed in some way.
[392] I return
to Nurses Yard and Chevrette.
[393] Since
after the renovations in 2009, the stretcher area of the Comox Unit had been
used for psychiatric patients in the ER.
[394] Nurse
Eichel who worked as a nurse in the ER before and after the 2009 renovations
remembered that as of 2011 there would typically be at least one suicidal
patient in the Comox Unit in the course of a shift.
[395] As nurses
working in that area, Nurses Chevrette and Yard had to know that one of the top
priorities in the performance of their duties was to closely watch patients to
ensure the patients were safe. They also had to know that the one place they
could not watch patients was in the bathroom of the stretcher area. This meant
it was foreseeable to the nurses that if they did not keep track of when a
patient went into the bathroom, they would not know how long the patient was in
there and whether the length of time could indicate that the patient was doing
something other than using the toilet, such as harming himself. They could not
know that a patient was safe in the bathroom.
[396] The nurses
working in the Comox Unit had one main duty to fulfill with respect to Mr. Paur,
and that was to closely observe him to ensure his safety. I find that Nurses
Chevrette and Yard failed to meet nursing standards of care in losing track of Mr. Paur
and allowing Mr. Paur uninterrupted access to the bathroom for a length of
time of at least five minutes. Further, I find that Nurse Yard failed to meet
nursing standards of care by not knowing how to unlock the bathroom door,
adding to the delay in getting to Mr. Paur.
[397] As for
causation, had the nurses closely monitored Mr. Paur, I find that he would
not have been able to hang himself for five minutes before being detected. They
would have interrupted him before the hanging or much sooner into it,
preventing the brain damage he suffered.
[398] There were
a number of ways the nurses could have fulfilled their duties to closely
observe Mr. Paur. In this regard, it is impossible to isolate the nurses
liability from that of SPH for failing to have proper protocols in place to
ensure that a certified intoxicated suicidal patient could not be unmonitored
in the bathroom for a time approaching five minutes or more.
[399] In any
event, Providence is liable for the negligence of the nurses.
Other Nursing Issues
[400] Ms. Sinclair
was retained by counsel for the plaintiff to provide a thorough review of
nursing care provided by SPH on the night in question. She provided opinions
critical of a number of matters.
[401] For
example, Ms. Sinclair was critical of the SPH nurses for failing to
establish rapport with Mr. Paur other than when he was first admitted to
the Comox Unit. This point is indeed troubling, as they did not speak to him to
inquire about his bathroom use or how he was feeling, despite knowing that the
whole reason he was there was because of psychiatric distress. However, the
evidence does not establish that these matters or other matters contributed to
the tragic hanging. I therefore find it unnecessary to consider the correctness
of Ms. Sinclairs additional opinions.
[402] I also
find it unnecessary to deal with the evidence of Dr. Pickett to the effect
that one of the nurses called her during the evening to say that Mr. Paur
was a little restless and had been up and down a few times, having been to the
bathroom twice; Dr. Pickett asked did he get the lorazepam and the nurse
said she would check. This evidence was not confirmed by the nurses and the
parties did not seek any findings of fact in regard to it.
DAMAGES
[403] Mr. Paur
suffered a brain injury due to the hanging. I have found that this injury was
caused by the negligence of the Hospital Defendants.
[404] A number
of complex issues affect the determination of Mr. Paurs damages.
[405] The
parties disagree as to the best approach to assess damages for future care: the
plaintiff favours the total lifestyle approach while the Hospital Defendants
favour the incremental approach.
[406] The Hospital
Defendants argue that Mr. Paur had a reduced life expectancy before the incident,
and continues to have a reduced life expectancy, and that this must be taken
into account in the assessment of damages.
[407] The parties
disagree as to the extent and effect of Mr. Paurs brain injury. The Hospital
Defendants do not dispute that as a result of the hanging he suffered a brain
injury that is significant and that he needs future care, including supervision
and intervention and supportive housing. The dispute in broad terms has to do
with the type of supportive housing and extent of the supervision and
intervention that is required.
[408] The
parties also disagree as to specific future care expenses and whether they are
medically justified.
[409] As for
loss of earning capacity, the Hospital Defendants say that the picture painted
by the plaintiff as to what Mr. Paurs life would have been like, but for
the incident, is unduly rosy; the plaintiff says that the Hospital Defendants
vision is unduly grim. The parties also disagree as to what remains of Mr. Paurs
future earning capacity.
[410] These
issues affect the claims for cost of future care, loss of earning capacity, and
non-pecuniary damages.
[411] I will
address the issues in this order:
a) legal principles
applicable to the assessment of damages;
b) total lifestyle
versus incremental approach to damages;
c) Mr. Paurs
pre-injury status;
d) the nature of Mr. Paurs
injuries and prognosis;
e) the history of Mr. Paur
post-incident and up to trial, both including supervised living arrangements
and employment;
f) the
life expectancy of Mr. Paur;
g) the claim for
future care costs;
h) the loss of
earning capacity claim;
i) the
claim for non-pecuniary damages;
j) the
claim for special damages;
k) the claim
for in-trust damages.
[412] I turn now
to address the legal principles applicable to damages.
Legal Principles Applicable to Damages
[413] The
parties do not disagree as to the applicable legal principles which apply to
the assessment of damages in a case such as this. Indeed, the Hospital
Defendants referred to only one authority in their submissions as to damages, a case they
felt was a comparison for the award of non-pecuniary damages.
[414]
The principles applicable to the assessment of damages were summarized
by Ehrcke J. in MacEachern v. Rennie, 2010 BCSC
625 at para. 679 [MacEachern], citing Milina v. Bartsch (1985),
49 B.C.L.R. (2d) 33 (S.C.) affd (1987), 49 B.C.L.R. (2d) 99 (C.A.) [Milina]:
In Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33
(S.C.) McLachlin J. (then of the Supreme Court of British Columbia)
provided a helpful summary of the principles applicable in assessing damages in
personal injury cases at pp. 78-79:
1. The fundamental governing
precept is restitutio in integrum. The injured person is to be restored to the
position he would have been in had the accident not occurred, insofar as this
can be done with money. This is the philosophical justification for damages for
loss of earning capacity, cost of future care and special damages.
2. For those losses which cannot be
made good by money, damages are to be awarded on a functional basis to the end
of providing substitute pleasures for those which have been lost. This is the
philosophical justification for awarding damages for non-pecuniary loss.
3. The primary emphasis in
assessing damages for a serious injury is provision of adequate future care.
The award for future care is based on what is reasonably necessary on the
medical evidence to promote the mental and physical health of the plaintiff.
4. The plaintiff, in addition to
cost of future care, is entitled to an award for lost future earning capacity.
The amount is determined, where evidence permits, by comparing what the
plaintiff would have earned had he not been injured with what he will earn in
his injured state. Where evidence is not available, statistics as to average
earnings, adjusted as necessary for the individual situation of the plaintiff,
may serve as the basis of the award for lost earning capacity.
5. Actuarial and economic evidence
is to be used to determine the proper amounts of the award for future care and
lost earning capacity. Inflation must be considered and deductions made for
present payment.
6. In recognition of the fact that
the future cannot be foretold, allowance must be made for the contingency that
the assumptions on which the award for pecuniary loss is predicated may prove
inaccurate. In most cases this will result in a deduction, since the earnings
and cost of care figures are based on an uninterrupted stream which does not
reflect contingencies such as loss of employment, early death, or the necessity
of institutional care. Where no evidence is available, courts have made a
deduction for such matters in the range of 20 per cent. Where evidence is
available, the deduction for contingencies may be increased, decreased, or
eliminated according to the proof presented. Evidence on contingencies is to be
encouraged.
7. ….
8. Deductions must be made as
necessary to avoid duplication in the amount awarded for damages for cost of
future care (which may include basic living expenses) and that awarded for loss
of future earnings (a portion of which would normally be used by the claimant
to provide such basic living expenses).
9. The plaintiff is entitled to damages for pain, suffering
and loss of amenities. These non-pecuniary damages have as their purpose the
provision of new amenities and pleasures in substitution for those which have
been lost but cannot be replaced in se. The Supreme Court of Canada has
determined as a matter of policy that the award for non-pecuniary loss should
be moderate, and has limited the maximum award under this head to the current
equivalent of $100,000 in January 1978 (the date of the decisions in the
trilogy), barring exceptional circumstances.
Total Lifestyle versus Incremental Approach
[415] The plaintiff
submits that a total lifestyle approach should be used when assessing damages
for cost of future care. This would mean that when it comes to assessing loss
of earning capacity, the income that Mr. Paur would have spent on
necessities is deducted from the claim.
[416] The Hospital
Defendants submit that an incremental approach to cost of future care should be
used; this would mean gross income would be included in the loss of earning
capacity claim.
[417]
The difference between the two approaches was summarized in Andrews v. Grand &
Toy Alberta Ltd., [1978] 2 S.C.R. 229 [Andrews]
at pp. 250-251:
(iv) Duplication with compensation for
loss of future earnings
It is clear that a plaintiff cannot recover
for the expense of providing for basic necessities as part of the cost of
future care while still recovering fully for prospective loss of earnings.
Without the accident, expenses for such items as food, clothing and
accommodation would have been paid for out of earnings. They are not an
additional type of expense occasioned by the accident.
When calculating the damage award, however,
there are two possible methods of proceeding. One method is to give the injured
party an award for future care which makes no deduction in respect of the basic
necessities for which he would have had to pay in any event. A deduction must
then be made for the cost of such basic necessities when computing the award
for loss of prospective earnings: i.e. the award is on the
basis of net earnings and not gross earnings. The alternative method is the
reverse: i.e. to deduct the cost of basic necessities when
computing the award for future care and then to compute the earnings award on
the basis of gross earnings.
The trial judge took the first approach,
reducing loss of future earnings by 53 per cent. The Appellate Division took
the second. In my opinion, the approach of the trial judge is to be preferred. This
is in accordance with the principle which I believe should underlie the whole
consideration of damages for personal injuries: that proper future care is the
paramount goal of such damages. To determine accurately the needs and costs
in respect of future care, basic living expenses should be included.
The costs of necessaries when in an infirm
state may well be different from those when in a state of health. Thus, while
the types of expenses would have been incurred in any event, the level of
expenses for the victim may be seen as attributable to the accident. In my
opinion, the projected cost of necessities should, therefore, be included in
calculating the cost of future care, and a percentage attributable to the
necessities of a person in a normal state should be reduced from the award for
future earnings.
[Emphasis
added.]
[418] Whether
the total lifestyle approach or incremental approach to damages for cost of
future care and loss of earning capacity is employed, in theory the result
should be the same, restoring the injured person to the position he would have
been in but for the injury, to the extent possible, and avoiding duplication of
damages: Milina at paras. 193-197.
[419] The cases
illustrate that the total lifestyle approach to damages is preferred in cases
of catastrophic injuries; the incremental approach is preferred in cases where
the plaintiff will lead basically the same life as before but needs some
additional assistance: Milina; Andrews; MacEachern; Morrison (Committee of) v. Cormier Vegetation Control, [1998] B.C.J. No. 3279(S.C.) [Morrison].
[420] The Hospital
Defendants argue that the incremental approach should be preferred because Mr. Paur
can live in ordinary accommodation and take ordinary transportation. They argue
that he is not in a situation similar to a quadriplegic, for example.
[421] The Hospital
Defendants also argue that because of the way government funding works for
supporting brain-injured persons, Mr. Paur will be better off if the
incremental approach is followed. This is because government funding will not
be available to support his supervised living until Mr. Paur exhausts his
future care award of damages. In effect they argue that this means that Mr. Paur
will be better off with a smaller future care award and a separate loss of
earning capacity award.
[422] I give
little weight to the latter argument. The plaintiff does not see that Mr. Paur
will be better off by the incremental approach. The point should be to attempt
to award a proper amount of damages for the cost of future care so that the
fund will not be exhausted.
[423] As for the
nature of the injuries, I find that here the injuries are catastrophic: the
plaintiffs ability to support himself, live by himself without daily
supervision and intervention, and organize and pay for basic necessities, has
been permanently lost due to his serious brain injury. Because of the paramount
goal of ensuring that he is cared for in the future, I prefer to follow the
total lifestyle approach in respect of the assessment of his damages.
Pre-Injury Status
[424] Prior to
the hanging attempt, Mr. Paur had a complex history.
