IN THE SUPREME COURT OF BRITISH COLUMBIA
| Citation: | Kahlon v. Vancouver Coastal Health Authority, |
|
| 2009 BCSC 922 |
Date: 20090707
Docket: S062228
Registry: Vancouver
Between:
Shawn Kahlon, by his Committee and
Litigation Guardian, Michelle Kahlon
Plaintiff
And
Vancouver Coastal Health Authority, operating Public Hospitals
under the name and style of Vancouver Hospital and Health Sciences Centre, U.B.C. Site, and Richmond Hospital, and the said Vancouver Hospital and Health Sciences Centre, U.B.C. Site and Richmond Hospital,
University of British Columbia, operating the Allan McGavin Sports Medicine Centre and the said Allan McGavin Sports Medicine Centre,
Karim Khan, Borys Flak, David Li, Gerald Bermann, Graham Reid,
Dr. John Doe #1, Dr. John Doe #2, Dr. Jane Doe #1, Dr. Jane Doe #2, Radiologist Joe Doe, Radiological Technician Joe Floe
Defendants
Before: The Honourable Mr. Justice Sigurdson
Reasons for Judgment
| Counsel for the Plaintiff: | R.B. Webster, Q.C. |
| Counsel for the Defendant Doctors: | C.L. Khanna |
| Counsel for the Defendant Hospital: | C.L. Woods, Q.C. |
| Place and Date of Trial: | Vancouver, B.C. |
| Place and Date of Judgment: | Vancouver, B.C. |
TABLE OF CONTENTS
3. Positions of the Parties on Liability
Expert Evidence of Dr. Perry Cooper
Expert Evidence of Dr. Douglas Connell
Discussion of Liability of Dr. Li
(b) Dr. Khan and the Sports Medicine Centre
Discussion of Liability of Dr. Bermann
7. Liability and Apportionment
1. Agreed and Not Agreed Damages
3. Discussion of Contested Damage Claims
5. Care to be Provided (24-hour care)
[1] The plaintiff, Shawn Kahlon, suffered back pain. His family physician referred him to a sports medicine specialist who, in turn, referred him for a CT scan of his lumbar spine. The CT scan was conducted but Mr. Kahlon did not return for an enhanced scan as requested by the radiologist who had done a preliminary review of the films from the scan. Those films were misfiled and were not reported on until over a year later. Had the films been reported on at the time of the CT scan or within the several months following, it would have led to a chain of inquiry which would have resulted in a diagnosis of spinal TB meningitis. Treatment would have been given and Mr. Kahlon would have recovered without consequence. However, the diagnosis was delayed, and as a result of complications from the TB meningitis, Mr. Kahlon is now completely incapacitated and requires constant care. He is unemployable and incapable of managing his own affairs.
[2] The plaintiff claims damages from the doctor defendants, Karim Khan, David Li and Gerald Bermann (together, Drs. Khan, Li and Bermann) for alleged negligence for failure to follow up on the CT scan he had in September 1999. Dr. Khan is a physician who specializes in sports medicine and practices at the Allan McGavin Sports Medicine Centre at the University of British Columbia (the “Sports Medicine Centre”). Dr. Li is a radiologist who practices at UBC Radiology. Dr. Bermann was a general practitioner prior to his death in June 2008.
[3] The plaintiff also claims damages against the defendant Vancouver Coastal Health Authority, which operates the Vancouver Hospital and Health Sciences Centre, U.B.C. Site (the “UBC Hospital”) and is vicariously responsible for the negligence of any of its employees. The plaintiff says that the liability of the UBC Hospital was in simply re-shelving his CT films with other films that had already been reported, when in the circumstances it was obvious that no interpretation had been done by a radiologist. That there was a serious breakdown in hospital procedures in connection with the handling of Mr. Kahlon’s CT scan is not disputed.
[4] In general terms, the issues before me are the liability of each of the defendants, contributory negligence on the part of the plaintiff, and the assessment of damages. While many of the damage amounts are agreed, the key remaining issues are the plaintiff’s life expectancy, the appropriate manner in which to provide 24-hour care for the plaintiff, the in trust claims of Mr. Kahlon’s wife and his parents, the appropriateness of the provision of a rehabilitation support aide and speech and swallowing therapy, as well as certain special damages.
[5] An extensive agreed statement of facts was prepared for the purposes of these proceedings, for which I wish to commend counsel. I have referenced below which paragraphs I have taken from that agreed statement of facts.
[6] Shawn Kahlon met Michelle in 1995 at UBC where they were both in the faculty of education. He was born in 1967 and she was born in 1972.
[7] They married in May 2000. He was then 33 years old and she was 28.
[8] Mr. Kahlon is now 42 years old.
[9] Prior to his marriage, Mr. Kahlon apparently injured his back lifting his dog.
[10] On August 27, 1998, Mr. Kahlon presented to Dr. Bermann with the following three complaints:
(a) A sprained back which arose after carrying a heavy dog and helping his friend move. He took Robaxacet (a muscle relaxant) and later Voltaren SR 100 (an anti-inflammatory). He reported to Dr. Bermann that he felt much better;
(b) Weight gain; and
(c) He had sprained his right ankle two months before and it was still not quite stable.
[Agreed Statement of Facts, para. 9]
[11] The defendant Dr. Bermann was Mr. Kahlon's family physician between June 1986 and October 2001. He died in June 2008 as a result of pancreatic cancer [Agreed Statement of Facts, para. 5].
[12] Dr. Bermann did a physical examination of Mr. Kahlon. His chest and cardiovascular system (including blood pressure and abdomen) were normal. The cardiac APEX was regular. His straight leg raising was 80° bilaterally on both sides. He had good trunk flexion and he had good reflexes. It was Dr. Bermann's view that Mr. Kahlon's back problems were due to muscular back sprain. Dr. Bermann advised Mr. Kahlon to increase his exercise as tolerated with both his back and his ankle [Agreed Statement of Facts, para. 10].
[13] On October 8, 1998, Mr. Kahlon's back had improved but he had some nerve root irritation with aching into the buttock to the mid-thigh. Dr. Bermann advised Mr. Kahlon to continue exercising and attend for massage therapy. Dr. Bermann’s conclusion on this visit was that Mr. Kahlon’s problems with his back were relatively insignificant in terms of his overall health [Agreed Statement of Facts, para. 11].
[14] Mr. Kahlon next saw Dr. Bermann on February 4, 1999. At that time, he presented with pain since January 31 in his lower back radiating into the left buttock which was essentially no better on February 4. Lying was the most comfortable position. The pain was worse at the end of the day and it possibly improved with rest. There had been previous radiation to the right buttock. Straight leg raising was 90° on the right and 75° on the left, with some pain on the left. Reflexes were brisk and equal. Lateral traction testing showed no pain. Front flexion showed pain and straightening up showed no pain. There was no real tenderness. Dr. Bermann’s view was that Mr. Kahlon probably had a muscular back sprain or a sacroiliac sprain or possibly a mild lumbar disc syndrome. He counselled Mr. Kahlon regarding being careful about lifting and about getting appropriate rest. Dr. Bermann also prescribed an anti-inflammatory and asked Mr. Kahlon to come again (“TCA”) in one week [Agreed Statement of Facts, para. 12].
[15] Mr. Kahlon next saw Dr. Bermann on July 19, 1999. On that date, he was still complaining of pain down the right thigh if he had been sitting for a while. He was okay when he was active, which suggested to Dr. Bermann that the problem was muscular. He also had pain in the left buttock area, which suggested to Dr. Bermann that he might have some nerve root irritation. Mr. Kahlon told Dr. Bermann that the physiotherapist had said he did not have a right ankle reflex. Dr. Bermann's assessment found that he had good mobility, good straight leg raising and good power. On checking Mr. Kahlon's reflexes, he found that the ankle jerk was elicited with reinforcement and his knee jerks were good [Agreed Statement of Facts, para. 13].
[16] Dr. Bermann referred Mr. Kahlon to the Sports Medicine Centre. In addition, he suggested to Mr. Kahlon that he return about a possible food allergy to shellfish and he was to avoid it in the meantime [Agreed Statement of Facts, para. 13].
[17] Mr. Kahlon was seen by Dr. Khan at the Sports Medicine Centre on July 28, 1999 for complaints of back pain [Agreed Statement of Facts, para. 14].
[18] The defendant Dr. Khan is a physician specializing in sports medicine and in July 1999 had a clinical practice out of the Sports Medicine Centre approximately two days per week. In addition, he was completing a research fellowship at UBC [Agreed Statement of Facts, para. 7].
[19] Dr. Khan sent Dr. Bermann a consultation report dated July 28, 1999. In the letter, he advised Dr. Bermann that he had referred Mr. Kahlon for an x-ray and CT scan of his lumbar spine to evaluate any cause of radiculopathy. Dr. Khan’s working diagnosis was that Mr. Kahlon has an L5-S1 disc injury and that the prognosis was favourable. Dr. Khan advised Mr. Kahlon to continue with an abdominal strengthening program he had started earlier and to gradually increase his activities. Dr. Khan advised Dr. Bermann that he would review Mr. Kahlon after his imaging results and would assess his progress at that time [Agreed Statement of Facts, para. 14].
[20] While he has no recollection of his appointment with Mr. Kahlon, Dr. Khan’s usual routine is to advise patients who have been told to have tests such as CT scans done to make a follow-up appointment with him after the CT scan had been completed [Agreed Statement of Facts, para. 15].
[21] Mr. Kahlon underwent an X-ray and CT scan in the Radiology Department at Vancouver Hospital & Health Sciences Centre, U.B.C. Site ("UBC Radiology Department") on September 10, 1999 [Agreed Statement of Facts, para. 20].
[22] Dr. Li looked at the CT scan and x-rays of the lumbar spine on September 10, 1999 [Agreed Statement of Facts, para. 21].
[23] The defendant Dr. Li is a physician specializing in radiology who practices out of the UBC radiology department at UBC Hospital [Agreed Statement of Facts, para. 8].
[24] Dr. Li did not dictate a report regarding Mr. Kahlon’s CT scan [Agreed Statement of Facts, para. 22].
[25] It appears that Dr. Li made a note for the UBC Radiology Department technician to arrange for Mr. Kahlon to return for a repeat CT scan with contrast. Dr. Li understood that this task would be delegated to the booking clerk [Agreed Statement of Facts, para. 23].
[26] It is not known what happened when he was called, but Mr. Kahlon did not return. He did not make a follow up appointment with Dr. Khan [Agreed Statement of Facts, para. 24].
[27] Dr. Li was not advised that Mr. Kahlon had not returned for a follow-up CT scan with contrast. The requisition and films were also not returned to him to report on. The responsibility for advising the radiologist and bringing the films back lay with the hospital employees. It is not known what happened to the films. The most likely explanation for the failure to advise Dr. Li that Mr. Kahlon did not come back is that the films were misfiled in the general area of the film library with the other films that had already been reported on rather than being brought back [Agreed Statement of Facts, para. 25].
[28] Seven months passed. After the CT scan, Mr. Kahlon did not see another physician until April 14, 2000, when he attended Dr. Bermann’s office complaining of a sore throat. Dr. Bermann took a swab for culture. When he received the lab result showing that Mr. Kahlon had a strep throat, he called Mr. Kahlon and advised him of the result and the fact that he was ordering an antibiotic for him [Agreed Statement of Facts, para. 26].
[29] Dr. Bermann next saw Mr. Kahlon on September 8, 2000, with complaints of a new ache in the left groin and hip. He was unable to straighten out his knee, but there was no history of trauma or strain. He had recently visited Comox and had done some minor hill climbing. He was walking with a limp. On examination, it was noted that when he lay down, the hip was slightly flexed and the knee was also slightly flexed. The hip joint area was in spasm and the range of movement of the right hip joint was difficult and restricted. Dr. Bermann ordered an x-ray of the hip joint and he also ordered a blood count and a sedimentation rate and instructed Mr. Kahlon to come again on September 11, 2000 [Agreed Statement of Facts, para. 27].
[30] Mr. Kahlon did return on September 13, 2000, and Dr. Bermann advised him that his x-ray (reported as showing a "definite narrowing involving the most medial aspect of the outer half of the hip joint, but no underlying bony change is noted. The regional bones are normal”) and blood results were abnormal (his sedimentation rate was raised and his hemoglobin was marginally down). Based on the abnormal test results, Dr. Bermann referred Mr. Kahlon to Dr. Reid, a rheumatologist [Agreed Statement of Facts, para. 28].
[31] Dr. Reid saw Mr. Kahlon on September 23, 2000. Mr. Kahlon understood that he had a disc problem or an abnormal disc, and that he used words to that effect in his discussion with Dr. Reid [Agreed Statement of Facts, para. 29].
[32] Following this appointment, Dr. Reid sent Dr. Bermann a consultation letter dated September 26, 2000. In the consultation letter, Dr. Reid reported that Mr. Kahlon "had a CT scan which apparently showed an abnormal disc". Under the discussion part of the consultation letter, Dr. Reid said "I would be pleased to receive reports of his previous lumbar spine radiographs and CT reports" [Agreed Statement of Facts, para. 30].
[33] After receiving Dr. Reid's request for a copy of the CT scan report, Dr. Bermann realized he had not received a copy of the film results. Dr. Bermann or someone in his office then contacted the UBC Radiology Department to request a copy of the CT scan reports. It was only at that point that it was realized that the films had never been reported on [Agreed Statement of Facts, para. 31].
[34] Once the films were located, Dr. Flak was asked to interpret them, which he did [Agreed Statement of Facts, para. 32].
[35] On October 2, 2000, Mr. Kahlon was seen by Dr. Bermann to review Dr. Reid's report and the CT scan report. Mr. Kahlon told Dr. Bermann that he did not return to the UBC Radiology Department for a follow-up CT scan with contrast "because he did not want dye injected into his body". Following this appointment, arrangements were made by Dr. Bermann for Mr. Kahlon to attend for a follow-up MRI scan which was scheduled to be done on October 22, 2000 [Agreed Statement of Facts, para. 33].
[36] After Dr. Bermann provided Dr. Reid with a copy of the CT scan report, Dr. Reid called Dr. Flak (on October 4, 2000). Dr. Reid was aware that Mr. Kahlon was scheduled to have an MRI of his lumbar spine on October 22, 2000, and Dr. Reid requested that Dr. Flak also arrange for Mr. Kahlon's hips to be scanned at the same time [Agreed Statement of Facts, para. 34].
[37] In October 2000, before the follow-up MRI scan was performed, Mr. Kahlon was admitted to hospital and eventually diagnosed with TB meningitis [Agreed Statement of Facts, para. 35].
[38] As a result of complications from the TB meningitis, Mr. Kahlon is now completely incapacitated and requires constant care. He is unemployable and incapable of managing his own affairs [Agreed Statement of Facts, para. 36].
[39] If the CT scan done in September 1999 had been reported at that time or within the several months afterwards, it would have led to a chain of inquiry which would have resulted in a diagnosis of spinal TB. Treatment would have been given and Mr. Kahlon would have recovered without sequela [Agreed Statement of Facts, para. 37].
[40] The evidence shows that between September 1999 and October 2000, while Mr. Kahlon continued to have back pain, he did not miss work, family or social occasions because of it and he continued to participate to some degree in sports.
[41] I will set out the facts about Mr. Kahlon’s precise physical condition and his care needs in more detail in the damages section of these Reasons. However, I provide a general outline here.
[42] Mr. Kahlon was admitted on October 12, 2000 to Vancouver General Hospital (“VGH”). He remained in intensive care and was transferred back to Richmond General Hospital (“RGH”) where he remained for a year or so until October 2001. He went to the Purdy Extended Care Pavilion at UBC for about a month. He was then transferred to the rehabilitation hospital in Ponoka, Alberta (“Ponoka”) where he stayed for over 700 days. Ms. Kahlon stayed with her husband there and spent 15 – 16 hours a day with him during the week and about 21 hours a day during the weekends.
[43] There was initially an issue between Mr. Kahlon’s parents and his wife as to who should be his committee, presumably because the marriage was so recent and it was unclear whether Ms. Kahlon would remain around and care for her husband.
[44] On November 11, 2003, Mr. Kahlon returned home to his apartment where he has resided with his wife ever since.
[45] Mr. Kahlon’s condition at the time of trial and its early progression is summarized in a report filed by Dr. Chambers, an expert witness called by the plaintiff:
… He presented to the Richmond Hospital with headaches and fever in October of 2000 and was admitted on Nov 6, 2001(sic). Mr. Kahlon was eventually diagnosed with tuberculosis meningitis as well as spinal tuberculosis. Unfortunately, Mr. Kahlon went to develop a pan vasvulits and hydrocephalus. Scanning at the time showed lacunar infarcts of various areas of the brain including basal ganglia. Treatment included a prolonged and complicated hospitalization course, surgical drainage of two abscesses, anti-tuberculosis drugs and the insertion of a shunt to deal with the hydrocephalus. …
Clinically, as a result of the brain damage, Mr. Kahlon went on to develop severe cognitive impairment as well as hypoarousal and visual communication dysfunction. In terms of motor function, he had become severely impaired with weakness that included a left hemi-paresis.
The records reviewed indicate that Mr. Kahlon has suffered diffuse brain injury involving multiple structures and the development of hydrocephalus. He has spasticity and weakness of all four extremities and no movement of the left side. Mr Kahlon has become similar to someone with a severe traumatic brain injury and loss of mobility. Associated with this brain injury are various neurological conditions including a neurogenic bladder and neurogenic bowel. As well, he has a visual defect, decreased respiratory function and dysphagia.
…
In summary, Mr. Shawn Kahlon has suffered severe brain damage as a result of the pan vasculitis and has been left unable to effectively mobilize without a wheelchair or person assist. He is also severely cognitively impaired. His swallowing difficulties are managed with tube feeding and he has not had any significant problems with aspiration in several years. Similarly, his respiratory function at night is treated with Bi-PAP. He has not been plagued with any serous chest infections or pneumonias in recent years.
[46] The care regime for Mr. Kahlon has been in place now for over five years. His care needs were summarized by Janice Landy, a rehabilitation nurse consultant, in this way:
[Mr. Kahlon] is totally reliant upon others 24 hours/day for all of his care. …He is dependent upon his family or primary care providers for bathing, grooming, dressing, undressing, toileting, diapering, maintenance of bowel and bladder program, maintenance of skin integrity, administration and monitoring of prescription medication, maintenance of nutritional feeding program, maintenance of range of motion and stretching program, application of positioning splints as well as set-up of assistive devices (i.e.: standing frame), transferring, lifting, positioning, interior home maintenance, laundry tasks, ordering of supplies, shopping for clothes, shoes, personal care items, transportation and accompaniment to medical, dental and rehabilitation intervention appointments as well as exterior home maintenance and handyman services. Mr. Kahlon is dependent upon others to facilitate his participation in activities of community inclusion, recreation and socialization. (page 20)
[47] Mr. Kahlon requires 24-hour care, and Mrs. Kahlon has been providing that care with some home care assistance provided by Vancouver Coastal Health Authority and the Richmond Kinsmen Adult Day Centre (“the Kinsmen Centre”) day program. Mr. Kahlon also spends a period of time on weekends at his parents’ home where his mother provides his care.
3. Positions of the Parties on Liability
[48] The plaintiff’s position is that the UBC Hospital is vicariously liable for its employee misfiling his CT scan without it being reported on, and directly liable for having an inadequate tracking or monitoring system to ensure films are reported. The plaintiff also argues that Dr. Li failed to report on the CT scan, or ensure that it was reported on, given the unexpected findings he saw on a preliminary review; that Dr Khan failed to have a proper follow-up system in place to ensure that CT scans he ordered were reported and received; and that Dr. Bermann failed to follow up on tests that were ordered or to review the status of the CT scan when he saw Mr. Kahlon at an appointment in April 2000.
[49] The defendant UBC Hospital, while not admitting liability, did not advance a liability defence. However, it says that the loss was entirely the fault of the plaintiff in failing to following the directions of his physicians. In the event liability is apportioned, the loss is largely the fault of the plaintiff, with the balance to the defendant physicians, who it says were negligent, and its own fault in the more minor range.
[50] The defendant physicians dispute any liability. They say that the plaintiff is largely at fault and that liability should be apportioned between the plaintiff and UBC Hospital.
[51] Before discussing the liability of the UBC Hospital, let me set out the facts from the Agreed Statement of Facts concerning the manner in which CT scans were taken and handled in the radiology department.
[52] In 1999, the following protocol was in place for obtaining a CT scan of the lumbar spine at the UBC Hospital radiology department:
a) A requisition for radiological examination is typically faxed from the referring physician's office to the main reception area of UBC Radiology. The requisition is in a prescribed form and is generated by UBC Radiology.
b) A clerk takes the requisition and staples a scheduling\protocol onto the requisition. The form lists and records items pertaining to scheduling of the examination which is used by the booking clerk as well as specific protocol instructions for the examination including pre-examination patient preparation, whether it should be performed with or without contrast and scheduling priority which is protocolled by the radiologist. This form becomes a permanent part of the requisition.
c) All requisitions for CT scans are given to the CT radiologist of the day for “protocolling”. The radiologist then makes the following decisions:
i. Which levels of the spine needed to be examined
ii. Whether the scan needs to be performed without contrast and\or with contrast
iii. What the priority is for having the scan done.
d) The requisition is then given to the booking clerk who contacts the patient to arrange an appointment date for the CT scan.
e) All the requisitions for a particular date are kept in one folder. When the patient arrives on the scheduled date, the requisition is removed from the folder and, at the appropriate time, the technologist picks up the requisition and calls the patient in for the CT scan to be performed.
f) The technologist performs the exam and processes the films. The technician also enters information into the Meditech system, which was the radiology information system being used in 1999. The information that would be entered included the fact that the exam had been completed, the name of the technologist involved, the number of films done, and the size of the films. The technologist does this before the films are taken to the radiologist for reporting.
g) Once the technician had completed his\her tasks, he\she attaches the requisition and the films to the outside of the film bag and takes the whole package to the CT viewing room to the designated “inbox” for the radiologist to report. The whole package would be put at the bottom of the pile of film bags.
h) The radiologist assigned to CT for the day would take one film package at a time to review, interpret and report. The radiologist would generally review between 16 to 20 or more CT films per day.
i) The radiologist puts the films on the viewing box to review the films. He\she then dictates a report onto a cassette tape. The dictation tape and the requisition would be placed in the designated area adjacent to the dictation machine for the clerk or transcriptionist to pick up periodically at designated times throughout the day. After the transcriptionist has typed the report, it is printed and returned to the radiologist for approval and signature. If required, the radiologist edits the report with corrections to be made. If corrections are needed, the transcriptionist corrects the report, re-prints it and returns it to radiologist for signature. Once signed, the report is considered finalized in the Meditech system and the final report is sent back to the referring physician(s) and a copy of the finalized report filed in the film bag.
j) After dictating a report, the radiologist would put the films into an inner film bag. The inner film bag would be placed in a large yellow film bag with all the other films that had been done on that patient. The radiologist then signs his/her initial on the sticker which is on the outer yellow master bag listing the exam that had been performed (i.e. "CT spine W /0").
k) The radiologist would then place the whole film bag into the designated "outbox" and someone from the film library would collect the film bags periodically at designated times throughout the day and take them to the film library area.
l) The film library is divided into three discreet sections as follows:
1. Area for "hot files"
2. Temporary holding area for films that had not been reported on
3. Main film holding area
m) The main film holding area held approximately one year's worth of films. Films were not supposed to be filed in the main film holding area until a finalized report had been placed in the film bag.
n) The films of studies that had been recently completed and dictated were placed in slots on a long counter designated as an area for "hot files". Films would be kept in the hot film area for approximately two weeks so that a copy of the finalized report could be filed in the master bag and to allow referring physicians access to the films to review themselves or with a radiologist.
o) After approximately two weeks, the films would be taken out of the "hot file" area and incorporated into the main film holding area which is in the same room. A visual check was supposed to be made by a clerical person to ensure that the report was in the bag before it would be filed in the main film library area.
p) In cases where a report was not dictated because the radiologist wanted to review outside films or requested the patient to come back for additional images (including a contrast enhanced study), the films were placed in a slot in the temporary holding area in the film library that was set aside for this purpose. The film bag and requisition would be placed in a clear plastic bag so that the requisition could be seen. These films were kept separate and apart from the other films in the film library.
q) In cases where a report was delayed pending comparison with outside films, when the outside films arrived, the clerk in the film library would put the outside films with the original film bag and take them both to the radiologist so that the new film could be reported on.
r) In cases where the patient was returning for additional studies, the clerk in the film library would take the original film bag into the CT room for the technician when the patient did return.
s) The films that were in the temporary holding area, while waiting for the patient to return or for outside films to arrive, would be checked by a clerk in the film library at least once a month. If it was apparent that the patient was not going to return, or there was no indication that he was going to return, the clerk was supposed to inform the radiologist and request that the radiologist dictate a report.
t) Meditech had the ability to track patients through the system from scheduling to final reporting.
u) A report would be run off the Meditech system every four weeks. The reasons the reports were run included providing the provincial government with statistics of the number of exams that had been completed so that payment for the Hospital services could be received from the Medical Services Plan. Payment would not occur unless a report was generated.
v) The Meditech system in place in September 1999 at UBC Radiology had the ability to check that reports were being generated for each film that was done. That capability was not being used by the staff of the hospital.
[Agreed Statement of Facts, para. 18]
[53] With respect to the UBC Hospital and the radiology services it provides, the parties agree:
a) The hospital provides radiology services such as CT scans for patients on referral from their physicians;
b) The hospital receives a fee paid on behalf of the patient when these services are finalized (i.e. – when a final report interpreting the films has been sent);
c) The hospital understands that the radiology services are considered by physicians and the patients as an integral part of the investigation and diagnostic process of the patients;
d) The hospital understands the patients and physicians alike rely upon accurate and timely reports for all radiology services provided;
e) The hospital understands that a failure to provide accurate and timely reports may result in a delayed diagnosis of illness which could have potentially disastrous consequences for the patient;
f) In order to provide these radiology services, the hospital understands that it has to provide part of the process. In other words, they have to provide, for example,
• good equipment;
• properly trained personnel;
• They also have to set up an appropriate system to verify that the
films are taken properly and that each film taken is reported as quickly as possible;
g) The hospital had undertaken the task of setting up a system set up to verify the accurate and timely reporting of X-rays;
h) The hospital understands that physicians and patients alike rely upon the system to verify that reports are done and sent to referring physicians in a timely way.
[Agreed Statement of Facts, para. 19]
[54] The liability of the UBC Hospital, while not admitted, was not seriously disputed. Paragraph 25 of the Agreed Statement of Facts reads:
Dr. Li was not advised that Mr. Kahlon had not returned for a follow-up CT scan with contrast. The requisition and films were also not returned to him to report on. The responsibility for advising the radiologist and bringing the films back lay with the hospital employees. It is not known what happened to the films. The most likely explanation for the failure to advise Dr. Li that Mr. Kahlon did not come back is that the films were misfiled in the general area of the film library with the other films that had already been reported on rather than being brought back.
[55] While these facts are sufficient to establish liability against the UBC Hospital, it will be helpful for the purposes of the apportionment analysis that follows later in these Reasons to explore in some further detail the breakdown in its procedures with respect to the handling of Mr. Kahlon’s CT scan.
[56] The Agreed Statement of Facts describes the UBC Hospital’s protocol in a general way. Maggie Stewart, the UBC Hospital’s representative, added further detail in her discovery evidence that was introduced. She explained that where a radiologist wished a patient to return for further examination, generally a booking clerk would contact the patient to arrange an appointment. If arrangements could not be made (for instance, contact could not be made with the patient), then the requisition would stay with the booking clerk until such time as the patient was reached. At that point, the appointment would be entered into the Meditech computer system. If the patient declined to return, then the requisition would be returned to the radiologist to advise him or her of the fact that the patient had declined to return. The hospital’s expectation was that the radiologist would then interpret whatever films had been done to that point. The booking clerk would either take the requisition directly to the radiologist or take it to other employees who would explain the situation to the radiologist. It was Ms. Stewart’s evidence that in 1999, there was no system in place in the department for tracking these outstanding requests for further examinations.
[57] As I discuss later in these Reasons, I find that the booking clerk did contact Mr. Kahlon about returning for a contrast enhanced CT scan. I also find that it is likely that Mr. Kahlon procrastinated in making the appointment. In those circumstances, the booking clerk or other departmental employees should have at some point advised Dr. Li that arrangements to recall Mr. Kahlon had not been made and the requisition returned to him so that he could issue a report on the initial non-contrast scan. That did not occur.
