Date: 19990723 Docket: C970780 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: SHANNON COLLEEN SHOBRIDGE PLAINTIFF AND: DAVID M. THOMAS, NORTH SHORE HEALTH BOARD carrying on business as LIONS GATE HOSPITAL, LAURIE KENNEDY, EVELYN BLACK and SHEILA WETZLMAYR DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE MADAM JUSTICE KIRKPATRICK Counsel for the Plaintiff: T.R. Berger, Q.C. E.F. Berger Counsel for the Defendant, C.E. Hinkson, Q.C. David M. Thomas K.F. Douglas Counsel for the Defendants, North Shore J.C. Grauer Health Board c.o.b. as Lions Gate Hospital, L. McKay Laurie Kennedy, Evelyn Black and Sheila Wetzlmayr Place and Dates of Hearing: Vancouver, B.C. June 14-18 and 21-25, 1999 [1] On September 13, 1995 Shannon Shobridge underwent a laparotomy and presacral neurectomy performed by Dr. David Thomas at Lions Gate Hospital (the "hospital"). The surgery was performed in an attempt to relieve persistent pelvic pain and dysmenorrhea. [2] During the surgery, Dr. Thomas used an abdominal roll measuring six feet in length and six inches wide to pack the bowel into the upper abdomen, away from the operative field. Contrary to hospital policy, the abdominal roll was not counted in the pre-operative count of instruments and sponges to be used in the surgery. Dr. Thomas did not remove the abdominal roll before closing the abdominal incision. Ms. Shobridge experienced very significant infection post-operatively. After two further hospital admissions to treat the infection, Dr. Thomas performed another surgery on December 4, 1995 at which time the retained abdominal roll was discovered. Dr. Thomas did not inform Ms. Shobridge of the retained abdominal roll until February 6, 1996. [3] Ms. Shobridge claims damages from Dr. Thomas, the hospital, and the nurses who participated in the surgery of September 13, 1995 for negligence, breach of fiduciary duty, and deceit. BACKGROUND A. Education and employment [4] Ms. Shobridge is now 28 years old. She was born in North Vancouver and was adopted at birth. She attended school in North Vancouver, and graduated from Argyle Secondary School in 1988. Ms. Shobridge suffers from dyslexia. She testified that she was able to overcome that learning disability through hard work and with the assistance of her teachers. [5] Ms. Shobridge attended Capilano College from 1988 to 1990. She received a certificate in retail management. She experienced some apparent difficulties at Capilano College. She failed her retail mathematics and fashion survey courses and received only a minimal pass in her advertising and computer courses. Ms. Shobridge testified that academic courses were more difficult for her and that she felt her strengths were, in her words, "on the creative side." [6] Ms. Shobridge's first job was at Expo '86 where she was employed at a McDonald's restaurant, for minimum wage. In 1988, she commenced part-time work as a sales associate with Collacut Luggage. That work grew to full-time employment. Ms. Shobridge eventually became assistant store manager of the Collacut Luggage Richmond store. In April 1993, Ms. Shobridge reported to her family doctor, Dr. Randsalu, that she had "much stress with work-drives to Richmond", in apparent reference to the long commute from her home in North Vancouver to the Richmond store. [7] Ms. Shobridge left that position and took another job with a clothing retailer. She left that job after a short period and was hired by Eaton's Department Store on February 15, 1994, at an annual salary of $27,200. She was appointed to the position of manager of furniture accessories. Her responsibilities included preparation of sales plans, wage and expense control, inventory, and the assessment of customers' needs. [8] Ms. Shobridge apparently enjoyed her work at Eaton's. Her performance evaluations were generally positive, although they were made in the context of a form entitled "Positive Coaching Comments, Opportunities for Improvement, Action Plan." The form appears designed to elicit only positive commentary, even when criticism is warranted. Nevertheless, David Green, Eaton's assistant store manager, testified that Ms. Shobridge was "fine" dealing with customers, which he acknowledged is the most important aspect of the job. B. Medical [9] Ms. Shobridge suffered from dysmenorrhea (pain associated with menstrual periods) from about 1985. Dr. Randsalu referred her to Dr. Thomas in October 1990. Dr. Thomas is qualified as an obstetrician and gynaecologist. He has practised medicine since 1965 and obstetrics and gynaecology since 1978. [10] When Dr. Thomas saw Ms. Shobridge in October 1990 she was complaining of menstrual cramps which caused her to lose time from work. Dr. Thomas prescribed birth control pills which, he testified, alleviates the symptoms of approximately 80 percent of patients suffering from dysmenorrhea. Other treatment alternatives include anti-prostaglandins. However, Ms. Shobridge has difficulty