[425] Mr. Paur
had a long history of alcohol abuse, some marijuana use and possibly cocaine
use. He may have had bipolar disorder but this was difficult to assess as he
did not have a long period of sobriety. He has family members who have mood
disorders and others suffering from alcoholism.
[426] Mr. Paur
had made previous suicide attempts including one quite recent to the incident
at issue in this proceeding.
[427] The
medical experts agree that Mr. Paur is not a reliable historian. He is not
legally competent. He confabulates, meaning he creates false or distorted
memories. They do believe he accurately reports current pain but otherwise what
he tells others including physicians is not reliable. Thus Mr. Paur was
not called as a witness at trial, and to the extent medical records report
statements by Mr. Paur made after the incident, those statements cannot be
relied upon as accurate.
[428] Three
witnesses testified who knew Mr. Paur before the hanging and could
describe the changes they have since witnessed: his mother, Ms. Shak; his
former step-father, Gary Shak; and a friend since childhood, Andre Fiteni.
[429] As people
who knew and loved Mr. Paur before the incident, these three witnesses may
see the past through rose-coloured glasses. Nevertheless, there are some points
of consistency in their evidence which I found to be reliable, namely:
a) Mr. Paur
was able to function in his home life, taking care of his daily needs and keeping
himself and his home clean;
b) Mr. Paur
liked to do outdoor activities like camping and was gregarious and talkative
with friends,
c) Mr. Paur
maintained long-term friendships, including relationships with girlfriends, and
liked to attend family gatherings;
d) Mr. Paur
appeared to be financially self-sufficient, able to support his accommodation
and living expenses with no evidence of debts other than some legal fines; and
e) Mr. Paur did
not have memory or cognitive problems.
[430] All of
these characteristics have changed for the worse since the hanging incident,
which I will address shortly.
[431] The plaintiff
did not graduate from high school, leaving in grade 9 and seeking out work. He
left home at about age 16, supporting himself.
[432] Mr. Paur
had his drivers licence suspended at one point because of a driving prohibition,
believed to be related to driving while under the influence of alcohol. There
may have been more than one such suspension or driving offence related to
alcohol use. This may have affected his employability.
[433] The plaintiff
and his friend Mr. Fiteni say that Mr. Paur was happily married
before the incident, and wanted to have a child. The marriage took place in
February 2010.
[434] While the
evidence is that the marriage broke down after the incident I do not know
enough to conclude that it was a stable relationship that would have continued
but for the incident, especially given Mr. Paurs drinking and mental
health problems. I also note that it was a marital dispute that preceded the
incident. Nevertheless, I find the evidence sufficient on the point that Mr. Paur
had at least the goal of a happy marriage and raising a child.
[435] Mr. Paurs
former wife was not a witness at trial.
[436] In
December 2010, Mr. Paur was admitted to hospital as a result of a suicide
attempt by way of an overdose of clonazepam.
[437] In early
January 2011, Mr. Paur was seeing his general physician who recorded that Mr. Paur
had depression and anxiety.
[438] In late
January 2011 Mr. Paur was treated at Royal Columbian Hospital (RCH),
admitted on January 27 and discharged on February 1. He was intoxicated and
suicidal when admitted. It was noted in the hospital records that his mood
issues were exacerbated and perpetuated by significant alcohol use. The RCH
discharge record suggests he had some social stressors, including a lack of
employment.
[439] The RCH
discharge record states that at the time of discharge Mr. Paurs thoughts
were logical and goal-oriented with no perceptual abnormalities; that cognition
was grossly intact; insight and judgment were deemed fair. It was noted that
over the course of hospitalization he became more future-oriented and
optimistic, and was this way at the time of discharge. The follow-up plan was
for Mr. Paur to engage in Daytox treatment for his alcohol dependence.
[440] In early
February 2011, Mr. Paur saw his general physician again. He was noted to
have ongoing anxiety and depression, and the doctor described him as totally
disabled and unable to work. He was given a renewal of a prescription of
clonazepam and a new prescription for effexor.
[441] The
records suggest that Mr. Paur did attend the Daytox treatment program.
[442] Mr. Paur
continued to see his general physician in March and May 2011, prior to the
injury.
[443] Mr. Paurs
employment history over the years was spotty but he had earned enough to
support himself and to qualify for Employment Insurance when not working.
[444] More
recently, before the incident he had obtained employment working for glass
companies. He described this work with pride to his friend Mr. Fiteni and
to his mother.
[445] As of the
time of the incident, Mr. Paur worked with a glass company known as Flynn
Canada, starting work with them on March 7, 2011. It appears he was working as
a temporary employee under an Employment Insurance program in which the
employer was obtaining a wage subsidy. A report filled out by the employer
described his progress positively. His job description was an apprentice glazier.
Nature of Injuries and Prognosis
[446] Mr. Paur
suffered a significant brain injury as a result of the hanging and decrease in
oxygen to the brain.
[447] Mr. Paur
remained in SPH from the date of the injury, May 24, 2011, until he was
discharged in mid-November 2011. Ms. Shak visited him often. She gave
evidence as to his slow progress in hospital.
[448] Initially,
after he was resuscitated but still unconscious, Mr. Paur was taken
to the ICU where he was put on a respirator. His body was put into a
cooling phase and then later he was warmed.
[449] Ms. Shak
visited Mr. Paur daily in the first part of his hospitalization. She
recalls that after he eventually woke up from being unconscious, his progress
went from being able to make eye contact and then to gradually being able to
speak. Mr. Paur initially did not know who Ms. Shak was: she said to
him its mom and he replied, after a pause, wheres the other mom. He
appeared very confused.
[450] From Ms. Shaks
observations, Mr. Paur was never able to recognize his wife or remember
his wedding, even though his wife visited often and brought photographs to try
to stimulate his memory. Ms. Shak observed that over time he could
remember people he knew in photographs that were taken years ago, but not more
recent photographs, suggesting that he did not recognize people who had aged. He
also appeared to have difficulty remembering his own age.
[451] Initially Mr. Paurs
right hand and arm were not functioning properly and so he had trouble feeding
himself as he is right-handed.
[452] His
progress was very slow in the hospital. He was often very upset and on occasion
had to be restrained or watched by a care aide around-the-clock.
[453] Dr. Cameron,
a neurologist, explained that the damage caused by insufficient oxygenation to
the brain is microscopic and diffuse. The parts of the brain that are most
susceptible include the temporal frontal lobes and the brain stem area within
the pons and cerebellum. He explained the damage caused by this injury in his written
opinion (at para. 40):
Patients suffer with decreased
memory, decrease in insight, problems with executive cognitive planning,
decrease in concentration, and decrease in attention span. They manifest problems
with confabulation regarding past, current, and future events. Patients may
present with Korsakoffs syndrome which is very acute short-term memory
dysfunction. These patients have significant problems with confabulation in
that they will make up stories following questions or to provide history of
events which are essentially not true.
[454]
As for Mr. Paurs prognosis, Dr. Cameron offered the opinion
(at para. 41):
Following the attempted hanging
incident, the hospital records and subsequent outpatient records clearly
document that Mr. Paur has manifested significant cognitive problems with
decreased short-term memory, decreased attention span, decreased concentration,
decrease in insight, and confabulation. Mr. Paur has required living in a
supervised living situation since this episode. He is documented to be unable
to manage his finances independently. He requires supervision or direction with
respect to basic activities of daily living. He has been able to use public
transit and work at low level labour type jobs part time more recently
following this incident. The clinical records document that he requires daily
reminders to perform certain activities involving basic daily living including
buying groceries. It is my opinion that these symptoms are as a direct result
of the hypoxic/anoxic brain injury that Mr. Paur sustained as a result
of the attempted hanging on May 23, 2011.
[455] In Dr. Camerons
opinion, Mr. Paurs cognitive dysfunction was predominately caused by the
hanging incident. In other words, this cognitive dysfunction was not
pre-existing, for example as caused by his previous alcohol abuse. I accept
this evidence, as it is consistent with the weight of other evidence and
medical opinions, including the opinions of Dr. Schmidt and Dr. Lu.
[456] In Dr. Antons opinion, Mr. Paur suffered a
hypoxic-ischemic brain injury (HBI) as a result of the incident on May 23, 2011.
[457] As to impairments and ongoing injury, Dr. Anton said at
p. 6 of his written opinion:
Mr. Paur was found early in his
hospitalization to have weakness in the right arm. That could arise from HBI,
but he was also found to have an apparent injury to the upper brachial plexus
(a complex of nerves between the neck and upper arm that gives rise to the
nerves that supply the arm and hand). The exact cause of the brachial plexus
injury is not clear, but it appears to have occurred after the HBI. It is
therefore likely directly or indirectly related to the HBI.
Mr. Paur has residual impairments of
cognitive function, the most severe and significant his memory impairment. He
has severe impairment of short term memory. He probably also confabulates
(creates fabricated, false or distorted memories).
Mr. Paur
probably has impairment of executive function (the high level integration of
basic cognitive functions required for the planning, initiation and regulation
of behavior). Associated with that, he probably also has impairment of judgment
and reduced insight.
[458] Dr. Lu,
an experienced psychiatrist with additional training in addiction medicine,
provided the opinion that the hanging caused Mr. Paur to suffer a severe
anoxic brain injury, leaving him with poor memory, loss of executive function,
and passivity.
[459] Those who
knew Mr. Paur before and since the injury consistently report that his
personality is very changed. Mr. Fiteni, Mr. Paurs friend, described
the change this way: that he was a shark before, and now hes a guppy; hes
lost his soul; hes monotone.
[460] Mr. Paur
is no longer talkative but instead is withdrawn, does not take initiative, and
has low energy. He used to have a sense of humour but that is gone. He has
little memory and is easily confused, making it hard for him to participate in
or follow conversation. He often repeats things over and over again. He has no
insight and poor judgment.
[461] Mr. Paur
is aware that he has limitations. He will say that he misses the person he used
to be. He will also say hes lucky because he lived and did not die in his
suicide attempt. He will talk repeatedly about wanting to increase oxygen to
his brain, because he has been told that will promote healing and so he fixates
on this.
[462] On the
whole of the evidence I find that the hanging incident caused Mr. Paur to
suffer a brain injury that has left him with permanent cognitive dysfunction,
including impaired executive function, meaning impaired ability to plan,
initiate and regulate behaviour, impaired judgment, reduced insight, and
short-term memory dysfunction.
Other Injuries
[463] Other than
the general brain damage issues identified already, there was evidence that Mr. Paur
reports other symptoms that might be related to the hanging incident or his
medications.
[464] Mr. Paur
experiences problems of soreness or numbness on his right side and neck. Medical
experts such as Dr. Anton and Dr. Cameron suggest that this could be
the result of a right brachial plexus injury sustained in the hanging or in his
care after the hanging, or could be a result of the brain injury.
[465] Mr. Paur
reports other problems that the medical experts have not been able to identify
or confirm as caused by the incident.
[466] There was
some evidence that Mr. Paur appears to have lost his memory of the ten
years prior to the incident. This is supported by Ms. Shaks observations
of him, including the fact that he did not recognize people who had aged and
did not appear to remember his wife or wedding.
[467] The
medical experts are not in agreement that this ten-year memory problem is real
or was caused by the incident. However, the evidence does not support a
conclusion that Mr. Paur is fabricating the memory loss for purposes of
this court case. The evidence suggests that Mr. Paur is not capable of
forming and carrying out an intention to exaggerate his injuries for the purposes
of increasing his award of damages.
[468] In Dr. Schmidts
opinion, Mr. Paur may be more befuddled and is likely having difficulty
accurately describing his experience and accessing his memories, rather than
being manipulative.
[469] I do not
consider the ten-year memory loss material on the issue of damages, given the
other serious effects of Mr. Paurs injury on his memory and cognition. For example,
I am unable to draw the inference that it was the apparent ten-year memory loss
that caused his marriage breakdown.
[470] Mr. Paur
has also reported vision difficulties, but ophthalmologist testing has not found
any problem with his vision.
[471] Mr. Paur
has also reported a problem with his senses of smell and taste and with
dizziness. It is not known whether this may be a side effect of his
medications.
[472] Because of
the difficulty in diagnosis and the fact that these other complaints pale in
comparison to the brain injury, the other complaints have not influenced my
findings on damages. To put it another way, I find that the effect they have on
Mr. Paurs life are subsumed by the effect of the brain injury.