[58] The system broke down again when Mr. Kahlon’s CT scan films were not returned to Dr. Li (or any other radiologist for that matter) when it became apparent that he had not returned for the contrast scan. As set out in the Agreed Statement of Facts, in cases where a report was not dictated because the radiologist wished to review outside films or had requested the patient to return for additional images, the films were placed in a slot in the temporary holding area in the film library that was set aside for this purpose. The films that were in this particular area would be checked by a library clerk at least once a month to ascertain whether the necessary follow-up had occurred. If it was apparent that the patient was not going to return or there was no indication that he or she was going to return, the clerk was supposed to inform the radiologist and request that the radiologist dictate a report.
[59] Ms. Stewart offered two possible explanations why this did not occur in this case. She was asked what happened to the films in the temporary area if the patient did not return or the films from an outside source never arrived. She replied:
A. The slot that holds that – those exams normally would be gone through at least once a month to try to figure out what was happening. If it was apparent the patient wasn’t going to return, we would inform a radiologist and request that they report the exam.
In the case of films not arriving, we’d call back to the other site, the other hospital to say we still haven’t got these yet. In October of ’99, we were in the transition of finishing Meditech and starting IDX Rad, so there may have been delays because of the change in process of actually going through that, that slot.
And there is another possibility, that in going through the slot, someone who didn’t know better decided to file the film bag in with the other completed examinations.
Q. In other words, just put it back in the film library?
A. Yes, which that’s a possibility.
Q. It shouldn’t happen.
A. It shouldn’t ever happen, but I’m not going to tell you it never happened. But it shouldn’t. It shouldn’t ever happen.
[60] It is not known what happened to the films, but the parties are agreed that the latter of these explanations is the most likely.
[61] Films were only to be filed in the main film holding area after a finalized report had been placed in the film bag. A visual check of the film bag was supposed to be made to ensure that the report was in the bag before it was filed in the main library. An additional check existed in the fact that radiologists initialized the sticker on the outer yellow master bag listing the exams that had been performed.
[62] Mr. Kahlon’s films obviously should not have been filed in the main film holding area. The filing clerk should have observed that the sticker on the outer master bag had not been initialled by Dr. Li. Moreover, had the clerk checked the bag, it would have been apparent that it did not contain a finalized report.
[63] Accordingly, I find that the UBC Hospital’s established protocol was not followed in at least two respects: (1) department employees failed to advise Dr. Li or any other radiologist that arrangements had not been made to have Mr. Kahlon return for a contrast enhanced CT scan; and (2) they failed to return Mr. Kahlon’s CT scan films to Dr. Li or any other radiologist so that they could be reported on, and, instead, likely misfiled those films. The UBC Hospital is vicariously liable for the negligence of its employees, and in this regard I find UBC Hospital liable.
[64] I additionally find the UBC Hospital liable for its failure to have in place a system to monitor whether reports had been generated for all the films that were taken. As set out in the Agreed Statement of Facts, the hospital recognized that it had undertaken the task of having a system set up to ensure the accurate and timely reporting of films, that the failure to provide accurate and timely reports might result in a delayed diagnosis that could potentially have disastrous consequences for the patient, and that patients and physicians relied on the system to ensure that reports were done in timely way. Ms. Stewart agreed that the hospital also understood that the radiologists did not keep track of follow-up requests, and instead relied on the hospital to ensure that the necessary follow-up occurred; if films were misplaced or misfiled in the general film library without the radiologists being notified that follow-up had not occurred, the films would likely be lost to interpretation.
[65] I note, as well, Ms. Stewart’s evidence that “it has happened” in the past that films in the temporary holding area were filed in the main library area instead of being sent to a radiologist with the information that the requested follow-up had not taken place. The number of times this occurred is not apparent from her evidence. The first audit of the radiology department to ascertain whether other reports had gone unreported, as had happened in the present case, took place in 2007.
[66] Despite the UBC Hospital’s acknowledgement of its heavy responsibilities and its knowledge of past failings, it relied exclusively on a manual system with no back-up system in place to manage virtually inevitable employee error. The absence of such a system is particularly unfortunate given that in September 1999, the hospital possessed that capability through the Meditech computer system which it was using to track films for billing purposes. The system had the ability to monitor whether reports were being generated for all the films that had been done. Had the Meditech system been used even once per month, it would have been apparent by sometime in October that Mr. Kahlon’s films had not been reported on.
[67] Taking into account (a) the reasonable foreseeability of human error in the application of the hospital’s CT scan protocol and, in fact, the knowledge of such error having occurred in the past, (b) the potential for disastrous consequences for patients in the event the system broke down, and (c) the minimal cost of avoiding that harm since the Meditech system it was using for other purposes had that capability, I find the hospital liable for its failure to have in place a back-up system to ensure that all films taken were duly reported upon.
[68] I find that negligence has been established against UBC Hospital.
[69] Dr. Li was the radiologist designated to do CT scan interpretation at the UBC Department of Radiology on the day Mr. Kahlon attended for his scan. His preliminary review of Mr. Kahlon’s scan revealed lytic holes and obvious soft tissue changes. He determined that Mr. Kahlon should have a contrast enhanced CT scan to sort out the differential diagnosis, which included a number of potentially very serious conditions. As Dr. Li’s review of the scan occurred late in the afternoon on a Friday and Mr. Kahlon was apparently no longer present at the hospital for an immediate scan, Dr. Li followed his normal procedure and left a note for the technologist to make arrangements for the follow-up scan.
[70] The plaintiff submits that Dr. Li took an unreasonable and unnecessary risk in failing to report on his scan, having regard to his knowledge that there had been problems with unreported films in the past, the serious implications of the findings on the scan, and the minimal effort necessary to take precautionary measures. Options available to Dr. Li included a telephone call to either Mr. Kahlon or the referring physician, Dr. Khan; a note to himself or to one of his associates to ensure follow-up; or, preparation of an interim report. The hospital similarly asserts that Dr. Li was negligent in failing to contact Dr. Khan or leave himself a note in light of the unexpected and potentially serious findings and his knowledge of previous breakdowns in the system.
[71] Dr. Li responds that it was reasonable for him to rely on the hospital’s system that, to his knowledge, was effective and had not failed in the past. He was entitled to reasonably expect that Mr. Kahlon would return, and that the films would be brought to him for reporting in the event Mr. Kahlon did not. Moreover, it was reasonable to report on the CT scan within the following few days when he expected Mr. Kahlon to return for his contrast enhanced scan.
[72] The plaintiff and the defendant doctors each called expert witnesses, Dr. Perry Cooper and Dr. Douglas Connell respectively.
[73] Dr. Cooper was tendered as an expert in the field of radiology, including the interpretation of CT scans and the standard of care to be met by a reasonably competent radiologist in the circumstances of the case. He is licensed in Ontario and has been practicing full-time in neuro-radiology since 1970.
[74] Dr. Connell was qualified to give opinion evidence in the field of radiology. He obtained his MD from the University of Western Ontario in 1973, following which he worked as an emergency room physician for five years. He took a four year residency in radiology at UBC in the early 1980s, and has since practiced as a radiologist.
[75] Dr. Li obtained his medical degree at UBC in 1975 and did a four year residency in radiology, including a year at Harvard. He has practiced as a radiologist since 1979, and has practiced at the UBC Department of Radiology in that capacity since 1982. He has been a professor in the Department of Radiology in the Faculty of Medicine at UBC since 1990. He is also an associate member in the Faculty of Medicine at the Department of Medicine in Neurology as a result of his research into muscular sclerosis and his role as director of the UBC Multiple Sclerosis MRI Research Group.
[76] Dr. Li did not have any actual recollection of the present case and testified based on his standard practice and his review of documents, including films.
[77] In 1999, four radiologists worked at the UBC Radiology Department on any given day. One radiologist did CT scans, another ultrasound, another MRI, and the fourth, angiography and thorascopy. Dr. Li was the designated CT radiologist twice or three times per week. The CT radiologist generally reviewed 16 to 20 cases per day.
[78] As set out in the Agreed Statement of Facts, Dr. Li described how the CT radiologist of the day protocoled each of the CT requisitions received that day. The requisitions contained the patient’s clinical condition and the information the referring physician was seeking from the examination. From that, the CT radiologist decided, for example, the level of the lumbar spine to be examined. The radiologist also determined whether the CT scan would be conducted without contrast (the usual case when looking for routine disc pathology), with contrast or both.
[79] As Dr. Li explained, after the technician performed the examination and they were completed, they then processed the films. The films were gathered and placed in bags with the requisition and then put in a slot like a designated in-box. As radiologist of the day, Dr. Li would work through the cases during the day, and as each one was brought from that box, he would put it down and then put up the films on multiple viewing panels. After reviewing and interpreting them, he would go through a differential diagnosis and then prepare a report by dictating it into a cassette tape machine. He then would take the requisition, the films, and put them in the package bag, and then set it aside in the out box. The requisition would be put on the dictating machine for pick-up by the transcriptionist. Once Dr. Li had dictated on a particular film, there was an inner bag which the film for the particular examination was put in, and an outer bag, called the master bag, which contained a list of all examinations the patient has had. The radiologist signed that bag on the label to indicate the examination was dictated and completed.
[80] Dr. Li testified that it takes between 30 to 50 minutes to report on a case, depending upon its complexity. While cases are generally reported the same day, there are circumstances in which this is not possible, such as where the radiologist is awaiting previous films for comparison or where further scans are necessary in order to prepare a more definitive report.
[81] Dr. Li gave evidence about his normal practice when a preliminary review of a film led him to believe that a contrast scan was needed. He would inquire of the technologist whether the patient was still in the department. If so, the patient would immediately be brought back for the scan, with the films prepared and reported the same day. If the patient had left the department, Dr. Li would have the technologist or clerical staff contact the patient and try to have him or her return the same day.
[82] Dr. Li’s normal practice where an examination occurred towards the end of the day and a contrast scan was necessary would be to ask the technologist whether the patient was still there. If not, he would write a clearly labelled note indicating that he required the patient recalled for a contrast scan. Dr. Li’s expectation would be that the technologist would then take the film and the requisition and pass it on to the clerical staff, who would then make the arrangement for the patient to come back, which Dr. Li testified usually occurred the following day or the day after that at the very latest. In his view, it would have been a “no-brainer” for the patient to come back.
[83] If the technical and clerical staff had already left for the day, Dr. Li’s practice was to leave a note together with films and requisitions in the CT control area where the technical staff, he said, would not fail to see it. They would then make arrangements with the booking clerks to have the patient return.
[84] If arrangements could not be made for the patient to return, then the booking clerk would have the films and the requisition given back to either the radiologist who had requested the follow-up examination or that day’s designated CT radiologist for interpretation and report.
[85] Dr. Li, when asked about this case, could not recall another case in which films had gone unreported for over one year, and described as “totally unbelievable” the fact that that had happened here. Prior to September 1999, there had been occasional instances when clerical staff would bring to the attention of the radiologists cases where reports had not been generated, such as where outside films necessary for a comparison could not be secured or the patient had been asked to return and had either failed or delayed in doing so. In these situations, there might be a delay in reporting of a week or two. Dr. Li also referred to being asked to report on cases that had been brought to his attention where a report had not been transcribed because the tape was deficient, otherwise could not be heard or had been lost.
[86] Dr. Li was not aware of any audits having been conducted prior to the events in question. After Mr. Kahon’s situation came to light, an audit of the radiology department was conducted and revealed other cases which had not been reported, though Dr. Li did not know the number of such cases and how long they had gone unreported.
[87] Dr. Li was shown the films from Mr. Kahlon’s September 1999 CT scan that Dr. Flak had reported on in September 2000. Dr. Flak had referred to the fact that Dr. Li had attached a note to the films indicating that he wanted the patient to come back for a CT scan with contrast. Dr. Li described Dr. Flak’s report as saying the T5 vertebral body demonstrated the presence of multiple lytic defects with a fairly geographic appearance. Dr. Li explained that lytic defects are areas of abnormal bone, and that the term “geographic” is used in radiology to describe abnormalities in the bone with fairly distinct margins between the abnormality and the adjacent bone. Dr. Flak’s report also described soft tissue changes extending into the spinal canal.
[88] Dr. Li testified that he would have seen the lytic defects and soft tissue changes when he did the preliminary review of the films as they were fairly obvious. The question that would have come to mind was whether these reflected one or two processes. Given that the changes in the bone would have implied conditions such as an infection, tumour, vascular malformation or hemangioma, a contrast enhanced scan would be important in sorting out a differential diagnosis between these possibilities. Dr. Li testified that the contrast scan would also have been important in determining whether there was a second diagnosis, that is, whether any of these possible conditions were incidental to a problem with the disc.
[89] Ultimately, the contrast scan would have clarified and distinguished between the various possibilities and permitted a much clearer diagnosis so that the investigation could be more properly directed. Dr. Li testified that while it would not have ruled out any particular diagnosis, it would have helped to make a particular diagnosis more likely. What the contrast scan would have done in the present case would have been to indicate that an infection was a much more likely possibility than a vascular tumour.
[90] Dr. Li testified that even with the benefit of hindsight, he would still have waited for the contrast scan. That scan could have been conducted within a day or two, as there were always slots to accommodate in-patients who needed to return for scans. Had he communicated the findings on Mr. Kahlon’s films to Dr. Khan by telephone on the Friday afternoon or later by means of a written report, all he would have been able to provide would have been a list of possible diagnoses, and the latter’s response would have been that a contrast scan needed to be done.
[91] Dr. Li testified that the results of routine tests are usually communicated by means of written reports. Where particular matters need to be highlighted because of their urgency or unexpected nature, he telephones the referring physician. Dr. Li agreed that Mr. Kahlon’s situation fell within this latter category, as the lytic findings that were obvious on his films were unexpected and had potentially significant consequences for his health. Had his review of those films occurred earlier in the day and had the contrast scan been conducted that day, he testified that there is no question but that he would have contacted the referring physician that same day. However, Dr. Li testified, having made the assessment that it was not an emergent matter such that it was necessary at 5 or 6 o’clock on a Friday afternoon to either try to contact the physician or advise the patient himself to seek emergency attention, his view was that a delay of three or four days, or even a week, in terms of the contrast scan would not have made a difference in terms of the overall outcome for the patient. Once that scan was complete, either Dr. Li or one of his colleagues (if he was not the radiologist on duty that day) would very likely have directly contacted the referring physician about the findings.
[92] Dr. Li agreed that this case was no longer a routine examination but had become an examination of a patient he knew to potentially have a very significant medical problem that needed investigation. He agreed that Mr. Kahlon had been protocoled as non-contrast CT patient since everyone had thought that he had a routine L5-S1 disc problem. Dr. Li also agreed that when he saw the lytic lesions on the film, he was at that point the only person in the world who knew that Mr. Kahlon had a condition much more significant than a L5-S1 disc problem.
[93] Dr. Li further agreed that he was relying on the hospital staff and system to ensure that Mr. Kahlon did return for the contrast scan and that the resulting films were actually reported on. He considered the risk that the information regarding the CT scan findings might get lost due to a breakdown along the chain of communication to be extremely small. While he conceded that the risk would have been eliminated had he telephoned Dr. Khan, as someone else would then have been aware of the information, he also said that the information would have been insufficient for Dr. Khan or any other treating physician since a contrast scan was still necessary. In Dr. Li’s words, what occurred in this case was a “very very very very very very unlikely scenario.”
[94] With respect to making a note to himself to ensure follow-up, Dr. Li testified that it is not his practice, even today, to keep notes of the cases he has asked the clerical staff to bring back. His opinion was that Dr. Cooper, the expert witness who testified about making notes, has a practice that is unique, as he does not know of any other radiologist who keeps a record of cases simply to ensure the clerical staff brings them back. He said the business of making a note is not a standard practice as far as he is aware. It would not have occurred to him to make a note since booking clerks contact patients where there is a need for them to be recalled. Dr. Li said that given the number of cases, making a note is not something he would have thought of doing or that occurs at his hospital.
Expert Evidence of Dr. Perry Cooper
[95] Dr. Cooper, a radiologist, was called as an expert witness by the plaintiff. In the course of his career, he has reviewed imaging studies of the spine, including cases with tumour, infection and haemangioma.
[96] Dr. Cooper reviewed the findings from Mr. Kahlon’s September 1999 CT scans. He noted that the L5 vertebral body was abnormal with lytic defects (holes) present in the body of the L5 vertebrae. The lytic process involved mainly the central and posterior half of the L5 vertebral body and there was disruption of the posterior cortex in the lower L5 body almost to the L5-S1 disc level. He said in his report that:
In general the differential diagnosis of a destructive lesion of the vertebral body includes neoplasm and infection at the top of the list as in the case of Mr. Kahlon. Soft tissue extension beyond the bone can occur with both. A vertebral haemangioma is a common lesion which may be present in one or more vertebral bodies in otherwise normal people …
[97] Dr. Cooper testified that infection and tumour were at the top of the list to exclude because both “can lead to compression of the spinal canal and compression of the nerve roots or the spinal cord higher up and cause neurological damage and paralysis”. If the lesion was a haemangioma, it was not within the realm of normal haemangiomas and was of an aggressive type. On cross-examination, Dr. Cooper agreed that spinal tuberculosis is an uncommon form of tuberculosis infection occurring in less than one percent of patients with tuberculosis.
[98] Dr. Cooper described a protocol at his hospital much like that followed at the UBC Hospital. When a requisition comes in, a radiologist looks to see what level of the spine needs to be examined. If the problem referred to sounded like either a tumour or an infection, the examination would likely be done both with and without contrast. Dr. Cooper said that he had no problem with Dr. Li having the patient recalled for a contrast scan, although in his view it would not provide much more information in terms of a specific answer. He acknowledged a number of separate diagnoses in this case: the disc, the destructive lesion, a cyst or a double nerve root. While some are of no consequence, others are significant.
[99] Dr. Cooper agreed that in a case such as this, the delay of a few days that Dr. Li anticipated in reporting on the original scan so that the contrast enhanced scan could be performed was reasonable. It did not appear that the vertebra was “suddenly going to collapse”, and the situation was not emergent in the sense of having to be dealt with in the following few days.
[100] Dr. Cooper gave evidence with respect to how what happened in the present case could have been avoided. He wrote as follows in his report:
I am unaware of any written standards with regard to the action to take when an unexpected and potentially serious finding is made, as in Mr. Kahlon’s case. However a situation,as occurred in the case of Mr. Kahlon, can be avoided both now and in 1999 if a phone call or other follow-up mechanism is used e.g. the radiologist made a note for himself/herself with the name and MRN number of the patient of concern, with the possible diagnosis, and that the patient is being recalled for contrast.
[101] In terms of a telephone call, he said:
In deciding whether a direct phone call to a referring physician is necessary one should consider the physician and the seriousness of the finding.
[102] Dr. Cooper expressed his view that when requesting that a patient return for further examination, keeping notes is a reasonable and prudent thing to do as it allows the radiologist to ensure that what was requested has been done. He testified that in cases involving serious findings about which he had concerns, he has called the referring physicians or made himself notes. It was suggested to Dr. Cooper that “the more reasonable thing to do would be to rely on the patient and the system in place in the hospital instead of having the radiologist wandering around trying to determine whether a follow-up examination had been done”. Dr. Cooper responded that unfortunately bad things sometime happen.
[103] Dr. Cooper was asked whether, assuming that in Dr. Li’s experience there had not been a problem with delayed reporting of more than one or two weeks, it would be reasonable for him to rely on the system in place at the hospital to ensure that reports were generated on films that had been taken. He replied that unless there was a way of tracing films, one would not be able to know whether a film had gone missing or was unreported. He did, however, agree with the proposition that it is reasonable for a radiologist to rely on the process or system in place at the hospital. He also agreed that it was the radiologist’s role to review, interpret, and report on the films and not the radiologist’s role to make sure that everyone else in the process did their jobs. He further agreed that a reasonable patient certainly would take part in his own care.
Expert Evidence of Dr. Douglas Connell
[104] The defendants called Dr. Connell, a radiologist and former head of the Musculoskeletal and General Radiology at the VGH and present head of Musculoskeletal Radiology and MRI at the Greater Victoria Capital Health Region.
[105] Dr. Connell reviewed the CT scan of Mr. Kahlon’s lumbar spine. His impression was as follows:
Well defined bony lesions involving the body of L5 as well as soft tissue contiguous with the L5-S1 disc narrowing with AP diameter of the spinal canal and exiting left neural foramina.
Differential diagnosis is wide and would include developmental abnormality of L5 or vascular abnormality involving the body of L5 with disc herniation at the L5-S1 level.
Vascular lesions involving the body of L5 with extension of vascular material into the disc space would be a consideration. Infectious disease would also be a consideration. No definitive diagnosis can be made on the basis of the noncontrast CT scan and I would recommend additional imaging with either contrast enhanced CT scan or MRI.
[106] Dr. Connell also noted that the lytic defect was well-defined and well-marginated, which meant that it was likely a slow process and the bone was responding to it by trying to either repair or limit it in some way.
[107] Dr. Connell was asked whether he agreed with Dr. Cooper’s opinion that the destructive process of the L5 vertebral body meant that tumour and infection should be considered at the top of the differential diagnosis list. He replied that they would have to be considered because one would want to exclude the worrisome or potentially bad lesions, and they would therefore have to be at the top of the list to exclude.
[108] Dr. Connell agreed with Dr. Flak’s report that a specific diagnosis could not be established from review of the CT images and that further imaging should be obtained to help establish the diagnosis.
[109] Dr. Connell testified that in his experience at VGH and in Victoria, a radiologist wishing additional imaging of a patient instructed his or her clerical staff of this request. It was then left to the staff to arrange for the repeat evaluation. Radiologists did not engage in secondary follow-up to determine whether such arrangements had been made as this simply would not be practically feasible.
[110] Dr. Connell opined that it was not necessary for Dr. Li to contact the referring physician given his determination that additional imaging with contrast was required for proper interpretation of Mr. Kahlon’s CT scan.
[111] Dr. Connell was asked to comment on Dr. Cooper’s evidence that the situation as occurred in the case of Mr. Kahlon could be avoided, both presently and back in 1999, if a phone call or other follow-up mechanism, such as note, was used. Dr. Connell indicated that he thought Dr. Cooper had been referring to occasions when the radiologist saw something of sufficient concern to warrant a telephone call. He did not regard the findings in the present case to raise that level of alarm, as there was a wide range of possible conditions, from relatively benign to worrisome. (The plaintiff and the UBC Hospital submit that this evidence should be given no weight as Dr. Li saw the films as being potentially more serious than Dr. Connell considered them to be.)
[112] As far as a note is concerned, Dr. Connell said that is something that is not done for the reason that, from a practical point of view, it is not how the system functions. A radiologist would virtually be making notes every second case, and hospitals have systems in place that radiologists rely on instead, he said. Dr. Connell testified that he has practiced with two of the largest groups in the province and is unaware of any radiologist who makes notes in that fashion.
[113] Dr. Connell agreed that the differential diagnosis in this case included potentially very worrisome conditions, but he disagreed that the starting point was that the patient or the referring physician had to be made aware of the findings at that stage. In his view, the examination was still incomplete, and the patient required further evaluation to determine whether there was any urgency, to make a diagnosis and to understand the appropriate treatment. Dr. Connell expressed his view that Dr. Li was making proper arrangements to evaluate whether or not the abnormality was worrisome before contacting the physician. To his mind, nothing on the film had any undue urgency about it.
[114] Dr. Connell agreed that a CT scan with contrast would not give a definite diagnosis, but would limit the diagnoses. Asked whether Mr. Kahlon’s lytic lesions fell into the category of findings that were both unexpected and potentially lethal, he disagreed. He did agree that they were unexpected but said that it was more probable that they would not be lethal.
[115] Dr. Connell agreed that when Dr. Li wrote a note on the file asking for the patient to be brought back, Dr. Li was the only person in the world who would have known about the problem that Mr. Kahlon potentially faced, and that every step along the sequence of events that had to happen before he was recalled for a contrast scan and the results processed added to the risk that the information would fall between the cracks and the patient “would be lost to follow-up”. He agreed that a call from Dr. Li advising Dr. Khan of the findings would have essentially eliminated the risk inherent in the process.
[116] On cross-examination, Dr. Connell was asked “if a radiologist sees an unexpected and serious finding which in his view requires urgent follow-up, do you agree he should advise the referring physician of that?” To that, he answered “yes”. He was asked of a letter from Dr. Reid to Dr. Flak where Dr. Reid, in reference to this CT scan, said “He has a very abnormal-sounding CT scan of his lumbar spine September 1999…“. Dr. Connell agreed that as between those two doctors, their interpretation of the CT scan was “abnormal, unusual”.
Discussion of Liability of Dr. Li
[117] Dr. Li was the designated CT scan radiologist at the UBC Department of Radiology the day that Mr. Kahlon attended for his CT scan in September 1999. His preliminary review of Mr. Kahlon’s films revealed obvious lytic holes and soft tissue changes. In his view, those findings were both unexpected and potentially very significant to Mr. Kahlon’s health. Dr. Li considered the range of possible differential diagnoses to be broad and to include infection (such as tuberculosis), tumour, vascular malformation or haemangioma. It was common ground amongst the witnesses that the most serious of the differential diagnoses revealed by the CT scan were tumour and infection. It was also common ground that it was important to rule out such conditions as soon as possible.
[118] Dr. Li determined that a contrast enhanced scan was needed to sort out the differential diagnosis, and to enable him to provide a more definitive and useful diagnosis to the referring physician, Dr. Khan. While the scan would not have ruled out any particular diagnosis, it likely would have revealed that infection was the most probable diagnosis. There is no suggestion in the evidence that it was inappropriate for Dr. Li to have requested the contrast scan. Dr. Connell shared the view that a contrast scan was appropriate to further evaluate the nature of the abnormality. While Dr. Cooper initially testified that a contrast enhanced scan would not have distinguished between different entities on the differential diagnosis, he conceded in cross-examination that it might have permitted some ability to distinguish between the two most serious of the differential diagnoses. His testimony, in any event, was that it was not unreasonable for Dr. Li to have sought it.
[119] It was approximately 4:30pm on a Friday afternoon when Dr. Li completed his preliminary review of Mr. Kahlon’s CT scan. Although he was of the view that a contrast enhanced scan was necessary, he had also determined that the situation was not an urgent one that required immediate attention and that a delay of a few days for the scan would not affect the overall outcome for Mr. Kahlon. The witnesses are agreed that the findings revealed by the initial scan were not urgent in the sense of requiring immediate attention. Dr. Cooper, for instance, agreed that the delay of a few days that Dr. Li anticipated in reporting so that the contrast scan could be completed was reasonable.
[120] As department staff had already left for the day, Dr. Li followed his usual practice in such circumstances of attaching a note to the films and requisition requesting that Mr. Kahlon be recalled for a contrast scan, and leaving the bundle in the CT control area where the technologist would see it the next working day. We know that Mr. Kahlon was contacted by the hospital because of the note that appears many months later in Dr. Bermann’s records. At least to this point, the system in place at the hospital appears to have functioned as Dr. Li expected.
[121] Dr. Li did not telephone Dr. Khan that Friday afternoon to advise him of the unexpected findings. His explanation for not having done so was, simply put, that his examination of Mr. Kahlon was not yet complete. He considered the contrast scan to be key because the different possible conditions revealed on the initial scan had very different management processes and outcomes. In his view, to have simply informed Dr. Khan of the range of differential diagnoses based only on the CT scan would not have been helpful to him, and it was therefore important to first narrow the possibilities being before contacting him.
[122] Dr. Connell similarly testified to a practice of not reporting on scans until he had all the information to complete the examination. In the case of a CT scan showing lytic lesions, his evidence was that it would not be useful to advise a referring physician of the fact of the lesions; what would be relevant to the physician would be the cause of the lesions and the appropriate course of treatment for the patient.
[123] Dr. Li testified that had he reviewed Mr. Kahlon’s films earlier and been able to have the contrast scan conducted that same day, he would unquestionably have contacted Dr. Khan to advise him of the findings that day. Dr. Cooper agreed that had Mr. Kahlon returned the following week for a contrast scan as Dr. Li had expected, it would have been reasonable for Dr. Li to have contacted Dr. Khan then.
[124] The standard of care owed by a physician is summarized in Crits v. Sylvester, [1956] O.R. 132 at 143 (C.A.), aff'd [1956] S.C.R. 991, 5 D.L.R. (2d) 601:
Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing...