swallowing pills and therefore such anti-inflammatories were not considered appropriate for her. [11] Ms. Shobridge experienced some relief from painful menstrual periods as a result of taking birth control pills. However, Dr. Randsalu's clinical notes show that by February 1995, she was complaining that she had lower abdominal pain "all the time since early January not just menses." She was losing two to three days per week from work because of menstrual pain prior to September, 1995, and was using vacation time for absences from work. [12] Dr. Randsalu ordered a pelvic ultrasound in January 1995 which disclosed two uterine fibroids. Ms. Shobridge was referred again to Dr. Thomas in February 1995, at which time he discussed with her the advisability of undergoing a laparoscopy to exclude any pathology such as endometriosis. The laparoscopy was performed by Dr. Thomas on March 21, 1995. There was no evidence of endometriosis. Dr. Thomas undertook a partial division of the uterosacral ligaments at that time. Dr. Thomas stated in his operative report and in a later letter to Dr. Randsalu that if the partial division was not successful, a presacral neurectomy would have to be considered. [13] Ms. Shobridge next saw Dr. Thomas in June, 1995 at which time she reported that she could not cope with the pain associated with her menstrual periods. Dr. Thomas reported to Dr. Randsalu on June 26, 1995 that, "[I]n view of the fact that all conservative methods have failed I feel we now have to consider a presacral neurectomy." (i) September 13, 1995 surgery [14] Dr. Thomas performed the presacral neurectomy on September 13, 1995. He was assisted by Dr. Randsalu. Nurses Kennedy, Black, and Wetzlmayr were the operating room nurses. Dr. Thomas had never before performed a presacral neurectomy. The vast majority of patients respond favourably to birth control pills and anti-prostaglandins, thus rendering presacral neurectomies a relatively infrequently used technique. [15] Hospital policy requires a pre-operative count of sponges, needles and instruments to be used in surgery. The record is required to be completed by the nursing staff. The sponge, needle and instrument count record for the September 13, 1995 surgery does not disclose the use of an abdominal roll. It was obviously not counted in prior to or during the course of the surgery. The hospital and the defendant nurses admit that the failure to count in the abdominal roll used by Dr. Thomas constitutes a breach of the standard of care owed to Ms. Shobridge by the nurses and by the hospital. [16] As noted, Dr. Thomas used the unrolled abdominal roll to pack the bowel away from the operative field. The abdominal roll is six feet long. It is made of gauze. Dr. Thomas' usual practice is to leave approximately six inches of the roll clipped to the sheets which surround the operating site. Dr. Thomas' recollection is unclear as to how the entire abdominal roll came to be inserted in Ms. Shobridge's abdomen. However, the impression gained from his evidence is that Ms. Shobridge must have strained during the surgery, resulting in the abdominal roll becoming unclipped. In any event, Dr. Thomas used the entire roll to keep the bowel packed in the upper abdomen. [17] The surgery was completed in 47 minutes. At the conclusion of the surgery, Dr. Thomas asked the nursing staff if the count out of instruments and sponges was complete and was advised that it was. Dr. Thomas did a visual search of the operative site. He then closed the peritoneum and then the abdominal wall. Through inadvertence, the abdominal roll was left in the abdomen. Dr. Thomas did not examine the count sheet. He has never done so and, in his experience, not many surgeons do. He did not make a mental note of what went into and out of the operative site. He testified that he was totally focussed on the surgery. [18] The operative report for the September 13, 1995 surgery, which was dictated by Dr. Thomas that day, refers to "bowel packing", an obvious reference to the use of the abdominal roll. [19] Dr. Thomas anticipated that Ms. Shobridge would recover within a few days of the surgery and would be able to return to work within three to four weeks. Ms. Shobridge was discharged from hospital on September 17, 1995. She was readmitted to hospital on September 28, 1995 with what was diagnosed as a wound abscess. Dr. Thomas ordered ultrasound examinations, cultures, antibiotics and pain killers for Ms. Shobridge. Under local anaesthetic, Dr. Thomas opened the incision, probed it, and drained a large quantity of pus. A half inch wide gauze strip was inserted into the incision to keep it open to assist drainage. [20] Ms. Shobridge was discharged from hospital on October 5. Home care nurses treated her daily from October 6 to 26. The home care nurses' notes indicate that the wound continued to drain purulent discharge; the wound was tender and painful; and Ms. Shobridge was very