Bothwell v. London Health Sciences Centre, 2023 ONCA 323, is a case from the Ontario Court of Appeal that provides guidance on the standard that a Plaintiff must meet to be compensated for a psychological injury.
The Key Facts of the Case
In this case, the Plaintiff had Crohn’s disease and had to undergo several surgeries due to his condition. After a surgery on September 22, 2011, he was hemorrhaging and his blood pressure dropped. The doctor ordered a blood volumizer. Instead, he was mistakenly given a blood thinner, which worsened his internal bleeding. Due to the internal bleeding, the Plaintiff had to undergo a number of additional surgeries and almost lost his life.
The Plaintiff and his wife, who are both paramedics, were shocked, angry, and frustrated by the medication error. The Plaintiff claimed physical damages, such as injuries to his internal organs, digestive issues, and neurological injury. He also claimed mental injuries such as nightmares, emotional distress, anxiety, depression, and “psychological injury as a result of the erroneously administered medication” (paragraph 6).
The Evidence at Trial
At trial, the trial judge determined that the medication error had not caused the Plaintiff’s physical injuries since there was already hemorrhaging and internal bleeding before he was administered the blood thinner. The internal bleeding, and the surgeries that followed it, were not a result of the Defendant’s negligence.
The remaining issue was whether the Plaintiff had suffered mental injuries as a result of the Defendant’s negligence. At trial, the Plaintiff did not provide any evidence of nightmares, emotional distress, anxiety, or depression. However, the Plaintiff provided reliable testimony that the medication error caused him to feel anger and frustration that lasted for many years.
The Trial Judge applied the reasoning in the Supreme Court Case Saadati v. Moorhead, 2017 SCC 28,  1 S.C.R. 543, and held that the Plaintiff suffered a compensable mental injury since his “feelings were objectively and subjectively serious and went beyond ordinary annoyances” (paragraph 15).
What Is a Psychological Injury?
The Defendants appealed the decision. They argued that, in assessing whether the Plaintiff’s psychological injury was objectively and subjectively serious, the Trial Judge failed to apply the following three factors, which are set out in Saadati:
- Whether the Plaintiff sustained a mental injury that impaired their cognitive functioning and daily activities;
- The length of this impairment; and
- The nature and effect of treatment.
The Appeal Court agreed that these factors should be applied to distinguish between mere psychological upset, which is not compensable, from physiological injury.
The Appeal Court applied the three factors and held that the Plaintiff’s feelings of anger and frustration did not amount to a psychological injury as these feelings did not impair his ability to participate in daily activities. For instance, after the incident, the Plaintiff continued to work as a paramedic and act as a committed father and husband. In addition, the Plaintiff did not seek treatment to deal with his feelings of anger and frustration. Therefore, two of the three factors used to assess psychological injury – impairment and treatment – were not met.
The Importance of Medical Evidence
This case highlights the importance of medical evidence to support psychological injury claims. The Court of Appeal pointed to the lack of medical evidence in this case to distinguish it from Saadati and other medical malpractice cases where the Plaintiff was found to have a psychological injury.
Medical evidence, such as expert reports on the Plaintiff’s impairment and records of treatment, can help show that the three factors (impairment of daily activities, length of impairment, and treatment) are each met.
What to Do if You Have a Psychological Injury
If you believe you may have suffered a mental injury, or any other type of injury, contact Wagners to receive a free consultation. We have experienced lawyers who can provide you with legal advice. Having a knowledgeable and invested lawyer can help you to gather important medical evidence that supports your psychological injury case. Please call us by phone at 902-425-7330 or toll-free at 1-800-465-8794. You can also email us at [email protected]. We are here to help!