What are the factors required to demonstrate a compensable mental injury? Evidence from friends and family will be accepted, and there is no necessity of a medical expert. However, the Plaintiff must show that they have sustained “a serious and prolonged disruption that transcended ordinary emotional upset or distress”.
In Bothwell v. London Health Sciences Centre, the Court of Appeal provides some greater clarity to this issue. Gillese J.A. writes the decision, asking:
What legal principles did the Supreme Court of Canada establish in Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543, for determining whether a claimant has demonstrated a mental injury? Are persistent feelings of frustration and anger, without more, a compensable mental injury?
Background
Craig Bothwell had undergone a number of surgeries related to his Crohn’s Disease. After a surgery on September 22, 2011, he was accidentally administered an anticoagulant, Heparin, instead a blood volumizer, Voluven. Unfortunately, he required follow up surgery, as a result of the internal bleeding caused by this error. Mr. Bothwell and his wife are paramedics and were aware of the side effects from the error and commenced an action. As part of the Claim, he sought damages for sensory loss, nightmares, emotional distress, anxiety, depression, and psychological injury as a result of the erroneously administered medication. It was ultimately decided that Mr. Bothwell was hemorrhaging prior to the medication error and would have required additional surgery in any event. This aspect of the decision was not appealed.
However, the trial judge did not address the second causation issue; whether the medication error had caused Mr. Bothwell a mental injury. A second decision was then released finding in favour of the Plaintiff. It was found that “Mr. Bothwell’s feelings were objectively and subjectively serious and went beyond ordinary annoyances”.
It was the second decision, that Mr. Bothwell suffered a mental injury caused by the administration of Heparin, which was under appeal.
The Appellants did not challenge the trial judge’s finding that Mr. Bothwell’s feelings of anger and frustration about the medication error remained with him to the date of trial. They challenged that those feelings amount to a compensable mental injury.
Saadati v. Moorhead
The Supreme Court of Canada in Saadati reviewed the trial and BC Court of Appeal decisions. In Saadati, Mr. Saadati provided evidence from friends and family, “that, after the accident, his personality changed for the worse. Once a funny, energetic, and charming individual, Mr. Saadati had become sullen and prone to mood swings. Historically close relationships with family and friends had deteriorated. He complained of headaches.”
The British Columbia Court of Appeal reversed the trial judge on the ground that Mr. Saadati had not demonstrated, with expert medical evidence, a recognizable psychiatric injury.
The Supreme Court allowed a further appeal and restored the trial judge’s award. Justice Brown, writing for the Court, saw no legal error in the trial judge’s treatment of the evidence of Mr. Saadati’s symptoms as supporting a finding of mental injury. It was found that even without expert evidence, Saadati sustained “a serious and prolonged disruption that transcended ordinary emotional upset or distress”.
Justice Brown in Saadati, explained, as summarized by Gillese J.A.:
recovery for mental injury in negligence depends on the claimant satisfying the ordinary duty of care analysis, which is whether: the defendant owed the claimant a duty of care to avoid the kind of loss alleged; the defendant breached that duty by failing to observe the applicable standard of care; the claimant sustained damage; and that damage was caused, in fact and in law, by the defendant’s breach.
Justice Brown, at paragraph 38 of Saadati stated:
[H]ow seriously the claimant’s cognitive functions and participation in daily activities were impaired, the length of such impairment and the nature and effect of any treatment. To the extent that claimants do not adduce relevant expert evidence to assist triers of fact in applying these and any other relevant considerations, they run a risk of being found to have fallen short. … To be clear, however: while relevant expert evidence will often be helpful in determining whether the claimant has proven a mental injury, it is not required as a matter of law. Where a psychiatric diagnosis is unavailable, it remains open to a trier of fact to find on other evidence adduced by the claimant that he or she has proven on a balance of probabilities the occurrence of mental injury. [Emphasis added; citations omitted.]
Gillese J.A. summarized Justice Brown by stating that
in distinguishing mental injury from psychological upset, the trier of fact must consider not only the claimant’s psychological upset but also how seriously the claimant’s cognitive functions and participation in daily activities were impaired, the length of such impairment, and the nature and effect of any treatment sought and taken in relation to the psychological upset. (Emphasis added)
The Court of Appeal found that there “was no evidence to show that Mr. Bothwell’s continuing feelings of anger and frustration arising from the medication error led to impairment in his cognitive functions or participation in daily life”.
He has continued his work as a paramedic and remains a committed father and husband. Nor was there any evidence that Mr. Bothwell pursued any form of treatment to deal with his emotional reaction to the medication error.
The Court of Appeal also addressed the issue of whether Mr. Bothwell suffered a near‑death experience and “whether his persistent feelings of anger and frustration following the medication incident meet the requisite “degree of disturbance to be a compensable mental injury”. Ultimately, again, although it was tragic that he had undergone this incident, it was not found to be a compensable injury.
Conclusion
Therefore, keep in mind that when assessing a claim for mental injury, that the Plaintiff must demonstrate “a serious and prolonged disruption that transcended ordinary emotional upset or distress” and does not need to rely on expert evidence to do so, but can demonstrate this effect through evidence from friends, family and colleagues. If the Plaintiff can demonstrate that there have been long term effects on their life, as discussed above, then the likelihood is that it will be found compensable.