See also Wilson v. Swanson, [1956] S.C.R. 804, 5 D.L.R. (2d) 113.
[125] Each witness testified that if a radiologist identifies an unexpected and potentially serious finding, timely communication of that finding to the referring physician is warranted. There is no dispute in the evidence that Dr. Li had a duty to report on Mr. Kahlon’s CT scan and to communicate the unexpected findings to Dr. Khan. There is also no dispute that it would have been reasonable for Dr. Li to communicate those findings to Dr. Khan after seeing the results of the contrast enhanced scan, which he expected would take place within a few days. The issue, in my view, is the reasonableness of Dr. Li’s exclusive reliance on the system in place at UBC Hospital to ensure that Mr. Kahlon would be recalled, that scan conducted and the report processed. That assessment must take into account Dr. Li’s knowledge of the potentially serious medical conditions Mr. Kahlon’s CT scan had revealed.
[126] As far as Dr. Li had anticipated, the results of the CT scan would be communicated to Dr. Khan after Mr. Kahlon returned for the contrast scan or, if he did not return, in short order, in any event. Had the system worked as it should have, when Mr. Kahlon did not return for the contrast scan, the original CT scan would have been presented to a radiologist in the ordinary course for review and a report, and the findings would have been brought to Dr. Khan’s attention. Whether that radiologist was Dr. Li or someone else, the potentially serious findings would have been obvious to whoever read the films. Ultimately, that is not what happened, as the system broke down. Nevertheless, knowing that he was the only person aware of the potential seriousness of the findings from Mr. Kahlon’s CT scan, was it reasonable for Dr. Li to have relied on that system or should he have anticipated the possibility that it might fail and thereby have his own back-up system in place?
[127] In his many years of practice as of the time in question, Dr. Li, the evidence shows, was not aware of delays in reporting on CT scans of more than one or two weeks. He was certainly not aware of films having gone unreported for any extended period, such as occurred here. Part of his testimony in this regard was as follows:
Q: Now, in all of the time that you have been – sorry, all of the time that you were at UBC working in radiology up to the time of Mr. Kahlon’s film, there were no audits ever done in your department to determine if films were taken and not recorded; is that correct?
A: As far as I know there had not been. But I ...
Q: So when you indicated to His Lordship that this had never happened in the past, you actually have no idea whether it has ever happened in the past because there may well be films that were never recorded, but you wouldn’t know about them because there has been on audits; isn’t that fair?
A: As I said earlier, what would happen is that in the usual course of our activity there would be occasional instances where the clerical staff would bring to our attention cases for which a report had not been issued and then we would be asked to report on them. And as I said earlier, this could either be cases where outside films were waiting to come and they never showed up, and the clerical staff discovered that they needed to be reported. And it would be brought to our attention.
Or in cases where the patient was asked to come back and for various reasons either the patient did not come back or there was a delay, that was brought to our attention.
So from that perspective, yes, because there is no audits you never know the things that you don’t know. But based on my experience of having these brought to us on occasions I was fairly aware that there would not – I wouldn’t expect that there would that because it would – for various reasons – I mean, if they are waiting there to be reported, they would be brought back to us.
Q: All you do know is that from time to time patients would slip between the cracks and sometimes those slippages, if I can call them that, would be picked up by your staff and they would bring the films to you late for report; is that fair?
A: If “slippage” is the word for it.
[128] There is no evidence that films had gone unreported prior to 1999. While an audit of the radiology department conducted after Mr. Kahlon’s situation came to light disclosed other unreported films, Dr. Li was not aware of any previous audits.
[129] A radiologist’s role is to review, interpret and report on films. As a matter of practical necessity given the volume of cases they review, they must rely on the systems in place in their hospitals to ensure that whatever follow-up needs to take place does. On this point, Ms. Stewart, a representative of the defendant UBC Hospital, gave the following evidence on discovery that was read in by the plaintiff:
Questions 161 – 163:
Q161: Just to follow up on this topic a little bit, if, for example, a radiologist didn’t dictate a final report but said I want some more information and so the films got shunted into this holding area, I take it that the hospital understood that the radiologists didn’t try to make any follow-up plans themselves. They relied on what the hospital was doing in order to ensure that the follow-up happened; correct?
A: The follow-up would happen within the radiology department.
Q162: Okay. But is the follow-up happening through the efforts of the hospital staff, or is the radiologist expected to make sure that –
A: The hospital staff.
Q163: Okay. And I take it that the point I’m trying to make is that the radiologists are very busy, and they rely on the hospital system to make sure that whatever follow-up is supposed to happen does happen; is that fair?
A: Yes.
[130] It is not the radiologist’s task to ensure that other players in the process are fulfilling their roles, unless he or she is aware of problems with the process.
[131] Given Dr. Li’s long experience with his hospital’s system and his belief that the risk of the films going unreported was “very very very very very very small”, I conclude that he was reasonably entitled to rely on the system in place within the department to recall patients and to bring to the attention of radiologists films that had yet to be reported. While he was certainly aware that there had been occasional delays of one to two weeks in the reporting of films, he was not aware of there having been any breakdown in the system of the magnitude at issue here. Accordingly, the risk that he should have reasonably had in mind in relying on the system was a delay in reporting of one to two weeks. Dr. Li was clearly cognizant of the potential seriousness of the lytic findings from Mr. Kahlon’s scan. Nevertheless, even if his had become one of the occasional cases that were delayed, the consequences to Mr. Kahlon’s overall health likely would not have been significant in those circumstances. While it was not unheard of for patients to fail to return for further examinations, the system that Dr. Li relied on brought back films for reporting when that occurred. In the circumstances, I do not consider that the combination of Mr. Kahlon’s not returning and the CT films being misplaced was an occurrence that Dr. Li could reasonably have anticipated.
[132] The measures that the plaintiff contends Dr. Li ought to have taken are not in themselves particularly onerous. However, it would only have been unreasonable for Dr. Li not to have taken them if he had been aware of inadequacies or breakdowns in the hospital’s system, which, as I have discussed, he was not. Thus, while telephoning Dr. Khan to advise him of the unexpected findings would have eliminated the risk that that information would become lost, as both Dr. Li and Dr. Connell agreed, it was not unreasonable for Dr. Li not to have made that call in the circumstances. I would apply the same reasoning to whether he ought to have reasonably made himself a note. Moreover, Dr. Cooper’s approach, though sound, appears to be unique and I do not find it to be the standard of care. Both Dr. Li and Dr. Connell testified to being unaware of any radiologists who make notes in that regard. Accordingly, I am satisfied that it was not negligent for Dr. Li not to have telephoned Dr. Khan or to have made himself a note to follow-up in the circumstances.
[133] However tempting given the tragic consequences that befell Mr. Kahlon, the standard of care must not be assessed through the lens of hindsight. As Sopinka J. observed in ter Neuzen v. Korn, [1995] 3 S.C.R. 674, 127 D.L.R. (4th) 571:
[34] It is also particularly important to emphasize, in the context of this case, that the conduct of physicians must be judged in the light of the knowledge that ought to have been reasonably possessed at the time of the alleged act of negligence. As Denning L.J. eloquently stated in Roe v. Ministry of Health, [1954] 2 All E.R. 131 (C.A.) at p. 137, “[w]e must not look at the 1947 accident with 1954 spectacles”. That is, courts must not, with the benefit of hindsight, judge too harshly doctors who act in accordance with prevailing standards of professional knowledge. This point was also emphasized by this court in Lapointe, supra, at pp. 362-63:
…courts should be careful not to rely upon the perfect vision afforded by hindsight. In order to evaluate a particular exercise of judgment fairly, the doctor’s limited ability to foresee future events when determining a course of conduct must be borne in mind. Otherwise, the doctor will not be assessed according to the norms of the average doctor of reasonable ability in the same circumstances, but rather will be held accountable for mistakes that are apparent only after the fact.
[134] I find that negligence has not been established against Dr. Li.
(b) Dr. Khan and the Sports Medicine Centre
[135] Dr. Khan saw Mr. Kahlon at the Sports Medicine Centre on a referral from Dr. Bermann. He examined Mr. Kahlon on July 28, 1999 and requisitioned a CT scan. Although Dr. Khan has no memory of seeing Mr. Kahlon, his usual routine (and that of his clinic) is to advise patients who have been told to have tests, such as CT scans, to make a follow-up appointment with him following the test. Dr. Kahn did not see Mr. Kahlon again after the July 28 appointment. Dr. Khan said that he has no recollection as to whether or not Mr. Kahlon ever did call his office to book a follow-up appointment. He and the Sports Medicine Centre also do not have any records that would indicate whether or not Mr. Kahlon made such a call.
[136] The system that was relied on by Dr. Khan and the other physicians at Sports Medicine Centre to follow up on tests that were ordered was as follows:
a. patients would be advised to make a follow-up appointment after their CT scans were complete and clinic staff would ensure the test result had returned before the patient attended for the follow-up; and
b. when test results were received by the clinic, they were stamped by a clerk. The stamp provided three options for the doctor to select upon reviewing the results:
chart please
recall
complete. O.K. to file
[137] Follow up was thus based on the patient making an appointment or the clinic calling the client if it had received the results and the patient had not made a follow-up appointment. However, in the event the patient did not make the appointment and the test results did not come back to the clinic, there was no follow up mechanism in place.
[138] The UBC Hospital and the plaintiff say that Dr. Khan was negligent because the standard practice upon which he relied was fraught with risk, he was capable of having a bring forward system for test results, and his system which relied entirely on the patient to return was not a reasonable standard or practice. Dr. Khan contends that to the contrary, his system was reasonable, as confirmed by the uncontradicted evidence of the expert witnesses, Dr. Donald McKenzie (also of the Sports Medicine Centre) and Dr. Richard Backus.
[139] Dr. Khan took his medical training in Australia, and in 1993 completed his sports medicine specialty. He immigrated to Canada in July 1997, obtained his PhD in 1998, and in March 1999 started working at the Sports Medicine Centre.
[140] Dr. Khan explained that the number one reason for presentation at the clinic is knee injuries. Shoulder injuries, he said, are also common. Back pain makes up a reasonable proportion of the practice, and it is a core business for a sports medicine specialist to diagnose and prescribe treatment for back pain.
[141] Dr. Khan has no memory of seeing Mr. Kahlon. The records of the Sports Medicine Centre were destroyed in the normal course due to the passage of time. Dr. Khan’s testimony was therefore based on his usual practice and his reporting letter to Dr. Bermann of July 28, 1999 following his appointment with Mr. Kahlon.
[142] When he saw Mr. Kahlon on that date, Dr. Khan was working two days per week at the clinic; he worked on academic research the other days. Basing his recollection on his report to Dr. Bermann, Dr. Khan said Mr. Kahlon presented with back pain, and also mentioned weight gain. He noted that Mr. Kahlon suggested he had had some back pain while twisting in September, which was about ten months prior to the appointment. Dr. Khan testified that having listened to Mr. Kahlon, he then examined him to try to narrow down and confirm one diagnosis. That examination revealed tenderness at the second and third lumbar level, and the L5-S1, which was consistent with disc injury at one or both of those places.
[143] Dr. Khan testified that MRI was not easily available in 1999, and that a CT scan was the standard way of investigating patients with a suspected disc injury. He said that his management plan was to recommend physiotherapy and activity because that was and remains the first line of care for this type of injury. He said that his standard practice was to ask patients to return for follow up after tests.
[144] Asked whether he would have shared his working diagnosis with Mr. Kahlon, Dr. Khan replied:
Yes. My firm belief is that I would have shared the working diagnosis with him, because that’s my standard practice. And I feel this is the crucial part of what patients come for to get a working diagnosis. Maybe even in cases where I’m not very sure I would share what I think the options are. So I would say that I discussed, you know – and using this note as a guide – I would have discussed the diagnosis of a disc and what that means and what that looks like and the fact that the treatment would involve being active and getting some physio. And I wouldn’t necessarily get into the topic of surgery or not because it’s not part of the mainstream management. So unless the patient brought it up I wouldn’t raise that as an option in the first appointment.
[145] Dr. Khan testified that he had planned to see Mr. Kahlon again because his standard practice after an investigation is to have the patient return in order to go through the results. He said that it is important for patients to understand their pathology, and that in the case of back pain, it is important for patients to understand that it can be benign. Dr. Khan referred to a portion of his letter to Dr. Bermann where he indicated that he would review the imaging results and assess Mr. Kahlon’s progress at that time. He testified that that told him that he was expecting to see Mr. Kahlon after his CT scan, and that he also would have wanted to review his progress and response to the treatment plan.
[146] Dr. Khan testified that he would generally advise patients with an L5-S1 disc injury that it is often a benign condition with a typically good prognosis, and that treatment involves exercise and physiotherapy. He said that he would explain the natural history of an L5-S1 disc injury is that 95% of the patients get better. However, Dr. Khan also testified that how he contextualizes this information to the individual patient is important, and that a patient presenting with 10 months of back pain or whom he has referred to a CT scan faces a poorer prognosis than a patient with a short-term history of back pain.
[147] Dr. Khan testified that patients sent for a CT scan are not given a specific date to return because at that stage they did not know when their CT scan will be scheduled. Patients are asked to book an appointment about a week after the test to allow time for the test results to come back. Dr. Khan said that his understanding was that clinic staff faxed the requisition to the radiology department, and that it was the latter that contacted the patient with respect to the appointment. Once the CT scan was done, the results would be forwarded promptly. However, there could be a long delay between the request for an imaging test and the scheduling of that test.
[148] Dr. Khan was adamant that he would not have told Mr. Kahlon that he could assume that the CT scan was normal if he did not hear from him. That was simply not his practice, and was also inconsistent with his reporting letter to Dr. Bermann. He further testified that he was not expecting Dr. Bermann to follow up with him in terms of Mr. Kahlon’s test results.
[149] Dr. Khan described his patient follow-up system, which entailed patients booking appointments to return following their tests. Additionally, when the clinic received test results, the documents were stamped for the doctors to select one of three options: essentially, “ready to file”, “please pull the chart”, and “recall the patient”. However, Dr. Khan agreed that there was no system in place to ensure that the results of tests that had been requisitioned had in fact been received.
[150] Dr. Khan was strenuously cross-examined with respect to why he did not have a system in place that ensured that he received the results of a CT scan if one had been ordered for a patient. Dr. Khan acknowledged that his system was to have patients return to follow-up every test result. Asked why he did not have a card index to follow up CT scans he had ordered, he responded that it was simply not feasible as it would be excessively time-consuming to fill out cards for all the various tests. While the clinic had a computer system, its purpose was for billing, not for monitoring whether results had been received on tests. Dr. Khan said that prior to this case, he was unaware of a CT scan or other examination being unreported.
[151] Dr. Khan testified that even after 1999, he did not change his practice to include a system to verify whether results for tests he had ordered had been received.
[152] Ms. Woods cross-examined Dr. Khan on various publications from the College of Physicians and Surgeons (the “College”). A 2002 College recommendation provided, in part:
Additionally a lack of patient compliance wilfully or absent-mindedly is a factor. Physicians are therefore urged to ensure to the extent possible that office systems are in place to ensure that investigations and consultations are received and that abnormal results are noted and acted upon in a timely fashion.
[153] Dr. Khan agreed with this recommendation, noting that “to the extent possible” was an important phrase.
[154] Ms. Woods referred in her questioning to a 2003 College Quarterly, which read, in part:
It has always been the College position that the ultimate responsibility for the follow-up of an investigation rests with the ordering physician. This applies unless that responsibility has been specifically delegated to another physician and that physician has agreed to accept that responsibility.
[155] Dr. Kahn agreed with the statement, and said that he discharged that responsibility by asking his patients to come back to see him so that they could discuss the test results.
[156] Ms. Woods showed Dr. Khan an information letter from the Canadian Medical Protective Association of June 2004 which said:
When physicians order an x-ray or any other test they need to be satisfied that there is a system in place to follow-up on the results.
[157] Dr. Khan said that his system was to ask the patient to make an appointment so that he could see the patient in follow-up, and that he still has not been told of a better system. He said that he took all reasonable steps to ensure the patient did not “fall through the cracks” by putting the onus on him to come back and see him in his office so that they could discuss the test results.
[158] On re-examination, Ms. Khanna noted that the excerpts put to Dr. Khan all post-date this case. She pointed out to Dr. Khan with respect to the 2002 College Quarterly shown to him by Ms. Woods that it went on to say, “your efforts to contact patients regarding significant abnormal tests or poor appointments should be recorded” and “clear communication to patients about your expectations of them regarding test results and consultative appointments and follow-up visits is of paramount importance”. Dr. Khan testified that is what his practice was, and he did that by asking Mr. Kahlon to come back to see him.
[159] Ms. Khanna also put to him the following passage from the summer 1995 College Quarterly:
It is potentially dangerous to tell the patient that if they do not hear from you that they can assume that everything is normal. A better, safer method is to instruct the patient to call your office after a suitable interval. Normal results can be given over the telephone by your office assistant. If the results are abnormal, then the assistant can make an appointment for the patient to come in to discuss the findings with you. Patients must be protected from the danger of mislaid results. You may be able to think of a better way to ensure that all results are communicated to patients. If you do have a better idea, please call the College.
[160] Dr. Khan explained that his practice was to see the patient in person and go through the results with him in order to explain them properly and to integrate them into the care he would like to give the patient going forward.
[161] Dr. Donald McKenzie was a defence witness qualified as an expert in sports medicine. He is a colleague of Dr. Khan at the Sports Medicine Centre.
[162] Dr. McKenzie obtained his MD from UBC in 1977 and returned after residency training in New Zealand to set up a practice focussed on sports medicine at the Sports Medicine Centre. He has been a fully-tenured professor in the UBC Faculty of Medicine since 1992.
[163] Dr. McKenzie said that it is part of his practice to order CT scans on patients in appropriate cases. He currently orders five or six per month and probably did double that number when he was practicing more frequently. He said that the members of his practice in the Sports Medicine Centre have a close relationship with the radiologists at UBC Hospital. He testified that the standard practice at the Sports Medicine Centre when a CT scan is ordered for a patient is to advise the patient to make an appointment to return to the Centre after they have had the scan done. The reason for that practice is that it is the most reasonable way to engage the patient in the health care process.
[164] Dr. McKenzie testified that there are several reasons why a patient sometimes does not receive the CT scan at the prescribed time; for instance, they may decide they do not want to do it or would like to see another physician. He said that there were no electronic systems available to track test results in 1999.
[165] On cross-examination, Dr. McKenzie agreed that the practice at the Sports Medicine Centre with respect to follow up to see if test results have come back remains having the patient book a follow-up appointment. He described two mechanisms for this. One was to request the patient to return for a follow-up appointment. The other was for the physician reviewing a report to decide to have the patient called for an appointment. He agreed, however, that where for any reason test results do not come back, there is reliance on the patient returning as a trigger.
[166] Dr. McKenzie testified that the system the Centre uses has worked very well in his 28 years of practice, and that a system in which patients are followed throughout their investigations to ensure they attend would be totally impractical in a medical practice. When asked whether it would be difficult to have a bring-forward system for CT results, he said that it would be given that they receive 250 faxes per day and would be overwhelmed with the duty of following up on all tests, prescriptions, referrals to physiotherapy, and referrals to other health practitioners.
[167] Dr. McKenzie testified that he was not aware of any other case in which both the patient did not return and test results were not received.
[168] On cross-examination by Mr. McGivern, Dr. McKenzie acknowledged that there had not been any audits at the Sports Medicine Centre, and he agreed that without a system of audits he has no idea whether Mr. Kahlon was the only person that this happened to.
[169] Dr. McKenzie agreed that if a finding is both unexpected and carries potentially a very significant health care risk, the radiologist can pick up the phone and advise him of this information rather than send a report in the routine way. He also agreed that 5% of patients do not actually return to see the doctors. He agreed with the following recommendation of the College that was put to him:
The follow-up of investigations and treatment is an important part of medical practice for both specialists and family physicians. … The lack of appropriate timely follow-up has the potential for harm for medical legal liability and is a source of significant complaint to the College. With the complexity of the system there is potential for information to be lost at more than one level. Additionally lack of patient compliance, wilfully or absent-mindedly is a factor. … Physicians are therefore urged to ensure to the extent possible that all systems are in place to ensure that investigations and consultations are received and that abnormal results are noted and acted upon in a timely fashion.
[170] The defendant doctors filed a report of Dr Richard Backus, a physician whose practice is also limited to sports and musculoskeletal medicine. He is a principal at the Muscoloskeletal Rehabilitation Centre in Victoria. He filed a written opinion and was not required for cross-examination.
[171] Dr. Backus described two approaches regarding follow-up for tests. The first is when the date for imaging can be determined at the time the doctor is seen. The second, he said, is as follows:
A second situation occurs when the imaging takes place at an indeterminate time. The usual pattern is that the patient is told at the time of the original appointment that as soon as she gets a date for imaging, she must phone the office to make an appointment to come in and review that imaging with the doctor immediately following the test. The hospital or laboratory usually sends out a report. These reports are reviewed on a daily basis in the office and if any of them are unusual, then the patient is phoned and asked to come in if she has not made the requested appointment. Occasionally, with multiple physicians ordering, it is unclear who should receive the report, and some are missed.
[172] In the situation where there is no report from the laboratory or imaging centre and the patient has not made an appointment to come in or does not make an inquiry about the results, the results are effectively lost.
[173] Dr. Backus wrote that there is some hope that electronic medical records will give a third level of security in the future. It is interesting to note that most electronic medical records do not have the capability to routinely check whether ordered imaging has been done or if there is a missing report.
[174] The system upon which Dr. Khan relied for follow up when sending a patient for a CT scan had two components: (1) advising the patient to make a follow up appointment after the scan was completed and having staff ensure that the results had returned prior to the appointment, and (2) when received at the clinic, test results were stamped with three options for the doctor when he reviewed the results: “Chart please”, “Recall (the patient)” and “Complete. Ok to file”. The patient could thus be recalled even if he or she had not made a follow-up appointment as directed.
[175] The question is whether this system constitutes a “reasonably effective ‘follow up’ system”: Braun Estate v. Vaughn, [2007] 3 W.W.R. 465, 145 Man. R. (2d) 35 (C.A.).
[176] There was nothing in the evidence in the present case that suggests it was unusual for a physician not to have a follow up system that specifically monitored whether tests of this sort that had been ordered had actually been conducted and the results received. I also find, on the evidence, that the follow-up system employed by the Sports Medicine Centre was the standard practice for a case of this kind. There was also no expert evidence that was critical of Dr. Khan’s standard practice. Nevertheless, the mere fact that a doctor’s standard practice conforms to the standard practice of the profession does not necessarily insulate the doctor from liability. As Sopinka J. wrote in ter Neuzen:
33. It is well settled that physicians have a duty to conduct their practice in accordance with the conduct of a prudent and diligent doctor in the same circumstances....
34. It is also particularly important to emphasize, in the context of this case, that the conduct of physicians must be judged in the light of the knowledge that ought to have been reasonably possessed at the time of the alleged act of negligence….
...
43. …Thus, it is apparent that conformity with standard practice in a profession does not necessarily insulate a doctor from negligence where the standard practice itself is negligent. The question that remains is under what circumstances will a professional standard practice be judged negligent? It seems that it is only where the practice does not conform with basic care which is easily understood by the ordinary person who has no particular expertise in the practices of the profession. That is, as Professor Fleming suggests, where the common practice is fraught with danger, a judge or a jury may find that the practice is itself negligent.
44. As was observed in Lapointe, courts should not involve themselves in resolving scientific disputes which require the expertise of the profession. Courts and juries do not have the necessary expertise to assess technical matters relating to the diagnosis or treatment of patients. Where a common and accepted course of conduct is adopted based on the specialized and technical expertise of professionals, it is unsatisfactory for a finder of fact to conclude that such a standard was inherently negligent. On the other hand, matters falling within the ordinary common sense of juries can be judged to be negligent. For example, where there are obvious existing alternatives which any reasonable person would utilize in order to avoid a risk, one could conclude that the failure to adopt such measures is negligent notwithstanding that it is the prevailing practice among practitioners in that area.
[emphasis added]
[177] It is the position of the UBC Hospital that relying on the return of a patient as the primary mechanism for follow up is a practice fraught with danger, and that doctors do not discharge their responsibility simply by asking patients to come back to see them. Ms. Woods submits that the proposition that a bring forward system is unworkable given the number of tests that are ordered is without merit in a computer age and in light of recommendations to the contrary by the College. As she points out, dentists and lawyers regularly use bring forward systems in their practices. The doctors’ expressed concerns regarding the difficulty in following up tests they order, she contends, are made without their providing any concrete examples of why this would be the case.
[178] UBC Hospital cites Rupert v. Toth (2006), 38 C.C.L.T. (3d) 261 (Ont. S.C.J.) and Braun Estate v. Vaughn in support of its position. In Rupert v. Toth, the plaintiff was referred by a general practitioner to Dr. Toth, an otolaryngologist. Prior to surgery, Dr. Toth had believed the plaintiff’s nasal obstruction to be a benign polyp; during the course of the surgery, however, he came to suspect it was an inverting papilloma. He advised the plaintiff of this information, but did not tell him that the suspect condition could turn into cancer. He scheduled a CT scan for the patient which revealed a significant abnormality.
[179] The CT scan report was sent to both the plaintiff’s family doctor and Dr. Toth. The family doctor advised the plaintiff of the results, though the evidence was that the condition was one that was rarely, if ever, encountered in the course of a family physician’s practice and that he would not have been knowledgeable about it. He did not advise the plaintiff of the possible negative consequences of not having surgery within a fairly short time frame or of the possibility that the condition could become malignant. He did, however, clearly instruct him to contact Dr. Toth to arrange a follow up appointment about the CT results.
[180] Dr. Toth routinely read all reports and flagged with a post-it note those that required action. In the case of the plaintiff’s CT scan, he flagged it with a post-it note upon which he indicated to his secretary “Ensure follow-up appointment”. It is not known what happened to Dr. Toth’s instructions but the appointment never took place. The post-it note may have fallen off or become lost; his secretary may have failed to follow his instructions; or, she may have made the appointment but it was cancelled.
[181] Ultimately, the plaintiff died from the papilloma that had turned malignant and invaded his cranial cavity.
[182] Among the doctors, only Dr. Toth had the expertise to give the plaintiff the information about the potentially adverse turns the disease could take. Low J. found that Dr. Toth appreciated the importance of conveying that information to the plaintiff and the risks to the plaintiff of not doing so. She wrote at paras. 126 and 127:
[126] In my view, if the common practice for communicating test results is to shift the responsibility to the patient to attend to receive the information and the patient's compliance is the only mechanism for ensuring that the information is conveyed, then notwithstanding that it will generally suffice either because patients generally comply or because there is no time sensitive and/or further material information to be transmitted, the practice will nevertheless be fraught with risk in some cases. There will be patients for whom there is literally no time for the method of communication to be played out in the ordinary course; there will be patients who are not capable of following through with instructions; there will be patients who are forgetful or neglectful.
[127] I make no finding as to whether the general practice of asking a patient to book a follow-up appointment to receive and discuss test results is generally sufficient to meet the standard of practice. I am required to decide only whether the standard of practice was met on the particular facts of this case. In my view, it was not -- and, I would add, not because of lack of effort on the part of Dr. Toth. I found Dr. Toth to be truthful, sensitive and compassionate and I find that he set in motion the appropriate steps that, had they been executed, would have resulted in communication of the information that he had the obligation to communicate. It was his system that failed.
[183] In the result, Dr. Toth was held liable.
[184] Braun Estate v. Vaughn involved action against Dr. Vaughn, an obstetrician-gynaecologist, and the hospital where he practiced. Dr. Vaughan obtained a pap smear from the plaintiff and sent it off to the Health Services Centre for analysis. The cytology report dated June 2, 1992 indicated that the plaintiff had a pre-cancerous condition with a virtually 100% probability of successful treatment. The report had been returned to the doctor and the hospital/clinic within one month after the request. However, the positive lab report was not discovered until 11 months later when it was found in the plaintiff’s chart. There was no evidence as to when it was placed there but it would have been discovered had the doctor reviewed the chart before leaving the hospital, which he did in August 1992, or before the gynaecological component of the clinic was closed on July 24, 1992. As Scott C.J.M., writing for the Court, explained:
[11] Nurses' aides and other employees of the clinic were, for ordinary purposes, guided by the procedures of their employer, the hospital, and reported to a hospital administrator. The hospital did not have any stated policies in place with respect to how documents or test results were to be reviewed. Despite this, Dr. Vaughan testified that he relied on the procedures and systems in place in the hospital clinic. He expected, he said, the Pap smear report in approximately four weeks. The clinic did not have a system to track requests for laboratory results.
