2005 BCSC 32 Cherniwchan v. Royal Columbian Hospital et al

Before: The Honourable Madam Justice Garson

Reasons for Judgment

Counsel for the Plaintiff	A.M. Roos
Counsel for the Defendants Royal Columbian Hospital and John and Jane Doe	A. Sayn-Wittgenstein
Counsel for the Defendant Dr. Robert Van Wiltenburg	R. Samtani and J. Woznesensky
Date and Place of Trial/Hearing:	December 6-10 and December 13, 2004
	Vancouver, B.C.

[1] THE COURT: Peter Cherniwchan, now age 67, has suffered from ankylosing spondylitis since he was 25 and his spine is almost totally fused. Owing to this condition, he is susceptible to respiratory infections. On March 12, 1999, he was suffering from a fungal infection in his lung. The defendant, Dr. Van Wiltenburg, using CAT scan guidance, injected an antibiotic through Mr. Cherniwchan’s chest wall into his lung. During the procedure, lasting about 30 minutes, Mr. Cherniwchan’s arms, supported by straps, were elevated above his head. The elevation of his arms above his head was necessary to ensure that his lung could be clearly viewed on the CAT scan. Unfortunately, because of his ankylosing spondylitis, this position caused pain, temporary paralysis of his right arm, and permanent damage to his right brachial plexus nerve (the bundle of nerves connecting the spine and neck to the muscles that provide sensation in the arm).

[2] Mr. Cherniwchan sues the Royal Columbian hospital, the CAT scan technologists, and the radiologist, Dr. Van Wiltenburg. He says that during the procedure he complained five times of severe pain and numbness in his right arm, and that his complaints were ignored by the defendants. The defendants say that the elevated arm position is standard procedure for an interventional lung procedure with CAT scan guidance, and that Mr. Cherniwchan did not alert any of the defendants to his pain. Alternatively, the technologists and Hospital defendants say it was Dr. Van Wiltenburg’s responsibility to familiarize himself with the patient’s medical history and he should have known that the elevated arm position could be painful to Mr. Cherniwchan. Dr. Van Wiltenburg says the technologists failed to communicate Mr. Cherniwchan’s complaints to him.

[3] Alternatively the defendants all say that this injury is such an unusual complication that I should find it was not a foreseeable consequence of a breach of the standard of care.

Issues

[4] The parties have reached agreement on the quantum of damages, and thus only liability was in issue at trial.

[5] The defendants do not dispute that the brachial plexus injury resulted from Mr. Cherniwchan’s arms being elevated and strapped above his head for about 30 minutes during the CAT scan procedure.

[6] The main question is whether any of the defendants breached their duty of care to Mr. Cherniwchan. The liability of the defendants turns in part on the question of fact: Did Mr. Cherniwchan communicated the extent of his discomfort to any of the defendants during the procedure? If I find that all or one of the defendants breached their duty of care, the plaintiff must also prove that the injury was reasonably foreseeable.

The Procedure

[7] At about two o’clock in the afternoon on March 12, 1999, Mr. Cherniwchan was taken to the CAT scan room.

[8] He had been in hospital for a lung infection since March 6, 1999. This was a serious infection with potentially life threatening consequences. The CAT scan-guided injection of antibiotic was, in practical terms, the last treatment option for Mr. Cherniwchan.

[9] Mr. Cherniwchan was placed on his back on the CAT scan table and his hands were elevated above his head. Velcro straps were used to support his arms and hands in that position.

[10] At 2:22 in the afternoon, two quick CAT scans were performed. These scans are called “scout” scans. The scout scans assist the technologists to set the parameters on the machine.

[11] At 2:25, a diagnostic scan was performed. Its purpose was to locate and mark the fungal ball in the plaintiff’s lung.

[12] Next, Dr. Van Wiltenburg entered the CAT scan room. He examined the diagnostic scan and at 2:30 he marked, on Mr. Cherniwchan’s chest, the location for the injection site using indelible ink.

