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HOSPITALS AND HEALTH CARE FACILITIES - Liability - Negligence

Monday, May 29, 2017 @ 7:07 AM  


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Appeal by the defendants from the trial judgment finding them liable for damages suffered by the respondent from a suicide attempt and from the award of future care costs. The respondent had been certified under the Mental Health Act and was suspected to be suicidal. He suffered a serious brain injury when he attempted to hang himself in the bathroom of the defendant hospital’s emergency ward. The trial judge found the hospital liable under the Occupiers Liability Act and in negligence for failing to take reasonable steps to either ensure that the bathroom design was changed to be ligature-proof or more easily monitored in advance of suicidal patients being allowed unmonitored access to it, or to institute policies to ensure that suicidal patients could not be in the bathroom unmonitored or uninterrupted for any length of time that could allow for a hanging approaching five minutes before rescue. The trial judge found that the nurses who were on duty in the unit at the time of the incident had failed to meet nursing standards of care in losing track of the respondent and allowing him uninterrupted access to the bathroom for at least five minutes. One nurse had also fallen below nursing standards in not knowing how to unlock the bathroom door, which added to the delay in getting to the respondent. In assessing damages, the trial judge adopted the total lifestyle approach. The appellants disputed the judge’s allowance of $43,000 per annum for the cost of a support worker to check on the respondent in his apartment two times per day. The appellants argued no medical expert suggested the four hours per day of support care awarded by the trial judge. At the time of trial, the respondent was working part-time and able to take public transit.

HELD: Appeal allowed in part. The future care cost award was reduced. The trial judge did not reverse the onus of proof with respect to the standard of care in assessing the claim under the Occupiers Liability Act. The trial judge was not plainly and palpably wrong in concluding that the hospital fell below the applicable standard of care in failing to make the bathroom in the unit ligature-proof. The trial judge considered patient privacy and dignity. It was not incorrect, or clearly wrong, for the judge to have given greater weight to considerations of safety than to patient privacy and dignity. The trial judge allowed for flexibility in formulating a reasonable standard of care applicable to hospitals treating mental health patients by stating that the standard could have been met either by addressing the risk through design improvements or stricter nursing monitoring policies and policies around bathroom use. The trial judge was not wrong in law or in fact in holding the nurses to the standard she did. The services of a support worker for an average of four hours per day seemed excessive on the evidence. The judge erred in rejecting the rehabilitation doctor’s recommendation for a support person once per day. The choice of two visits per day was excessive in all the circumstances, including the fact that the respondent worked a few days per week. Two visits per day was neither reasonably necessary to promote the mental and physical health of the respondent, nor medically justified. One visit for two hours every day, with some flexibility to recognize that not every day might be convenient until the respondent reached the age of 67, in addition to the other services ordered by the trial judge, was sufficient.

Paur (Committee of) v. Providence Health Care, [2017] B.C.J. No. 762, British Columbia Court of Appeal, M.V. Newbury, S. Stromberg-Stein and G.J. Fitch JJ.A., April 24, 2017. Digest No. TLD-May292017002