[12] The testimony at trial by Dr. Vaughan's nurse, and accepted by the trial judge, was that she would assist Dr. Vaughan in the taking of a Pap smear (or other tests) after which the requisition and specimen would be taken to the hospital lab and sent to the HSC in Winnipeg. The test results were returned through the mail and directed to the attention of the individual doctor. Dr. Vaughan allowed his secretary to open test results but not other mail addressed to him. Test results would be either placed in a specified folder or placed directly in front of the doctor's chair. Dr. Vaughan would review the results and then issue instructions to the nurse either verbally or by attaching a yellow Post-It note to the document. Unlike the other physicians at the clinic, Dr. Vaughan did not initial the individual reports or test results.
[185] The Court of Appeal concluded at paras. 33 - 34:
[33] The overwhelming weight of the evidence together with common sense and experience provide ample support for the conclusions reached by the trial judge. While it is clear that she set the standard upon Dr. Vaughan at too high a level, i.e. that he was responsible to see that a system was in place to "ensure" that a test result was read by the requesting physician, her conclusion would have undoubtedly been the same applying the correct standard, namely, that there was a duty upon the physician to see to it that there was a reasonably effective "follow-up" system in place. This is particularly so on the facts of this case since Dr. Vaughan knew full well that there was no system or procedures in effect on the part of the clinic. This error is exacerbated by his failure to have any personal system to confirm that a report or test ordered by him, or on his behalf, was seen by him.
[34] Applying the principle of law from ter Neuzen v. Korn, [1995] 3 S.C.R. 674, and Anderson v. Chasney, [1949] 4 D.L.R. 71 (Man. C.A.); aff'd. [1950] 4 D.L.R. 223 (S.C.C.), the trial judge was entitled to conclude that there was a failure to adopt "obvious and reasonable precautions which are readily apparent to the ordinary finder of fact" (ter Neuzen, para. 51).
[186] The defendant doctors in the present case argue that there are very few cases where the ter Neuzen exception has been applied and the physician’s standard practice been found to be fraught with obvious risks such that anyone is capable of finding it negligent. They caution that before finding a standard of care to be itself negligent, there should be obvious existing alternatives. While guidelines issued by bodies such as the College are a factor to consider, they are by no means a substitute for expert evidence. The defendant doctors point out that neither the plaintiff nor the UBC Hospital introduced any expert evidence with respect to the reasonableness of the follow-up system used at the Sport Medicine Centre.
[187] The system that Dr. Khan and his colleagues used at the Sports Medicine Centre relied on, they said, intelligent and motivated patients. It depended on patients attending for their imaging tests and then returning to obtain the results. Nevertheless, in the event that a patient did not make an appointment to return, the test report would be reviewed by the doctor when it was received by the clinic, and the doctor could at that time direct that an appointment be scheduled. For the system to fail, the patient would either have to fail to attend for his scan or to return to the clinic for a follow up appointment as directed, and the laboratory would have to fail to return the report or otherwise fail to contact the clinic. The evidence of both Dr. Khan and Dr. McKenzie was that they could not recall a situation where both contingencies had occurred, that is, the patient did not return to the clinic and the test result did not come back.
[188] I find the present situation to be quite different from that in Braun Estate v. Vaughn. In that case, the request for the test was sent directly from the doctor to the Health Services Centre, the results were returned to the doctor, and he knew that there was no system in place at the clinic. That error was exacerbated by his failure to have any personal system to confirm that a report or test he had ordered was seen by him. In the present case, there was a system. So long as the test results came in, there was a system for the doctor to review them and bring in the patient if necessary, even if the patient had not made a follow up appointment as directed. It is on that basis that the circumstances in Rupert v. Toth are also not analogous. There, the test results had been received and yet the system failed.
[189] The UBC Hospital and the plaintiff submit that the Sports Medicine Centre should have had a computer or manual bring forward system. The evidence of Dr. Khan and Dr. McKenzie was to the effect that such a system was impossible to organize given the number of tests that are ordered, the fact that patients simply might not go for the tests, and the sheer volume of faxes they receive each day.
[190] I question whether tracking test results is quite as difficult as Dr. Khan and Dr. McKenzie believe. Nevertheless, I am not persuaded on the evidence that the system in place at the Sports Medicine Centre and used by Dr. Khan could be characterized as other than a reasonably effective follow up system. I am also not prepared to conclude that the standard practice followed by Dr. Khan and his colleagues at the Sports Medicine Centre is negligent.
[191] Accordingly, I find that negligence against Dr Khan and the Sports Medicine Centre has not been established.
[192] Dr. Bermann was Mr. Kahlon’s general practitioner, and had been so since June 1986.
[193] As set out earlier in the review of the facts, Dr. Bermann saw Mr. Kahlon in August 1998 when the latter presented complaining of a sprained back, weight gain and an injured right ankle. His examination of Mr. Kahlon suggested that Mr. Kahlon’s back problems were due to muscular back sprain, and he advised Mr. Kahlon to increase his exercise as tolerated with respect to both his back and ankle. Dr. Bermann advised continued exercise and massage therapy at an appointment in October 1998. In February 1999, Mr. Kahlon again presented with lower back pain symptoms. Dr. Bermann counselled Mr. Kahlon to be careful when lifting, prescribed an anti-inflammatory drug, and asked him to return in a week.
[194] Dr. Bermann next saw Mr. Kahlon on July 19, 1999 when he complained of pain in his right thigh when sitting for extended periods, as well as pain in his left buttock area. At that time, Dr. Bermann referred Mr. Kahlon to the Sports Medicine Centre. Dr. Khan sent Dr. Bermann a consultation report dated July 28, 1999 advising that he had referred Mr. Kahlon for an x-ray and CT scan of his lumbar spine, and that he would review Mr. Kahlon after receiving the results and assess his progress at that time.
[195] Following his July 19, 1999 appointment, Mr. Kahlon did not return to see Dr. Bermann until April 14, 2000 when he complained of a sore throat. Lab tests revealed he had strep throat. Dr. Bermann next saw Mr. Kahlon on September 8, 2000, when he presented with complaints of a new ache in the left groin and hip. Dr. Bermann ordered an x-ray, and blood count and sedimentation rate tests, and advised Mr. Kahlon of the abnormal results at an appointment on September 13, 2000. Dr. Bermann referred Mr. Kahlon to Dr. Reid, a rheumatologist.
[196] Dr. Reid sent Dr. Bermann a consultation letter in late September requesting a copy of Mr. Kahlon’s CT scan report. Dr. Bermann realized that he had not received the results, and contacted the UBC Radiology Department, at which point it was realized that the films had never been reported. Dr. Bermann saw Mr. Kahlon on October 2, 2000 to review Dr. Reid’s report and the CT scan report. Following this appointment, Dr. Bermann made arrangements for Mr. Kahlon to attend for a follow-up MRI. Before the MRI could be performed, Mr. Kahlon was admitted to hospital.
[197] I will deal with the arguments of the plaintiff and the UBC Hospital together. They assert that Dr. Bermann’s conduct fell below the standard of care expected of him in two ways. First, he failed to have an appropriate follow-up system in place to ensure that important examinations, such as CT scans, that had been ordered were actually reported and received by him. The hospital specifically asserts that Dr. Bermann was negligent in not booking a follow-up appointment after referring Mr. Kahlon to the Sports Medicine Centre. Secondly, Dr. Bermann failed to ask Mr. Kahlon about his back and the status of his CT scan when Mr. Kahlon attended an appointment in April 2000; had he reviewed his notes of Mr Kahlon’s previous appointment in July 1999, he would have been aware that this was an outstanding issue.
[198] Dr. Farmer was called by the UBC Hospital and was qualified as an expert in general practice medicine. In his written opinion, Dr. Farmer expressed his view that:
… a family physician of average competence practicing in British Columbia at the time would have instructed the patient to arrange a follow-up visit after he had seen the specialist in order to discuss the specialist’s recommendations and whether further action was required. This is part of the services a family physician offers to his patients in order to ensure that the patient does not “fall between the cracks” and so that there is a continuing source of care.
[199] In response to the suggestion that it would be excessive duplication for a patient to return to his general practitioner after seeing a specialist, Dr. Farmer replied that 1999 was a different time and that the general practitioner then was, in essence, the orchestrator of the patient’s health.
[200] On cross-examination, Dr. Farmer agreed that in 1999, electronic medical records were not available in physicians’ offices. He agreed that there were times when he expected the patient to stay with the specialist for a time for assessment and treatment. He also agreed that if Dr. Bermann had received the letter from Dr. Khan indicating that he would review Mr. Kahlon after his imaging results and assess his progress at that time, he would have felt satisfied that the specialist would be following up with the patient. He said that he absolutely thought that was very clear. Dr. Farmer testified that he would have expected that if Dr. Khan saw the patient in follow-up and was not going to be following up any further, he would send a consultation letter referring the patient back to the family physician.
[201] Dr. Farmer was asked about a portion of the 1998 Medical Services Plan (“MSP”) Guide to Fees that indicated that once a consultation had been rendered and a written report submitted to the referring physician, that aspect of the care of the patient was normally returned to the referring physician. He was asked about a reference in that guide to the referring physician generally should not charge for this aspect of the patient’s care unless and until the full responsibility is returned to him. He said he was surprised by that and had never been aware of that.
[202] Dr. Farmer agreed for the most part that a significant number of patients will undergo investigation and subsequent treatment for a presenting condition, all the while followed by the specialist and not returning to the family doctor. He agreed with a reference that where the patient is being followed by the specialist, a follow-up visit with the family physician could be redundant as the investigation and care of the patient was being looked after by the specialist.
[203] Dr. Dwyer was called as an expert witness by the defendant doctors and was qualified in the area of general family practice.
[204] Dr. Dwyer, in his written report, disagreed with the opinion offered by Dr. Farmer. Specifically, he disagreed that when a patient with chronic back pain is sent to a specialist, the referring doctor should advise the patient to also come back to see him or her within a couple of weeks.
[205] At p. 7 of his report, Dr. Dwyer wrote:
A referral, made by a general practitioner to a specialist is undertaken to obtain a diagnosis and plan for further treatment from the specialist who has greater competence in the illness or issue presented. A significant number of patients will then undergo investigation and subsequent treatment for the presenting condition, all the while followed by the specialist and not returning to the family doctor or general practitioner. The condition may be completely treated by the specialist without returning to the family doctor, and indeed the family doctor may not see the patient again until they require an annual renewal of a consultation request to see the specialist as required by the Medical Services Branch of B.C. This happens in many cases in practice. To have [a] system in place where the patient would return to the G.P. after every specialist consultation would result in excessive duplication of service with the G.P. simply reiterating what the specialist had already told the patient.
[206] He went on to say at p. 8:
Having patients return to the general practitioner after seeing a specialist on all occasions would result in a tremendous inconvenience for most patients, and would also result in unnecessary visits to the general practitioner and cost to the system. A general practitioner usually only sees the patient again on the instruction of the specialist.
[207] Dr. Dwyer said that tracking systems for medical records or computerized medical records were not available in 1999. He said that they are also not presently available in the majority of general practitioners’ offices.
[208] The other allegation against Dr. Bermann is that he ought to have made himself aware of his notes regarding his prior consultation with Mr. Kahlon when he came to see him in April 2000 with respect to a sore throat. On cross-examination, Dr. Dwyer was asked:
Q. Would you also agree that every time a G.P. goes in to see his patient that as a matter of good practice he should familiarize himself with the patient and his chart and what has been happening with the patient and his care?
A. That’s a general statement. I really -- on the ground, it doesn’t work as well as that, but as a general statement it’s a fair statement.
[209] On re-examination, Dr. Dwyer said that working family physicians deal with a patient’s presenting complaints and rely on the patient to advise about any other problems he or she is having. Dr. Bermann’s evidence read in from his examination for discovery was that he usually reads his notes but that would depend “on what they are in for”. As to the results of CT scans, he said that “normally the patient asks him the results or makes a complaint about whatever he’s got”.
Discussion of Liability of Dr. Bermann
[210] There are essentially two allegations against Dr. Bermann. The first is that he should have arranged a follow up visit after Mr. Kahlon had seen Dr. Khan to discuss the specialist’s recommendations, or followed up on the CT scan ordered by Dr. Khan. The second is that on April 14, 2000, the first appointment following the July 1999 appointment when Mr. Kahlon was referred to Dr. Khan, he should have made himself aware of his notes of his prior consultation with Mr. Kahlon, and asked him about his referral to the Sports Medicine Centre and checked to see whether he had the CT scan.
[211] The defendant doctors cite Beninger v. Walton, [1979] B.C.J. No. 319 (S.C.) which they say appears to be the only authority that directly addresses the responsibility, if any, of a general practitioner to follow up with respect to a referral to a specialist. In that case, the plaintiff alleged that he suffered a partial loss of sight due to a delay in the treatment of his glaucoma. Dr. Walton was a general practitioner who had seen the plaintiff a number of times for a variety of ailments over a seven-year period. Early in this period, Dr. Yule, another physician at Dr. Walton’s clinic, referred the plaintiff to Dr. Howie, an ophthalmologist, for suspected glaucoma. Dr. Howie saw the plaintiff and wrote a letter to Dr. Yule advising that he suspected glaucoma and would be following up with the plaintiff. This letter was reviewed by Dr. Yule. Dr. Walton could not recall whether he had seen the letter at that time, but the trial judge, Rae J., held in any event at para. 14 that:
[14] ... Even if [Dr. Walton] had read [Dr. Howie’s letter] it required no further attention or action on his part. Glaucoma requires the attention of a specialist and it is not treated by a general practitioner, and [the plaintiff] was in the hands of a specialist who was taking control.
[212] The plaintiff alleged that Dr. Walton should have ensured that the plaintiff’s referrals to both the ophthalmologists were followed up, and had he done so, treatment would have been started earlier and the development of glaucoma would have been arrested or at least slowed. In addressing this allegation, Rae J. held at para. 55 as follows:
[55] It is clear on the evidence, particularly in connection with referrals to ophthalmologists for something such as glaucoma, that it is generally considered in the profession, and in fact is the practice, that the ophthalmologist takes over completely and the matter of attending to the patient is his full responsibility after the referral. The only situation in which continuing follow-up, attention or treatment would be required from the referring general practitioner would be, as happens in connection with some other specialties, and perhaps also in referral to an ophthalmologist for some reason other than suspected glaucoma, where the specialist communicates to the referring general practitioner that something is expected of him. No such communication was made here, nor should it have been, having regard to the position of the ophthalmologist and the suspected medical condition.
[213] The plaintiff adduced an expert report from a general practitioner which contained the following criticism of Dr. Walton, quoted at para 63:
[63] ... Dr. Walton did not fully meet responsibility for ongoing management of this patient's suspected glaucoma, in that he apparently did not note the records from preceding office visits on two occasions. It may however have been his assumption that direct responsibility for the ongoing management was not in fact his, that it was the consultant's. But it is at least his job to ensure that there is a general understanding and agreement as to where the long-term professional responsibility does in fact lie and this was apparently not made clear in this case.
[214] Rae J. held at para. 64 as follows:
[64] ... Dr. Walton and others concerned had good reason to assume that the problem, having been referred to a specialist, it would thereafter be attended to as between him and the patient, the patient having the awareness of the matter which he had. As to the reference to the "long-term professional responsibility", clearly that responsibility was transferred on referral, to the knowledge and expectation of all concerned, to the specialist. The evidence before me amply demonstrates to my satisfaction that that is the general practice in the profession in a case of this kind.
[215] The evidence given by Dr. Dwyer in the present case was largely consonant with the comments of Rae J. in Beniger v. Walton, and it establishes to my satisfaction the standard of care that is applicable in these circumstances. I find that Dr. Bermann, having referred Mr. Kahlon to a specialist with respect to his back pain, was able to assume that his care for that issue was in the hands of the specialist until it was returned to him. That practice is consistent with both common sense and the billing guide that was in effect at the relevant time.
[216] Dr. Farmer, whose evidence was that Dr. Bermann fell below the appropriate standard of care by not booking a follow up appointment with his patient who he had referred to a specialist, agreed that if he had read Dr. Khan’s letter to Dr. Bermann, it would have been clear that the plaintiff would be following up with Dr. Khan following his CT scan. I note that a family physician is restricted in the MSP Guidelines from charging for that aspect of a patient’s care after it has been transferred to a specialist and until full responsibility is returned to the general practitioner. That is consistent with what I find to be the appropriate standard of care when there is a referral by a general practitioner to a specialist.
[217] Dr. Farmer was of the view that the relationship of a family doctor to his or her patient in 1999 was different than it is today. Notwithstanding deference to the specialist with respect to how a patient is followed and what further investigations are required, and the billing guidelines, Dr. Farmer indicated that there is a standard practice in cases of longstanding relationships for a doctor to be actively involved in the management of his or her patient’s care. In contrast, Dr. Dwyer’s evidence was that there is no difference in the relationship between general practitioners and patients in 1999 and at present.
[218] I am not persuaded that the relationship between family doctors and their patients in 1999 was significantly different than at present, such that the appropriate standard of care was any different than that suggested by Dr. Dwyer.
[219] Given the standard of care as described by Dr. Dwyer, which I accept, I find that it has not been established that Dr. Bermann was negligent in failing to book a follow up appointment to see the plaintiff or to follow up on his referral to Dr. Khan and the results of Dr. Khan’s ordered scan. Dr. Bermann was entitled to assume from Dr. Khan’s letter to him that Dr. Khan had assumed primary responsibility for Mr. Kahlon with respect to his lower back pain and had not returned him to his care. In my view, the evidence of both Dr. Farmer and Dr. Dwyer supports this conclusion.
[220] I turn now to the allegation against Dr. Bermann relating to the April 14, 2000 appointment. That allegation is that had Dr. Bermann exercised a reasonable degree of care, he would have reviewed his notes and followed up with Mr. Kahlon about his back problem even though Mr. Kahlon had come to see him about a sore throat and had not raised the matter of his back. I am hampered in my ability to assess this allegation by the very limited evidence with respect to the appropriate standard of care in such circumstances. This issue was not addressed in the evidence of Dr. Farmer, and in argument only brief passages in the cross-examination and re-examination of Dr. Dwyer were referred to. I have set that evidence out above, as well as the highlights of Dr. Bermann’s discovery evidence. While I incline to the view that Dr. Bermann was not negligent in his failure to review his notes before Mr. Kahlon’s appointment, I make no finding in that regard. It is not necessary, in my view, that I decide this issue since even if I were satisfied that Dr. Bermann had failed to meet the standard of care, I am not satisfied that causation has been established.
[221] It is agreed by the parties that had Mr. Kahlon’s CT scan in September 1999 been reported at that time or within the several months following, it would have led to a chain of inquiry resulting in the spinal TB diagnosis. Treatment would have been given and Mr. Kahlon would have recovered without sequela. However, Mr. Kahlon’s appointment with Dr. Bermann in April 2000 was seven months after his CT scan. There is no evidence that Mr. Kahlon would similarly have recovered without sequela had his disease been detected at that stage and treatment provided. In the circumstances, therefore, I find that the plaintiff has not established causation.
[222] I find that negligence against Dr. Bermann has not been established.
[223] Ellen Picard and Gerald Robertson offer a convenient summary of a patient’s responsibilities when seeking medical attention in their text, Legal Liability of Doctors in Hospitals in Canada, 4th ed. (Toronto: Thomson Carswell, 2007) at 368:
Patients have certain duties and responsibilities when seeking medical treatment, including a duty to provide information, to follow instructions, and generally to act in their own best interests. In carrying out these duties they are expected to meet the standard of care of a reasonable patient. If they do not, and the breach of this standard is the factual and proximate cause of their injuries, they are contributorily negligent and their compensation will be reduced accordingly. Of course, if the injury is due exclusively to the patient’s own negligence, the action will be dismissed. [footnotes omitted]
[224] The defendants in the present case submit that Mr. Kahlon is wholly responsible for the outcome in this case or, in the alternative, that he is contributorily negligent. They allege three specific failures on his part to exercise reasonable care for his own health:
a. Failure to return for a contrast enhanced CT scan as requested by Dr. Li;
b. Failure to return to see Dr. Khan following his CT scan as instructed; and
c. Failure to follow up with his doctors when his back pain did not improve and continued to be quite debilitating.
[225] Underlying these allegations is the contention that Mr. Kahlon engaged in inappropriate self-diagnosis.
[226] Mr. Kahlon alone knows why he conducted himself as he did. However, as he is unable to testify, it is necessary to turn to the evidence to see what can be inferred as to his state of mind regarding his condition in 1999 and 2000. It is also necessary to keep in mind that the burden of proof is on the defendants on this issue of contributory negligence: Leischner v. West Kootenay Power and Light Co. (1986), 70 B.C.L.R. 145, 24 D.L.R. (4th) 641 (C.A.).
[227] As described in the Agreed Statement of Facts, Mr. Kahlon presented to Dr. Bermann in August 1998 with three complaints: a sprained back, weight gain and a sprained ankle that had yet to fully resolve. Mr. Kahlon reported to Dr. Bermann that he had taken a muscle relaxant and an anti-inflammatory for his back, and that he felt much better. Dr. Bermann advised him to increase his exercise as tolerated with respect to both his back and ankle. By October 1998, Mr. Kahlon’s back had improved but he had, according to Dr. Bermann, some nerve root irritation. Dr. Bermann advised Mr. Kahlon to continue exercising and to attend for massage therapy.
[228] Mr. Kahlon saw Dr. Bermann again in February 1999. Dr. Bermann’s view, which I infer he shared with Mr. Kahlon, was that Mr. Kahlon probably had a muscular back or sacroiliac sprain, or possibly a mild lumbar disc syndrome. He counselled Mr. Kahlon to avoid lifting and to get appropriate rest. He also prescribed anti-inflammatory medication, and asked Mr. Kahlon to return in a week.
[229] Mr. Kahlon next saw Dr. Bermann on July 19, 1999, still complaining of pain down the right thigh when sitting, and pain in the left buttock area. The former symptom suggested to Dr. Bermann that the problem was muscular; the latter, some nerve root irritation. I find it is reasonable to infer that he likely shared this view with Mr. Kahlon. At this point, Dr. Bermann referred Mr. Kahlon to the Sports Medicine Clinic.
[230] Mr. Kahlon was seen by Dr. Khan on July 28, 1999. Dr. Khan’s working diagnosis was that Mr. Kahlon had an L5-S1 disc injury and that the prognosis was favourable. Dr. Khan’s evidence based on his standard practice is that he would have shared with Mr. Kahlon his working diagnosis and its implications for his health care, and that treatment would involve being active and receiving physiotherapy.
[231] Dr. Khan testified that he would generally advise patients with an L5-S1 disc injury that it is often a benign condition with a typically good prognosis, and that treatment involves exercise and physiotherapy. He said that he would explain the natural history of an L5-S1 disc injury is that 95% of the patients get better. However, Dr. Khan also testified that how he contextualizes this information to the individual patient is important, and that a patient presenting with 10 months of back pain or whom he has referred to a CT scan faces a poorer prognosis than a patient with a short-term history of back pain.
[232] As set out in the Agreed Statement of Facts and as Dr. Khan testified, his usual routine is to advise patients who have been told to undergo tests, such as CT scans, to make a follow-up appointment with him after the test has been completed. His evidence was that his practice is to ask them to return approximately one week following the test.
[233] I find that Dr. Khan shared with his patients his working diagnosis and its implications in terms of their healthcare. I find that in all likelihood Mr. Kahlon left his appointment with Dr. Kahn believing his problem to be an L5-S1 back injury, that 95% of patients with that condition recover, and that he should continue with his physiotherapy. I also find, based on Dr. Khan’s usual routine, that Mr. Kahlon was probably told to make an appointment with Dr. Khan to discuss the test results following a CT scan. Dr. Khan’s letter to Dr. Bermann that he would “review him after his imaging results and assess his progress at that time” is not inconsistent with his agreed usual practice.
[234] The CT scan was arranged and conducted about six weeks later on September 10, 1999. Dr. Li, after his preliminary review of the films, made a note for the radiology department technician to arrange for Mr. Kahlon to return for a contrast enhanced CT scan. He understood that this task was delegated to the booking clerk. The evidence suggests that Mr. Kahlon was contacted by the booking clerk. In this regard, I note that Dr. Bermann’s clinical notes for October 2, 2000 read, in part, “C/T Scan Report (Did not go back because he did not want dye injected in his body)”. I am not aware of any other evidence that Mr. Kahlon received a call to return for a further scan, other than a possible inference from Mr. Li’s testimony regarding the usual practice of hospital staff in recalling patients. However, I think that the only reasonable inference from the note in Dr. Bermann’s file is that Mr. Kahlon was in fact contacted by the booking clerk to return for a contrast enhanced CT scan. There is no evidence that hospital staff followed up with Mr. Kahlon when he did not return for the scan.
[235] Despite being contacted by the hospital, Mr. Kahlon did not attend for the contrast enhanced scan. Dr. Bermann’s note to the effect that Mr. Kahlon did not do so because he did not want dye injected into his body potentially provides some insight into the latter’s state of mind. However, I am wary about inferring too much from that note when neither of the parties to the conversation was available to testify. While I accept that Mr. Kahlon may have had a concern about dye, I consider his comment to be as equally likely a justification for procrastination as the true reason for his not attending for the scan.
[236] On the topic of the CT scan, Ms. Kahlon, whom I found to be a credible witness, testified that she knew that Mr. Kahlon had gone for the initial scan but that she did not subsequently hear anything about it until a year later. In the weeks following the scan, she did not ask her husband about the test, nor did he tell her anything about it. She also did not recall Mr. Kahlon mentioning that he had been asked to return for a contrast scan. Ms. Kahlon testified to her assumption, based on her experience with the medical system, that the results would only come back to her husband if they were unfavourable, and, as a result, she did not ask him about them. On this point, however, Dr. Khan was adamant that he would not have told Mr. Kahlon to assume that the CT scan was normal if he did not hear from him (Dr. Khan); this was not his practice and it would also have been inconsistent with his reporting letter to Dr. Bermann. I have already concluded, based on Dr. Khan’s usual routine, that Mr. Kahlon was probably instructed to make an appointment with Dr. Khan to discuss the results following the CT scan.
[237] Counsel for plaintiff posits several possible explanations for Mr. Kahlon’s failure to return for either the follow up contrast scan or an appointment with Dr. Khan. Firstly, assuming that Mr. Kahlon was instructed to return once the CT scan was complete, the fact is that the scan never was complete; accordingly, there would have been no purpose in returning to see Dr. Khan until it was. Secondly, he may have been waiting to hear from Dr. Bermann. Finally, he was following the advice he had been given regarding physiotherapy, exercise and medication.
[238] In my view, none of these are compelling explanations. Whether he had made a deliberate decision not to attend for the scan or had simply procrastinated, Mr. Kahlon would not have been waiting for the test to complete since he probably would have known that the next step was his to take. The fact that he did not raise the issue of the CT scan when he went to see Dr. Bermann in April 2000 regarding a sore throat undermines the suggestion that he may have been waiting to hear from him. Finally, there is nothing about his following the advice he had been given regarding exercise and physiotherapy that goes any distance at all towards explaining why he did not follow up with the scan or return to see Dr. Khan.
[239] Based on the information that Mr. Kahlon likely received from Dr. Bermann and Dr. Khan, I find that he understood himself to have a disc problem. Dr. Bermann had advised Mr. Kahlon of his view that he probably had a muscular sprain or possibly a mild lumbar disc problem. Dr. Khan had told him that he likely had a L5-S1 disc injury. There is no evidence that Mr. Kahlon was ever told he had a potentially life-threatening or life-altering condition. To the contrary, Dr. Khan probably told him that often that type of injury is benign and that the natural history of the condition is that 95% of patients recover. The first suspicion that Mr. Kahlon’s condition was anything more serious only arose when Dr. Li reviewed the films from his non-contrast CT scan. There is no evidence that that information was ever conveyed to Mr. Kahlon.
[240] Mr. Kahlon’s belief that he had a problem with a disc is reflected in what he told Dr. Reid, his rheumatologist. As indicated in the Agreed Statement of Facts, when he saw Dr. Reid in September 2000, Mr. Kahlon understood that he had a disc problem or an abnormal disc, and that he used words to that effect in his discussions with the doctor. Following this appointment, Dr. Reid sent Dr. Bermann a consultation letter in which he reported that Mr. Kahlon “had a CT scan which apparently showed an abnormal disc”.