[13] Next, Dr. Van Wiltenburg inserted the needle through the chest wall into the fungal ball. At 2:47, Mr. Cherniwchan was scanned again to ensure that the needle was in the correct location. It was. Then Dr. Van Wiltenburg injected an antibiotic solution directly into the fungal ball in the lung. At that point, Mr. Cherniwchan’s hands were released and placed down by his side.

[14] At 2:54, Mr. Cherniwchan underwent a final CT Scan to ensure that the antibiotic had been delivered to the infection site.

Analysis

[15] Mr. Cherniwchan testified that he complained on five occasions about his pain. There were three technologists - two women, Donna Bell and Rosemary Bruno who assisted with the procedure, and a male trainee technologist, Laurier Nobert. Ms. Bell and Ms. Bruno were responsible for supervising Mr. Nobert. Mr. Cherniwchan testified that he could tell from the voices he heard around him that it was the two women technologists who were close to him. He says he complained twice to the female technologists, but they did not respond. He said that on his third complaint, a technologist replied, “This will not take long”. As is noted below, the first complaint was likely made to Mr. Nobert, and Mr. Nobert says that he told Mr. Cherniwchan that the procedure would not take long. Mr. Cherniwchan described the severity of pain as beyond imagination. He testified that he complained again but the technologist told him the doctor was about to insert the needle and not to move. As is noted below, Dr. Van Wiltenburg does recall a complaint occurring at about the time he was inserting the needle.

[16] Under cross-examination, Mr. Cherniwchan was not so clear about the timing or frequency of his complaints or the surrounding events.

[17] He had no recollection of being administered Ativan (a sedative) before the procedure, although the records disclose that he was given 2 milligrams prior to the procedure. The records show in two places that he was taken by stretcher to the CAT scan room, whereas he was quite certain that he went in a wheelchair. He testified at trial that he heard the Velcro arm straps being fastened but at discovery he denied hearing the Velcro being fastened. Most significantly, his recollection of the five distinct complaints was shown to be faulty. He was unsure about if, or how many, complaints were made to the technologists before Dr. Van Wiltenburg arrived.

[18] Mr. Cherniwchan said that when Dr. Van Wiltenburg entered the CAT scan room, and introduced himself to Mr. Cherniwchan, Mr. Cherniwchan did not take that opportunity to tell the doctor that he was in terrible pain owing to the elevated position of his arms. He explained this by saying, “It’s my understanding that the technologists should tell him.” He also said that he complained to the whole group. He was asked, “Did you think you should mention pain to Dr. Van Wiltenburg?” He answered, “No I didn’t”.

[19] He recalls the technologist forcing his arms above his head beyond his normal range of motion. The technologists say that the Velcro straps are only used if the patient needs to support their arms, and that they would never force the arms beyond the point of comfort.

[20] Mr. Cherniwchan kept a diary, and one or two days after the procedure he recorded that “a minimum of five complaints” had been made. The statement of claim, which he says he reviewed for accuracy, states in ¶s 10 and 11 that the second complaint was after Dr. Van Wiltenburg entered the CAT scan room. However, Mr. Cherniwchan could not give any reliable estimates of the time intervals between the complaints, and under cross examination he said some of the five complaints may have been “back to back”.

[21] Mr. Cherniwchan confirmed that when Dr. Van Wiltenburg entered the room and introduced himself, he was then in significant pain. He said that he complained to the whole room, but that he did not think he should mention the pain specifically to Dr. Van Wiltenburg. Later he testified that Dr. Van Wiltenburg was present when he complained to the technologist.

[22] He agreed that he could bear the pain rather than ask that the procedure be stopped. He testified that he did not ask that the procedure be stopped. He did not ask that his arms be moved, although in his complaint letter written to the hospital, he said, “I urged them to loosen my arm”.

[23] Mr. Cherniwchan knew his lung condition could be fatal if not successfully treated with the antibiotic injected directly to the infection site.

[24] I turn now to the evidence of others who were present. Ms. Bell and Ms. Bruno have no recollection at all of the procedure, or of Mr. Cherniwchan. Mr. Nobert does recall the procedure although his recollection is somewhat fragmented. Dr. Van Wiltenburg does recall the procedure.