discouraged and at times despondent. [21] Ms. Shobridge was re-admitted to hospital on October 27 and remained there until December 10. Dr. Thomas ordered several ultrasound tests, a CAT scan, and a sinogram in an effort to determine the cause of Ms. Shobridge's persistent infection. On November 7, he discussed Ms. Shobridge's case with another surgeon, Dr. Marinatos. Dr. Thomas or the nursing staff drained, irrigated, and dressed the wound site almost daily. The infection was apparently resistent to all their efforts. Ms. Shobridge's abdomen, particularly from the incision site (a so-called "bikini incision" above the pubic area) to the umbilicus was hard, tender and painful. [22] In a consultation report dated December 4, Dr. Marinatos noted that the sinogram and CAT scan showed an abscess "deep to the rectus muscles" and it appeared to him that the sinus needed to be excised. [23] Although there was some limited ebb and flow of improvement in Ms. Shobridge's condition, the nursing notes for this period demonstrate the relative intractability of the infection and Ms. Shobridge's growing despondency at both the undue length of time for recovery and the apparently limited options for treatment. (ii) December 4, 1995 surgery [24] On December 4, 1995 Dr. Thomas, assisted by Dr. Marinatos, performed surgery under general anaesthetic to excise an abdominal fistula and deep abdominal wall abscess. During the course of the surgery, the retained abdominal roll was discovered in Ms. Shobridge's upper abdomen above the umbilicus. [25] Also present at the December 4 operation were nurses Joy Toovey and Sandy Kwok, and the anaesthetist, Dr. Walker. The reaction of all those present when the abdominal roll was removed was described as one of shock and horror. The operating room fell silent; Nurse Toovey testified that one could hear a pin drop. [26] Nurse Toovey placed the recovered abdominal roll in a bowl. She asked Dr. Thomas: "What should I write on the slate Ä excision of abscess fistula and removal of abdominal roll?" She testified that Dr. Thomas responded: "You didn't write that, did you?" Nurse Toovey told Dr. Thomas that an incident report should be made out, but that he said: "There will be no paperwork on this." Nurse Toovey insisted that her nursing supervisor, Sherry Stojkovich, needed to be told about the recovered abdominal roll. Dr. Thomas told her that he would speak to Nurse Stojkovich the following morning. Neither Nurse Toovey nor Nurse Kwok filed an incident report as required by hospital policy. [27] Dr. Thomas dictated his operative report on December 4. No mention was made of the recovered abdominal roll. [28] Two days after the surgery, Dr. Thomas stopped Nurse Toovey in the hall and asked if either she or Nurse Kwok had spoken with anyone about the case. Nurse Toovey replied that they had not, whereupon Dr. Thomas turned and walked away. [29] Dr. Thomas was unable to speak to Nurse Stojkovich the following morning because she was sick and off from work. In fact, Dr. Thomas was unable to speak to her for many months because she was on sick leave for approximately six months. Dr. Thomas did not voluntarily attempt to speak with anyone else in authority at the hospital. Dr. Thomas told Nurse Kwok in January 1996 that he did not want the nurses involved in the September 13, 1995 surgery to be told of the recovered abdominal roll because they would, he said, "be devastated." (iii) Subsequent medical events [30] Dr. Thomas spoke with Ms. Shobridge shortly after the surgery. She recalled that he told her that he thought he may have fixed the problem. Dr. Thomas testified that he was embarrassed and did not have the fortitude to tell her of his horrifying discovery on December 4. His incapacity to do so only strengthened in the following weeks. [31] Ms. Shobridge was discharged from hospital on December 10, but re-admitted on December 17 with abdominal pain. A CAT scan and ultrasound suggested another subrectus muscle abscess. As Ms. Shobridge testified "everyone was fed up" with the recurring infection. With the apparent urging of her mother, Ms. Shobridge was transferred to the Vancouver General Hospital on December 20 through Dr. Sandy, another surgeon at Lions Gate Hospital who had privileges at both Lions Gate and Vancouver General Hospitals. Dr. Noelle Davis assumed her care. [32] On December 20, Dr. Thomas dictated a consultation report for Dr. Davis and others treating Ms. Shobridge at Vancouver General Hospital. In that report, no mention was made of the recovered abdominal roll. Dr. Thomas' explanation for this was: he still did not have the mental fortitude to tell Ms. Shobridge; the cause of the problem had been removed; the physical damage had been done; and, failing to inform Dr. Davis or Dr. Sandy did not compromise her treatment. On December 21, Dr. Davis performed a laparotomy at which time an abdominal abscess was drained. The operative wound was left