[241] The evidence does not suggest to me that Mr. Kahlon was a person who avoided medical treatment. He sought medical advice regarding back pain from Dr. Bermann, went to see Dr. Khan at Dr. Bermann’s direction, and then attended for a CT scan as directed by Dr. Khan. He also regularly attended for physiotherapy sessions. Thus, it was not the case that Mr. Kahlon had a tendency to ignore recommended treatment or medical directions. While I do not rely on this evidence, I note parenthetically Ms. Kahlon’s evidence when asked what she would have expected Mr. Kahlon’s attitude to be if he had received communication recommending a medical procedure. Her response was that he would do whatever he needed to do to figure out what was wrong with his back and make it better.
[242] Was there a misunderstanding between Mr. Kahlon and Dr. Khan or the UBC Hospital booking clerk who called about the contrast scan? There is no evidence of what Mr. Kahlon understood from Dr. Khan concerning follow-up other than that it can be inferred that he probably understood that he was to make a further appointment after the scan to discuss the results. It appears from his comment to Dr. Bermann that Mr. Kahlon knew that he was requested to return for a scan with contrast.
[243] It is puzzling why Mr. Kahlon, by all accounts an intelligent and conscientious individual, failed to re-attend at the hospital for the contrast scan and then to follow up with Dr. Khan regarding the results. Nevertheless, on the totality of the evidence, I find that the underlying context was that Mr. Kahlon believed that he had a benign disc problem that would in all likelihood improve with time and exercise, and that he likely procrastinated in returning to the hospital for the contrast scan. Why did he procrastinate? Perhaps because this occurred at a busy time in Mr. Kahlon’s life. He was about to marry and was also presumably busy with his teaching career. This, however, is only speculation.
[244] I observe that Dr. Bermann advised Mr. Kahlon at his appointment on February 4, 1999 to return the following week; it was July 19 before Dr. Bermann next saw Mr. Kahlon again. While I place little reliance on this evidence as demonstrating a propensity towards procrastination on the part of Mr. Kahlon, it is certainly not inconsistent with a conclusion that he likely procrastinated in returning for his contrast CT scan. Procrastination in this regard also provides a possible and consistent explanation for his failure to make a follow-up appointment with Dr. Khan. As I have found, Mr. Kahlon was probably instructed to make an appointment with Dr. Khan to discuss the test results following the CT scan. It follows that he likely would not have made that appointment until after he had attended for the follow-up scan.
[245] The authorities recognize that a patient’s failure to attend a follow-up appointment when he or she knows the importance of keeping the appointment will result in liability on the part of the patient: Centre Hospitalier de l’Université de Montréal v. Batoukaeva, 2008 QCCA 104; Wei Estate v. Dales, [1998] O.J. No. 1411 (C.J. (Gen. Div)) aff’d (2000), 135 O.A.C. 145; Patmore (Guardian ad litem of) v. Weatherston, [1999] B.C.J. No. 650 (S.C.); and Rupert v. Toth. In Rupert v. Toth, for instance, Low J. wrote:
[91] The defendants frame the central issue relative to Dr. Toth's management in this way: Does a physician, having clearly informed a patient of the need for follow-up, have an obligation to track and pursue a patient who does not make or show up for medical appointments?
[92] There is no recognized general obligation on the part of physicians to do so. See Hebert v. Stanley, [1989] O.J. No. 1418 (Ont. H.C.) and Patmore (Guardian ad litem of) v. Weatherston, [1999] B.C.J. No. 650 (B.C.S.C.).
[93] Likewise, there is a duty on the part of the patient to participate fully and honestly in his or her own health care. See Atack v. Castle, [2003] O.J. No. 1943 (Ont. S.C.J.). This entails disclosing relevant information to his physicians and following the physician's clear instructions to him.
[94] Correspondingly, the treating physician has the right to expect that the patient will follow his clear instructions and if the patient does not intend to do so, he has a duty to so inform the physician. See Wei Estate v. Dales, [1998] O.J. No. 1411 (Ont. Gen. Div.); upheld on appeal [2000] O.J. No. 2753 (C.A.) where the court stated,
The patient himself had a responsibility not only to take the medication as prescribed but to monitor his own signs and symptoms and to comply with the request for follow-up appointment.
The treating physician cannot be expected to follow-up every instruction given to a patient. The treating physician has the right to expect the patient will follow his or her instructions. If the patient disagrees with the doctor's instructions, then he has a duty to advise the doctor.
[95] The physician/patient relationship is a two-way street. There are duties and responsibilities running in both directions. As indicated above, I am satisfied that Pat was instructed by Dr. Toth both directly and indirectly to book an appointment following his CT scan to discuss the results and that Pat did not do so. In failing to follow that instruction, Pat breached one of his duties in the physician patient relationship with Dr. Toth.
[96] I cannot agree, however, with the way the defendants have framed the issue to be decided. In my view, what is at issue is not whether the physician has a general duty to chase down patients who do not comply with instructions to book an appointment but rather whether non-compliance by the patient with that instruction discharges the physician's obligation to inform, advise and warn, in timely fashion, in the particular circumstances of this case.
[246] I conclude that Mr. Kahlon was negligent in not taking reasonable care for his own health when he failed to return for the contrast CT scan after being requested to do so and when he failed to return to see Dr. Khan to discuss the results of his CT scan.
[247] The defendants submit that Mr. Kahlon’s negligence is exacerbated by what they say is his failure to return for medical care and advice in light of evidence of his continuing and at times worsening symptoms. They say that the evidence indicates that his symptoms did worsen, and they point, for instance, to his continuing use of his backrest, his need to rise from the dinner table to do back exercises, and his physiotherapy records in this regard. The defendants submit that having made his own diagnosis, Mr. Kahlon then took no action.
[248] That Mr. Kahlon’s back problems persisted after the CT scan is clear on the evidence. Whether they worsened is less so. According to the Oakridge Physiotherapy Centre patient records, Mr. Kahlon appears to have attended physiotherapy between May 1999 and August 1999, requested a driving letter in September and then returned in March 2000. He appears to have returned on March 10, 2000, the note at that time being “patient doing well overall until before Christmas”. The record also noted that he was getting married at the end of May.
[249] Ms. Kahlon testified that Mr. Kahlon’s back pain continued after September 1999 and could be characterized as very bad. She said that it would wax and wane but that it never went away. She did not agree that it had increased in severity after September 1999, which appeared to contradict what Dr. Cameron reported she had said to him. However, she did agree that his back pain increased in severity from time to time.
[250] Although Mr. Kahlon’s back problems continued after he went for the CT scan, I conclude that they did not significantly worsen for some time, and, as discussed above, that Mr. Kahlon likely believed he had a disc problem. He continued with his physiotherapy through March and April, such that at times he was doing very well. For instance, his back was pain free and without discomfort for his wedding day on May 20. Further, the fact that Mr. Kahlon did not mention his back when he went to see Dr. Bermann regarding a sore throat in April 2000 is also some evidence from which I can infer that it was not getting any worse.
[251] The defendants contend that Mr. Kahlon engaged in self-diagnosis when, without a final diagnosis from Dr. Khan or the results of the CT scan, he declined to seek medical attention for his persisting back pain. In my view, the present situation can be contrasted with cases such as Grant Estate v. Mathers (1991), 100 N.S.R. (2d) 363, 272 A.P.R. 363 (S.C.), where Boudreau J. was critical of the patient, Mr. Grant, for having “indulged in self-diagnosis and self-treatment rather than consult a physician or return to the Emergency Department as Mr. Grant had been advised.” Mr. Grant had been bitten by a dog, and was given a tetanus shot by an emergency department doctor. The doctor cautioned him to return if he subsequently became ill. When he did become ill a few days later, Mr. Grant’s wife assumed that he was suffering from the flu, which she herself had had three days earlier, and they did not return to the hospital. His condition continued to worsen, and Mr. Grant died shortly thereafter from septicaemia associated to the dog bite.
[252] In contrast to the foregoing, the medical advice that Mr. Kahlon had consistently received until the time he attended for the CT scan was that he likely had a benign disc or muscle problem. That diagnosis, in the result, was incomplete, as the CT scan would soon reveal. Nevertheless, Mr. Kahlon conducted himself on the basis of the working diagnoses of his doctors, and it is therefore not accurate, in my view, to say that he was engaging in self-diagnosis. It is, however, the case that Mr. Kahlon’s lack of accurate information about his medical condition and its potential seriousness was in part a consequence of his own actions in failing to follow up as he had been instructed, particularly in light of ongoing back pain, and for that he must bear some liability for the outcome in this case.
[253] I will discuss the issue of apportionment below.
7. Liability and Apportionment
[254] I have concluded that the defendant Vancouver Coastal Authority, operating as UBC Hospital, was negligent and that Mr. Kahlon was contributorily negligent.
[255] The question now is the apportionment of fault between them. For the reasons that follow, I have concluded that the division of fault is 70/30 between the UBC Hospital and Mr. Kahlon respectively.
[256] Relevant provisions of the Negligence Act, R.S.B.C. 1996, c. 333, provide:
Apportionment for Liability of Damages
1 (1) If by the fault of 2 or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss is in proportion to the degree to which each person was at fault.
(2) Despite subsection (1), if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability must be apportioned equally.
(3) Nothing in this section operates to make a person liable for damage or loss to which the person's fault has not contributed.
...
6 In every action the amount of damage or loss, the fault, if any, and the degrees of fault are questions of fact.
...
8 This Act applies to all cases where damage is caused or contributed to by the act of a person even if another person had the opportunity of avoiding the consequences of that act and negligently or carelessly failed to do so.
[257] The authorities establish that the apportionment of fault under the Negligence Act is based on the degree of fault that should be attributed to each of the parties, not the degree of causation. In Cempel v. Harrison Hot Springs Hotel (1997), 43 B.C.L.R. (3d) 219, 100 B.C.A.C. 212, Lambert J.A. described the proper approach to apportioning liability when several parties are found to be negligent at para. 19:
[19] ... The Negligence Act requires that the apportionment must be made on the basis of "the degree to which each person was at fault". It does not say that the apportionment should be on the basis of the degree to which each person's fault caused the damage. So we are not assessing degrees of causation, we are assessing degrees of fault. In this context, "fault" means blameworthiness. So it is a gauge of the amount by which each proximate and effective causative agent fell short of the standard of care that was required of that person in all the circumstances. [Emphasis in original]
[258] With respect to assessing relative blameworthiness, Lambert J.A.’s comments at para. 24 provide some guidance:
[24] In the apportionment of fault there must be an assessment of the degree of the risk created by each of the parties, including a consideration of the effect and potential effect of occurrences within the risk, and including any increment in the risk brought about by their conduct after the initial risk was created. The fault should then be apportioned on the basis of the nature and extent of the departure from the respective standards of care of each of the parties. …
[259] In Alberta Wheat Pool v. Northwest Pile Driving Ltd., 2000 BCCA 505, 80 B.C.L.R. (3d) 153, Finch J.A. elaborated at paras. 45-46:
[45] In my view, the test to be applied here is that expressed by Lambert J.A. in Cempel, supra, and the court’s task is to assess the respective blameworthiness of the parties, rather than the extent to which the loss may be said to have been caused by the conduct of each.
[46] Fault or blameworthiness evaluates the parties’ conduct in the circumstances, and the extent or degree to which it may be said to depart from the standard of reasonable care. Fault may vary from extremely careless conduct, by which the party shows a reckless disregard for the safety of person or property, whether his own or others, down to a momentary or minor lapse of care in conduct which, nevertheless, carries with it the risk of foreseeable harm.
[260] Fruman J.A. of the Alberta Court of Appeal summarized some of the factors that courts have considered in assessing relative blameworthiness at para. 34 of Heller v. Martens, 2002 ABCA 122, 303 A.R. 84:
[34] Apportionment of fault between a contributorily negligent plaintiff and a negligent defendant under the CNA requires an assessment of the parties' degree of departure from the standard of care. Although not an exhaustive list, in assessing comparative blameworthiness courts have considered such factors as:
1. The nature of the duty owed by the tortfeasor to the injured person ...
2. The number of acts of fault or negligence committed by a person at fault ...
3. The timing of the various negligent acts. For example, the party who first commits a negligent act will usually be more at fault than the party whose negligence comes as a result of the initial fault ...
4. The nature of the conduct held to amount to fault. For example, indifference to the results of the conduct may be more blameworthy ... Similarly, a deliberate departure from safety rules may be more blameworthy than an imperfect reaction to a crisis ...
5. The extent to which the conduct breaches statutory requirements. For example, in a motor vehicle collision, the driver of the vehicle with the right of way may be less blameworthy ...
[Citations omitted]
[261] It is worth emphasizing that what I must assess is relative fault or blameworthiness, not causation. Were causation the test, the facts of this case might suggest an equal apportionment of liability: if either the hospital or Mr. Kahlon had not been negligent, as I have found them, Mr. Kahlon’s injuries would have been avoided. However, that is not the test, and what I must instead consider is the blameworthiness of each to determine whether there is a difference in degree or whether it is too close to call such that I must have resort to s. 1(2) of the Negligence Act.
[262] I turn first to the defendant hospital. As set out in para. 19 of the Agreed Statement of Facts:
c) The hospital understands that the radiology services are considered by physicians and the patients as an integral part of the investigation and diagnostic process of the patients;
d) The hospital understands the patients and physicians alike rely upon accurate and timely reports for all radiology services provided;
e) The hospital understands that a failure to provide accurate and timely reports may result in a delayed diagnosis of illness which could have potentially disastrous consequences for the patient;
f) In order to provide these radiology services, the hospital understands that it has to provide part of the process. In other words, they have to provide, for example,
• good equipment;
• properly trained personnel;
• They also have to set up an appropriate system to verify that the
films are taken properly and that each film taken is reported as quickly as possible;
g) The hospital had undertaken the task of setting up a system set up to verify the accurate and timely reporting of X-rays;
h) The hospital understands that physicians and patients alike rely upon the system to verify that reports are done and sent to referring physicians in a timely way.
[263] Moreover, the hospital additionally understood that the radiologists did not keep track of follow-up requests and relied on the hospital to ensure that the necessary follow-up occurred.
[264] In my view, the hospital deviated markedly from the standard of care applicable in the foregoing circumstances.
[265] As I discussed earlier, the hospital’s protocol was not followed in two respects. First, the booking clerk failed to notify Dr. Li or another radiologist that arrangements had not been made for Mr. Kahlon to return for a contrast enhanced CT scan. Second, Mr. Kahlon’s CT scan films were not returned to Dr. Li or any other radiologist when it became apparent that he had not returned for the contrast scan. It is likely that was because they were misfiled in the main film library which housed those films for which a finalized report had been issued. Such misfiling, as Ms. Stewart said, never should have happened. It did, however, despite a number of checks designed to protect against that eventuality. The sticker on the yellow master bag had not been initialled by Dr. Li, which should have alerted the clerk to the fact that films had not been reported on. Moreover, had the film bag been properly checked, it would have been apparent that it did not contain a finalized report.
[266] Any system that relies on human beings is naturally susceptible to human error. The fallibility of the hospital’s protocol is reflected in the fact that multiple employees were negligent in the discharge of their duties in this case, with the consequence that Mr. Kahlon’s CT scan went unreported for over a year. Nevertheless, it is in the failure of the hospital to take into account the foreseeability of such employee error by having in place a back-up system that I find it also departed significantly from the standard of care. The hospital recognized the extent to which physicians and patients relied on its system, as well as the potentially disastrous consequences that could befall a patient in the event of a breakdown in that system. It should have been apparent to the hospital that whatever system it instituted to provide radiology services had to include a mechanism to monitor the timely reporting of films. Indeed, the Meditech system that the department used for billing purposes had that very capability, but it went unused by hospital staff. Given the magnitude of this systemic deficiency, coupled with the negligence of the hospital employees in the handling of Mr. Kahlon’s CT scans, a high degree of fault must be attributed to the hospital.
[267] What, then, of the fault of Mr. Kahlon?
[268] There is no question that Mr. Kahlon, in the face of continuing back problems, was negligent in failing to re-attend the hospital for a contrast scan and to book a follow-up appointment with Dr. Khan. However, the underlying context is relevant in assessing the extent of his blameworthiness in this regard. Mr. Kahlon had sought medical attention for his back which he appeared to have initially injured during a lifting incident. He had received medical advice from two physicians that his back pain was most likely disc related and was in all likelihood a benign condition that would recover with time and exercise. While Mr. Kahlon would have been aware that the investigation into his condition was incomplete, and his back pain was continuing, there is no evidence that the possibility of the CT scan revealing a life-threatening or life-altering condition was ever suggested to him. As I earlier found, Mr. Kahlon’s failure to re-attend for the contrast scan likely was the result of procrastination as opposed to a deliberate decision on his part.
[269] There is a duty on the part of a patient to participate fully and honestly in his own health care. This entails disclosing relevant information to physicians and following the physicians’ clear instructions: Rupert v. Toth. A significant degree of fault must attach to Mr. Kahlon’s failure to re-attend for the contrast scan and, to a somewhat lesser degree, to follow up with Dr. Khan. In my view, however, not every failure of a patient to follow up appointments or testing equates to the same degree of fault. The patient’s understanding of his condition and of the potential risks of not following up, and other steps he has taken, are relevant contextual factors in this regard.
[270] Mr. Kahlon’s situation might be contrasted, for instance, with a patient who presents with a lump in her breast and fails to attend for a mammogram or other diagnostic testing as directed by her physician. Given that breast cancer is an obvious potential diagnosis, it is my view that her failure to attend carries a higher degree of fault than Mr. Kahlon’s failure in light of what he had been advised and understood about his condition as discussed above. Overall, Mr. Kahlon sought and generally followed the medical advice he received, and continued to seek physiotherapy treatment for his back after the missed scan. In the circumstances, I consider his conduct in failing to attend for that scan and then to see Dr. Khan to have been careless and, while a departure from the conduct of a reasonable patient, substantially less blameworthy than that of the hospital.
[271] I conclude that the circumstances of this case point to a disproportionate assessment of fault. I apportion liability 70% to UBC Hospital and 30% to Mr. Kahlon.
1. Agreed and Not Agreed Damages
[272] The parties are in agreement with respect to several heads of damage. Others, however, remain in dispute. The parties filed an exhibit setting out the heads of damage that are both agreed and not agreed. They are agreed upon the following:
| Non-pecuniary damages: | $324,500.00 |
| Accessible housing: | $345,000.00 |
| Past wage loss to September 1, 2008: | $395,000.00 |
| Special Damages |
|
| Medications and therapies paid by Blue Cross to August 31, 2008: | $103,592.00 |
| (plus $1,600 per month from September 2008 to June 30, 2009): | $16,000.00 |
| Expenses of Michelle and Shawn Kahlon: | $139,565.11 |
| Expenses of Jaghdir and G.S. Kahlon : | $187,309.60 |
| Loss of Earning Capacity | $1,362,400.00 |
| Future care costs: (These figures, which include costs for bathing and personal care supplies, activities of daily living supplies, nutritional requirements and supplies, pharmaceutical requirements, physiotherapy and massage equipment and services, occupational therapy, psychological counselling, rehabilitation case management, transportation costs, additional dental needs, recreational community programs, interior home maintenance, exterior home maintenance and associated travel costs, have been agreed.) | $71,265.48 plus $77,012.03 |
[273] The issues regarding which there is no agreement are these:
(a) care aide award
(b) rehabilitation aide
(c) swallowing therapies
(d) speech language therapies
(e) cost of care contingency
(f) in-trust damages or award for:
(i) Michelle Kahlon
(ii) Mr. and Mrs. Kahlon
(g) the life expectancy of Mr. Kahlon
The parties acknowledge that prejudgment interest should appear on past and incurred losses. The parties also acknowledge that issues of post-judgment interest, tax gross-up, the committee and management fees, and taxable costs and disbursements will have to be agreed or assessed following judgment.
[274] As it is relevant to the disputed damage claims, I will briefly review Mr. Kahlon’s condition and the care he requires.
[275] Mr. Kahlon’s TB Meningitis infection resulted in an inflammatory reaction within the blood vessels serving the base of his brain. Dr. Cameron, a neurologist, explained that he had a severe cerebral vascular accident or stroke about three weeks after a ventricular peritoneal shunt was placed and, as a result of this complication from TB Meningitis, he has suffered a severe brain injury. Mr. Kahlon has a shunt in place to reduce excess pressure from spinal fluid, which shunt is susceptible to infection and blockage that may result in possible surgical replacement.
[276] As a result of the damage to the motor regions of his brain, Mr. Kahlon has spasticity and reduced motor control. He is virtually unable to speak and has significant cognitive deficits. Mr. Kahlon is severely compromised and is unemployable.
[277] Dr. Anton, a physiatrist, assessed Mr. Kahlon on July 27, 2007. He found that Mr. Kahlon has the following:
(a) a spastic quadraparesis, a term that means weakness in all extremities associated with spasticity;
(b) neurogenic bowel and bladder, which describes a compromise of neurological control;
(c) significantly reduced lung function and reduced ability to cough;
(d) dysphagia;
(e) dysarthria;
(f) visual defect;
(g) impairment of cognitive function;
(h) ongoing pain;
(i) osteoporosis;
(j) sleep apnea;
(k) risk to develop contractures and probably already has some;
(l) fatigue;
(m) hydrocephalus with a shunt in place to manage same;
(n) requirement for a gastronomy tube for nutrition and hydration.
[278] Mr. Kahlon requires assistance in all aspects of his care, 24 hours a day. There may be short periods when he does not require care, but he cannot be left alone. Transfers to the bathroom, the shower and a vehicle are time consuming and difficult for his caregivers. Ms. Kahlon has been involved in all aspects of his care since the time that Mr. Kahlon has been living at home.
[279] I will deal in more detail with some of Mr. Kahlon’s disabilities, their extent and whether they are subject to variation when I discuss particular aspects of his future care that are in dispute. I will not dwell on others because of the agreements between the parties on a number of heads of damage.
[280] Let me describe Mr. Kahlon’s usual daily routine.
[281] Mr. Kahlon sleeps about 12 hours each day and naps for an additional 3 or 4 hours. During the hours when he is not sleeping, Mr. Kahlon has a bowel bathroom protocol which takes approximately ½ to 1 hour. He spends about 20 minutes to 1.5 hours in a standing frame; this exercise assists with spasticity and bone density. He is tube-fed 3 meals and has 1 to 3 oral snacks. An oral feeding takes about 10 minutes per snack.
[282] Mr. Kahlon receives massage therapy twice each week for 45 minutes to 1 hour, and receives physiotherapy three times each week for 1 to 1.5 hours per session. Twice a week he attends the Kinsmen Centre for 2 hours per session. On Fridays to Saturday evenings, for a period of about 30 hours, he goes to his parents’ home.
[283] Since Mr. Kahlon’s stroke in October 2000, Michelle Kahlon has been his caregiver and the person responsible for decisions involving his care.
[284] Mr. Kahlon was in RGH until October 2001. He went to Purdy Pavilion for just over a month and then to Ponoka until November 10, 2003 when he was discharged. In Ponoka, according to Ms. Kahlon’s evidence, she was there during that two year period about 15.5 hours per day during the week and 21 hours per day on the weekends.
[285] Since about November 12, 2003, Mr. Kahlon has been living at home with his wife, who is his primary caregiver. If not directly providing his care, she is responsible for supervising all personnel involved in his care and instructing them to ensure that his needs are safely and properly met. Ms. Kahlon is engaged in and responsible for all of Mr. Kahlon’s care which includes feeding, bathing, toileting, teeth brushing, condom catheters, speech exercises, assisting with physiotherapy, massage, physical exercises, transportation, medications, cleaning and laundry, making arrangements with caregivers and providing supervision. Ms. Kahlon assists most caregivers who provide morning shifts with feeding, bathing and transfers.
[286] Ms. Kahlon also tries to sleep in bed beside her husband. She sets up and monitors his sleep apnea with a Bi-Level Positive Airway Pressure (“BiPAP“) machine. Although there is dispute about whether she needs to do it, she checks on Mr. Kahlon in the evenings every thirty minutes. Mr. Kahlon receives some home care assistance at the present time, and, as noted above, spends some time at the Kinsmen Centre and with his elderly parents. In terms of the visit to Mr. Kahlon’s parents, Ms. Kahlon takes him there in the van after physiotherapy.
[287] There have been about 20 different caregivers since Mr. Kahlon returned home. The care provided by Vancouver Coastal Health Authority and the Kinsmen program is supplied on an urgent basis due to lack of funds. That will cease when this judgment is handed down.
[288] Ms. Kahlon’s evidence is that she is required to provide care for 118 of the 168 hours in a week, the time off being the time Mr. Kahlon is at his parents, the homecare hours, and the time he is at the Kinsmen Centre day program.
[289] The provision of this care has been difficult for Ms. Kahlon. She has exhibited signs of burn out, requires sleeping medication, and has started to drink more, something she had not done in the past. She has suffered from some depression, has put on weight, has become irritable and suffers from headaches. She has put her life and career on hold since Mr. Kahlon’s injury.
[290] Mr. and Mrs. Kahlon Sr. are 78 and 67 years of age respectively. They are involved in the care of Mr. Kahlon each week from Friday afternoon to Saturday, plus a few other days each year. Given her age, Mr. Kahlon’s mother requires help and pays a former house cleaner $500 a month in cash for her assistance, for which she receives two hours of homecare to assist with Mr. Kahlon’s morning routine. His parents have purchased and installed an overhead lift, which is equipped with a sling and helps move Mr. Kahlon, but they managed manually from 2003 to 2007. Mrs. Kahlon Sr. says that she and her husband were very concerned about Michelle Kahlon looking after Mr. Kahlon because of the recentness of the marriage, and felt they had to be there to make sure their home was appropriate and accessible. Mrs. Kahlon Sr. travelled to Ponoka when her son was at the rehabilitation centre and was trained to care for him. Mr. and Mrs. Kahlon Sr. have relocated to another home and have incurred various costs which I will discuss when I outline their claim for special damages.
3. Discussion of Contested Damage Claims
[291] As noted in Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 at 243-244, 83 D.L.R. (3d) 452:
An award must be fair to both parties, but the ability of the defendant to pay has never been regarded as a relevant consideration in the assessment of damages at common law. The focus should be on the injuries of the innocent party. Fairness to the other parties is achieved by assuring that the claims raised against him are legitimate and justifiable.
[292] In Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.), McLachlin J., as she then was, said the following which is relevant to the cost of future care at 78:
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.
…
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.
[293] As McLachlin J. noted at 83-84:
The physical arrangements to be used in assessing cost of future care are based on what is required to preserve and promote the plaintiff’s health. In Andrews, supra, Dickson J. said at p. 586:
…to the extent, within reason, that money can be used to sustain or improve the mental or physical health of the injured person it may properly form part of a claim. [Emphasis added by McLachlin J.]
…
... The test for determining the appropriate award under the heading of cost of future care, it may be inferred, is an objective one based on medical evidence.
These authorities establish (1) that there must be a medical justification for claims for cost of future care; and (2) that the claims must be reasonable.
[294] The first issue that I should discuss relating to damages is the question of Mr. Kahlon’s life expectancy. This is, of course, relevant to the determination of the cost of future care and his loss of earning capacity.
[295] Mr. Kahlon was born in 1967. According to the expert witnesses, as of mid-2008, males of his age have a life expectancy of a further 37.1 to 37.7 years. It is common ground that Mr. Kahlon’s life expectancy has been reduced. The expert evidence was directed towards predicting the extent to which this is the case.
[296] The plaintiff’s position is that the most compelling evidence on life expectancy is that of Dr. Chambers and Dr. Elliott, which is based on the traumatic brain injury population as the comparator group. Citing Dennis v. Gairdner, 2002 BCSC 1289, 5 B.C.L.R. (4th) 275; and Arce (Guardian ad litem of) v. Simon Fraser Health Region, 2003 BCSC 998, 17 C.C.L.T. (3d) 97, he submits that I must take a reasonable and not pessimistic view of Mr. Kahlon’s life expectancy, and that in the circumstances, 25 years is a reasonable estimate.
[297] The defendants disagree and submit that the most persuasive evidence is found in the expert testimony of Dr. MacKenzie; his opinion is that Mr. Kahlon’s life expectancy is in the range of 12-16 years. The defendants say that Dr. MacKenzie‘s evidence is based on more current data than that relied upon by the plaintiff’s two experts, and while also based on traumatic brain injury data, it adds a more refined indicator of life expectancy, that being the extent to which a person is able to feed him or herself.