[25] The reason that Mr. Nobert can recall the events at all is that this was his first experience assisting at an invasive CAT scan guided procedure. Mr. Nobert began his training on the CAT scan just a few days before March 12, 1999, although he had been a certified radiographer since 1995. He was operating the CAT scan control panel on March 12, 1999, but he was also assisting in the CAT scan room. Mr. Nobert recalls going into the room after the first diagnostic scan.

[26] Mr. Nobert testified that he does recall Mr. Cherniwchan saying that his arms were uncomfortable above his head within a minute after the diagnostic scan was completed. Mr. Nobert said, “I would have reassured him we would try and get through the procedure as soon as possible. I would have told the radiologist but I don’t remember doing so.” Mr. Nobert also testified that if the patient had complained of severe pain, he would have helped him bring his arms down to his side and let the radiologist know about the problem. Mr. Nobert could only recall one complaint made by Mr. Cherniwchan, and does not recall any other pain behaviour such as grimacing. Excerpts from Mr. Nobert’s examination for discovery were read in at trial by the plaintiff, in which Mr. Nobert testified that he remembered Mr. Cherniwchan saying, “My arms are uncomfortable”.

[27] Ms. Bell, Ms. Bruno, and Mr. Nobert testified that Mr. Nobert was responsible for operating the scanner (under Ms. Bell and Ms. Bruno’s supervision) so he would have been in the control room most of the time. There is an open speaker system that allows the operator to hear the patient on the bed.

[28] I also heard evidence from three radiologists, including the defendant radiologist, Dr. Van Wiltenburg. The procedure Dr. Van Wiltenburg performed on Mr. Cherniwchan was the first occasion on which he had infused a substance into the lung. He had previously performed the more common procedure of a lung biopsy. He does have an independent recollection of the Cherniwchan procedure.

[29] Dr. Van Wiltenburg testified that he arrived after the diagnostic scan. He testified that he would have introduced himself, asked how Mr. Cherniwchan was doing, and “at that stage if he had told me about pain I would have assessed it.” Dr. Van Wiltenburg stated that at that point in the surgery it would be easy to adjust for arm pain.

[30] Dr. Van Wiltenburg was at Mr. Cherniwchan’s side for two parts of the procedure: first to mark the entry point; second to inject the cavity. He says that he was aware of Mr. Cherniwchan’s complaint of pain “near the end of the procedure”, and he recalls taking his arm down. Dr. Van Wiltenburg confirms that the last scan (taken to verify that the antibiotic was injected in the correct location) was performed with Mr. Cherniwchan’s arm down. There is, therefore, good evidence from which it may be concluded that at least near the end of the procedure, Mr. Cherniwchan did effectively complain about his pain. Dr. Van Wiltenburg does not recall Mr. Nobert advising him of pain earlier. Dr. Van Wiltenburg testified, “I doubt that he did – it’s my procedure to deal with it.”

[31] Dr. Van Wiltenburg’s evidence is in part consistent with Mr. Cherniwchan’s evidence, in so far as Dr. Van Wiltenburg testified that he did say to the technologist that the procedure could have been done with the arm at his side. He testified that “I remember thinking that if I had known this [about the pain] and this was brought to my attention we could have tried something else.” Dr. Van Wiltenburg does not recall a technologist telling him earlier about a pain complaint and indeed none of the technologists recall advising Dr. Van Wiltenburg about a pain complaint, except that Mr. Nobert says he believes he would have told Dr. Van Wiltenburg. Dr. Van Wiltenburg agrees that if Mr. Cherniwchan had complained to the technologist it would be the technologist’s duty to inform the radiologist about the complaint. Mr. Cherniwchan testified that Dr. Van Wiltenburg also said, at the time he lowered his arms, that he may have suffered nerve damage. Dr. Van Wiltenburg says that he would not have made such a statement because he had no basis then for believing that there was any such injury.