History of Patient Post-Discharge from SPH
[473] As
mentioned, Mr. Paur was kept in SPH from the date of his injury in May
until November 2011. He did gradually get day passes to go out of the hospital,
and was accompanied by his mother or his wife.
[474] As the
time for Mr. Paurs discharge from hospital approached, the option of him
going into a supervised living arrangement with the Cheshire Homes Society of
BC (Cheshire Homes) was explored but there was no space available. Instead,
the plan was for Mr. Paur to live with his wife, until a group home could
be arranged, and to go to a Cheshire Homes program during the day. The SPH
discharge summary suggested he would require 24-hour supervision once out of
the hospital.
[475] Cheshire
Homes is a society that offers various community support services for people
with acquired brain injuries. The services can include housing services.
[476] Things did
not work out in the initial period after Mr. Paur left hospital. After
about two or three months, there was an incident between Mr. Paur and his
wife which led to an assault charge against him. There has been a permanent
breakdown of the marriage.
[477] Mr. Paur
then moved in to live with his mother in her one bedroom condominium. He slept
on a mattress in the living room, and went to a Cheshire Homes program during
the day.
[478] After
about two months a bed became available and Mr. Paur began to live in one
of the Cheshire Homes residences, described at trial as the Bodie House or
Bodie-Dunbar House.
[479] When
living at the Bodie House, Mr. Paur received assistance with daily living,
and lessons in daily skills. The house was staffed full-time and there were
other residents. The staff would use tools to provide reminders to Mr. Paur,
such as a weekly planning meeting, a whiteboard in his kitchen, a weekly and
daily planner or journal in which his schedule would be written, and staff
checked on him often to provide reminders and cues. The staff took care of Mr. Paurs
bills and allocating him money.
[480] Mr. Paur
needs constant reminders to write matters down in his journal or planner, to
assist him in remembering activities that are coming up.
[481] From Ms. Shaks
observation, Mr. Paur did not make any significant gains in his abilities
or memory during the one year he was living at Bodie House.
[482] Mr. Paur
transferred to the Bonsor Apartments in approximately September 2012, another
residential program managed by Cheshire Homes.
[483] Whereas the
Bodie House managed a small number of people with close supervision, the
Cheshire Homes Bonsor Apartments program managed anywhere from approximately
two to 15 people within a high rise building in Burnaby with less supervision.
[484] Cheshire
Homes has an office in the Bonsor Apartments building and staff who check on
and provide scheduling and other support to clients. Other apartments in the
building are rented to people who are not part of the program.
[485] The
plaintiff called as a witness Diana Goncalves who was a program manager at the
Bonsor Apartments from 2012 to May 2014. She had first-hand knowledge of Mr. Paur.
In her experience, he had fewer skills to live independently than do their
typical clients, in that he could not manage his own schedule or finances.
[486] Initially Mr. Paur
was housed in a room in the same apartment unit as the Cheshire Homes office in
Bonsor Apartments. The staff introduced a person to be with him around the
clock. About a month later he was placed in his own apartment, close to their
office, on the same floor. This allowed staff to check on him and interact with
him more often.
[487] Mr. Paur
was approved for funding of an average of nine hours per week assistance by
staff at the Bonsor Apartments. It appears that he was given approximately six
hours per week by the Cheshire Homes staff, while living at the Bonsor
Apartments.
[488] A
rehabilitation support worker with Cheshire Homes, Angela Leong, was called as
a witness by the plaintiff. She worked in the Bonsor Apartments program for
approximately two years. She was assigned to be the key worker for five clients,
one of whom is Mr. Paur. She has knowledge of how well Mr. Paur has
managed in that program, and what supports he needs.
[489] Ms. Leongs
experience is that Mr. Paur needed the assistance of someone from Cheshire
Homes in the following ways:
a) filling out a
weekly schedule for him that sets out each of the activities he is to complete
each day. For example, taking his medication, showering, going to work, making
meals, the particular household chore to complete that day, going to get
groceries, and so on;
b) checking his
refrigerator weekly to make sure that moldy or expired food is thrown out;
c) taking him
to the bank once per week;
d) taking him to
medical appointments when necessary;
e) creating a
monthly budget to deal with how much income he receives, and paying bills and
allocating enough for groceries;
f) allocating
him money to purchase groceries and cigarettes and for special purchases;
g) managing his
cigarette use (keeping the cigarettes in the office and rationing them to him);
h) ensuring his
apartment is cleaned;
i) ensuring
his clothes are laundered;
j) checking
his medication use to ensure he is following the prompts.
[490] If Mr. Paur
is not prompted by daily reminders, he will not do the activities most people
remember to do, such as shower.
[491] If Mr. Paur
misses his medications or decides not to take them, he will sometimes punch
them out of the blisterpack and dispose of them.
[492] While at
the Bonsor Apartments, Mr. Paur formed a close relationship with a female
client of Cheshire Homes who was also brain-injured. He sometimes visited her
and stayed over at her residence when she moved away from the Bonsor
Apartments, and was able to find his way there using transit. Mr. Fiteni
described his impression of their interactions as odd, like that of two
five-year-olds. This relationship has since ended.
[493] Mr. Paur
has no self-control when it comes to money. Systems have been put in place
through the plaintiff and Cheshire Homes to monitor how much he is given for
certain purposes and when. If tight controls are not put in place, he will
spend money on alcohol. However, he gets impatient and angry and insistent when
denied access to money.
[494] Ms. Shak
testified that she has gone through some trial and error to try to manage Mr. Paurs
insistence on money for alcohol. She allocates him $10 on Wednesdays and on
Fridays, which he can receive from the staff at Cheshire Homes, and this gives
him some spending money but not so much that he will over-consume alcohol.
[495] Mr. Paur
likes to smoke and is allocated a pack of cigarettes a day by the Cheshire
Homes staff. He will typically smoke all 20 cigarettes in a pack in a day.
[496] On one or
more occasions Mr. Paur apparently has pawned some items to obtain money. This
appears sometimes linked to his desire to purchase alcohol.
[497] For a
short time another tenant of the Bonsor Apartments but not a client of Cheshire
Homes, known as Pierre, befriended Mr. Paur. From Mr. Paurs
understanding, Pierre was willing to employ him in the construction industry,
paying him in cigarettes and alcohol. This relationship raised concerns that Mr. Paur
was being exploited. At one point in this relationship Mr. Paur fell off a
roof but the evidence does not suggest that any injuries suffered in that fall were
permanent.
[498] While in
the Bonsor Apartments, Ms. Shak assisted Mr. Paur in finding
part-time employment, three days per week, four hours at a time. Mr. Paur
obtained a job at a mattress recycling plant, ripping apart old mattresses with
the use of a box cutter, and placing the remnants in bins. This employment is
repetitive and simple in the sense that it does not require many steps. The
employer does not measure productivity.
[499] Mr. Paur
has learned how to take transit to and from his employment and residence. He
appears to take satisfaction from being employed.
[500] Mr. Muhimbise,
an operations manager for the mattress recycling business, gave evidence at
trial. He explained that Mr. Paur has proven himself capable of doing the
assembly line work taking apart old mattresses. However, Mr. Paur does
seem to forget safety instructions, in particular, having to do with making
allowances for the movement of a forklift. Also, Mr. Paur quickly forgot
instructions on how to process box springs, although he was capable of doing
the job when first taught. Mr. Paur also cannot remember names at work and
does not seem to form friendships there. He smokes cigarettes on his break.
[501] Mr. Paur
is able to take transit on his own to other locations if the directions are
written out and carried with him, but he cannot gather the information to do so
on his own.
[502] The
evidence revealed that if he is not prompted, Mr. Paur will not clean his
apartment, and even with prompting he often will not clean his apartment. He is
very sloppy in preparing meals, not using any splatter guard, and the kitchen
area and appliances become very stained with food. He often burns food and
instead of finding ways not to do this, has simply disconnected the smoke alarm.
He did not keep his apartment as clean as other clients of Cheshire Homes.
[503] Mr. Paur
follows a routine of eating food that is easy for him to prepare, such as soup
from cans, frozen dinners, beef spaghetti, pre-cooked BBQ chicken, steak, bacon
and eggs, and breakfast cereal. He will not easily accept direction on grocery
purchase, but occasionally staff can encourage him to purchase some fresh
fruits and vegetables. He often leaves food out unrefrigerated and keeps it
until it is moldy, and is unaware of best before dates.
[504] Mr. Paur
lived for approximately one year at the Bonsor Apartments but was then evicted
as of December 2014. The reported reason for his eviction was that he was
smoking and leaving cigarette butts outside his suite, and he was also drinking
outside his suite.
[505] Mr. Paurs
mother and others helped find him an apartment in a building a few blocks and
about a 12-minute walk away, and he moved in there. The Cheshire Homes staff
still interact with him but less than before, and more often connect by
telephone than in person.
[506] When he
moved from the Bonsor Apartments, the suite Mr. Paur left behind was one
of the dirtiest Ms. Leong had ever seen.
[507] At his new
apartment, the staff of Cheshire Homes sees less of Mr. Paur, and he often
does not make it to planned meetings with them. Whereas they used to try to
meet with him daily in his suite at Bonsor Apartments each morning to review
his schedule, they now talk to him over the phone. Previously he would not
participate in every meeting, but perhaps close to two-thirds of such meetings,
whereas now he participates less, perhaps in one-third of the meetings.
[508] Also, when
he was living in the Bonsor Apartments the staff would walk by his suite
frequently to see what he was doing; this kind of supervision no longer occurs.
[509] Ms. Leong
was cross-examined about some notes she made in the Cheshire Homes records,
documenting progress of Mr. Paur. The force of her evidence was that he
did not really progress in his abilities but at times she would write comments
in a positive way, to try to be optimistic. For example, she once wrote that he
demonstrated initiative by discussing his requirement for a new broom. However,
in reality he had been there since 2012, and he only mentioned in 2013 that he
did not have a broom when she commented that the floors were dirty.
[510] In Ms. Leongs
experience working with him, Mr. Paur will do well if he thinks someone will
be checking on him and will give him negative feedback if something is not
done; but without that checking he would not likely do the activity he needs to
do.
[511] Ms. Shak
finds that Mr. Paurs level of dependence is at about the level of what he
was when he was ten years old. He cannot accomplish much on his own and needs a
lot of advice and prompting.
[512] Ms. Shak
is the one who purchases Mr. Paurs clothes and shoes for him now. She
notices that he does not dress appropriately for the season or the weather and
that his clothes are often dirty, which was not the case pre-injury.
[513] Currently Ms. Shak
has Mr. Paur over to her home once per week, and will do his laundry for
him when he visits.
[514] Ms. Shak
has occasionally cleaned his apartment for Mr. Paur. She notices that his
kitchen and bathroom get very dirty.
[515] In Ms. Shaks
experience, Mr. Paur has no understanding of his finances, and no idea of
how to plan for a purchase or how much money he has. She controls his bank
account and his money from his paycheque is deposited directly.
[516] Mr. Paur
often complains to Ms. Shak of feeling dizzy, of a lack of depth
perception, pain in his neck, numbness down the right side of his body, and a
lack of taste and smell. He expresses frustration with his inability to think,
and has broken about three computers and three playstation units. He fatigues
easily.
[517] On
average, Ms. Shak currently spends about five hours per week checking on Mr. Paur
or managing his care, not including his social visit once per week. Much of
this is calling him directly, but approximately once per week she must also
discuss his care with Cheshire Homes staff, either to follow up on what they
were supposed to be helping him with, or give directions to them on matters,
such as his access to money. In her experience there is a high turnover of
staff there; the phone is not always answered because staff are busy; and she
often has to make several calls before information is conveyed. She will also
on occasion take Mr. Paur grocery shopping and on social outings.
[518] On one
outing, Ms. Shak visited her ex-husband, Mr. Paurs former
stepfather, Mr. Gary Shak. They decided to try to use kayaks but once on
the water, Mr. Paur could not remember to keep his balance, fell in
and panicked.
[519] Ms. Shak
had not planned to retire when the injury occurred, but had contemplated moving
to part-time work. She was 66 years old but wanted the continued income. After
the injury, she felt it was too much to continue working given her worries with
her son, and so she retired.
[520] Ms. Shak
was taken by surprise by Mr. Paurs eviction notice from the manager of
the Bonsor Apartments. She tried to arrange meetings to solve the problem, to
no avail. She had to spend time trying to find another apartment in the area,
close enough to allow him to still be assisted by the Bonsor Apartments staff. A rehabilitation
consultant working with Mr. Paur also helped and they found an apartment
that would accept him.