[298] The difference between the life expectancy estimates of the plaintiff’s experts on the one hand and the defence expert on the other stems primarily from the studies upon which they relied. Dr. Chambers and Dr. Elliott relied principally on Robert Shavelle, PhD and David Strauss, PhD, “Comparative Mortality of Adults With Traumatic Brain Injury in California, 1988-97”, J Insur Med 2000, 32:163 – 166 (the “2000 study"). That study was based on 2629 individuals over the age of 15 who had suffered a traumatic brain injury, and stratified that population into three groups based on ambulation: unable to walk, some walking ability and able to walk alone. The 2000 study has been peer reviewed.
[299] While Dr. MacKenzie relied on this study, he additionally turned to a 2007 study by Drs. Shavelle and Strauss (and also Steven Day and Kelly Ojdana) that was published as a chapter in a text, Brain Injury Medicine: Principles and Practice (New York, Demos Medical Publishing) (the “2007 study”). That more recent study provided new estimates of life expectancy based on what the authors describe as “a refinement of data presented in our earlier publications”. The 2007 study was based on 3598 individuals over the age of 10 who had suffered a traumatic brain injury, and it broke down the “unable to walk” category into “fed by others” and “self feeds”. In the former sub-category, the life expectancy of a 40 year old is 16 years; in the latter, 26 years. The 2007 study has not been peer reviewed.
[300] I turn now to briefly review the evidence of the three experts.
[301] Dr. Keith Chambers is a physician and associate clinical professor at UBC’s Faculty of Medicine with a masters degree in clinical epidemiology. He has written and studied in the area of life expectancy for over 20 years, and has published numerous articles in peer-reviewed medical journals. He has been accepted by the Supreme Court of British Columbia as an expert in life expectancy.
[302] Dr. Chambers conducted an independent medical examination of Mr. Kahlon in October 2007. His opinion was based on the factors he summarized in his report: Mr. Kahlon had suffered severe brain damage, was immobile without a wheelchair or a person assisting, had severe cognitive impairment, had swallowing difficulties that were managed by tube feeding, and had respiratory problems and aspiration but no chest infections. In Dr. Chambers’ view, the traumatic brain injury and cerebral palsy populations were the best comparator groups. It was clear from that data, he opined, that life expectancy for those with such non-progressive brain injuries was related to the severity of the damage, regardless of the cause.
[303] Dr. Chambers relied on the 2000 study, and determined that Mr. Kahlon’s excess mortality ratio was equivalent to those in the 30 to 44 age range in the non-ambulatory group. He arrived at a life expectancy of 64% of normal, or 24 years. (Dr. Chambers’ evidence was that Mr. Kahlon’s normal life expectancy would have been 37.2 years.) He also referred to data related to the survival risk of those with cerebral palsy, which gave a similar life expectancy of 65% for the most approximate age group to Mr. Kahlon. Dr. Chambers indicated that based on the cerebral palsy literature, if Mr. Kahlon improved to the point where he could receive his nutrition and medications orally, his life expectancy would improve by an additional 1.1 years.
[304] Dr. Chambers agreed in cross-examination that the non-ambulatory category referred to in the 2000 study could be misleading given its scope, ranging from individuals in a vegetative state to those able to engage in self-care; as such, it risks grossly overestimating the life expectancy of some and underestimating the life expectancy of others. Dr. Chambers was referred to the 2007 study, which study was referred to by Dr. MacKenzie, and he was strongly of the view that it should not be relied upon for an opinion as to life expectancy because it was not a peer-reviewed publication. He also expressed his view that feeding ability was simply a marker for mobility as opposed to an independent risk factor.
[305] Dr. Thomas Elliott was the second expert called by the plaintiff. He is a specialist in internal medicine with a subspecialty in endocrinology and is an assistant professor at UBC’s Department of Medicine. He has an active clinical practice and is certified by the American Association of Insurance Medicine in mortality, statistics and actuarial methodology. Like Dr. Chambers, Dr. Elliott has been accepted by the British Columbia courts as an expert witness on life expectancy.
[306] Dr. Elliott based his opinion on Mr. Kahlon’s current symptoms which he described as including near-quadraparesis with the left side essentially non-functional, restrictive lung disease, sleep apnea, feeding difficulties, aspiration, pneumonia, fatigue, reliant on virtually total care as a result of neurological dysfunction, inability to dress or feed himself, inability to manage bowel or bladder care, and use of a feeding tube. He assumed that Mr. Kahlon’s excess mortality over normal life expectancy was due to his status post-tuberculosis meningitis. He described it as TB meningitis complicated by hydrocephalus and a right cerebralvascular accident or stroke affecting the left side of his body. He did not examine Mr. Kahlon. Dr. Elliott’s opinion was that Mr. Kahlon had a life expectancy of a further 25.9 years, or, in other words, a reduction of life expectancy of 11.2 years due to medical risks.
[307] Like Dr. Chambers, Dr. Elliott was of the view that Mr. Kahlon fit into the 30 to 44 age group in the non-ambulatory category in the 2000 study. Dr. Elliott, although agreeing that those at either end of the non-ambulatory spectrum would have either overestimated or underestimated life expectancies, also did not rely on the 2007 study because it was not peer-reviewed. In re-examination, he was asked to assume the accuracy of the 2007 study and was questioned whether Mr. Kahlon fell into the “fed by others” category, defined as “does not feed self, must be fed completely (either orally or by a feeding tube”, or “self feeds”, which was defined as “can feed self with fingers or utensils, with assistance and/or spillage”. He said the latter, self feeds, which according the data resulted in a 26 year life expectancy.
[308] The defendant called Dr. Ross MacKenzie as an expert witness on this issue. He was for many years the Chief Medical Officer of Sun Life Financial. He is editor of the Journal of Insurance Medicine, and also works as a consultant to the California Life Expectancy Project which maintains a database for calculating life expectancy opinions.
[309] Dr. MacKenzie set out the assumptions upon which he based his opinion. Among Mr. Kahlon’s functional limitations that he considered relevant to life expectancy were cognitive impairments consistent with global and diffuse brain disfunction (poor short-term memory, disorientation, inability to perform basic activities of daily living, requirement of around the clock supervision), limited motor function (spastic quadriparesis, left hemiplegia, and dependent in all aspects of mobility), high aspiration risk and requiring a feeding tube, and neurogenic bowel and bladder. Dr. MacKenzie testified that he referred to the 2000 study as well as to the 2007 study. He used the methodology of Drs. Strauss and Shavelle for traumatic brain injury, and explained that it relied on mobility and feeding status to stratify mortality risk. Two levels of function were assumed to estimate life expectancy: limited motor function – fed orally, and limited motor function – tube feeding. Applied to Mr. Kahlon, he opined his life expectancy was 16.2 years if fed by others, and 13.1 years if he was reliant on tube feeding. This was respectively 43% and 35% of the life expectancy for a man of Mr. Kahlon’s age.
[310] Dr. MacKenzie explained that he had compared these results to the stroke-brain injury model to see if he was in the ball park. The stroke-brain injury model, he said, produced a very similar number to the traumatic brain injury model. He arrived at a figure of 15.4 at the high end and 12.4 at the low end, depending on the level of disability assigned.
[311] Dr. MacKenzie commented upon the reports of Dr. Chambers and Dr. Elliott. He testified that the principal reason for the difference in their estimates was that they used the 2000 study, which stratified mortality risk strictly on the basis of mobility. He explained that within the group of individuals with traumatic brain injury who cannot walk, there is a wide spectrum of risk from those in a vegetative state with low life expectancy to those whose cognitive function enables them to perform daily living activities and who have fairly reasonable live expectancy. Dr. McKenzie testified that investigators into life expectancy are constantly refining the manner in which they approach the issue, and have done so by introducing the aspect of feeding. He said that while he would have preferred to see the 2007 study in a peer reviewed journal, the authors are recognized experts in their field and the text in which it appears has been peer-reviewed. Further, the methodology was described and the sample size was larger than the 2000 study, something he thought allowed the authors to further segregate their approach to determine the risks to life expectancy. Dr. MacKenzie testified that the ability to walk is a powerful marker and that the ability to feed oneself was the next most significant marker because of the complexity of the activity.
[312] Dr. MacKenzie was asked his opinion about Dr. Elliott’s evidence that he would characterize Mr. Kahlon as a self-feeder for the purposes of the 2007 study. He disagreed with that assessment, and said that based on his review of the information from Mr. Kahlon’s caregivers, assessments and the video that was introduced as an exhibit at trial, he would not characterize him as a self-feeder.
[313] Dr. MacKenzie testified that he relied on Dr. Anton’s report which, among other things, noted that Mr. Kahlon required a gastronomy feeding tube for nutrition and hydration.
[314] Dr. MacKenzie testified that to further test his opinion, he programmed his clinical assumptions into the California Life Expectancy Project database. Those clinical assumptions included Mr. Kahlon’s age, sex, his inability to walk and the fact that he was fed orally by others. The computer program indicated a life expectancy of 15.3 years.
[315] The plaintiff’s counsel questions whether Dr. MacKenzie’s opinion was really his own, given that he did not do a clinical assessment of Mr. Kahlon, relied on assumptions, and went to a website and completed a form. He challenges whether Dr. MacKenzie performed an independent analysis rather than relying on the computer program for an answer. I conclude that Dr. Mackenzie’s opinion was his own and not simply the result of his entering information into a computer program on the California Life Expectancy Project website. That was something he did for the purposes of testing his view.
[316] For the reasons that follow, I conclude that Dr. MacKenzie’s opinion is the most persuasive and therefore entitled to the most weight in determining Mr. Kahlon’s life expectancy.
[317] The contention by Dr. Chambers and Dr. Elliott that the 2007 study was not peer-reviewed is not, in my view, a proper basis to reject it out of hand. While I consider that to be a factor to take into consideration, I also note the following: two of the authors of the 2007 study are the same authors of the study that Drs. Chambers and Elliott rely upon entirely for the purposes of their opinions; the 2007 study is based on a larger sample size; and the 2007 study has been published in a text, Brain Injury Medicine: Principles and Practice, which Dr. MacKenzie testified has been favourably reviewed in the New England Journal of Medicine and is likely to become the authoritative text on traumatic brain injury in the future. Dr. MacKenzie says, and I accept, that the authors summarize their methodology at the end of the chapter, which is something Dr. Chambers is critical of the study for lacking.
[318] Further, and significantly, the 2007 study uses more refined criteria than does the earlier study. The authors themselves referenced the difficulty of relying entirely on the 2000 study when they noted that:
The simple stratification into three groups on the basis of ambulation is somewhat crude; a more refined analysis that takes account of the patient’s mobility, feeding and cognitive levels is possible using statistical methods…
[319] Indeed, both Dr. Chambers and Dr. Elliott agree that looking only at the non-ambulatory spectrum risks overestimating or underestimating the life expectancy of those at the upper and lower levels of the range.
[320] The 2007 study is more refined in that it incorporates feeding ability into the data. The plaintiff’s counsel asserts that Dr. MacKenzie is double counting risk factors but, upon my review of his evidence, I disagree. I also note Dr. Chambers’ opinion that a person’s feeding ability is simply a marker for mobility as opposed to an independent risk factor. However, I find Dr. MacKenzie’s explanation to be persuasive. He testified that walking is a complicated movement that requires complex neural and muscular input. The inability to walk is a reflection of the amount of damage that has been done, which is a determinator for mortality. Similarly, he said, feeding ability, while a different kind of activity, also requires complex neural and muscular input, and is similarly a marker of the degree of damage. Dr. MacKenzie explained that in an earlier work that Drs. Strauss, Shavelle and Anderson did with young adults, they found that walking ability was the major marker, but that feeding ability was the next most powerful marker. That is why he said the authors had chosen to include feeding ability in the 2007 study. Tube feeding in the original study involving young adults had six times the mortality ratio when compared to people who were fed normally.
[321] The evidence is that determination of life expectancy depends upon a consideration of various factors, and that the methodology continues to evolve. I accept Dr. MacKenzie’s evidence about why the 2007 study reflects a more refined approach to the question than the earlier 2000 study. Particularly given that the primary authors of both studies are the same, I find that Dr. MacKenzie’s reliance on the 2007 study was reasonable. As he relied on more precise and refined data and factors than did the experts called by the plaintiff, I conclude that in the circumstances, greater weight should be accorded his opinion.
[322] The plaintiff argues that there is ample evidence that Mr. Kahlon feeds himself. Although he does pleasure feed with the assistance of a caregiver, the evidence indicates that he is now, and will be, essentially tube fed which, in my view, correctly was the assumption relied upon by Drs. Chambers, Elliott and MacKenzie.
[323] The defendants submit that if weight is given to the 2007 study and had it been utilized by Dr. Chambers, based on his clinical findings, the life expectancy he would have found would have been at the most 16 years. That would then have to be further reduced because of Mr. Kahlon’s tube feeding, since the 2007 study does not take tube feeding into account and looks simply at whether a person is self-fed or fed by others. I think that there is merit to that contention.
[324] Predicting life expectancy is by no means an exact science. This is reflected in the broad range of estimates before me regarding Mr. Kahlon’s life expectancy. The hospital, relying on Dr. MacKenzie’s opinion that if reliant on tube-feeding, Mr. Kahlon’s life expectancy is a further 13.1 years, contends that that is the appropriate figure I should use. The other defendants say that the best estimate of Mr. Kahlon’s life expectancy is between a further 12 and 16 years. The plaintiff’s experts predict a life expectancy in the range of 25 years. Although, for the reasons I have discussed, I attach less weight to this evidence, it is, nevertheless, entitled to careful consideration.
[325] As Dr. MacKenzie noted in his report, “the magnitude of the increase in long term mortality rates in brain injury patients largely depends on the severity of the resulting disability”. While the evidence is that mobility and ability to feed provide helpful insight into gauging disability, they are, nevertheless, only general and approximate measures. In ascertaining life expectancy, I must take an approach that is reasonable and not unduly pessimistic and recognize that he has received and will likely continue to receive excellent care. Taking into account the fact that the expert evidence can provide only estimates of Mr. Kahlon’s life expectancy, I find that in the circumstances, Mr. Kahlon’s life expectancy is an additional 17 years from the date of these reasons.
5. Care to be Provided (24-hour care)
[326] There is no issue but that Mr. Kahlon requires 24-hour care. The plaintiff’s expert, Janice Landy, a nurse of lengthy experience, was of that opinion. The evidence and the submissions show that is now common ground. Mr. Kahlon’s needs for which he requires care and assistance are extensive.
[327] The question is how that care can reasonably be provided and at what cost.
[328] In Bystedt (Guardian at litem of) v. Hay, 2001 BCSC 1735, aff’d 2004 BCCA 124, D. Smith J.(as she then was) said at paras. 162-163:
[162] The test for an award of future care is "whether a reasonably-minded person of ample means would be ready to incur the expense. When measuring reasonableness, the expense should not be a squandering of money": Brennan v. Singh, [1999] B.C.J. No. 520 (S.C.). In formulating this test Harvey J. referred to the decision of Zapf v. Muckalt (1996), 26 B.C.L.R. (3d) 201 (C.A.), where Donald J.A. stated at para. 36:
I think the proper test is reasonableness and that the psychological and emotional factors influencing the choice of where to live must be considered: Andrews v. Grand & Toy Alberta Ltd... Medical necessity is too stringent a test.
[163] Thus, the claim must be supported by evidence that establishes the proposed care is what a reasonable person of ample means would provide in order to meet what the plaintiff "reasonably needs to expend for the purpose of making good the loss": Janiak v. Ippolito (1985), 16 D.L.R. (4th) 1 (S.C.C.), at 17, quoting from the decision of Darbishire v. Warran, [1963] 1 W.L.R. 1067 at 1075. It must also be based on an objective test of what is moderate and fair to both parties: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.); and, Andrews, supra. As stated in Andrews, at page 235, "What is being sought is compensation not retribution." Similarly, in Sigouin (Guardian ad litem of) v. Wong (1991), 10 C.C.L.T. (2d) 236 Melvin J. stated at p. 281:
... An award [for future care] must not take the form of retribution or punishment of the tortfeasor, but should reflect the needs of the plaintiff as demonstrated by the evidence.
[329] Accordingly, the issue for me to decide is the amount that should be awarded for that level of future attendant care that is reasonably necessary on the medical evidence to promote the mental and physical health of Mr. Kahlon.
[330] The plaintiff’s position is that the issue essentially reduces to a choice between 24-hour awake care supplied by an agency or 24-hour awake care supplied by caregivers with Ms. Kahlon managing that care. (24-hour awake care refers to a caregiver being awake and on duty to care for Mr. Kahlon.) The defendants disagree and say that the question is whether the care should be 24-hour live-in care and how that care should best be provided. (Live-in care refers to a caregiver living in the Kahlon home.)
[331] The plaintiff says that live-in care is not reasonable as it does not meet Mr. Kahlon’s needs: Mr. Kahlon requires 24-hour awake care, and the optimum and realistic way of providing that care is through a care agency. As a practical matter, the plaintiff’s counsel contends that the major care agencies in British Columbia simply cannot and will not provide live-in care for Mr. Kahlon, and that, he says, effectively ends consideration of that possibility. The plaintiff argues that the defendants’ insistence that a live-in care worker provide the required overnight care is contrary to employment standards legislation, given that the significant degree of care Mr. Kahlon requires both during the day and at night requires the caregiver to be rested and awake. The plaintiff submits that “nanny care”, which is a reference to privately hired caregivers, is also not acceptable since Ms. Kahlon would be forced to advertise, screen, and supervise new employees. Hiring caregivers privately is difficult, and the legal burden for the contract would rest on Ms. Kahlon. Further, not only can the process for recruiting foreign care workers take up to two years, but the agreement can be broken at any time by the care worker requiring a new employee to be hired.
[332] In the plaintiff’s submission, live-out care on a 24-hour basis provided by an agency is the only way to provide optimum care to ensure health and longevity for Mr. Kahlon. Accordingly, the plaintiff submits, an application of the test in Milina leads to an award based on care being provided on that basis.
[333] The defendants disagree. They dispute what the plaintiff says is the extent of Mr. Kahlon’s needs, particularly at night. They submit that care is best provided on a live-in care model where the caregiver lives in the Kahlon home and is supported with additional care through an agency or another private caregiver. This approach, they say, enhances continuity, which is an important consideration, as well as flexibility.
[334] The defendants submit that notwithstanding the plaintiff’s submissions, Ms. Kahlon wants as normal a life for her and her husband as possible, and that desire is contrary to 24-hour awake care provided by an agency. They point out that even after Ms. Kahlon spent time with the plaintiff’s key expert witness on this issue, Ms. Landy, she (Ms. Landy) still recommended a live-in caregiver with a suite in the house.
[335] The defendants’ position is that the plaintiff’s care needs do not justify live-out 24-hour awake care. They submit that while Ms. Kahlon sleeps in the same bed as Mr. Kahlon, she has rarely had to provide night time assistance to him. They argue that in the last five years, Mr. Kahlon has only occasionally fallen out of bed. Rarely has Ms. Kahlon had to change the bedding and she has never had to change his diaper. Mr. Kahlon does not have bed sores, he is able to move, including by ridging or arching his back, and there is no medical evidence from any treating physician to the effect that he has ever needed to be turned at night. Moreover, Mr. Kahlon’s sleep apnea machine contains an alarm but it does not go off. In fact, say the defendants, the only expert called by the plaintiff who gave evidence on the issue of night time care and whose opinion was supported by medical evidence was Ms. Landy. Her recommendation was for a live-in caregiver, a recommendation supported by Dr. Van Rijn, a specialist in physical medicine called by the plaintiff.
[336] The range of annual cost for attendant care depends on the nature of the services provided, whether it is on a live-in or a live-out basis and whether the caregivers are supplied by an agency or are hired directly by Ms. Kahlon. I was given evidence of costs based on various permutations of care, as I will set out.
[337] The live-out 24-hour awake care option recommended by various caregiver organization witnesses called by the plaintiff would cost between $231,000 and $265,000 per annum. That is the evidence supporting the plaintiff’s suggested award of $250,000 under this head of damage.
[338] According to the doctor defendants, the reasonable range for future attendant caregiver costs is between $138,000 and $198,000 per annum. The defendant hospital provides a somewhat narrower range, and says that a reasonable award for attendant care would be in the range of $145,000 to $165,000 per annum.
[339] Ms. Landy, a nurse of 39 years experience, was called by the plaintiff to give opinion evidence. Her report dated November 25, 2007 stated that “funding is recommended for the provision of a live-in care provider hired through an agency to support Mr. Kahlon at home”. Her care plan provided that the caregiver receive four hours per day of break time, coverage for which amounted to a further cost of $25,000 per year. Added to her estimated cost of $99,483 to $108,784, the total cost she described ranged from $125,000 to $134,524 per year.
[340] Ms. Landy noted in her report that if live-in care cannot be provided, then the cost would be greater and would include, at a minimum, daily coverage for two care personnel to work 12 hour shifts or three to work eight hour shifts with additional coverage.
[341] The question that arose at trial was whether, given Mr Kahlon’s needs, live-in care could be provided and if so, at what cost? Tied in with this question of whether live-in caregivers were appropriate were questions regarding the extent of Mr. Kahlon’s needs, the availability of live-in staff from agencies or other sources, and whether there were legal requirements, such as employment standards legislation, relating to the provision of in-house care that would affect the cost or the ability to provide that service during the night.
[342] Ms. Landy did not testify regarding the availability of any option, but provided some costing based on quotes she had obtained. Mr. Webster called evidence from representatives of four leading caregiver agencies with respect to the cost of providing care to Mr. Kahlon and whether they would provide live-in care in his circumstances. Since part of their evidence was expert evidence based on their assessment of Mr. Kahlon’s care needs, the trial was adjourned so that the plaintiff could provide notice of their opinions. The witnesses were then called when the trial recommenced and cross-examined.
[343] Mr. Webster provided these witnesses with a summary of Mr. Kahlon’s medical condition that was essentially taken from Dr. Anton’s report of November 23, 2007, which I have summarized earlier in these reasons at paragraph 277. Mr. Webster also provided them with certain assumptions, as follows:
Please assume the following regarding Mr. Kahlon:
1. He is 6 “2” tall and weighs approximately 160 lbs.
2. He has very significant cognitive dysfunctions and impairments. He has reduced short-term memory.
3. Mr. Kahlon either needs someone with him or immediately available at all times. Mr. Kahlon can respond to questions, but cannot communicate to call for help. He can make noises to indicate severe pain.
4. He has significant damage (neurologically) such he is physically disabled and his physical condition is spastic quadriplegia with more significant left sided hemiparesis and spasms.
5. He has communication dysfunctions (aphasia). Mr. Kahlon is capable of understanding communication directed with him, his receptive language skills are relatively functional; however he has very significant impairments in communicating as such he is only able [to] respond by using a spelling or communication device to respond to questions. His speech volume is so low as to be ineffective in normal conversation. He requires a worker who will be able to be trained to communicate with Mr. Kahlon, in English and who is willing to do so.
6. He has a visual dysfunction.
7. He has significant eating and swallowing impairments (dysphagia).
8. He requires direct supervision for all meals by a person trained in his feeding needs. The careworker must be trained in the feedings but also in avoidance of aspiration and emergency procedures to respond to aspiration.
9. His medications are: Baclofen, Losec, Paxil, Clonazepam, Tizanidine, Morphine, Vitamins, Colace, Glycerine suppository.
10. His oral diet must be provided in a minced or pureed and if liquids, needs to be thickened medication may be administered orally or by PEG tube
11. He has a PEG tube and may receive some of his nutrition through the PEG tube at intervals.
12. He is incontinent in respect to his bladder and bowel and must be maintained on a regular bowel and bladder program. He has condom catheter.
13. He suffers from spasticity and painful muscle spasms on an intermittent basis and requires someone to be present to assist him.
14. He will at some point be residing in a more suitable home i.e. a home that is wheelchair accessible and has a room to appropriately do physiotherapy exercises. His new home may have a separate room for a live-in caregiver.
15. He requires assistance for the following:
1. Bathing
2. Grooming
3. Dressing
4. Undressing
5. Toileting
6. Condom catheter and diaper
7. Bowel and bladder routines
8. Maintaining skin integrity
9. Administering and monitoring the provision of medication
10. All aspects of feeding as described above
11. Stretching, physiotherapy, and massage
12. All transfers, including from bed, to bath, and to vehicle
13. Positioning
14. BIPAP
16. He requires assistance with all supportive and instrumental aspects of daily life, including someone to do all of his laundry, purchase stock and sort all of his supplies, do all of his shopping, attend all appointments with him, arrange all appointments for him.
17. We ask you to assume that the time of your agency’s involvement, Ms. Michelle Kahlon maybe be [sic] present but will not be providing required assistive and medical care for Mr. Shawn Kahlon but the agency will be required to provide such care.
18. With regard to Mr. Kahlon’s needs in the evening, please assume that while his needs vary, the normal routine for Mr. Kahlon is to go to bed at around 7 or 8 in the evening and be taken from bed approximately 12 hours later.
19. Please assume that in the evenings and night, the care provider will be responsible for dealing with the bipap machine, both set up and supervision as needed.
20 Please assume that the caregiver will have to intermittently deal with muscle spasms during the day or night and this may require removal from wheelchair or bed to assist with stretching or other monitoring.
21 Because of risks related to skin breakdown and to maintain skin integrity, Mr. Kahlon needs to be turned at night.
22. Please assume that the caregiver will have to intermittently deal with bladder accidents that will require changing clothing and bedding.
23 Occasionally Mr. Kahlon dislodges his bipap mask or falls out of bed.
24 Please assume Mr. Kahlon will have physiotherapy several times a week but the caregiver will need to be present, and rehabilitation assistant 4 hours a day 4 days a week during which the caregiver will not need to be present.
25. Mr. Kahlon will own a wheelchair accessible van.
26. The caregiver will be responsible for transporting Mr. Kahlon to appointments in his vehicle.
[344] The four witnesses who testified work at the major care providers in the Lower Mainland, and all are registered nurses: Maureen Butterworth of We Care Home Health, Deborah Sicker of Bayshore Home Health, Andrea Warren of Classic Caregivers and Rosemary Watson of Evergreen Nursing. They all testified to the effect that they would not be able to and would not provide live-in caregivers for Mr. Kahlon but would provide trained live-out caregivers on an hourly basis pursuant to a plan that their agency would monitor.
[345] The defendants challenge the weight to be given to their evidence about their agencies’ ability to provide live-in care on the grounds that their opinions were based on assumed needs that were different and greater than Mr. Kahlon’s actual needs, particularly at night. In particular, the defendants say that assumptions 19-23 above are not proven on the evidence. The defendants called Kathy Phillips, who has been involved in nursing for over 35 years. She described various alternatives for providing the care that Mr. Kahlon requires.
[346] Linda Waitham, an occupational therapist, testified as an expert in rehabilitation case management and home care management for disabled adults. She has dealt with private health care agencies and private care givers. Ms. Waitham received the summaries of the evidence of the four caregivers and observed Mr. Kahlon at his home for one hour in the morning. She did not know whether live-in caregivers were available through agencies. She described the availability of private live-in arrangements by the foreign live in care program and by adult care agencies such as Able Nannies and Caregivers. She recommended a private live-in care arrangement, and did not believe that Mr. Kahlon required 24-hour awake care, either based on her observations or on the medical evidence. She also did not believe that he was required to be turned every two hours. None of her care plans provided 24-hour awake care, although she agreed that Mr. Kahlon should not be left alone. Her care plans assumed that Ms. Kahlon wished to spend time with her husband.
[347] Maureen Butterworth of We Care, like the other case managers from the care agencies, provided a quotation for care aides and the necessary nursing supervision. Ms. Butterworth’s firm would charge out at $26.50 per hour plus GST, double-time for Christmas and Labour Day, and 1.5 times for all other statutory holidays. She thought that 4 - 6 people would be involved in the care of Mr. Kahlon. They would also charge for a registered nurse to set up and train staff 10 hours per week for the first few months, and five hours per week thereafter. Their nursing rate is $65 per hour. She said that care aides have 24 hour access to a nurse but that a weekly nursing visit is appropriate.
[348] The We Care rate was $265,832 per annum. The annual rates of the other care agencies for which evidence was led by the plaintiff were in the range that I have described above at para. 337. This is the annual amount to provide 24-hour awake care on a live-out basis.