[32] I heard expert opinion evidence from two other radiologists - Dr. Catherine Staples called as a witness for the plaintiff and Dr. John Mayo called as a witness for the defendant doctor.

[33] There is substantial agreement among the three radiologists on much of the evidence. They agree that the optimal position for the procedure performed on the plaintiff is with the arms elevated above the head. They agree that other reasons for this position are to avoid the bones of the arm obscuring the image of the lung, and to reduce the likelihood of the needle piercing certain veins and arteries located close to the injection site. They agree that, to some extent, raising the arms enlarges the “surgical window” by spreading the ribs. They agree that in Mr. Cherniwchan’s case, the arm did not in fact obscure the image of the lung when the last scan was taken, but of course this would not have been known before the procedure began. They all agree that patient complaints of pain should not be ignored and that, within the parameters of the stage of the procedure at which the complaint occurs, the patient should be accommodated. For example, Dr. Mayo said in somewhat colourful language that if a complaint was made when the needle was already in the lung he “would thunder ahead” regardless of the complaint, because the danger of then not completing the procedure would outweigh concerns about the patient’s pain. Another point that the three doctors agree upon is that the positioning of the patient with arms elevated is uncomfortable for most patients and that to a certain degree they do ask or expect the patient to put up with the discomfort.

[34] The three radiologists’ opinions were also in substantial agreement about the risks of the procedure. These risks include a pneumothorax (collapsed lung), puncturing a nearby vascular vessels, internal bleeding, risk of injecting the substance into the lung instead of the fungal ball, embolism, and infection. However, they are also in agreement that the particular injury the plaintiff suffered was not a known consequence or risk of the procedure. Searches of medical literature did not disclose any other instance of damage to the brachial plexus from this type of procedure.

[35] The three radiologists’ opinions differ somewhat in more subtle ways. Dr. Staples would be more inclined to accommodate a patient’s complaint of pain by adjusting the arms whereas Dr. Mayo, who is more experienced in this procedure, placed greater importance on the arms being elevated. Dr. Mayo said that he has never performed a CAT scan guided lung infusion with arms down. He also said that almost all patients find the position uncomfortable, and complain in varying degrees. Dr. Mayo did agree that there are lesser adjustments that could be made to the arms to provide some level of comfort to the patient.

[36] The differences in the opinions of the radiologists are not important because they all acknowledge that if a patient complained of severe pain and numbness at any stage of the procedure up to the time of insertion of the needle, they would respond in some way to the complaint.

[37] The technologists also all agree that it is their professional duty to respond to complaints of pain from a patient.

[38] The evidence is clear that Mr. Cherniwchan did complain at least once to, or within earshot of, Mr. Nobert, because Mr. Nobert said he heard the complaint and assumes he reassured Mr. Cherniwchan that they would try and get through the procedure as soon as possible. Mr. Nobert recalls that the complaint of “discomfort” was made after the first diagnostic scan. The evidence is also clear that a further complaint was made too late for any adjustment, when the needle was in his chest, because Dr. Van Wiltenburg responded to the complaint by lowering Mr. Cherniwchan’s arms as soon as he could. The evidence is also clear, by his own admission, that Mr. Cherniwchan did not make a direct complaint to the doctor.

[39] Mr. Cherniwchan says he made three other complaints. If he did make other complaints, I conclude that they must have been made to the technologists. I accept Dr. Van Wiltenburg’s evidence that if a serious or urgent complaint had been made to him in a timely way he would have responded to it.

[40] The only remaining question is whether Mr. Cherniwchan made urgent complaints to the technologists. All the technologists testified that it is their professional duty to respond to complaints of pain. I accept the evidence I heard that patients often complain of some level of discomfort associated with this elevated arms procedure. I was particularly impressed with the evidence of the technologists, Ms. Bruno and Ms. Bell. They were both then experienced radiological technologists. They both impressed me with their professionalism. I find it difficult to accept that if urgent complaints were made by Mr. Cherniwchan, as Mr. Cherniwchan alleges, those complaints would have been ignored by these technologists. Mr. Cherniwchan described how, at one point, he thought to himself that if his wife could endure child birth, he could endure the pain he was experiencing. The severity of the injury would suggest that his pain was indeed severe. However, he knew his lung infection was potentially fatal, and he also knew that this procedure was essentially the treatment of last resort.