[521] Ms. Shak
arranged Mr. Paurs moving and furnishing of the apartment.
Summary of Patients Day-to-Day Living Problems
[522] There is
an abundance of evidence that Mr. Paurs many problems mean that for the
rest of his life he will need some degree of supervision and intervention to
ensure his basic needs are met and that he is safe.
[523] Mr. Paur
is aware of his limitations, to a degree, and is at risk of becoming frustrated
and demoralized by too many restrictions and controls.
[524] In Dr. Lus
opinion, Mr. Paur has a permanent need for supportive living. He needs
constant support. He is at high risk of impulsive acting out. The support he
needs includes limiting his alcohol intake as any prolonged period of
drinking
will lead to catastrophic deterioration in his function. Also, in Dr. Lus
opinion, Mr. Paur needs long-term monitoring of his mood.
[525] Dr. Lu
recognizes also that despite the severity of Mr. Paurs brain injury,
he is able to have some independence.
[526] Dr. Cameron
provided the opinion that Mr. Paur probably suffers from a pathological
reaction to alcohol. This means he has an extraordinarily severe response to
alcohol, marked by violent behaviour and profound depression associated with
suicidal ideation. This existed before the incident and is likely exacerbated
by the brain injury.
[527] It is
precisely because of this that Dr. Cameron recommends that Mr. Paur
be living in in a more supervised environment than that in which he is
currently living. He recommends that Mr. Paur be prohibited from
purchasing alcohol in the future. He recognizes that this will be difficult to
monitor.
[528]
Dr. Schmidts opinions are consistent with the above evidence. He
also recommends that Mr. Paur remain in supportive housing for life. Dr. Schmidt
stated in his written opinion (para. 7, p. 8) that:
the current
level of support he receives may be insufficient to assure that he is not,
because of his deficits, at significant risk of engaging in activities that are
not in his best self-interest (such as using alcohol) or being susceptible to
the manipulation of others.
[529] While Mr. Paurs
compulsion to abuse alcohol pre-existed the injury, I find that he has less personal
responsibility and ability to control that compulsion now, post-brain injury. Virtually
all controls on his addiction have to be imposed externally.
[530] The issue
is what degree of supervision and intervention will work best to (a) provide
Mr. Paur with a degree of independence, which is important to his overall
sense of well-being; and (b) at the same time, provide Mr. Paur with
an environment that is healthy and safe. There is no one formula which can
determine the issue of the perfect balance between independence and
supervision.
[531] While
various medical experts provided opinions in this regard, the differences
really boiled down to what they knew about what was or was not working in
practice for Mr. Paur. This is something the Court is able to determine on
the evidence.
[532] Fortunately
the Courts task in predicting the degree of supervision and intervention
required to ensure that Mr. Paur is safe and healthy has been made easier
because of the evidence of the experiences that have been tried with Mr. Paur
prior to trial.
[533] Mr. Paurs
mother, Ms. Shak, was a very credible and reliable witness. She has been
very closely involved in her sons care. She has no motive to hold him back and
every motive to want to increase his independence. Her evidence, together with
the medical evidence and that of Ms. Leong who has gotten to know Mr. Paur
as a client of Cheshire Homes, and the evidence of Diana Goncalves, persuaded
me that Mr. Paur will never be able to live independently without daily
supervision and assistance.
[534] I find
that at a day-to-day level, Mr. Paurs problems include:
a) an inability to
manage money;
b) an inability to
independently plan and manage regular personal care, such as showering,
laundry, and cleaning of his living space;
c) an
inability to independently manage medications and health care;
d) an inability to schedule
activities on his own or take initiative for activities;
e) a lack of
insight and judgment;
f) an
inability to resist alcohol and self-destructive or violent behaviour once
intoxicated;
g) becoming easily
fatigued;
h) a lifelong risk
of depression; and,
i) social
vulnerability (he is easily taken advantage of) and isolation.
[535] I find
that if Mr. Paur is not closely monitored, he is at great risk of creating
an unsafe home environment and of increasing his social alienation.
[536] Even if
external controls are placed on Mr. Paurs money, he is at risk of having
other persons purchase alcohol for him, or he may try to trade goods for cash
which he can use for alcohol, which puts him at risk of a situation in which he
hurts himself or others.
[537] The
evidence establishes that with some degree of daily intervention and
supervision, the above problems can be managed. To date that intervention and
supervision has come from two sources: his mother and outside agencies.
[538] The Hospital
Defendants concede that Mr. Paur will need supportive care for the rest of
his probable life expectancy, but they argue that the degree of this supportive
care should be similar to that provided from Cheshire Homes Society, namely, a
support system which provides daily or weekly reminders and with a small amount
of additional support.
[539] However, there
is considerable evidence that Mr. Paur has only a variable response to
verbal or written prompting by others. I find that such prompts cannot be
relied on as the only tool to ensure he follows his schedule and meets his
daily needs. He can say he is following his schedule when he is not. He adapted
to the smoke detector going off when he burns food by taking the battery out of
the smoke detector, rather than learning how to avoid burning food.
[540] I find
that Mr. Paur needs support of someone who is regularly present and by his
side, encouraging and helping him to complete tasks such as cleaning and
exercise and grocery shopping; and episodic support to deal with issues that
can be expected to arise but on a less frequent basis, such as arranging for
and taking him to medical appointments, clothing purchases, dealing with a
family death, occasional outings and the like.
[541] I agree
with Dr. Cameron and Dr. Lu that Mr. Paur needs more support
than he is currently receiving. He is too far removed from face-to-face daily
intervention by Cheshire Homes staff. There is far too great a burden on Mr. Paurs
mother to check that he is safe and healthy. It appears to me that he is at
great risk of falling through the cracks.
Life Expectancy
[542] The
defendants submit that any assessment of damages must take into account that Mr. Paur
had a less than average life expectancy before the incident, and has a less
than average life expectancy now. They called the evidence of Dr. Strauss,
a California-based statistician, to provide an opinion on statistical factors
affecting Mr. Paurs life expectancy.
[543] Dr. Strausss
opinion is that Mr. Paurs life expectancy, if that of an ordinary
Canadian male, is 41.6 years from trial.
[544] There was
no principled basis for Dr. Strauss relying on statistics for Canadian
males as opposed to BC males. The difference between statistics for BC males
and Canadian males is that BC males on average live about 0.7 years longer at
birth according to Dr. Strausss estimates. According to Dr. Strauss,
by Mr. Paurs age, that difference is less, perhaps approximately 0.5 of a
year. I will therefore assume that Mr. Paurs starting life expectancy is 0.5
higher, namely, 42.1 years, if no deductions are made to take into
account other factors.
[545] Dr. Strauss
took into account three issues potentially affecting Mr. Paurs life
expectancy: smoking; alcohol abuse; and suicide attempts.
[546] Mr. Paur
has been a smoker since he was in his teenage years. He now smokes one pack of
cigarettes a day. The implication in the evidence is that it is too hard to
wean him off smoking, without him becoming angry and so he is essentially
rationed cigarettes, one pack per day.
[547] The plaintiff
submits that a committee will eventually help reduce Mr. Paurs cigarette
smoking, by getting him involved in other activities and controlling the amount
of cigarettes he is given.
[548] Given the
passage of time since the injury and the fact that Mr. Paur is still a
heavy smoker, I find it unlikely that Mr. Paur will cease or significantly
reduce his smoking.
[549] Dr. Strausss
opinion is that heavy smoking will reduce life expectancy by 9.2 years.
[550] I find
that before the incident and since the incident, Mr. Paurs life
expectancy was reduced by 9.2 years because he was and would continue to be a
heavy smoker.
[551] Dr. Strausss
opinion is that statistically alcohol use affects life expectancy if the person
consumes five or more drinks per day. In his opinion, if taken together with
the smoking, it would reduce life expectancy by another 9.9 years.
[552] The
difficulty with discounting Mr. Paurs life expectancy on the basis of
predicting that but for the injury, he would have been consuming five or more
drinks per day, is that we have no reliable evidence as to his actual volume of
alcohol consumption, pre-incident. The medical evidence does not establish that
as at the date just prior to the injury, Mr. Paurs life expectancy was
already reduced because of daily alcohol use exceeding five or more drinks per
day.
[553] Two
medical experts at trial with expertise in addiction had two opposing views of
what the future might have held for Mr. Paur.
[554] Dr. Lu
had the most impressive credentials of all the medical experts at trial when it
came to addressing addiction. Dr. Lu testified that often people who have
an acute event and receive mental health treatment will make profound life
changes when they sober up. He testified that the vast majority of patients
with addictions recover from addiction over time although it can take many
tries.
[555] Dr. Sobeys
opinion agreed that treatment for substance use disorders results in excellent
outcomes. However, untreated substance use disorders result in progression of
the disease and earlier death. In his opinion, Mr. Paurs history meant
his prognosis for remission was poor prior to his suicide attempt.
[556] However, Dr. Sobey
had limited knowledge of Mr. Paurs pre-injury history. He did not know,
for example, Mr. Paurs work history just prior to the injury, or that Mr. Paur
had been assessed very positively by his employer at Flynn Canada.
[557] On the one
hand there is no doubt that Mr. Paur was an alcoholic who had not been
successfully treated. But we also know that addicts relapse, and although Mr. Paur
had not successfully completed a recovery program for alcoholism, he had sought
out treatment in the past.
[558] I find
that there was reason to have optimism and that there is a real possibility
that Mr. Paur would have sought treatment but for the incident and managed
his addiction to alcohol. He had taken steps to improve his life, by getting
married, and trying to get into a better career as a glazier.
[559] Equally,
there is a real possibility that he would not have been successfully treated
and would have consumed so much alcohol in the future that it would have
affected his life expectancy.
[560] Weighing
the opposing forces of optimism and pessimism, I conclude that but for the
injury there is a 50% chance that Mr. Paur would in the future have reached
the levels of alcohol consumption that would have affected his life expectancy.
I will therefore discount Dr. Strausss figure of 9.9 years by 50%,
and consider that Mr. Paurs life expectancy before the incident
would have been reduced by an additional 4.95 years due to the risks
of alcohol consumption.
[561] I realize
this approach is not statistically or mathematically perfect. Trial judges do
not have statisticians or actuaries on hand to provide a new opinion if an
assumption made by an expert is not accepted. The goal is to make a fair
assessment of damages.
[562] As for
post-injury, the difficulty with discounting Mr. Paurs life expectancy
because of the possibility of future alcohol consumption of five or more drinks
per day is that it assumes a failure of the future care safety net for Mr. Paur.
One of the goals of the future care plan for Mr. Paur is to monitor and
limit his access to alcohol and to engage him in sufficient activities that he
does not feel so much need for alcohol.
[563] Since the
injury, the weekly allowance given to Mr. Paur for discretionary spending,
which he can spend on alcohol, is $20. He will be unable to afford much alcohol
on that allowance. While he may occasionally find other ways to drink, these
are likely to be very rare occasions.
[564] I am
satisfied that with proper supports in place, Mr. Paur will not fall into
a category in the future of consuming five or more alcoholic drinks per day. I
therefore find that his calculation of damages should not be reduced by reason
of alcohol consumption affecting his life expectancy in the future.
[565] A similar analysis
applies with respect to the risk of future suicide attempts.
[566] Dr. Strauss
was of the opinion that of those persons who make suicide attempts, who are
male and where alcohol is involved, life expectancy drops by another 3.8 years,
on top of the reduction accounting for heavy smoking and heavy drinking. Statistics
were based on a follow-up of 5 years from the date of the suicide attempt.
[567] The
evidence makes it clear that Mr. Paur has a violent reaction to alcohol. Dr. Anton
noted that Mr. Paurs difficulty managing alcohol use was a significant
risk for premature death.
[568] I have
assumed there is a real risk that Mr. Paur would have consumed heavy
amounts of alcohol in the future, but for the injury, although I have reduced
the risk of that affecting his life expectancy to account for the chance he
would have recovered from his alcoholism.