[349] Ms. Butterworth’s opinion was that Mr. Kahlon’s neurogenic bladder would have to be monitored as there would be serious health consequences if ignored, and she thought it was too much for an individual on a live-in basis. Ms. Butterworth said that her company would use certified care aides supervised by a registered nurse (herself). She testified that she would like to see Mr. Kahlon turned or repositioned during the day and at night, and that absent the need for repositioning, his aspiration risk, the BiPAP machine, and the neurogenic bladder, she said, all necessitate awake night care. On cross-examination, Ms. Butterworth agreed that she was not aware that Mr. Kahlon was not turned at night, and also agreed that turning him every 2 or 3 hours would be arbitrary. Ms. Butterworth was asked to assume the following about a potential client in a similar situation: he had never needed night care for 5 ½ years; he had no pressure sores and the doctors said they were unlikely; the patient was able to shift weight and there was some evidence that he was able to roll; and, he only rarely got up, had no bladder problems and did not require feeding at night. Ms. Butterworth said that on those assumptions, she would not recommend 24-hour awake live-out care
[350] Deborah Sicker is a registered nurse at Bayshore Health, a firm that has 200 clients, four of whom are live-in clients. Her agency also supplies certified care aides. She says that Bayshore would not be able to or agree to supply live-in care to Mr. Kahlon. She said that live-in staff are difficult to recruit, tend to leave employment quickly if conditions are unsatisfactory, and are difficult to replace.
[351] Ms. Sicker saw Mr. Kahlon for 45 minutes and did not do a full assessment. She received the information regarding his medical condition and the assumptions set out at para. 343. Ms. Sicker described Mr. Kahlon’s needs as complex, including compromised swallowing, risk of aspiration, use of a feeding tube, bowel and bladder routines, medications, communication difficulties, as well as requiring assistance with transfers. She said that Mr. Kahlon requires checking on a regular basis overnight. Behaving conscientiously, her agency’s staff, she said, would not have eight hours of uninterrupted sleep. The agency’s policy requires that a caregiver have an uninterrupted eight hours rest on an ongoing basis. She said that Mr. Kahlon’s care needs are too intensive for a single caregiver on a live-in basis.
[352] Ms. Sicker was aware that Ms. Kahlon has been sleeping in the same bed as Mr. Kahlon, and that she would have to leave in order that the caregiver could provide care during the night. Ms. Sicker did not realize that no doctor had indicated that Mr. Kahlon needed to be turned during the night. Ms. Sicker agreed that the policy of turning every 2 to 3 hours was arbitrary. She testified that she did a Braden assessment, a test which assesses the risk of a patient developing pressure sores, and that because of Mr. Kahlon’s score, which she said was 10, he was at risk. She disagreed that Mr. Kahlon would not require 24-hour awake care, and disagreed with Ms. Phillips’ Braden assessment which indicated a lower risk for pressure sores. Ms. Sicker’s Braden assessment assumed that he was bedridden.
[353] Ms. Sicker was asked in cross-examination to assume that a client, such as Mr. Kahlon, had never needed awake care in 5 ½ years, had never had a pressure sore, could shift weight to avoid pressure, could roll, rarely needed night care and was not fed at night. Asked whether in those circumstances she would offer the patient 24-hour awake care, Ms. Sicker testified that although those things have not yet happened, Mr. Kahlon was at risk for same.
[354] Andrea Warren is a director of nursing and care for Classic Caregivers, a company with a pool of 300 staff. She testified that her agency requires live-in caregivers to have 10 hours without duties. In her opinion, it would not be reasonable in caring for Mr. Kahlon to expect there would be 10 hours of uninterrupted rest, as she would expect the caregiver to check on Mr. Kahlon’s breathing, reposition him on a regular basis and check for incontinence during the night. Ms. Warren testified that her company would not be willing to accept an assignment on the basis that Mr. Kahlon did not require overnight care. She said that even without turning Mr. Kahlon over, he still requires care due to bladder, respiratory and aspiration issues, which are areas that require constant monitoring.
[355] Ms. Warren testified that it is extremely difficult to locate or train live-in staff and to find spares to cover staff that are absent for any reason. She said that of 500 personal care clients, only 1% are assessed as suitable for live-in care, and that is at the companion-level only.
[356] Even accepting the assumptions put to her in cross-examination of a client similar to Mr. Kahlon, Ms. Warren said she was of the view that 24 hour live-out care was more appropriate. Those assumptions were: the client had never needed awake care in 5.5 – 6 years; had never had a pressure sore and was not likely to in the future; had the ability to shift weight, roll and bridge his back; rarely had to get up to access care at night; never had the BiPAP machine go off; was tube fed but not fed at night; and did not have bladder problems or problems with the condom catheter. Ms. Warren said that her expectation was that the caregiver would turn the patient twice a night, and that his diaper and condom catheter would have to be checked. She said that if a caregiver had to get up twice a night every night, the caregiver would burn out. Ms. Warren said that she has been in the business for 14 years and that the employees who would do live-in care do not stay.
[357] The final witness for the plaintiff from the care agencies was Rosemary Watson, the manager of nursing services for Evergreen Nursing. She gave similar evidence to the first three witnesses. She met Mr. Kahlon for 40 minutes. She is not a life care planner.
[358] Ms. Watson said that her company must be satisfied before taking on a client that the client does not require monitoring or turning overnight. In her judgment, Mr. Kahlon will require both. Even assuming that no doctor recommended that Mr. Kahlon be turned, that would not change her recommendation. Ms. Watson was not aware that Mr. Kahlon was not turned and that a special mattress would assist against pressure sores. She distinguished between turning and repositioning, the latter being done to alleviate pressure without a full turn and something she said was done quite frequently.
[359] On the issue of appropriate care options, Ms. Waitham, an occupational therapist, opined that private live-in care with additional private or agency live-out support was most appropriate. Her range of costs reflected this model. She did not provide for any active overnight care. The model was for two full time caregivers; at least one was live-in and would work 8 hours a day during the week, while the other would work 16 hours on the weekends and provide 3 to 3.5 hours per day respite care for Ms. Kahlon. She additionally recommended 8 hours of care, 4 weeks a year, if Mr. Kahlon experienced bed sores, spasm or pain, or was sick. The range for that care model, she said, is between $62,168 and $75,948 per annum.
[360] According to her agency live-in model where the caregiver has their own bathroom and bedroom and is required to have a 4 hour break each day and a level of uninterrupted sleep (one – two sleep interruptions), the cost is between $82,634 and $108,784. This model assumes a daily rate from an agency of between $197.50 and $260.00 with a 4 hour break on weekends and a 4 hour break by Mr. Kahlon’s attendance at outside programs during the week.
[361] The agency live-out model proposed by Ms. Waitham costs between $81,648.00 and $99,148. That model provides respite night-time care for four weeks per month, but otherwise no assistance at night.
[362] There were some difficulties with Ms. Waitham’s model and recommended care regime apart from the heavy reliance on private caregivers who may be difficult to secure and retain. The care regime also relies heavily on Ms. Kahlon, as the least expensive option appears to rely on 13 hours per day of supervision on her part in that it only provides for 11 hours of care each day. The plan omits the cost of such things as WCB payments, GST, MSP premiums, and holiday pay. It omits, as well, a plan for the period between the release of this judgment and the hiring of a foreign care worker. Although Ms. Waitham recommended additional case management to assist Ms. Kahlon in the screening and scheduling of staff, her proposals rely heavily on Mrs. Kahlon, particularly at night. She said in her report that if in the future Mr. Kahlon needed total awake night-time care, the cost for that night-time care privately would be $43,000 - $58,000, and if provided by an agency, $63,000 - $77,000 per annum.
[363] On the issue of the level of care required for Mr. Kahlon, the defendants called Kathy Phillips, a nurse with 35 years experience in providing nursing care for adults like Mr. Kahlon. She has been involved for the past 13 years as the owner/director of a private health care agency in the Fraser Valley.
[364] In Ms. Phillips’ opinion, Mr. Kahlon does not require night-time awake care, and further, in her view, there is no medical documentation indicating that he requires awake monitoring of his breathing or any other aspect of his care.
[365] Ms. Phillips testified that a better standard of care is achieved when there are fewer caregivers involved and more continuity. Her position was that while Mr. Kahlon has a lot of care needs, they are not complex and can be dealt with by a residential care aide. She described complex care as that required by a patient on a ventilator or needing tracheotomy care. With respect to bed rails to prevent Mr. Kahlon from rolling out of bed, she recommended they be padded.
[366] Ms. Phillips maintained that although Ms. Kahlon checks on her husband every 30 minutes, there is nothing about his care needs that requires such checking. She testified that a caregiver would not go in and check on a client unless called or something unusual was on heard on a baby monitor that can be used for monitoring purposes. In her experience, families will take some level of responsibility for individuals regardless of the number of caregivers in the home.
[367] Ms. Phillips emphasized the importance of continuity of care which was not, in her view, accorded by 24-hour awake care provided by an agency. Her options provided for agency involvement to supplement private care.
[368] According to Ms. Phillips, the range of options for someone like Mr. Kahlon would result in a cost of between $138,000 and $199,000 per year. She described the care options in two categories. Option 1 was a live-in caregiver provided by an agency. Option 1, in Ms. Phillips’s opinion, would be provided at a cost of $138,188 plus GST using up to six different staff. A live-in caregiver could be provided for 20 hours (8 sleeping) at an annual cost of $100,061 with four hours of daily relief at an annual cost of $38,172. Option 1.1 would be if Mr. Kahlon required some hands on care overnight. In that case, Ms. Phillips suggested that eight or more staff would be required and the additional cost would be for sleep-over services with one or two staff members for an additional cost of $60,160 per year. The total cost would therefore be $198,348 plus GST.
[369] Option 2 posited by Ms. Phillips involves hiring a caregiver privately. Ms. Phillips broke this alternative down into various possibilities. She included 2-days weekly relief provided by an agency, and 2-weeks’ vacation coverage at a live-in rate and at a sleep over rate provided by an agency. She set out alternatives depending on whether the care was provided by one foreign live-in caregiver, two foreign live-in caregivers or a caregiver hired privately and domestically. The range for these various options was between $143,258 plus GST and $170,017 plus GST.
[370] Given the catastrophic injuries that Mr. Kahlon suffered, it has clearly been established that he will require 24-hour care. There is no question that the care should be provided in Mr. Kahlon’s home, which is the place most conducive to his happiness and his physical and mental health. The dispute is with respect to the precise nature of that care. The fundamental disagreement between the parties is whether 24-hour awake care is reasonably necessary and if not, whether care agencies in Vancouver will supply 24-hour live-in care.
[371] Are Mr. Kahlon’s care needs such that he requires 24-hour awake care? Put another way, are they such that 24-hour awake care is reasonably necessary on the medical evidence? I have summarized the evidence of the four expert witnesses from the caregiver agencies called by the plaintiff. The gist of their collective evidence was that because of the extent of Mr. Kahlon’s health needs, his care should be provided on a 24-hour awake basis. Ms. Butterworth said that she would not recommend that her agency accept the premise that Mr. Kahlon does not require any night-time care. Ms. Watson said his needs are too complex, Ms. Warren said that his needs are too extensive to quote on a live-in care giver basis, and Ms. Sicker said that her agency would not provide live-in staff because of the magnitude of Mr. Kahlon’s care needs, which she described as complex, including his need for overnight care.
[372] Ms. Phillips gave a contrary opinion, as did Ms. Waitham. Ms. Phillips was of the view that while Mr. Kahlon had many care needs, they were not complex and could be managed by a live-in care aide. The defendants also point out that Ms. Landy, an expert witness of extensive experience who was called by the plaintiff, recommended live-in care, if available.
[373] The question is the weight to be attached to the witnesses’ opinions regarding the level of care that Mr. Kahlon requires. That depends, in part, on the extent to which the assumed facts are proven in the evidence. The four caregiver witnesses did not do full assessments of Mr. Kahlon. Although I found that each of them was a reasonable witness, as was Ms. Phillips, the evidence in some respects did not support the assumptions that they were asked to make. For example, their assumption that Mr. Kahlon must be turned during the night to avoid bedsores or that his BiPAP alarm goes off is, to date, not correct. Even though Ms. Kahlon checks on him regularly, the evidence shows that Mr. Kahlon has only rarely required night-time assistance. Therefore, as to assumptions 19-23 that were relied upon by the four caregivers, I find they were generally not established in the evidence; the medical evidence does not indicate that Mr. Kahlon requires to be turned at night to maintain skin integrity and the concerns relating to the BiPAP machine, bladder accidents and falling out of bed have rarely required night-time attention by a caregiver.
[374] Both Ms. Stricker and Ms. Phillips did a Braden assessment which measures the risk for pressure sores. Ms. Phillips’ result showed that Mr. Kahlon was at lower risk than the result that Ms. Stricker obtained. I place greater weight on Ms. Phillips’ assessment because of what I think was an incorrect assumption by Ms. Stricker that Mr. Kahlon was bedridden. However, the Braden assessment appears to be quite subjective and Dr. Anton, it should be mentioned, noted that Mr. Kahlon was at some risk for bedsores.
[375] Ms. Philips’ evidence was that while Mr. Kahlon has many care needs, they are not complex, such as those of a person on a ventilator. In my view, while true, this may be too fine a point, as Mr. Kahlon’s care needs are substantial and are such that he cannot be left alone. Mr. Kahlon, apart from his enormous care needs while he is awake, is also at risk for complications relating to his neurogenic bladder, his spasticity, his sleep apnea, his inability to call out for help and the possible blockage of his shunt. Nevertheless, although his care needs are extensive, I find that the evidence shows that at the present time, those needs are not as extensive as the expert caregivers assumed.
[376] However, in determining the cost of Mr. Kahlon’s future care, I also find that it is a reasonable inference from all of the evidence that Mr. Kahlon’s needs, particularly at night, will likely increase in the future.
[377] I find on the evidence that at the present time, Mr. Kahlon’s needs would likely be met by 24-hour live-in care, if it was available. On a general basis, it has not been shown that 24-hour awake care is reasonably necessary, although, given what I find to be the complexity of Mr. Kahlon’s condition, the likely need for increased care in the future, and the unavailability of live-in caregivers, there are times when 24-hour awake care will be required.
[378] In assessing the appropriate award, I must, as noted, take into account the availability of 24-hour live-in care for a person of Mr. Kahlon’s needs. The plaintiff’s witnesses from the caregiver agencies testified that they would not provide live-in caregivers in Mr. Kahlon’s circumstances due to the extent of his care needs. Ms. Phillips, however, disagreed that Mr. Kahlon’s needs could not be addressed by a usual live-in care worker. She said that most agencies allow a caregiver to get up once or twice a night without additional cost; if it becomes routine, however, the agency resorts to 3 eight hour or 2 twelve hour shifts. Ms. Phillips noted that theoretically a live-in worker can get up several times a night as long as he or she is paid additionally for doing so. However, she also noted this could nevertheless affect the quality of their daytime care, and other options should then be considered for the night time, which would involve more care.
[379] Although Ms. Phillips and Ms. Waitham based their opinions on the provision of various modes of care, including live-in agency provided care, there is no evidence that an agency will provide live-in care for Mr. Kahlon on a 24-hour basis. Even though I have found that the care needs of Mr. Kahlon are not to the degree assumed by the plaintiff’s caregiver witnesses in the areas of complexity, the need for night-time care, and the need to reposition him during the night, their opinions are nevertheless entitled to some weight, particularly with respect to whether agency live-in care is realistically and readily available in the market place.
[380] There are strong arguments that given the needs of Mr. Kahlon, his care, whether live-in or live-out, should be provided by an agency. The provision of care in this fashion will ensure quality, particularly with a nurse providing overall direction, which the evidence shows is something provided as part of the service by an agency.
[381] The defendants led evidence through Ms. Phillips and Ms. Waitham of other possible sources for caregivers, such as the foreign caregiver program or a private caregiver hired by the patient’s representative or with the help of an agency. However, Ms. Watson testified that private live-in caregivers are the hardest staff to hire and they receive the lowest pay. Ms. Butterworth echoed those sentiments, and pointed out that hourly caregivers are more readily available because they do not have to sleep in the client’s home away from their families. Ms. Warren said it was extremely difficult to find live-in caregivers, and Ms. Sicker said that they tend to leave employment quickly if conditions are unsatisfactory. Ms. Phillips said that her agency provides short term 24-hour awake services and provides assistance to clients with employees in the foreign live-in care program. However, the foreign live-in care program has a two year recruiting time and the employee can leave at any time.
[382] I do not consider it reasonable to assess the cost of future care on the basis that Ms. Kahlon will hire a private caregiver to provide the bulk of Mr. Kahlon’s care. Ms. Kahlon would then have to bear the burden in terms of hiring, scheduling, and supervising to ensure the caregivers provide the necessary care. That would be no small task even if private caregivers were easily located and remained for many years. However, the evidence is that they can leave on short notice, there is a long lead time for foreign care workers to be hired, and they will likely be in short supply in the years ahead. Accordingly, I do not think that it is reasonable to base an award of future care on a scheme whereby Ms. Kahlon must be responsible for this uncertain and onerous task.
[383] In my view, the basic approach to the provision of care in this case must be through an agency able to ensure that trained and supervised staff are in place and with the flexibility and resources to provide the care that Mr. Kahlon requires in the event of a disruption to the care schedule that is arranged. It is important for Mr. Kahlon’s health that he is at home with his wife. However, it is not reasonable to download the burden of ensuring his care on her. That has occurred pending trial and it is apparent that it has taken a significant toll on her.
[384] Nevertheless, in determining the cost of future care, I must be realistic, fair to both parties and recognize that Ms. Kahlon wants to be with her husband because they are a married couple and she loves him. I recognize that it is in the interests of Mr. Kahlon that care be provided in a fashion that provides some continuity and is least intrusive into the privacy of this family.
[385] In my view, the reality is that the care that will be provided for Mr. Kahlon will be an amalgam of all of the options that were discussed in the evidence, and will not simply be 24-hour awake care provided by an agency or live-in care arranged through an agency or through the foreign care giver program supplemented by agency supplied caregivers from time to time. I think that it is reasonable to assume that Ms. Kahlon will attempt a number of arrangements that provide continuity and quality of care, ensure her family some privacy but does not download to her the heavy work, much of which she has borne to date.
[386] What will this cost? This is not simple to assess, as there are many ways to provide the care that Mr. Kahlon requires, some more expensive than others. I find that the model which provides me with the best guidance for a realistic range of cost for the provision of attendant care is Ms. Phillips’ Option 1.1, though I acknowledge that the care will not be provided precisely in that fashion. Her model is based on live-in care provided by an agency with hands on care provided on an overnight basis with a caregiver getting up once or twice in the night to attend to Mr. Kahlon. However, some adjustment to that model is required as, in terms of cost, it provides for only 20 hours of care each day.
[387] Considering all of these factors, including the nature of the care Mr. Kahlon requires and will require, the availability of caregivers, the likelihood that his care needs will increase as he gets older and the additional cost when caregivers must get up in the night, I have concluded that a reasonable future cost is $210,000 per annum. I find that in the circumstances of this case, the evidence establishes that this is the annual cost of the care that Mr. Kahlon reasonably needs, is what a reasonable person of ample means would provide, and is fair to all parties.
[388] This was advanced by the plaintiff as a separate future care cost.
[389] The plaintiff’s position is that the cost of care award should also include an amount for the provision of a rehabilitation aid worker five days a week, four hours a day, and the award sought is $55,000 per year plus GST.
[390] The defendants argued that if rehabilitation aid care was shown to be necessary, it could be provided by an attendant caregiver, the cost for which was awarded in the last section of this judgment.
[391] In the alternative, the plaintiff argues that a rehabilitation aid worker, if necessary, could also provide attendant care. In those circumstances, the plaintiff seeks an award of the full amount for a rehabilitation aid worker for one year, and then the difference between the rates for a rehabilitation aide and a certified care aide after that. The plaintiff says that this provides for a rehabilitation aide immediately, and allows this person time to learn Mr. Kahlon’s care needs. The plaintiff’s suggestion is that after the first year the rehabilitation aide can provide the care. The claim in those circumstances is the difference in the charge out rates of a rehabilitation aide and a certified care aide for 20 hours per week. The annual amount sought is $27,500 per year plus GST.
[392] Ms. Landy’s recommendation was that Mr. Kahlon:
... requires care 24 hours/day because of his tuberculosis meningitis and the subsequent complications which developed. … He will require not only the provision of a continuous skilled level of care 24 hours /day but also specialized rehabilitation services, equipment and supplies on a lifelong basis. [page 13]
[393] After describing his daily needs, she stated:
Mr. Kahlon is dependent upon others to facilitate his participation in activities of community inclusion, recreation and socialization. [page 20]
[394] With respect to the need for a ‘one to one rehabilitation support’ worker, she wrote:
Mr. Kahlon responds positively to one-to-one level of intervention for activities of recreation, socialization and community integration as evidenced in observation and assessment. Funding is recommended for the provision of one-to-one rehabilitation support for Mr. Kahlon to support maintenance and continuation of physical therapy program and for his program of range of motion, stretching and flexibility exercises. The rehabilitation support worker would assist the physiotherapist in Mr. Kahlon's walking program. This program requires two people to attend to Shawn directly to facilitate this activity. He/she would incorporate and implement focused strategies into his daily activities under the direction of the rehabilitation intervention specialists (physiotherapy, occupational therapy, speech and language therapy, etc.). The one-to-one rehabilitation support worker would additionally provide transportation, accompaniment and direct assistance for Mr. Kahlon to facilitate his participation in activities of community integration, recreation and socialization (i.e.: swimming program, community-based day program, adapted recreational activities). [ page 31]
[395] The defendants’ position is that there is no reason the tasks of a rehabilitation assistant or rehabilitation aid worker cannot be taken on by the live-in caregiver or the caregivers who will be with Mr. Kahlon in any event. They say that the cost of a rehabilitation aid worker is not a reasonable cost when Mr. Kahlon’s needs can be met by a consistent, competent group of caregivers who are trained by the therapists who will be involved in Mr. Kahlon’s care on a formal basis. As for the therapy, the evidence is that the caregivers should be trained to assist with such therapy, including daily range of motion exercises.
[396] The defendants, in challenging the need for a rehabilitation aid worker, say that the evidence of Dr. van Rijn was only that at best, Mr. Kahlon might improve with intensive therapy. They point to Dr. Cameron’s evidence that Mr. Kahlon’s fatigue results from his brain injury and that there is no evidence that intensive therapy will improve his condition. Dr. Beckman, the defendants point out, was of the view that Mr. Kahlon’s fatigue is a result of the brain injury and that therapy would not reverse its effects.
[397] The defendants say that there is no evidence that suggests that residential care aides cannot be taught to assist with physiotherapy or playing cards at the Kinsmen Centre where Mr. Kahlon attends. In fact, they point to Ms. Phillips’ evidence that they could be taught to provide these things. They say that as the plaintiff acknowledges that residential care aides are competent to care for Mr. Kahlon at his home, the same holds true in the community. The defendants point out that the provision of a case manager on Ms. Landy’s model has already been agreed to by the parties. They also point out that they have already agreed to $7,450 per year for recreational community involvement. In this respect Ms Landy said:
Mr. Kahlon presently attends the Adult Day Program at Kinsmen Centre in Richmond, B.C. twice weekly. He also attends the swimming program at George Pearson Centre as able. Funding is recommended for continuation of attendance at specialized adapted community programs of inclusion, recreation and socialization for Mr. Kahlon. He would be accompanied to these community activities by his one-to-one rehabilitation support worker. A weekly allowance in the amount of $145.00 plus G.S.T. is recommended based on his present utilization of the Adult Day Program at Kinsmen Centre. Note that a companion is not usually charged admission to centres for adapted programs.
Cost per year (ongoing):
$145.00/wk X 52 wks = $7,540.00. [page 61]
[398] The defendants, however, say that a rehabilitation support worker, in addition to a residential care aide or caregiver is an unnecessary duplication of care providers, particularly given Mr. Kahlon’s major fatigue problems. They say that the cost of a rehabilitation aid worker is something that in substance is already compensated for by way of non-pecuniary damages.
[399] Moreover, the defendants say that all of the therapies recommended by the plaintiff for which future care costs are sought are untenable given Mr. Kahlon’s level of fatigue, the limited number of hours in the day available for therapy, the time that he spends and enjoys at the Kinsmen Centre (two days a week for four hours), and the hours he is awake every day. The defendant doctors say that as Mr. Kahlon needs someone to cover those four hours, as Ms. Landy points out in her report, a caregiver can be provided to Mr. Kahlon for those four hours at $24.75/hour at a yearly cost of $25,740, and that is included in her total annual estimate for the provision of attendant care as discussed in Section 5 above.
[400] In my view, it is not reasonable to provide a rehabilitation worker in addition to the certified care aides. However, should one of the caregivers for 20 hours per week be a rehabilitation aide?
[401] I find that the defendants’ approach takes too negative a view of the benefit of therapy for Mr. Kahlon. Dr. Anderson, a psychiatrist, for instance, opined that “Mr. Kahlon needs multidisciplinary rehabilitation to improve the quality of his life and prevent further functional deterioration”.
[402] I am persuaded that it is reasonable to approach this issue on the basis that a rehabilitation aide will be secured who will also assist in the personal care of Mr. Kahlon four hours per day, three days a week. In my view, an award for future care for this item based on the additional cost for a rehabilitation aide of $16,500 per annum is an appropriate assessment.
[403] The plaintiff claims as part of the cost of future care an amount for swallowing therapy.
[404] The plaintiff’s position is based on the opinion evidence of Kathy Silversides, a speech-language pathologist who works extensively in the area of swallowing. She suggested a dysphagia care plan (a care plan for swallowing difficulty), clinical and instrumental assessments, education, evidence-based swallowing therapies (i.e. Lee Silverman Voice Therapy), CPR training, and use of a suction machine to maintain oral feeding and associated skills. Ms. Silversides testified that the purpose of these therapies is to increase laryngeal function and reduce the risk of Mr. Kahlon aspirating.
[405] The plaintiff claims an annual amount of $23,860; this is made up of 96 hours of direct therapy comprising 48 sessions, travel time for the speech language pathologist of $9000, and a one-time amount of $750 for a portable suction machine.
[406] The defendants oppose this cost on the basis that the medical evidence and that of other swallowing experts is that Mr. Kahlon will not in future be an oral feeder for all of his nutrition. They point out that Ms. Silversides alone of all the experts recommended that Mr. Kahlon receive swallowing therapy as part of a plan to make him an oral feeder. They submit that Dr. Cameron, Dr. Anton, Dr. Chambers, Dr. Beckman and Veronika Larson all have opined that Mr. Kahlon will not be an oral feeder. Dr. Cameron, for instance, said that Mr. Kahlon has a 43% chance of developing aspiration pneumonia through oral feeding. Ms. Larson, the speech-language pathologist from G.F. Strong Rehabilitation Centre (“G.F.Strong”), participated in repeated barium swallow and fiberoptic endoscopic evaluation of swallowing assessments, and concluded that Mr. Kahlon was at high risk of aspiration and recommended he should not orally feed save for pleasure.
[407] The evidence indicates that although Mr. Kahlon prior to 2007 was fed orally, with the assistance of his wife, he was also tube-fed during that time. Swallowing assessments were done in 2007 and 2008, and the recommendation was that Mr. Kahlon receive his feeding and hydration through tube-feeding. That has been the situation since.
[408] As I noted in the section on life expectancy, the evidence, I find, indicates clearly that Mr. Kahlon will continue to be tube fed, apart from some pleasure oral feeds. It was the considered opinion of the members of the treating team at G.F. Strong following a modified barium swallowing test and a fibreoptic endoscopic evaluation by an ear nose and throat specialist and a speech pathologist that Mr. Kahlon be primarily tube-fed. Ms. Larson, who has been treating Mr. Kahlon since 2003, made the same recommendation following the endoscopic evaluation in April 2008. The evidence shows persuasively that Mr. Kahlon, because of risk of aspiration, should and will remain tube-fed.
[409] According to Ms. Silversides, individuals who are tube-fed are at high risk for reflux when they use tube feed formulas, which emphasizes the need for these services independently of tube feeding. According to her evidence, aspiration risks arise from saliva, secretions, and stomach contents, whether one is fed orally or by tube, because reflux materials also come up from the stomach, which can occur from tube feeding.