[41] I find that Mr. Cherniwchan did complain to Mr. Nobert shortly after the first diagnostic scan was completed. The first complaint was therefore just after 2:25 p.m. I accept that Mr. Nobert responded by telling Mr. Cherniwchan words to the effect that he would try and get through the procedure as soon as possible. In fact the procedure was not completed until a few minutes after 2:47 (the time at which the needle is scanned in the correct location). I conclude therefore that Mr. Cherniwchan’s arms were in an elevated position for about 20 to 25 minutes after his first complaint of pain. I accept that Dr. Van Wiltenburg was not told either by Mr. Cherniwchan or Mr. Nobert about the first complaint. Even though Dr. Van Wiltenburg also has a somewhat fragmented recollection of events, his conduct and comments are in my view more consistent with his realizing Mr. Cherniwchan’s pain was significant when it was too late to accommodate him because the needle was in place. I say this because Dr. Van Wiltenburg personally removed the straps and took Mr. Cherniwchan’s arm down immediately after he completed the infusion of the antibiotic and removed the needle, which was, by Dr. Van Wiltenburg’s own admission, an extremely unusual action him to take. Sometime while the needle was in place, Mr. Cherniwchan must have made an urgent complaint. I also find Dr. Van Wiltenburg’s comment that “we could have done the procedure with his arms down” suggestive that he would willingly have accommodated a timely complaint had he known of it While it is true that Dr. Van Wiltenburg’s statement could be understood to be a self-critical statement (i.e. why didn’t I put the arm down), on the whole of the evidence I do not interpret his statement in such a way, but rather as a complaint to other medical staff or the plaintiff that he was not told early enough to accommodate Mr. Cherniwchan. Dr. Van Wiltenburg’s statement also supports a conclusion that Mr. Nobert did not advise Dr. Van Wiltenburg about Mr. Cherniwchan’s first complaint.

[42] I am left therefore with at least one acknowledged complaint early in the procedure, when all witnesses agree accommodation for comfort could easily have been achieved.

[43] What happened in the twenty to twenty-five minutes between the two proven complaints is somewhat puzzling. In an effort to be very precise about his complaints, Mr. Cherniwchan has actually shown his evidence to be quite unreliable. I do not find that he was a dishonest witness, but with the traumatic events of the day and the passage of time, his attempt to separate the complaints into five distinct complaints was shown on cross-examination to be unreliable. I also find that Mr. Cherniwchan was submissive about his pain. The twenty to twenty-five minute window I have referred to is, in the context of this procedure, a long period of time. Except for the brief periods when everyone left the scan room for the control room, there were technologists or a doctor at the plaintiff’s bedside at all times. The room is not large. It is puzzling that Mr. Cherniwchan was not able to effectively communicate the extent of his pain in those twenty to twenty-five minutes. I find it difficult to accept that the technologists and the doctor would have ignored him if he had done so.

[44] In his submissions, Mr. Sayn-Wittgenstein, for the defendant Hospital and the technologists, stated:

After speaking to the Plaintiff, Dr. Van Wiltenburg then worked at the Plaintiff’s side for 15 to 20 minutes, preparing him for the needle insertion (marking site, giving local anaesthetic, preparing sterile field). Dr. Van Wiltenburg testified that he would have been talking to the Plaintiff during this time, describing what was going on. Had the Plaintiff’s pain level truly been as significant as portrayed by the Plaintiff in the above extract, his pain would have been obvious and he would not have been able to lie still (evidence of Dr. Mayo).

It is submitted that the only reasonable explanation for the course of events is that the Plaintiff made a complaint of minor arm discomfort some time after the first diagnostic scan. This complaint was made in the presence of Mr. Nobert and others that may have included Dr. Van Wiltenburg.