[569] In my
view, the risk that Mr. Paur would become intoxicated and would attempt
suicide has to be factored into his pre-injury life expectancy. I realize that Dr. Strausss
figures are not additive, and so the figure of 3.8 years may be an
underestimate of the shortened life expectancy caused by suicidality, when the
full effect of heavy drinking on life expectancy has not been taken into
account. Nevertheless, I find it a reasonable figure to assume based on
other positive contingencies such as the possibility of successful treatment of
Mr. Paurs alcoholism in the long-run. I conclude that Mr. Paurs
life expectancy pre-injury was reduced by an additional 3.8 years due
to his suicidality.
[570] As for the
effect of Mr. Paurs suicidality on his life expectancy post-incident, as
already mentioned, the future care plan should be structured to address the
risk of him becoming intoxicated, which seems to be the trigger for suicide
attempts. The Hospital Defendants submit that there has been one report of
post-injury suicide attempt already. The admissibility and weight of the
evidence they rely on is disputed by the plaintiff who submits that at most
there may have been an incident of suicidal ideation, not an attempt. But
regardless, after injury there has not always been a good care plan in place
for Mr. Paur. After trial, there will be a better care plan in place if
the future care recommendations are implemented. It would be wrong to base Mr. Paurs
future life expectancy on the premise that his future care plan will fail. I
find that Mr. Paurs future life expectancy, post-injury and post-trial,
with a proper care plan in place, will not be affected by suicide attempts.
[571] I have
found Mr. Paurs life expectancy, but for the injury, to be reduced by 9.2
plus 4.95 plus 3.8 years for a total reduction of 17.95 years from the starting
point of 42.1 years. The reduced life expectancy, but for the injury, has to be
taken into account any assessment of damages for loss of earning capacity.
[572] I have
found that Mr. Paurs life expectancy post-trial is reduced by 9.2 years
from the starting point of 42.1 years. The reduced life expectancy, post‑injury,
has to be taken into account in the assessment of damages for future care costs.
I do not find it such a significant reduction in life expectancy to require
consideration in the award for non-pecuniary damages.
Future Care Costs
[573] The
authorities establish that the paramount concern of the court in awarding
damages for personal injuries is to ensure that there is adequate future care: Milina
at paras. 184, 226.
[574] There were
two experts who estimated the cost of future care and made recommendations: Ms. Jewett
for the plaintiff, and Ms. Percy for the defendants, both occupational therapists
(OTs).
[575] The major
issue between the future care cost experts has to do with how much supervision
and intervention is medically justified for Mr. Paur.
[576] Overall I
prefer the evidence of Ms. Jewett, for the simple reason that her
assessment of all the medical recommendations, together with her own
observations of how Mr. Paur is managing his disability, more closely
matches the conclusions I have reached on the facts.
[577] My
preference for Ms. Jewetts evidence does not mean that I accept all of
her recommendations and cost estimates.
[578] I found Ms. Percy
to be well-qualified and agree with some of her points, but she had an inflated
view of Mr. Paurs abilities compared to what I have found after hearing
and weighing all the evidence.
[579] In my view
Ms. Percy did not have the best source of evidence regarding how well Mr. Paur
was being looked after and how his care was managed by Cheshire Homes. Ms. Percy
seemed to give considerable weight to two employees who were at the management
and supervisory level, Mr. Deluca and Ms. Holburn. They had less direct
knowledge of the daily dealings between staff and Mr. Paur than did the
witnesses from whom I heard at trial. They or Ms. Percy also appear to
have amplified the meaning of positive comments in written reports of staff
dealing with Mr. Paur and created an incorrect impression that Mr. Paur
was improving in his level of functioning and that Cheshire Homes was providing
more support than it really was.
[580] It is
clear to me that positive statements in written reports by Cheshire Homes staff
were meant to provide an optimistic and hopeful tone for his direct caregivers
but should not be interpreted as accurately reflecting an improvement in Mr. Paurs
level of functioning. I am of the view that at times this optimistic tone was somewhat
self-serving as the Cheshire Homes staff wanted to show that they were
improving the life of their client. I do not know if this is related to
government funding or supervisory oversight, or just a natural human tendency
to want to believe ones work is making a difference.
[581] That Ms. Holburn
and Mr. Deluca may have wanted to paint an unrealistically rosy picture of
Mr. Paur is indicated by the fact that according to Ms. Percy they
did not inform Ms. Percy of the fact that he had been evicted from Bonsor
Apartments, a fact that they had to know was materially important to her
assessment. It is possible that Mr. Paurs eviction could be seen as a
failure of the Cheshire Homes program and as evidence that it was not
sufficient to meet his needs.
[582] Ms. Percys
written report also in my view gave too much weight to Mr. Paurs
self-reports to her.
[583] As but one
small example of how these sources misled Ms. Percy, she believed Mr. Paurs
self-reports that he follows a self-directed exercise program. I find that
Mr. Paur was not following a self-directed exercise program. When he lived
in the Bonsor Apartments there was a community centre with a gym across the
street and the evidence suggests that he had gone there occasionally. But no
one gave evidence of having watched him perform a suitable and useful exercise
regime on his own when he got there, or having a sustained routine of going to
the gym. Having heard all the other evidence, I do not accept the premise that Mr. Paur
has the ability to initiate, plan, follow and sustain an appropriate exercise
regime on his own. This is so despite the fact that he enjoys exercise.
[584] Also, Ms. Jewetts
recommendations adopted the total lifestyle approach in accordance with
instructions. I have concluded that the total lifestyle approach is appropriate
here, although adjustments could be made to either report regardless.
[585] With those
overview comments in mind, I will review point by point the future care cost
recommendations.
Supportive Housing
[586] The
experts agree and I find that Mr. Paur requires supportive housing.
[587] Unfortunately
Mr. Paur has been evicted from Bonsor Apartments. While he is still
receiving some assistance from Cheshire Homes, as discussed above many of the
experts agree that he needs more support.
[588] While Mr. Paur
is supposed to receive an average of six hours of support per week from
Cheshire Homes, it does not appear to me that he is receiving this, or if
he is, it is not as meaningful as it could be because many of the interventions
are over the telephone only. He often does not show up for scheduled meetings,
and phone reminders are brief and not the same as having someone come to his apartment.
The evidence suggests that Cheshire Homes staff leave it to Mr. Paur
to access their services if he has a need despite the fact that he does
not have sufficient ability to initiate.
[589] Ms. Jewett
presented the cost of two options for supportive living until age 67,
suggesting a change in these arrangements at that age, which I will come to.
[590] One option
is to continue to have the services of Cheshire Homes which on paper is to
provide six to nine hours per week of supervision. The second option is for Mr. Paur
to continue to live in his own apartment, without the services of Cheshire
Homes, but with other companies providing a support worker four hours a day, who
will physically check on him in his apartment twice per day, once in the
morning and once in the evening.
[591] According
to the cost estimates of Ms. Jewett, the Cheshire Homes option works out
to $40,270 annually; the second option works out to either $41,858.20 or
$45,143.20 annually, depending on the supplier of the service. An averaging of
the second option costs would be approximately $43,000 per year.
[592] Ms. Percy
initially recommended the continuation of Mr. Paurs living at Bonsor
Apartments as appropriate, not knowing that he was already in the process of
being evicted. Also, she suggested he was not accessing all of the available
hours of support the Cheshire Homes staff might provide, and that if there was
an additional need or goal identified, this could be supported within the
existing framework. The problem I have with this is that it is clear that Mr. Paur
does need additional support but he does not have the capability of demanding
it or defining his needs, and it is not being provided within the existing
framework of Cheshire Homes.
[593] Ms. Percy
raised the possibility of a Family Care Home as an alternative supportive
living arrangement. Her description of this option was in very general terms,
but it sounded like there could be benefits to such an arrangement. However
there was not enough evidence on this alternative to make me confident that it
is viable, that a space is available for Mr. Paur and that he would be
admitted. The possibility that he would again be evicted has to be taken into
account. Also, Ms. Percys evidence as to the costs was not up to date. She
relied on her general past knowledge of a range of costs charged by one of
these homes without conducting research on it for this case.
[594] In my
view, the likelihood that Mr. Paur will be a difficult person to house has
to be kept in mind. It is likely that Mr. Paur will have a series of
independent apartments and so he will need support within them to remain a
suitable tenant and to be healthy. I noticed Ms. Percys reference to one
of her brain-injured clients who had become homeless. This kind of failure of
the support system is something that would be disastrous for Mr. Paur and
hopefully with an appropriate future care plan it can be avoided.
[595] In Dr. Antons
opinion, if Mr. Paur is to live in his own apartment he should be checked
on at least once daily, this being the minimum level of supervision required to
ensure his safety, but providing he has other supports in place and a
structured routine.
[596] I conclude
that Mr. Paur has not been receiving from Cheshire Homes as much supervision
and assistance as he needs. I find that he needs more support than their
typical client. Given that he has not been able to sustain continued living in
one of their managed buildings, I conclude this is not a good option for him.
[597] I prefer
the second option presented by Ms. Jewett, using other agencies to provide
a support worker and to check on Mr. Paur in his apartment twice per day,
for a total cost of $43,000 annually to age 67. Checking on Mr. Paur twice
per day will provide the necessary support to ensure that he is safe and to
ensure that he has a structured routine. It is likely that on some days the
support worker will visit only once and for a longer period. The two visits per
day will be an average. It should lessen the time or need for some of the other
support workers that are recommended by Ms. Jewett, which I will address
shortly.
Ordinary Rental Housing
Costs
[598] Because I
have found the total lifestyle approach to be appropriate, the cost of renting
an apartment itself must be considered on top of the costs of providing support
for Mr. Paur in his apartment.
[599] Ms. Jewett
estimated the average monthly rent for a one bedroom apartment in Burnaby to be
$1,257 which amounts to $15,084 per year. Ms. Percy in a very brief
comment in one of her reports referred to market rent as being $1,100.
[600] I prefer Ms. Jewetts
estimate and find that this cost should be included as part of the cost of care
annually to age 67.
Supportive Living After
Age 67
[601] Any future
support has to take into account the medical evidence that Mr. Paurs
cognitive decline will increase with aging. Since Mr. Paur now has less
cognitive ability than others to start with, due to his injuries, the effects
of the natural decline due to aging will be felt by him to a greater degree.
[602]
As set out in Dr. Camerons opinion (para. 53):
Mr. Paur is currently 40
years of age. Mr. Paur will undergo the normal cognitive decline and
physical decline of aging, as we all undergo during our 40s, 50s, 60s, 70s and
beyond. Mr. Paur will feel the effects of aging more than other
individuals surrounding him, in that he will probably require an increased
degree of supervisory care on a daily basis as he undergoes the aging process.
His cognitive function will decline in the future because of this normal
decline of aging. He has manifested and continues to manifest a decrease in
insight into his medical condition, his disabilities, and his capabilities. The
decrease in insight is largely due to frontal lobe brain injury which would
have occurred at the lime of the incident of May 23, 2011.
[603] Dr. Lu
held a similar opinion. He has experience in looking after patients of
all ages with brain injury, and understands the progression of limitations
as patients with these injuries age. It was his opinion that with Mr. Paurs
brain injury and decreased mental reserve, he is likely to require earlier
long term or facility care, as aging related health problems will have
additional impact on his physical and functional capabilities. As explained by
Dr. Lu, Mr. Paur will require more support as he ages.
[604]
Dr. Antons opinion was consistent with that of Drs. Cameron
and Lu: Mr. Paurs brain injury has left him with less cerebral reserve.
As Dr. Anton stated at p. 9 of his written opinion:
Mr. Paur
has been left with reduced cerebral reserve. He will be at increased risk for prolonged
recovery, poorer outcome and cognitive decline in the event he has another
neurological injury such as a traumatic brain injury or stroke.
[605] I find
that Mr. Paurs injury will mean that he is likely to have a greater and
earlier need for increased level of supervised care as he ages and his brain
function declines. It is likely that at some point he will need to be living in
a group home setting of some sort.
[606] I do not
accept the Hospital Defendants argument that to take this into account would
be inappropriate, because Mr. Paur was going to age in any event. I find
the evidence supports the conclusion that but for the injury, there is no
reason to expect that Mr. Paur would have required supervised care when he
aged. As in Mitchell v. We Care Health Services Inc., 2004 BCSC 902 at para. 111, this award is meant
to take into account the degeneration of a condition the defendants
negligence brought about.
[607] Ms. Jewetts
opinion took into account the need for Mr. Paur to have greater support as
he ages, due to decline in his cognitive function.