[410] I am not persuaded, given Mr. Kahlon’s fatigue and medical condition, that it is in Mr. Kahlon’s best interest to attempt to take him off his feeding tube and convert him instead to oral feeds. In my view, the evidence indicates that he would not obtain sufficient nutrition and there is a high risk in those circumstances of Mr. Kahlon developing aspiration pneumonia through oral feeding. Dr. Cameron said as much and Dr. Beckman agreed with that assessment.
[411] Is the swallowing therapy that is proposed therefore reasonably necessary to promote the mental or physical health of the plaintiff? On the evidence, it cannot be supported on the basis that Mr. Kahlon might in the future be an oral feeder. To the extent that Ms. Silversides gave a stand-alone opinion that she can probably get Mr. Kahlon off tube feeding if intensive therapy is successful, the evidence indicates that that decision is made by a team of which the speech language pathologist is only one member. The weight of the evidence is that that is not a medical decision that has been or will be made regarding Mr. Kahlon.
[412] Does the evidence suggest that swallowing therapy is nevertheless a reasonable expenditure to reduce possible deterioration of Mr. Kahlon’s swallowing function and the risk of aspiration? It is the plaintiff’s position that this is the case.
[413] The evidence suggests that although Mr. Kahlon will be tube fed, he will and should continue to have pleasure feeds. The evidence shows that his care has been meticulous and he has avoided aspiration pneumonia. The issue is whether the medical evidence shows that this treatment is reasonably necessary for Mr. Kahlon’s health. Dr. Van Rijn, an expert on physical medicine and rehabilitation, did opine that therapy to maintain his swallowing function should continue. Dr. Beckman, a neurologist called by the defendant doctors, said that Mr. Kahlon’s swallowing mechanism is borderline and over time the spasticity in the swallowing mechanism will not improve.
[414] Although Dr. Beckman felt that therapy should reasonably be tried for three months and discontinued if there is no objective improvement, I think the issue is whether the medical evidence supports swallowing therapy simply to maintain Mr. Kahlon’s level of function so as to allow for continued pleasure feeds and minimize the risk of aspiration. I find it does. However, I have concluded that a more modest claim has been proven under this head of damage and I award $5,000 per annum.
[415] The plaintiff claims an amount for speech language therapy services as part of the cost of future care.
[416] Mr. Kahlon received speech language assistance at Ponoka. Since then, he has only received outpatient services from Ms. Larson, the speech language pathologist at G.F. Strong.
[417] Ms. Wendy Duke assessed Mr. Kahlon at a number of sessions in June 2007. Her evidence was as follows:
Mr. Kahlon has a severe impairment of the speech muscles, including those involved in articulation (speech sound production), respiration and phonation (voice). His speech abilities are consistent with a condition known as "dysarthria", which is an impairment in the control and function of the speech muscles due to brain damage.…
…
Most often, Mr. Kahlon must rely on various non-verbal methods of communication to convey his messages and thoughts. These include head gestures and hand gestures, which require that the "listener" (i.e., Mr. Kahlon's communication partner), has some familiarity with Mr. Kahlon's methods of communication, as they are not always clear. He also uses a laminated letter/message board to communicate. Interpretation of his messages typically requires close attention by the "listener", as well as familiarity with the context, as Mr. Kahlon's cognitive and motor impairments impede his ability to use the letter board in the most efficient manner. For instance, Mr. Kahlon will persist in spelling his message, even if the "listener" has indicated that they are lost, or that they have already received the message. …
…
Mr. Kahlon's expressive communication abilities (ie, the ability to convey a message through any means, including speaking, pointing to letters, writing, and so on) are severely impaired. …
[418] In short, she said that Mr. Kahlon has a severe impairment of his speech muscles and must rely on non-verbal methods of communication to convey his messages and thoughts, such as head or hand gestures.
[419] Ms. Duke testified that while Mr. Kahlon’s neurological impairment is permanent, assistance will minimize further deterioration and perhaps allow for modest improvement and function. She emphasized both the importance of training to ensure he did his best at communicating outward messages and the need for trained aides able to understand and act in response.
[420] Ms. Duke’s therapy plan includes first year treatment costs of 100 hours therapy for a total of $11,000, the speech language pathologist’s travel time from the office to Mr. Kahlon’s home of $8600 and a SL 38 LightWriter, including warranty, for about $9000. (The LightWriter is a technical communication device which it appears can either speak the words indicated or spelled by Mr. Kahlon or simply displays them on a two-sided screen.) The first year cost for these things totals $28,675. Mr. Webster submitted that after the first year the proposal was that the sessions drop to two per month so that the annual cost of the sessions and travelling is about $4640 per annum. Ms. Duke said that consideration should be given to replacing the LightWriter every three years at a cost of $3,025.
[421] The LightWriter that is proposed is different from the one that Mr. Kahlon tried earlier in that it allows the audio function to be turned off; where the earlier version would often result in incomprehensible output, the newer one has a two-sided screen that allows the partner to sit opposite Mr. Kahlon and observe the words.
[422] The plaintiff argues that the purpose of training is to optimize and maintain Mr. Kahlon’s level of function. The recommended treatment would not necessarily take place on a daily or weekly basis but would proceed in blocks of more intense treatment. The plaintiff says that Ms. Duke’s evidence shows that Mr. Kahlon was able to complete the sessions and that fatigue did not stop them. He argues that Mr. Kahlon needs appropriate care to optimize his communication commensurate with his abilities. The plaintiff submits that his impaired speech and language system will be further compromised by the effects of aging and, potentially, by lack of use. He says that he is entitled to every reasonable opportunity to retain his abilities to express himself and communicate with those who care for him, even if it is only to get help or describe his needs.
[423] The defendants argue that use of the earlier version of the LightWriter was discontinued because Mr. Kahlon was unable to use it effectively. They point out that the fatigue is a major problem for Mr. Kahlon such that Ms. Duke had to attend on three separate occasions to assess him as he was not able to stay focused or awake.
[424] The defendants say that the kind of intensive therapy that Ms. Duke suggests is not reasonable. Ms. Duke suggested that the therapy would take an hour per day at the outset and then somewhat less thereafter. The defendants say that not only is Mr. Kahlon not expected to recover his speech and language abilities regardless of the successful implementation of the program, as Ms. Duke says, but that his impaired speech and language will be further compromised by the effects of aging and potentially by lack of use. The defendants point out that Ms. Duke was not specifically aware that Mr. Kahlon sleeps approximately 15 hours per day.
[425] The defendants also refer to the evidence of Dr. Anderson and Dr. Anton in support of their submission that Mr. Kahlon is unable to retain information, and that interventions such as psychotherapy, as an example, would not be useful as he will not remember what was discussed from session to session.
[426] The defendant hospital put it this way in their argument: it is not reasonable to expect Mr. Kahlon to learn to use this equipment given that he was not capable of using the last one, he is already extremely fatigued, and he has difficulty sustaining his attention and has limited short term memory.
[427] Dr. Schmidt, a neuropsychologist, assessed Mr. Kahlon on October 25 and November 1, 2006. In his report, he wrote:
Current cognitive testing was limited by his motor and expressive language deficits. In that context, he showed roughly average intelligence on measures that were administered. He also appeared to show relatively good receptive language, at least for very simple verbal information. Whether he can comprehend more complex verbal information, such as might be contained in sentences or paragraphs, cannot be determined. Significant weaknesses were found, on the other hand, in both visual learning and memory. He also showed disruption of visuospatial reasoning, selective attention and executive functioning. Mental efficiency, verbal learning, verbal memory and psychomotor speed could not be assessed but could very well have deficits over and above those already described.
[428] Dr. Anderson, a psychiatrist, stated that Mr. Kahlon was unlikely to benefit from psychotherapy due to “his reduced executive functioning, poor communication skills and inability to retain information”. Dr. Anton mentioned in his report that Mr. Kahlon had tried a LightWriter but did not initiate it, and used a letterboard that contained the alphabet and the words “yes” and “no’. He examined Mr. Kahlon in July 2007 and using the letterboard, Dr. Anton was able to determine that Mr. Kahlon knew he was in Vancouver, that he indicated incorrectly that it was spring, April 2002, and that he spelled the name of an earlier prime minister when asked the name of the Prime Minister.
[429] Mr. Kahlon’s cognitive impairment is permanent. The recommendations will not allow him to recover his speech and language abilities. The question is whether they will prevent further decline and maximize his quality of life. I find it has not been established that they will prevent further deterioration of Mr. Kahlon’s communication abilities. On the evidence, I find that Mr. Kahlon will not benefit from the proposed therapy and, more likely than not, will not be able to use the LightWriter effectively for communication.
[430] This claim is therefore not allowed.
[431] This in-trust claim concerns the enormous amount of care services that have been provided by Michelle Kahlon and, to a lesser degree, by the plaintiff’s parents as a result of Mr. Kahlon becoming disabled.
[432] In Bystedt (Guardian ad litem of) v. Hay, D. Smith J., as she then was, canvassed the leading cases, including Crane v. Worwood (1992), 65 B.C.L.R. (2d) 16, [1992] 3 W.W.R. 638; and Brennan v. Singh, [1999] B.C.J. No. 520 (S.C.), and described the relevant principles governing in trust claims at para. 180:
[180] From a review of these authorities one can construct a summary of the factors to be considered in the assessment of “in trust” claims:
(a) the services provided must replace services necessary for the care of the plaintiff as a result of a plaintiff’s injuries;
(b) if the services are rendered by a family member, they must be over and above what would be expected from the family relationship (here, the normal care of an uninjured child);
(c) the maximum value of such services is the cost of obtaining the services outside the family;
(d) where the opportunity cost to the care-giving family member is lower than the cost of obtaining the services independently, the court will award the lower amount;
(e) quantification should reflect the true and reasonable value of the services performed taking into account the time, quality and nature of those services. In this regard, the damages should reflect the wage of a substitute caregiver. There should not be a discounting or undervaluation of such services because of the nature of the relationship; and,
(f) the family members providing the services need not forego other income and there need not be payment for the services rendered.
[433] The parties, while agreeing that an award ought to be made, are significantly apart in terms of the quantum of that award.
[434] The plaintiff claims that the in trust award should total the sum of $850,000 for Michelle Kahlon and Mr. Kahlon’s parents.
[435] The plaintiff advances this claim over different periods corresponding to when Mr. Kahlon was at various facilities. Mr. Kahlon was hospitalized in RGH and VGH between October 12, 2000 and October 21, 2001 (418 days). He was then at the Purdy Pavilion for 45 days. Mr. Kahlon was placed in a rehabilitation program at Ponoka from December 5, 2001 to November 10, 2003 (706 days). Mr. Kahlon returned home to Richmond on November 11, 2003. From that time to the commencement of trial, he has lived in the apartment he and Ms. Kahlon purchased before his stroke.
[436] In advancing this claim, the plaintiff submits that as so much time was committed to his care, the Court should award $20 per hour (higher than a caregiver rate) but limit the award to 1/2 of the time spent providing care at RGH, VGH and the Purdy Pavilion. In respect of Ponoka, the plaintiff argues that Ms. Kahlon was an active caregiver and received very specific training to allow her to provide extraordinary care. Using the same rate, $20 per hour, the plaintiff argues that 2/3 of this time is compensable.
[437] The plaintiff further submits that his parents also provided respite, assistance, and, importantly, were informed and trained so that they could take him home. They went to the local hospitals daily and took turns going to Ponoka. The plaintiff advances the claim for his parents using a figure of 2-3 hours per day of compensable time and valuing their contributions to his care beyond that a parent would ordinarily provide at $25 per day at RGH/VGH and $50 per day at Ponoka.
[438] The quantum claimed in relation to Michelle Kahlon’s and his parents’ care for this three year period (October 12, 2000 – November 9, 2003) is $285,200.
[439] The claim for the time Mr. Kahlon was in a hospital facility is set out in a table prepared by the plaintiff’s counsel and reproduced below. It describes the hours spent by Ms. Kahlon according to her evidence and the hours spent by the parents:
| In hospital | Facility | Time per day | Total Hours | Award sought |
| Period 1 | RGH and VGH | 21 hours per day | 21 hrs x 375 days = 7,875 hours | $78,000 (Michelle) $10,000 (Parents) |
| Period 2 | Purdy – ext- care | 12 hrs / day | 12 hrs x 35 days = 420 hours | $4,200 (Michelle) |
| Period 3 | Ponoka | Mon-Thurs: | 17 hrs x 706 days = 12,002 hours | $158,000 (Michelle) $35,000 (Parents) |
| Total |
|
|
| $285,200 |
[440] The next relevant period follows Mr. Kahlon’s discharge from Ponoka. It is the plaintiff’s position that following discharge, Ms. Kahlon has had 24-hour care responsibilities and has been the primary caregiver for Mr. Kahlon. Mr. Webster describes the care that she has provided this way: Ms. Kahlon has been on call 24 hours a day, has provided care (i.e., as a care aide) but also remains the substitute decision maker, advocate and care aide supervisor. Mr. Webster argues that during the time after Ponoka, Ms. Kahlon should be compensated for 118 hours of weekly care, which excludes 50 hours in the week made up of time when her husband is at his parents’ home, respite time (other than travel and the time required to be with the caregivers) and time her husband is at the Kinsmen program. This method, he argues, effectively excludes compensation for the time she spends doing laundry, buying food, preparing food, or making plans for Mr. Kahlon’s care and rehabilitation, unless she manages to do those things in Mr. Kahlon’s presence.
[441] In terms of his parents, the plaintiff points out that Mr. and Mrs. Kahlon Sr. have taken their son home every weekend. They did not receive assistance at first but later obtained assistance for two hours per week. Mr. Webster has reduced the claim so that there is no duplication.
[442] Therefore, the in trust claim for the period following Mr. Kahlon’s release from Ponoka is advanced as follows:
| Post discharge | Responsible care person | time | Total time | Award Sought |
| Period 4/5 Nov 2003 to Sept 2008 | Michelle Kahlon | 118 hours per week, as described | 251 weeks x 118 hours. 62 hours f/t care provision, 56 hours care / on call. | $450,000 |
| Period 4 – (Nov 11/03 to summer/07) | Mr. & Mrs. J & G Kahlon | 30 hours/ week | 196 weeks x 30 = 5,880 hours. (16 care; 14 call/care) | $90,000 |
| Period 5 - Summer/07 to Sept 2/08 | Mr. & Mrs. J & G Kahlon | 28 hours/ week | 55 weeks x 28 hrs = 1540 hours | $23,000 |
| Total |
|
|
| $563,000 |
[443] As can be seen from these summaries, the total claim for in trust awards for Ms. Kahlon and Mr. Kahlon’s parents for the period when he was hospitalized and for the period after he was discharged from Ponoka are respectively about $690,000 for Michelle Kahlon and $158,000 for his parents for a total of approximately $850,000.
[444] The defendants acknowledge that the plaintiff is entitled to an in trust award, but say that it should be in a much more modest amount. The defendant doctors argue that during the time that Mr. Kahlon was in hospital facilities, he was provided with intensive care and services by the nursing staff, physicians and other health care workers. Most of the services provided by Ms. Kahlon during this time, they say, should not be considered to be additional or necessary for Mr. Kahlon’s care and, contrary to the plaintiff’s submission, would not exceed the level of care Ms. Kahlon would be expected to provide in her relationship as his spouse. The defendant doctors say that the award for Michelle Kahlon should be in the range of $250,000 to $300,000 and that for the parents it should be $50,000.
[445] The UBC Hospital concedes that since Mr. Kahlon’s illness, Ms. Kahlon has essentially devoted her life to her husband’s care and recovery, and deserves to be compensated. However, it says that Ms. Kahlon went to the hospitals essentially because she was Mr. Kahlon’s wife, loved him and wanted to be near him. Its position is that Ms. Kahlon should be paid the opportunity cost for lost earnings from teaching since her husband’s return to his home in 2003, which it estimates at about $246,265.83. In the alternative, the hospital says that the amount could be assessed by the cost of providing a caregiver since the time of Mr. Kahlon’s return home, at $13 an hour according to the evidence of Ms. Butterworth, which would be $215,000; hence the hospital’s midpoint figure of $230,000. The UBC Hospital says say that in the circumstances, a reasonable in trust award for the parents would be the sum of $28,000 that the parents have had to pay a person to assist them when their son visits.
[446] There is no doubt that Ms. Kahlon has expended numerous hours since her husband’s injury on his care, both before and after the time he was discharged from Ponoka. The issue is really the extent to which her services were over and above what would be expected from the marital relationship, what was her opportunity cost and what was the reasonable cost of obtaining those services outside the family.
[447] In terms of Ms. Kahlon’s claim, I find that there should be some compensation for the period prior to Mr. Kahlon’s return from Ponoka. Her services were not simply those that would be expected from the family relationship. Although I find that she largely went to Ponoka because she loved her husband and wanted to be near him, she also played a significant role in his recovery and provided care that went substantially beyond what would be expected of a loving spouse.
[448] At VGH, Mrs. Kahlon slept overnight at the hospital. At RGH, the hospital was facing nursing shortages and job action by its staff. Ms. Kahlon provided care in repositioning him, among other things. She stayed there 21 hours each day, did daytime tube-feeds, helped with range of motion exercises and hired a speech language pathologist and practised with her husband. As Mr. Kahlon did not qualify for admittance to G.F. Strong, she submitted his application to Ponoka, including creating a video on his abilities.
[449] At the Purdy Pavilion, where Mr. Kahlon was for a little over a month, Ms. Kahlon attended each morning, helped him with range of motion exercises, got him washed, dressed and into a chair.
[450] At Ponoka, Ms. Kahlon testified that apart from being with her husband, she participated in his therapies in order to learn what she needed to do to care for him when she brought him home. She regularly provided support and care. On average, she was at the hospital 15.5 hours a day during the week and 21 hours a day on weekends. As the therapy staff did not work on the weekends, she helped out. She learned how to move her husband and was taught about all aspects of his care. She learned feeding skills and since returning home, has taught those skills, with the help of the speech therapist, to the other caregivers.
[451] I have taken into consideration the fact that that the services Ms. Kahlon provided at Ponoka and at the other institutions must be assessed in light of the fact that Mr. Kahlon was generally receiving 24 hour care from professionals at the time. However, at Ponoka, I find that she provided extensive care every day and evening, slept over on the weekends to assist him and used the hospital van to take him on outings.
[452] The amount of work she has expended since Ponoka is perhaps best understood by considering how Mr. Kahlon’s required care is provided. Apart from being cared for by Ms. Kahlon, Mr. Kahlon currently receives some home care assistance, attends the Richmond Kinsmen Centre and spends time with his mother and father once per week. Assisted by 30 hours of home care support, Ms. Kahlon participates in all aspects of his care except when she has 4 hours of respite each week or when her husband is with his mother in her care. The 30 hours of home care that is provided includes travel time. Ms. Kahlon estimates she also must be at home 40% of the time the caregivers are there.
[453] Ms. Kahlon has been responsible for, and is involved in, all aspects of Mr. Kahlon’s care. The provision of that care is hands on, physically difficult and time consuming. Plaintiff’s counsel described it this way:
If she is not directly providing care, she makes sure all personnel involved in her husband’s care are supervised and motivated and up to date on the current procedures, ensuring that his needs are constantly being met and he is safe. If there is a recreational activity, such as going to a movie or going to a social gathering, she makes arrangements, drives, dresses him and coordinates the details of the activity for Mr. Kahlon. If she is not at home she must co-ordinate activities and be available on her cell phone.
I find that to be an accurate review.
[454] As I noted earlier, where the opportunity cost to the care-giving family member is lower than the cost of obtaining the services independently, the court will normally award the lower amount. In this case, the parties are agreed that Ms. Kahlon would have earned $374,224 in the relevant period (namely, the entirety of the pre and post Ponoka period) had she continued her normal employment as a teacher. I note that UBC Hospital suggests that her opportunity cost for the period post Ponoka is $246,000. The plaintiff’s counsel argues that neither amount is a fair reflection of Ms. Kahlon’s true opportunity cost as it fails to consider that she might have worked overtime, that she lost career advancement possibilities given her time away from her profession, and, there has also been a personal toll in taking care of her husband in terms of her health and family aspirations.
[455] The plaintiff argues that by any measure, the cost of independently providing the care services provided by Ms. Kahlon substantially exceeds the opportunity cost. I find that to be true.
[456] In my view, the bulk of the in trust award for Ms. Kahlon must relate to the period after Ponoka; a more modest part should apply to the period while he was at Ponoka and that before when he was at Vancouver General, Richmond General and Purdy Pavillion. During that time, Ms. Kahlon provided care beyond that expected of a spouse and also learned the skills to take care of him and teach others to take care of him when he returned home. At their home in Richmond, she has provided care far beyond what might be expected of a spouse.
[457] The amount of the award is not easy to assess, and I should approach a claim of this sort cautiously. Using opportunity cost as a guide and recognizing the very substantial extent of the services that Ms. Kahlon has provided, services that I find go far beyond that which would be expected from the family relationship, I make a total in trust award in favour of Ms. Kahlon in the sum of $350,000.
[458] I have reached the sum of $350,000 on the following basis. The services provided by Ms. Kahlon, I find, are over and above what would be expected of a family member. The cost of providing those services is unclear, but it is at least the amount I have ordered, given the lengthy hours and the nature of the services that were put in by Ms. Kahlon. The opportunity cost, while a check to determine a reasonable award, must reflect the true opportunity cost to the person making the claim. In that sense, the arguments made by the plaintiff of the true opportunity cost have some force and are worthy of consideration. I must also take into account the extensive time spent by Ms. Kahlon and the high quality and the difficult nature of the services she has provided for her husband.
[459] Considering all of the above, I have concluded that $50,000 for the period before November 2003 and $300,000 for the period after is appropriate.
[460] I turn to the in trust claim for the parents. Mrs. Kahlon is 67 and her husband is 78 years old. Mr. Kahlon visits his mother around noon on Friday and sleeps for few hours. Then, after watching television or listening to music with his mother, he is tube fed by her and goes to bed at around 8 pm. Mrs. Kahlon generally sleeps in the same room as her son. Her son has woken up four or five times a night moaning but medication has improved the muscle spasms he suffers from.
[461] Mrs. Kahlon prepares and provides the morning tube feed to her son. Homecare of two hours’ duration is provided now on Saturday morning, during which time the caregiver and Mrs. Kahlon give him sponge baths, brush his teeth, dress him, and get him in his wheelchair. After this, the homecare provider leaves and Mrs. Kahlon provides her son with his lunch. He naps for two to three hours a day while at her house and is picked up by Ms. Kahlon at 7:00 p.m. on Saturday night.
[462] At the outset, Mrs. Kahlon attended at the hospital and went to Ponoka after her husband had first visited. At that time, I find that the parents were unsure whether Michelle Kahlon would remain, and Mr. Kahlon’s mother, in particular, learned how to provide care for their son. In fact, Michelle Kahlon has been remarkably loyal and supportive of her husband, providing care far beyond what would be expected from a family relationship. Michelle Kahlon became her husband’s committee in 2004.
[463] In the circumstances, I make an in trust award of $75,000 for the parents, and in order that there is no duplication, I note that includes the amount paid by the plaintiff’s mother to the caregiver of $28,000.
[464] As I earlier noted, the claim for special damages for expenses incurred by Michelle Kahlon is not in dispute.
[465] However, the claim for special damages in connection with the expenses incurred by the parents is, and the positions of the defendants in opposing it are somewhat different. I note that the parents’ earlier claim for hyperbaric oxygen has been dropped.
[466] The plaintiff seeks the sum of $171,408 for expenses incurred by his parents, Mr. and Mrs. Kahlon. The main claims in dispute are the cost to the parents of moving to a new home that would accommodate the needs of their son as well as the cost of travelling to and residing in Ponoka while their son was there.
[467] The defendant doctors say that the claim for special damages should be reduced by the claim for the cost of the moving.
[468] The defendant hospital also has that objection but challenges as well ½ of the cost of for the attendance by the parents at the hospital in Ponoka.
[469] I address first the parents’ moving costs, which are opposed by all defendants.
[470] Mr. and Mrs. Kahlon have claimed the sum of $58,343, which they incurred in selling their home and buying one which, in their view, was more suitable for their son. The claim here is not for renovations to the plaintiff’s home or the parents’ home, but the costs of the realty commission and the late closing costs as a reasonable estimate of providing accessible housing. They say that the change in housing was done to accommodate their son’s needs.
[471] The defendants’ position is not that the quantum is unreasonable or in principle not recoverable but that they should pay compensation either for the cost of accessible housing for Mr. Kahlon’s main residence or the cost of his parents’ move to a new house, but not both, particularly, they submit, as there is no medical requirement that the plaintiff stay with his parents part of the week.
[472] In Zapf v. Muckalt (1995), 11 B.C.L.R. (3d) 296, [1996] 1 W.W.R. 175 (S.C.), Humphries J. held at 318 that “the defendants should either have to pay for renovations in the house, which I am satisfied the plaintiff wishes to purchase in the near future, … or should pay for the set of renovations already done, but not both.” This finding was upheld in the Court of Appeal, (1996), 26 B.C.L.R. (3d) 201, at para. 42, 84 B.C.A.C. 195, where Donald J.A. said “whether an allowance should be given for more than one set of renovations is bound up in the facts and I think the result must largely depend on the trial judge’s overall appreciation of the case.”
[473] At the time the parents moved it was unclear to the parents whether Michelle Kahlon was going to stay with her husband. The parents bought a new home that was more appropriate and accessible for their son in 2004. Mrs. Kahlon Sr. testified that they wanted to be prepared if Michelle Kahlon did not want to take care of their son. Given the fact that Mr. Kahlon had returned from Ponoka less than a year earlier and the catastrophic incident that disabled their son had occurred only shortly after their marriage, the parents’ concern about having a place to adequately care for their son was reasonable. It is remarkable that Ms. Kahlon has provided the care for her husband that she has. However, the parents’ expense at the time was reasonable and I find this cost to be recoverable.
[474] I turn to the cost of travelling to and staying in Ponoka. The defendant hospital opposes ½ of the amount claimed. The evidence shows that the parents took turns going to Ponoka and staying at a motel within a few miles of the hospital, so that they could visit their son and, in the case of Mrs. Kahlon, participate in his care and therapy and learn how to care for her son.
[475] I am also satisfied that the claim for travel expenses is reasonable. The question is whether there is evidence adduced that suggests that Mr. Kahlon’s parents’ visits provided therapeutic or medical benefit. I find that it does and allow this claim for special damages as well. In all of the circumstances, I allow the parents the special damages claim in the amount of $171,408.
[476] I should add that given my conclusion with respect to the cost of attendant care, the agreed amount of $18,000 should not be deducted from the damage award.
[477] The plaintiff seeks an increase in future care costs based on a contingency that Mr. Kahlon’s circumstances will deteriorate and his costs will increase. The plaintiff relies on Morrison (Committee of) v. Cormier Vegetation Control Ltd., 1998 BCSC 2067; and Mitchell v. We Care Health Services Inc., 2004 BCSC 902, where Boyd J. and Kelleher J. respectively added a positive contingency of 15% and 5% for the fact that the contingencies are in one direction, that is, that the plaintiff’s circumstances will become worse and require further care.
[478] The defendants argue that Ms. Landy must have considered this in her plan and that certain costs that were conceded by the defendants, such as physiotherapy and a sum for community involvement, may tend to overcompensate Mr. Kahlon. If any expert had felt that further nursing care would be required in the future, the defendants argue that it would have appeared in their opinions.
[479] The defendants submit that if in fact Mr. Kahlon does deteriorate, as indicated by Dr. Van Rijn’s opinion, he will probably develop dementia and will likely require admission to an institution and thus have lower care costs; because of that possibility, the defendants argue there should likely be a negative contingency.
[480] In all the circumstances, I think that the positive and negative contingencies generally balance out. While Mr. Kahlon may require additional care, I have considered that as part of my assessment of the cost of attendant care. Therefore, I do not think that applying an overall contingency factor is appropriate.
1. The plaintiff shall have judgment against UBC Hospital.
2. The claims against Dr. Li, Dr. Khan and Dr. Bermann are dismissed.
3. The plaintiff is contributorily negligent.
4. The defendant UBC Hospital is 70% at fault.
5. The plaintiff’s life expectancy is 17 years from the date of these reasons.
6. The damages issues that were not agreed are decided as follows:
| (a) | Attendant care | $210,000 annually |
| (b) | Rehabilitation aide | $27,500 annually |
| (c) | Speech language therapist | nil |
| (d) | Swallowing therapy | $5,000 annually |
| (e) | In-trust claim |
|
| (f) | Special damages for parents | $171,408 |
“J.S. Sigurdson J.”
The Honourable Mr. Justice J.S. Sigurdson