[45] Mr. Roos, for the plaintiff, relies on the following evidence in support of the proposition that Mr. Nobert had a duty to respond to Mr. Cherniwchan’s first complaint of pain:

· Mr. Nobert testified that it was part of his duty as a health care provider in March 1999, to listen to a patient’s complaints of pain or discomfort and to assist the patient;

· Mr. Nobert also testified that it was his duty to bring complaints of patient discomfort to the attention of the physician in charge of the patient’s care at the first possible opportunity;

· Ms. Bruno testified that where a patient complains of arm pain within a few minutes of being placed on the CT table and the procedure will require him to keep his arms in that position for thirty minutes or so, it is the professional responsibility of the technician to change the patient’s position so as to make him comfortable;

· Ms. Bruno testified that a technician must not let a patient suffer discomfort without attempting to offer relief from the discomfort, and that it would be unethical to do so;

· Ms. Bruno testified that it is the professional responsibility of the technician to tell the radiologist at the first possible opportunity when a complaint of pain has been made in the absence of the radiologist.

[46] Mr. Roos notes Mr. Nobert’s complete lack of experience in CT procedures. Mr. Roos says that Mr. Nobert knew so little about the procedure that he thought it would take only ten minutes when he heard the first complaint. Mr. Nobert agreed that if he had been aware that this was a thirty minute procedure, he would have taken the initial complaint of pain a lot more seriously. While Dr. Van Wiltenburg agreed that it is common for a patient to make generalized complaints of pain in the arms elevated position, he said it would be uncommon to make a localized complaint of pain such as one localized to the shoulder. Mr. Roos acknowledges that Mr. Cherniwchan may have been submissive and respectful, but Mr. Roos says the plaintiff should not have had to “grab the professionals by the scruff of the neck and say listen to me.”

[47] Mr. Nobert has a specific recollection that Mr. Cherniwchan said his arms were “uncomfortable” above his head. He testified at trial that if the patient complained of acute pain he would have helped the patient to bring his arms to his side and he would have let the radiologist know, but that it is not uncommon for a patient to complain of arm pain during the procedure. At his examination for discovery he testified that “It’s my practice that I would not have told him [the patient] that we would be altering his arms.” He testified that it was very unlikely he would have told the plaintiff they could alter his arm position. As already mentioned, Mr. Nobert does not recall telling the radiologist about the complaint and, insofar as he had almost no experience with CAT scans and no experience with an invasive procedure under CAT scan guidance, his evidence about what he would have done on the day in question is of little persuasive value. He did not have a “usual practise” that he could refer to because he had never before been involved in such a procedure. As I said earlier, I accept Dr. Van Wiltenburg’s evidence that he was not notified about the complaint.

[48] Mr. Nobert has a recollection that the plaintiff was unhappy but his memory was that he came into the CAT scan room with an unhappy demeanour. Mr. Roos contends that Mr. Nobert’s recollection of Mr. Cherniwchan’s unhappiness is consistent with the plaintiff’s testimony that he was in pain and complaining on numerous occasions.

[49] Hospitals and thus the technologists

“… owe a duty to their patients to take such steps as are necessary to prevent their patients suffering loss or damage which they as reasonably prudent people operating a hospital … ought to anticipate might result if they do something or omit to do something which is the cause of such loss or damage to the patient.” [references omitted] (Wenden v. Trikha (1991), 116 A.R. 81, 8 C.C.L.T. (2d) 138 (Alta. Q.B.) at 155).

[50] The defendants argue that the injury was not foreseeable because there had been no previous reported incident of damage to the brachial plexus nerve associated with the elevated positioning of arms for CAT scan purposes. I do not agree with this argument. The fact that this precise complication on an interventional CAT scan was not previously reported does not imply that the medical professional could with impunity ignore complaints of pain or numbness. As noted in School Division of Assiniboine South No. 3 v. Hoffer et al. (1971), 21 D.L.R. (3d) 608, 1 N.R. 34 (Man. C.A.) at 613, “one need not envisage ‘the precise concatenation of circumstances which led up to the accident’:… [per Lord Morris of Borth-y-Gest quoting from Harvey v. Singer Mfg. Co. Ltd., [1960] S.C. 155 at p. 172]” to impose liability.