[608] Ms. Jewett
estimates the cost of specialized brain injury housing for Mr. Paur at age
67 and forward, by looking at three options of institutions. If he is living in
a home that provides 24-hour care, the costs could range from $101,225
annually, to $102,370 to $106,800 annually.
[609] Ms. Percys
opinion was that these additional costs and placement in a facility may be
necessary as Mr. Paur ages, although she was not certain as to the timing.
[610] Estimating
the future is of course very difficult. I find that age 67 as a starting
point for estimating when Mr. Paur will need to be in a facility offering
24-hour care is reasonable. The average of these costs is $103,465 and I find
this is a reasonable estimate of the cost of Mr. Paurs supportive housing
from age 67 on.
[611] In finding
this to be reasonable, I have taken into account the fact that the estimates
for cost of future care for additional support workers will be reduced as at
age 67 and forward, as will rent. If the prediction as to Mr. Paurs need
for full-time supportive housing at age 67 does not come true, the extra
damages he will have been awarded for this housing will instead need to be
spent on continuing support at previous levels or increasing the many
forms of support in the community which I have found to be required until age
67.
[612] In my view
the chance that Mr. Paur might not need increased care at age 67 is offset
by the chance that the damages he has been awarded for future care in his own
apartment will not have not fully anticipated all of his future needs.
[613] The
plaintiff seeks an extra award of 10% positive contingency for all costs of
future care between now and Mr. Paur turning age 67, to reflect a myriad
of costs that are difficult to quantify as things could change over his life
going forward. I have concluded that it is not necessary to add in another 10%
positive contingency to the costs of future care to age 67.
Additional Support Workers
[614] Ms. Jewett
recommended a number of additional support workers for Mr. Paur:
a) someone such as
an OT to provided ongoing case management to manage his care and deal with any
crises, 12 hours per year annually;
b) a clinical
counsellor to provide supportive counselling and to monitor his mood, 12
sessions per year for five years;
c) a
kinesiologist to assist him with an exercise regime two hours, two times per
week, annually to age 67;
d) a rehabilitation
assistant/community support worker, to help him for two hours, three days per
week, for life, helping with meal planning, shopping, organization, and
appointment scheduling, and community access to recreational activities;
e) a job search
coach, who can help him find other work when he loses employment from time to
time, for three sessions to age 67;
f) housecleaning
weekly, two hours per week annually.
[615] Some of
the differences between Ms. Percy and Ms. Jewett come down to their
view of how much support Mr. Paur is already getting from Cheshire Homes,
and assumptions about his supportive housing arrangements going forward. I find
that Ms. Jewetts assumptions better represent the true facts and are a
better prediction of the future generally.
Case Management
[616] Dr. Antons
opinion was that Mr. Paur would benefit from having a case manager to
ensure he has adequate access to services and would benefit from an annual
review of his function and needs by an OT.
[617] Ms. Percy
agreed that some case management and OT services would be necessary for Mr. Paur,
it is a question of how much and for how long, and that is for the court to
determine. Factors to consider would be how well his needs are currently being
managed by Cheshire Homes.
[618] Ms. Percy
agreed that if Mr. Paur was not living in a Cheshire Homes managed living
arrangement, but was living independently, his case management needs would be
higher.
[619] Since his
eviction from Bonsor Apartments, this is of course the situation for Mr. Paur.
[620] Ms. Jewett
recommends that case management services provided by an OT will be needed for 12
hours per year annually.
[621] In my view,
currently too big a burden falls on Ms. Shak to oversee and manage her sons
care needs. This should be professionally managed. I find the estimate of OT
services of 12 hours per year is very conservative.
[622] Ms. Jewett
estimates the costs of $1,440 annually for 12 hours of service, not including
travel time and mileage.
[623] Ms. Jewett
estimates an additional cost of one-hour travel (reduced rates) and mileage of
50 km per trip for each hour of service totalling another $1,020 per year. I
find the estimate of travel time and mileage to be excessive. Ms. Percys
approach is to assume an additional budget of 30% for travel time and mileage
and in my view this is reasonable. This would mean an additional cost of $432
per year.
[624] I conclude
that it is reasonable to include a cost of OT case management services of $1,440
plus $432 annually for a total of $1,872 per year to age 67.
[625] However,
in my view a large downward adjustment needs to be made to the quantity of
these case management services once Mr. Paur is age 67 and expected to be
in a full-time care facility. At that stage he will still need occasional outside
case management to ensure his care needs are being adequately met. I conclude
from age 67 and on this need for case management will decrease to a total of
four hours per year plus 30% of travel time and mileage. Using Ms. Jewetts
figure of $120 per hour for OT services, this would cost $480 plus $144
for a total of $624 annually from age 67 and on.
Counselling
[626] Ms. Jewett
recommends that Mr. Paur have 12 sessions per year for five years of
clinical counselling.
[627] Dr. Lus
opinion was that Mr. Paur needs long-term monitoring of his mood. Dr. Antons
opinion was that Mr. Paur was at risk of depression, which is common in
brain injury patients. In Dr. Antons opinion, counselling and monitoring of
Mr. Paurs psychological condition could be helpful.
[628] Mr. Paurs
memory difficulties make ongoing counselling problematic, but there will be
times in his life when he could benefit from counselling in dealing with an
emotional crisis or upsetting event such as when a family member dies. Also, a
psychologist could assist other members of Mr. Paurs team in
understanding and providing necessary support to Mr. Paur.
[629] Ms. Percy
agreed that depression is quite common in these individuals and that some
require access to counselling when in crisis. She agreed in cross-examination
with the recommendation that some funds be set aside to allow for Mr. Paur
to have counselling from time to time but in her view it should not end in five
years but continue, episodically.
[630] The
frequency and duration of these services is difficult to estimate.
[631] I accept Ms. Jewetts
estimate of costs of $110 per session. She estimates a more concentrated use of
this service early on, of 12 sessions per year for five years, totalling
$6,600.
[632] Another
way of looking at this might be to estimate two or three sessions of
psychological counselling per year until Mr. Paur turns 67, however this
cost might be close to or in excess of what Ms. Jewetts figures add up
to.
[633] On balance
I find the medical evidence supports creating a reserve for psychological
counselling which can be used as needed. Ms. Jewetts figure of $6,600 is
a reasonable cost estimate of such a reserve.
Recreational Therapy
[634] In Dr. Lus
opinion, Mr. Paur needs recreational therapy to provide structure, reduce
his smoking, and improve his quality of life. Dr. Antons opinion is that
a general goal of Mr. Paurs care should be to provide structure and
routine to reduce his risk for future episodes of alcohol abuse and depression;
and a secondary goal is to maximize his quality of life.
[635] I find on
the evidence that one of the ways to manage Mr. Paurs risks and to
increase his quality of life is to engage him in positive activities, social
and exercise. Ms. Percy agreed with this.
[636] Ms. Jewett
recommends that Mr. Paur be awarded the cost of an annual gym pass at his
local community recreation centre at an annual cost of $398.41 including GST.
[637] Ms. Percy
agrees in part with the recommendation that Mr. Paur be supported in going
to the gym. She is of the view that the costs can be less, for example, if Mr. Paur
qualified for certain credits or continued to go only infrequently to the gym. I was
not satisfied on Ms. Percys evidence that Mr. Paur will qualify for
these credits, nor do I think it correct to assume that he will go only
infrequently.
[638] Part of
the reason Mr. Paur has gone infrequently to the gym has been attributed
to his fatigue from working. However, Mr. Paur currently only works three
days per week. The other reason for his non-attendance clearly is Mr. Paurs
inability to regularly initiate and sustain going to the gym on his own.
[639] Mr. Paur
likes exercise but I find that he does not have the ability to plan and
initiate and follow through on a regular exercise program. Mr. Paur would
benefit from going to the gym at least twice per week plus exercising outdoors
(for example, by going on walks in a park). Mr. Paur needs support from
someone to assist him in going to a community gym and to be there to help guide
his exercise program or activity.
[640] In my view
there should be a combined approach to this. The appropriate person to oversee
an exercise program in a gym is a kinesiologist; someone less expensive, such
as a community support worker, would be appropriate for taking Mr. Paur on
recreational and community outings such as a walk in a park.
[641] Ms. Jewett
recommends that Mr. Paur have the services of a kinesiologist two hours,
two times a week to assist him with an exercise program and provide him with
recreational activities. The cost would include the kinesiologists fees plus
travel charges.
[642] Ms. Percy
believes some assistance from a kinesiologist is necessary, plus some travel
expense, but in her view less time is required and at a lesser cost than
recommended by Ms. Jewett.
[643] Ms. Shak
testified as to the services of a kinesiologist that Mr. Paur enjoyed for
a while, Mr. Howard Pai. Not all of their visits were strictly exercise,
but they were important for getting Mr. Paur out and involved in healthy
social activities which he does not have the capability of initiating on his
own.
[644] In my view
the kinesiologist service is one of the most important recommendations for Mr. Paurs
long-term health and well-being. The person to be hired will have to be
someone who has experience or skill to work with a brain-injured client, and
who can develop a rapport with Mr. Paur, to get him moving.
[645] I accept Ms. Jewetts
recommendation for a kinesiologist as justified and reasonable with certain
adjustments.
[646] I accept
the cost estimate for a kinesiologist of $80 per hour but I find the
recommendation of two hours per visit, two times per week to be more than is
justified. In my view it would be appropriate to provide for 1.5 hours per
visit, two times per week. This would be 75% of Ms. Jewetts cost of
$16,640 annually to age 67, resulting in a cost of $12,480 annually
to age 67.
[647] I do not accept
Ms. Jewetts estimate of travel costs but accept there will be some travel
costs. I will estimate travel costs of 30%, for a total of $3,744 annually.
[648] Ms. Percy
did make the valid point that Mr. Paurs gym membership will decrease in
price at age 65 to a seniors rate. I note that by age 67 Ms. Jewett
assumes Mr. Paur will need much more care as his abilities will
deteriorate with age, and she no longer assumes he will need a kinesiologist. I
have accepted this as being likely and so by the same token, I find it unlikely
he will still be going to a community gym after age 67.
[649] I conclude
that a reasonable assessment of the costs of recreational therapy for Mr. Paur
will include an annual gym pass through to age 67. There is some discrepancy
between Ms. Percy and Ms. Jewett as to this cost. I will accept Ms. Jewetts
estimate of the annual cost of $398.41 including GST, through to age 65; I
will accept Ms. Percys annual cost estimate of $284.44 from age 65
to 67.
Community Support Worker
[650] Ms. Jewett
also recommended that a community support worker provide Mr. Paur with
services in life skills, meal-planning, shopping, organization, and
appointment-scheduling. She recommends a total of two hours, three days per
week, for a total of six hours per week, annually.
[651] I find
that some of the services recommended by Ms. Jewett to be provided by a
community support worker may overlap with the services that should be provided
by the support worker who will visit Mr. Paur twice a day in his home as
part of his supportive living arrangement.
[652] However,
as mentioned, in addition to working with a kinesiologist, the evidence
justifies the cost of a community support worker to take Mr. Paur on
outings into the community. Also, Mr. Paur may have a need to be taken
shopping for groceries and for clothing as there will not always be time for
the daily support worker to do everything to meet his needs. I find that estimating
an average of two hours per week for the services of a community support
worker is justified.
[653] I accept Ms. Jewetts
estimate of an hourly cost of $52.50 so the total hourly cost per week will be
$105. I accept there will be some travel costs, but rather than accepting Ms. Jewetts
number, will add another 30% for travel costs, or $31.50, for a total of $137
per week, rounded.
[654] Ms. Jewett
estimates that these services will be needed throughout Mr. Paurs life. I
agree. It will still be important for his health to get out in the community
and so I find it justified to include this cost for life.
Job Search Coach
[655] Mr. Paur
benefits mentally from having a job to go to. He obtained the job only through
the intervention and assistance of his mother. The place where he works has a
high turnover of employees and there are concerns that Mr. Paur is not
able to follow all safety-related instructions. It is reasonable to foresee the
need for someone to help him find a job in the future, should this one end.
[656] Ms. Jewett
recommended three sessions of job-coaching to age 67, at a total cost estimate
of $4,500 as a reserve. Ms. Jewetts recommendation is conservative and
the plaintiff suggests it underestimates the need.
[657] Ms. Percy
also expected that Mr. Paur would require episodic support finding
volunteer or paid employment. She was not confident that government-funded
assistance would be available to him or feasible for him given his lack of
initiative. Her estimate for this service was that it would cost between $1,500
to $2,000 and need to be repeated three to four times. Thus her total cost
estimate is between a low of $4,500 and a high of $8,000.
