Mere psychological upset not sufficient for mental injury claim: Ontario Court of Appeal

The Ontario Court of Appeal has ruled in a recent medical negligence lawsuit that a mere psychological upset is not sufficient to prove mental injury.

In Bothwell v. London Health Sciences Centre, 2023 ONCA 323, Craig Bothwell had Crohn’s disease resulting in several resection surgeries. He went to the London Health Sciences Centre, Victoria Hospital, for a reverse ileostomy surgery. Due to a medication error, he was mistakenly administered Heparin instead of Voluven, which led to substantial internal bleeding, additional surgeries and medical interventions.

Craig and his wife Miranda filed a medical negligence claim. Craig alleged that the erroneously administered medication exacerbated his Crohn’s disease symptoms. He also claimed that he suffered injuries to his internal organs, digestive issues, emotional distress, anxiety, depression, and psychological injury.

The trial judge ruled that the nurse and the hospital breached the duty of care they owed to Craig by administering Heparin to him. The judge concluded that the causation requirement between the breach and Craig’s psychological upset met the standard described in Saadati v. Moorhead, 2017 SCC 28. Craig’s feelings were objectively and subjectively serious and went beyond ordinary annoyances.

The defendants appealed to the Ontario Court of Appeal. They argued that the trial judge made an error in concluding that Craig’s anger about the medication error was sufficient to prove a compensable mental injury at law.

Mental injury

In Saadati, the court stated that “the existence of mere psychological upset does not prove mental injury.” Claimants must show that the disturbance suffered is serious and prolonged and rises above the ordinary annoyances, anxieties, and fears of living in civil society. The court concluded that “the claimant’s task in establishing a mental injury is to show the requisite degree of disturbance.”

Failure to take into account relevant considerations

The defendants argued that the trial judge failed to consider key factors set out in jurisprudence for determining whether Craig sustained a mental injury: cognitive impairment, the effect on his daily activities, and the nature of, and response to, any treatment for his emotional response to the medication incident. They asserted that the trial judge focused on “factors speaking to symptoms but erroneously failed to consider those factors speaking to impairment.”

The appeal court agreed with the defendants. The court found that the trial judge failed to recognize that jurisprudence requires that certain considerations bear weight in determining whether the claimant has succeeded in showing a mental injury.

The court emphasized that the existence of mere psychological upset does not prove a mental injury. Claimants must show that their disturbance is serious and prolonged and rises above the ordinary annoyances, anxieties, and fears of living in civil society.

Degree of disturbance

The court said that in distinguishing mental injury from psychological upset, the court must consider not only the claimant’s psychological upset but also how seriously the claimant’s cognitive functions and participation in daily activities were impaired, the length of such impairment, and the nature and effect of any treatment sought and taken concerning the psychological upset.

The court found that the trial judge failed to consider the degree of disturbance Craig experienced due to his psychological upset. The judge failed to consider what impact Craig’s continuing anger and frustration had on his cognitive functions and participation in daily activities. He also failed to consider the absence of evidence that Craig sought treatment for those feelings.

The court further found that the evidence, in this case, fell short of establishing that Craig’s feelings of anger and frustration were insufficient to support a finding of mental injury. There was no evidence to show that Craig’s continuing anger and frustration from the medication error led to impaired cognitive functions or participation in daily life. He continued to work as a paramedic and remained a committed father and husband. There was no evidence that he pursued treatment to deal with his emotional reaction to the medication error.

The court concluded that feelings of anger and frustration, without more, are evidence of psychological upset, not injury. The court said, “In the absence of evidence of impairment of cognitive functioning, interference with activities of daily living, or treatment for emotional symptoms, the claim for mental injury cannot succeed.”