[51] On the other hand, the evidence does not support the contention that it was reasonably foreseeable that an injury could occur if complaints of discomfort were not acted upon. To the contrary, as already noted such complaints are commonly associated with the elevated arm position. I conclude that it was not reasonably foreseeable, or could not be reasonably anticipated, that an injury could occur by failing to change the arm position after a complaint of discomfort.

[52] The standard of care applicable here must incorporate the notion that the complaint is serious enough that the technologist could reasonably anticipate that ignoring the pain might result in loss or damage to the patient.

[53] Most of the witnesses at the trial agreed that the elevated arm position was uncomfortable for many patients. Dr. Mayo in particular said that most patients complain of discomfort in that position. All three technologists testified that their professional standard required them to respond to complaints of pain. That response, depending on the circumstances, could be reassurance, repositioning or advice to the radiologist about the pain.

[54] Did Mr. Nobert breach the standard of care? He says that he “would” have told the radiologist about Mr. Cherniwchan’s pain complaints. I have already stated that I preferred the evidence of Dr. Van Wiltenburg on this point. I found Dr. Van Wiltenburg’s evidence to be internally consistent with the proposition that he first was aware of a pain complaint during the last part of the infusion procedure. Mr. Cherniwchan himself thought that he made his complaints to the female technologists.

[55] The answer to the question of whether Mr. Nobert breached the standard of care depends on the factual finding of where Mr. Cherniwchan’s complaint falls on the spectrum of complaints from generalized discomfort to severe specific pain.

[56] The burden of proof is on the plaintiff to prove that he conveyed to Mr. Nobert or the other technologists a specific complaint of pain as opposed to generalized discomfort, which is a complaint that if ignored, a technologist ought to anticipate might result in loss or damage. The plaintiff read in and relies on Mr. Nobert’s discovery evidence that he recalled Mr. Cherniwchan saying, “My arms are uncomfortable”.

[57] The uncertain evidence before me is such that I am not satisfied on a balance of probabilities that the plaintiff alerted Mr. Nobert or the other technologists to his pain in such a way that they should have understood his complaint to be more than generalized discomfort. In saying this, I agree with Mr. Roos when he says that the patient need not, metaphorically speaking, “grab the technologist by the scruff of his neck” to alert him to his pain. On the other, hand as I have said, all three technologists and the radiologist were present in the fairly small room with Mr. Cherniwchan for about 25 minutes and I am not satisfied that by words or actions he conveyed to them the extent of his suffering. I find that the first complaint was only of discomfort. Mr. Nobert did not breach his professional standard by failing to respond to this complaint.

[58] I accept that Mr. Cherniwchan did utter complaints but I find that his complaints were not sufficient to alert the doctor or technologists to the urgency of the situation. All he needed to do was raise his voice, cry out or something of that nature, but I find that he did not do so. It is illogical to assume the first complaint made to Mr. Nobert was more urgent than his complaint late in the procedure. I conclude that despite Mr. Cherniwchan’s suffering, he must have been so determined to complete the procedure that he failed to explain to the professionals at his bedside that his pain was severe. This is consistent with his evidence about his determination to endure the pain in the way his wife had endured the pain of child birth.

[59] In summary, I conclude that while he did complain at least twice, any complaints, other than the last one which was acted upon by Dr. Van Wiltenburg, did not convey sufficient urgency, or were not insistent enough, to alert the technologists or the doctor to the intensity or severity of his pain. It was not negligent to have treated any such complaints as general complaints of discomfort commonly associated with the elevated arm procedure.

[60] The plaintiff’s claim is dismissed with costs. If counsel wish, they may make submissions concerning costs in writing, otherwise the defendants are entitled to costs at scale three.

“N. Garson, J.”
The Honourable Madam Justice N. Garson

Citation:	*Cherniwchan v. Royal Columbian Hospital et al,*
	2005 BCSC 32