[658] The
plaintiff submits that a reserve of $8,000 for these services be set aside,
estimating 20 hours per job transition at $100 per hour, repeated four times
over the next 12 years.
[659] I find
that a job coaching service is needed. I have difficulty estimating how much
time is needed but in my view an averaging of the estimates is reasonable, at a
cost of $6,250 to be treated as a reserve to be used as needed as opposed to
allocating it over the years.
Housekeeping Service
[660] Ms. Jewett
recommends that Mr. Paur receive housekeeping services for two hours per
week 48 weeks per year, at $2,400 annually, ongoing to age 67.
[661] Ms. Percy
believes that Mr. Paur was receiving housekeeping support from Cheshire
Homes, and was of the view that he only needed episodic housekeeping support
from time to time.
[662] In my
view, Mr. Paur does need additional housekeeping assistance. However, I
find the twice daily visits by support workers should include enough time
to provide necessary housekeeping assistance.
[663] I therefore
find that there is not a need for weekly housekeeping services and do not accept
Ms. Jewetts recommendation.
Other Care Needs
Memory Aids
[664] Mr. Paur
requires a number of tools to assist him with his memory.
[665] I find he
will need a whiteboard and markers and will need to replace these every five
years on average; and that he will need an annual daytimer.
[666] Ms. Percy
gave a cost estimate for a whiteboard that did not include the cost of markers.
I will accept Ms. Jewetts cost estimate of $54.94 which I will round to
$55 every five years; plus a cost of $13.25 for a daytimer annually.
[667] Dr. Lu
recommends that Mr. Paur be provided with electronic support to help him
keep track of ideas and daily activities, such as an iPhone or iPad.
[668] Both Ms. Jewett
and Ms. Percy recommend the purchase of an iPad or equivalent tablet and Otterbox
(hard cover), plus insurance. Ms. Percys recommendations appear more
suitable, namely, the purchase of an iPad and Otterbox every four years, plus
extended warranty of $139.99, and I find this justified.
[669] These
costs, or similar costs for new scheduling technology, will be incurred for
life.
[670] Ms. Jewett
also recommends an iPhone to help provide Mr. Paur with regular alerts and
reminders; Ms. Percy says that this will be a duplication of reminders
that can be given to him by staff. In my view it will be more effective if he
has personal reminders, plus an iPad, and so I do not find the iPhone
justified.
Medical Alert Bracelet
[671] Ms. Jewett
recommends that Mr. Paur have a medical alert bracelet to provide others
with information about his history, if an emergency occurs. Ms. Percy does
not think it is necessary because he is able to identify that he has a brain
injury.
[672] In my view
there is still a risk that Mr. Paur could be in an accident or in the
future suffer such cognitive decline, that he might not be able to clearly
identify his history. If so, for his own safety it will be important to let
first responders know that he has a brain injury. I accept Ms. Jewetts
recommendation and find that this is medically justified. There will be a
one-time cost of $76.15 including taxes for the bracelet; a one-time cost of
$26.88 including taxes for registration; and a monthly membership fee with an
annual cost of $67.20 for life.
Electric Toothbrush and
Dental Cleaning
[673] The
purchase of an electric toothbrush is recommended by Ms. Jewett; not by Ms. Percy.
I accept Ms. Percys point that Mr. Paurs hygiene problem is a lack
of brushing as opposed to choice of equipment. This can be addressed by
providing the proper supports for him and the twice daily visits by a home
support worker should address this. I do not accept Ms. Jewetts
recommendation.
[674] Ms. Jewett
also recommended that Mr. Paur have twice-yearly dental cleaning and
examination. Ms. Jewett estimates the cost of this at $185.40 each visit.
[675] Ms. Percy
suggests that Mr. Paur does not need this.
[676] If Mr. Paur
has problems with his teeth he could overlook the problem until it becomes a
much worse problem. He has problems with hygiene. I find it medically justified
that Mr. Paur have a dental check-up and teeth cleaning by a dental hygienist
once per year at an annual cost of $185.40 for life.
Podiatry
[677] Ms. Jewett
recommends that starting at age 67, Mr. Paur have podiatry sessions every
eight weeks at a cost of $50 per session or $300 per year. Having healthy feet
will be important for his mobility. Since he already has problems with
self-care and hygiene, this could be a greater problem when he has greater
cognitive decline.
[678] I accept Ms. Jewetts
recommendation, at a cost of $300 per year starting at age 67.
Pain Management Aids
[679] Ms. Percy
and Ms. Jewett agree that Mr. Paur could benefit from a magic bag
which can be warmed up and assist him with neck pain (Ms. Jewett) or
headaches (Ms. Percy). I accept Ms. Percys view that replacing this
every five years would be sufficient, rather than every three years as suggested
by Ms. Jewett. He is entitled to the cost of this, which is $33.59
including taxes, every five years.
Medications
[680] Mr. Paur
is prescribed medications including: an anti-depressant; a sleep aid; and
medications for chronic pain in his right arm.
[681] Both Ms. Jewett
and Ms. Percy agree that Mr. Paur will have annual costs of
medication. Ms. Jewetts costs estimates of $813.39 include somewhat
higher dispensing fees because she renews them monthly, whereas Ms. Percy
has assumed a three-month medical supply in her cost estimate of $755.55.
[682] The
problem here is that Mr. Paurs medications will also change from time to
time. I assume some medications will not likely change, whereas others may,
meaning it would be wise to obtain a three-month supply for some but not for
others (and this is assuming a caregiver will be in charge of the extra months
supplies until needed). I conclude that an annual cost of $800 is a reasonable
estimate of costs of ongoing medication.
[683] While Mr. Paur
was also prescribed medications prior to his injury and this would likely have
continued absent the injury, I include the costs of medication as part of his
future care under the total lifestyle approach.
Transportation
[684] Mr. Paur
will need a transit pass so that he is able to travel to and from any
employment, visit family, go to appointments, and go out in the community.
[685] As part of
the total lifestyle approach, his costs of transportation should be included in
his future care costs. The cost is $2,040 annually. I accept that this will be
a cost for life, as even if he is in full-time care after age 67, he may still
need to travel within the community.
[686] I have
already assumed the travel costs of any support workers as part of the cost of
support services.
Ordinary Household
Expenses
[687] As part of
the cost of future care under the total lifestyle approach, ordinary household
expenses need to be estimated.
[688] Ms. Jewett
looked at Statistics Canada data for individuals earning what the plaintiff was
earning before the incident.
[689] Mr. Carson
reviewed these projected costs and amended them to remove duplication. I accept
Mr. Carsons figures estimating ordinary household expenses, as set out in
his report marked as Exhibit 42, noting amendments he made in his evidence to
avoid duplication and totalling just over $18,000, as follows:
basic | ||
Household contents insurance | $ 300.00 | Annual to age 67 |
Household Expenditures 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. |
$ 4,091.00 $ 2,226.00 $ 1,186.00 $ 1,445.00 $ 3,820.00 $ 537.00 $ 634.00 $ 1,817.00 $ 121.00 $ 986.00 $ deferred |
Annual to age 67 Annual to age 67 Annual to age 67 Annually ongoing Annually ongoing Annually ongoing Annually ongoing Annual to age 67 Annually ongoing Annually ongoing Annually ongoing |
Additional Expenses 1. |
$ 864.00 |
Annually ongoing |
Total Future Care Costs Applying Multipliers
[690] In setting
out the specific findings for each item of future care, I have kept in mind the
positive and negative contingencies that might affect Mr. Paurs future
care needs, including positive and negative contingencies regarding his life
expectancy. The findings on cost of future care cannot be thought of in
isolation. These findings work together, as an attempt to take into account all
of the uncertainties of the future and reach a fair and reasonable global assessment
that is sufficient to meet Mr. Paurs future care needs.
[691] The findings
I have made regarding life expectancy, the total lifestyle approach, and individual
items of future care will impact on the assessment of the present value of the
total costs of future care. Because they could not anticipate my precise findings,
the economists reports are not directly helpful. I will therefore ask the
parties to seek to reach agreement on the total costs of future care, taking into
account my findings. If they cannot agree, they have liberty to apply to make further
submissions on this issue.
Committeeship and Tax Gross-up
[692] Dr. Lu
suggests that Mr. Paur is at risk of financial exploitation and so his
committeeship should be maintained. I agree.
[693] As the
plaintiff ages, it will be difficult for his mother, Ms. Shak, to continue
to act as committee. There is the possibility that the Public Guardian and
Trustee will become involved.
[694] The
plaintiff sought liberty to apply to address committeeship fees and tax
gross-up after judgment, if counsel are unable to agree. I give leave to the
plaintiff to do so.
Loss of Earning Capacity Claim
[695] Given the
total lifestyle approach to costs of future care, the loss of future earning
capacity damages have to be reduced by the expenses that Mr. Paur would
have incurred on the basics of living. Also, Mr. Paurs ability to earn
income in the future has to be taken into account.
[696] To put it
another way, Mr. Paur is only entitled to damages for loss of future earning
capacity to the extent it is net of what he would have spent on daily living
expenses, and net of what remains of his earning capacity.
[697] The Hospital
Defendants say that absent the incident, Mr. Paurs probability of long-term
employment was not high, and would have to take into account his alcoholism and
reduced life expectancy.
[698] The Hospital
Defendants concede that Mr. Paur is not now capable of full-time work due
to his injuries but that some allowance should be made for continued part-time
low income employment.
[699] Mr. Paurs
rate of pay working for the mattress recycling plant started at $10.25, but the
employer raised the starting wage to $11, which he was paid at the time of
trial. He works approximately three days per week, four hours per day.
[700] The Hospital
Defendants are optimistic about Mr. Paurs ability to find employment if
he loses his present job. They point out that Mr. Paurs current job
supervisor did not know he was brain-injured until Mr. Paur told him. I do
not consider that this evidence goes very far in proving Mr. Paurs
employment capacity. His job is very unskilled and unattractive work; there is
no evidence that there has been much opportunity for interaction between Mr. Paur
and his supervisor, and when the supervisor did try to give Mr. Paur a new
task, Mr. Paur proved incapable of remembering the instructions.
[701] I find
that before the incident Mr. Paur had some significant barriers to
employment based on his ongoing alcoholism and mental health issues as well as
his past driving prohibitions. He had not graduated from high school. For all
of these reasons he was likely to always work a series of low-income jobs
rather than progressing into a higher paying career.
[702] What Mr. Paur
would have done but for the incident has to take into account the positive
contingency that after a few ups and downs he would eventually have
successfully managed his alcoholism and stopped drinking alcohol, and would
have stabilized his mental health problems. It also has to consider the
negative contingency that his alcoholism and mental health problems would have remained
the same or become more and more unmanageable and he would have had significant
periods of unemployment, punctuated by occasional periods of low‑income
employment.
[703] It is
important to note that despite his problems, Mr. Paur had always paid his
living expenses. There is no evidence that he had debts at the time of the
incident. But by the same token, there is no evidence that Mr. Paur had
ever been in a position to accumulate significant savings or had sufficient
income to spend on discretionary items, such as property, or travel. On the
other hand, he was still a relatively young man and the fact that he was
seeking a career as a glazier and had married and wanted children, does show a
desire to improve his life.
[704] I find
that the odds were that absent the brain injury, the plaintiff would have earned
enough to pay for his basic living expenses, as he always had done. As noted
for 2012, the costs of basic necessities are estimated at $18,000
approximately, not including rent or taxes. If Ms. Jewetts figure for
rent is used, that is another $15,084 per year.
[705] In the
years 2005-2010 before the injury, Mr. Paur earned an average of $29,464
per year as a combination of employment income and EI benefits; if the average
for 2006-2010 is taken, it is $32,553 per year, according to Mr. Carsons
analysis of the equivalent 2015 dollars. The best year that Mr. Paur had
was 2008, when he earned $35,562 in employment income and $979 workers
compensation, for a total equivalent to $42,135 in 2015 dollars.
[706] I find
that in the long run Mr. Paurs chances of earning income that would have allowed
for savings and discretionary spending, above paying for the basic costs of
living, were slim even if he eventually successfully battled his alcoholism. Nevertheless
I do find a reasonable possibility he would have earned some slight amount of
discretionary income in the future but for the incident.
[707] As for his
remaining capacity post-brain injury, Mr. Paur has proven that he has some
capacity to earn part-time income at a highly supervised, simple and low-paying
job. Nevertheless, there are few of these jobs out there, and someone in his
situation will have much difficulty finding and keeping such a job. His future
income earning capacity is likely to be slim, spotted with periods of
unemployment.
[708] It is very
difficult to assess the opposing contingencies but on balance, I am of the view
that Mr. Paurs chances of earning discretionary income, on top of income
to pay for the basics of living, prior to his brain injury, in light of his
alcohol addiction and mental health problems, were probably about equivalent to
his chances of earning discretionary income now, post brain injury and taking
into account that his living expenses will be paid for by the future care award.
In my view, the two offset each other.
[709] I conclude
therefore that Mr. Paur is not entitled to damages for future loss of
earning capacity.
[710] As for
past loss of earning capacity, between the date of the incident and the date of
trial, I ask for submissions from counsel on their positions as to whether a
similar approach applies. If counsel are not able to agree, the plaintiff is at
liberty to seek a further hearing before me to address this issue at the same
time as any other outstanding damages issues.
Non-pecuniary Damages
[711] The plaintiff
seeks an award of non-pecuniary damages equivalent to the rough upper limit of
$100,000 established in the Supreme Court of Canada trilogy of Thornton
v. School District No. 57 (Prince George), [1978] 2 S.C.R. 267, Andrews,
and Arnold v. Teno, [1978] 2 S.C.R. 287. The plaintiff submits this
represents $355,300 in todays dollars.
[712] The plaintiff
relies on cases where the maximum for non-pecuniary damages was awarded to a brain-injured
plaintiff, such as Morrison; Spehar v. Beazley,
2002 BCSC 1104, affd 2004 BCCA 290 [Spehar]; and MacEachern.
[713] The Hospital
Defendants submit that an appropriate range is $120,000 to $175,000, relying on
Lomax v. Weins, 2003 BCSC 1354 [Lomax]. Lomax involved a mild traumatic brain injury. The plaintiff did not need
a committee, and was able to testify at trial although he had disabling chronic
pain and some minimal impairment of his cognitive functioning.
[714] The
difference between the parties positions is their views on the nature of the
injuries in comparison to Mr. Paurs pre-injury functioning. The plaintiff
claims the injuries have caused Mr. Paur to lose what is dear to an adult
human, the ability to control his own life, and he is aware of this loss.
[715] The Hospital
Defendants submit that Mr. Paurs pre-incident state was such that he was
already functioning at a low level and his injuries have left him largely
independent in his activities of daily living.
[716] I find
that the plaintiffs characterization of Mr. Paurs loss more accurately
reflects the totality of the evidence. I do not accept the Hospital Defendants
characterization of Mr. Paurs status before and after injury, as it
minimizes what Mr. Paur has lost.
[717] Other
authorities have awarded the upper limit for non-pecuniary damages in the case
of a severe brain injury, including the case of Morrison. In that case, the plaintiff suffered a brain injury. Her
life was not entirely joyful prior to the injury: she used illegal drugs, had
attempted suicide, had a poor employment record and had worked as a prostitute.
However, she had started to make efforts to turn her life around before the incident.
[718] Despite
the less than happy background, the Court in Morrison awarded the rough
upper limit of non-pecuniary damages because of the great loss that occurs when
someone loses brain function, with its accompanying vulnerability, loss of
career choices and relationship choices, despair and loneliness (at para. 53).
[719] In MacEachern, the plaintiff also had a
life fraught with difficulty before the accident which left her brain-injured. Prior
to the accident she was an illegal drug user, living in a tent, earning money
through prostitution. The parties nevertheless agreed that the rough upper
limit of non-pecuniary damages was appropriate and this was awarded by the
Court.
[720] The Hospital
Defendants have pointed to small pieces of evidence to suggest that Mr. Paur
is not so badly off: that he considers himself lucky that he did not die; that
he has no lasting physical injuries; and they point to one test in which his
scores for functioning were not at the very bottom of the non-brain-injured
population. These pieces of evidence, in my view, do not detract from the
severity of Mr. Paurs injury in terms of its impact on his future life, as
indicated by the totality of evidence. Mr. Paur will never be able to
function as an independent adult again.
[721] In Spehar, the Court awarded the rough
upper limit of non-pecuniary damages to the accident victim who had suffered a
brain injury, even though there were no lasting physical injuries.
[722] There are of course differences in the severity of brain injury from
case to case, but here the impact of the injury on Mr. Paur is significant
and permanent, and it has changed all aspects of Mr. Paurs life, present
and future. It is much more significant that the mild brain injury in Lomax,
as unlike the plaintiff in that case who was able to live independently, here Mr. Paur
has been left much more limited in his ability to direct and control his daily
living activities and in his choices of future endeavors. He is unable to
maintain social relationships for the most part, and is vulnerable to
exploitation.
[723] Mr. Paur
is not, as submitted by the Hospital Defendants, largely independent in his
activities of his daily living. He needs constant checking and cueing and has
little ability to initiate. Further, while he had psychiatric and addiction
issues before the injury, he had open to him the choice of obtaining treatment
and he had always managed to look after himself financially. Despite his
problems, Mr. Paur did show the ambition and will to try to move forward
in his life, indicating an inherent desire to survive and to succeed. This
is supported by his decision to get married, his maintenance of long-term
friendships, and his efforts to start a career as a glazier.
[724] Mr. Paur
also had a strong role model in the form of his mother, who as shown by her
stellar support after the injury, would have been supportive of any treatment
he might wish to seek for his problems had he eventually come to terms with the
need for treatment, pre-injury.
[725] It is
important to remember that Mr. Paur was still a young man at the time of
the incident. He has a long life ahead of him, in which he must bear the loss
of social relationships, loss of lifestyle, and loss of choices in all aspects
of his life, from career to simple day-to-day living.
[726] Mr. Paurs
brain injury has left him in a situation where he now has to be closely
supervised and controlled. This control clearly frustrates him. He expresses
grief at the loss of his former self, often making comments such as I miss
me.
[727] When
considering the award of non-pecuniary damages, I have considered the argument
of the Hospital Defendants to the effect that some of the extra supervision and
intervention sought by the plaintiff as a claim for costs of future care, really
amounted to attempts to give Mr. Paur more recreation and more enjoyment
of life. I have given some weight to this argument and approached the damages
for cost of future care very conservatively. It is important to recognize in
the award of non-pecuniary damages, that without any financial means to pay for
helpers to interact socially with Mr. Paur and take him out on additional social
outings, he is at an exceptionally high risk of isolation and sadness.
[728] Also, there
was evidence that Mr. Paur enjoys electronic devices but breaks them. Because
of Mr. Paurs frustration and mental deficits, I consider it quite likely
that he will lose or damage recreational equipment such as televisions or
electronic devices more often than would a person without his handicaps. Non-pecuniary
damages can serve to assist him when new items of this nature need to be
purchased.
[729] In my
view, considering all of the above factors, Mr. Paurs injuries leave him
in a situation where he has the maximum need for solace, to paraphrase Lindal v. Lindal, [1981] 2 SCR 629 at
637.
[730] I conclude
that Mr. Paur is entitled to non-pecuniary damages in the amount of
$355,300.
Special Damages
[731] Ms. Shak
has incurred a number of expenses trying to find assistance for Mr. Paur,
including rehabilitation assistance, OT assistance, physiotherapy services,
plus transportation and mileage to and from appointments and recreational centre
fees. The total amount for which she seeks reimbursement is $7,394.28.
[732] I find all
of the expenses to have been reasonably incurred and were justified to seek out
medical treatment and care for Mr. Paur, except for one expense. Ms. Shak
accepted the recommendation of someone who felt that a Dr. Schwingle had
been helpful in treating a brain injury. Dr. Schwingle describes himself
as providing psychoneurophysiology services. Despite Ms. Shaks good
intentions, I find there was no evidence that Dr. Schwingles
treatments or assessments were medically justified. The cost associated with Dr. Schwingle
is $1,800.
[733] I find
that Mr. Paur is entitled to an award of special damages in the amount of
$7,394.28 less $1,800 for a total of $5,594.28.
The In-Trust Claim
[734] The plaintiff
advances a claim for damages in-trust for care and services provided to Mr. Paur
by Ms. Shak, and by Mr. Paurs wife before the marriage broke down.
[735] Mr. Paurs
wife did not testify and I find any claim in respect of her services to be
unproven.
[736] As for the
claim by Ms. Shak in the amount of $33,500, the Hospital Defendants concede
the evidence supports an award of some magnitude but they suggest $25,000 is an
appropriate amount.
[737] Ms. Shak
was not concerned in the years since her sons injury to be a bookkeeper, tallying
all the time she was spending trying to help her son, she was just trying
to get on with what was necessary to try to support him. This claim understandably
has to be estimated.
[738] I pause
here to comment on Ms. Shaks role. In my view she has performed
heroically in trying to assist her son. She has proven herself to be a consistent
and steady source of support for him, in a situation that has to have been and
continues to be extremely stressful and difficult.
[739] At times
during the trial, the Hospital Defendants suggested in their questioning of
witnesses or in submissions that Ms. Shak was unrealistically advocating
for so much care for her son such that it would overwhelm his independence;
that she was simply trying to help entertain him and make sure he was not
bored; and that she was seeking to overstimulate him which would be contrary to
his best interests. I found that the evidence did not support any of those
suggestions. I found that Ms. Shak in her day-to-day dealings with her son
and caregivers was entirely appropriate and helpful to him given his medical
needs.
[740] Throughout
Mr. Paurs injury, including his 5.5 months of hospitalization, the two
months he lived with her, and his time in supportive living arrangements,
Ms. Shak has tried to help him through small rehabilitation efforts,
including cueing him, trying to get him to perform simple jobs, helping him
find a job and an apartment, managing his money, and taking him to appointments.
A conservative and reasonable estimate of the time she spent assisting Mr. Paurs
needs is 1,500 hours. Applied to a conservative hourly rate of $20, this amounts
to $30,000.
[741] I award an
in-trust claim for $30,000 for the services Ms. Shak has provided to Mr. Paur.
Other Comments
[742] The
parties filed some bundles of clinical records as part of their cases. Given the
experience of counsel, the absence of a jury, and the fact that the parties had
negotiated at length about what documents could be admitted pursuant to a
document agreement, I admitted these documents. I was expecting counsel to
refer to the relevant records in the course of witnesses evidence or at a
minimum in the course of final submissions. My expectations were not fulfilled
in respect of the vast majority of the filed records, particularly those filed
by the Hospital Defendants.
[743] It is the
responsibility of counsel to advise the court of any particular information in
the records relied upon as part of that partys case. The court cannot be
expected to sift through the records on its own, without guidance from counsel
or a witness as to the relevance or reliability of the information. To rely on
nuggets of information buried in the records put forth by a party would also be
unfair to the opposing parties who will not have had proper notice to put the
information in context or to point out any contrary information. Absent
specific reference to a clinical record in argument or through witness
testimony, I was unable to give much weight to these documents.
CONCLUSION
[744] I have found
the Hospital Defendants liable for Mr. Paurs brain injury.
[745] I have made
a number of findings affecting damages.
[746] I have
found that the total lifestyle approach is appropriate for the assessment of
damages.
[747] Using the
starting point of 42.1 years, I have found that Mr. Paurs life expectancy
but for the injury, was reduced by 17.95 years.
[748] Also using
the starting point of 42.1 years, I have found that Mr. Paurs life
expectancy post-trial is reduced by 9.2 years.
[749] I have
made a number of findings regarding future care costs and have asked the parties
to discuss and if needed seek a further hearing before me for further
submissions regarding the present value of future care costs, committeeship
fees, and tax gross-up.
[750] I have
found no future loss of earning capacity claim. I have asked the parties to
discuss the past loss of earning capacity claim, and if needed to also address
this in submissions at a further hearing.
[751] I have
assessed Mr. Paurs non-pecuniary damages at $355,300.
[752] I have
assessed Mr. Paurs special damages at $5,594.28.
[753] I have
awarded an in-trust claim regarding Ms. Shaks services in the amount of
$30,000.
[754] Interest
is awarded pursuant to the Court Order Interest Act, R.S.B.C. 1996,
c. 79.
[755]
The parties may seek to make further submissions on costs.
The Honourable Madam Justice S. Griffin