open, after closure of the rectus sheath, to permit the wound to heal "from the inside out", after being packed with saline soaked gauze. [33] Ms. Shobridge was re-admitted to Lions Gate Hospital on January 26, 1996 with abdominal pain, nausea and vomiting. Another CAT scan was performed which showed a small abscess which was healing within the abdominal cavity. Her condition improved and she was discharged on January 29. (iv) Dr. Thomas' disclosure to Ms. Shobridge [34] Nurses Toovey and Kwok both testified that they were anxious for Dr. Thomas to tell either Ms. Shobridge or someone in authority at the hospital of the recovered abdominal roll. They were particularly concerned because they were aware that the abdominal rolls in use at the hospital were non-radiopaque, and thus not readily identified under x-ray. The hospital administration had undertaken a trial of radiopaque sponges (including abdominal rolls) in 1994, but the general consensus of surgeons at the hospital (but not Dr. Thomas) was not in favour of changing to radiopaque sponges. Nurses Toovey and Kwok knew, after December 4, of the dangers inherent in the use of non-radiopaque sponges and wanted to avoid a repetition of Ms. Shobridge's experience. [35] On January 4, 1996 Nurse Toovey met with Valerie Campbell, a perioperative clinical instructor at the hospital. Without disclosing any names, she told Ms. Campbell that there had been a problem with a surgery. Ms. Campbell advised Nurse Toovey to get in touch with the other nurse involved as well as the surgeon and to then come and see her. [36] Indeed, it was with that concern that Nurse Toovey approached Dr. Thomas in about mid-January 1996. By a tactic she hoped would persuade Dr. Thomas to come forward, she told him that she and Nurse Kwok were worried and upset about Ms. Shobridge's case and needed his help to change the hospital policy regarding the use of non-radiopaque sponges. [37] Dr. Thomas immediately met with Ms. Campbell and Nurse Toovey, at which time Dr. Thomas told Ms. Campbell about the recovered sponge; that no paper work had been completed; and that no one had been told. Dr. Thomas told Ms. Campbell that Ms. Shobridge had not been told Ä she was doing well and did not need to be told Ä and that no one else but those in the room needed to be told. [38] Dr. Thomas subsequently met with the vice-president of the hospital, Dr. Madill, at which time Dr. Thomas was advised to inform Ms. Shobridge about the retained abdominal roll. [39] A meeting was scheduled at the hospital on February 6, 1996. Dr. Thomas and Ms. Shobridge met at the office of Lynette Best, the hospital's vice-president of nursing. Ms. Best took notes of the meeting, which are likely the most accurate account of the meeting. Both Dr. Thomas and Ms. Shobridge were upset by the meeting: Dr. Thomas for having to finally reveal to his patient the source of her on-going complaints; and Ms. Shobridge for learning for the first time that the cause of her suffering was human error which had been withheld from her for two months. Ms. Shobridge cannot recall much of what was discussed at the meeting. She testified that she thought Dr. Thomas told her that a "small swab" was recovered. However, that is inconsistent with what she later told her psychiatrist, Dr. Harris, in March 1998 when he recorded that Ms. Shobridge told him a "large swab" had been left inside her. Ms. Shobridge testified that she did not learn the size of the sponge until Dr. Thomas' examination for discovery on April 14, 1998. [40] Ms. Shobridge's recollection at trial is also inconsistent with what she told a representative of Imperial Life, her employment disability insurer, in a telephone conversation on February 8, 1996. The insurer's note of that conversation reads, in part: Ä states found out on Thursday Ä Dr. Thomas had left gauze & (? part of a retractor! possibly) inside her after initial surgery Ä Sept. 13/95 Ä these were removed Dec. 4/95 but Shannon was not told. Dr. Thomas told her at this meeting they thought she had had enough problems & so did not need to know this! No one, other than Ms. Shobridge and those she has so advised, has ever suggested that a retractor or part of a retractor had been retained in the September 13 surgery. [41] Dr. Thomas recalled that he told Ms. Shobridge that the count had been incorrect and he had left a foreign body, a gauze swab, behind. [42] Ms. Best's notes read, in part: S. Shobridge met me, quickly sat down and asked, looking at Dr. Thomas, what it was that we needed to see her about so quickly. Dr. Thomas led the conversation explaining the process of her surgery in September, her infection and her illnesses up until December and at that surgery he had found the cause of the infection. He said something like, "A gauze was removed from your wound that was from the September surgery." He then went on to say that he meant to tell her a couple of days following surgery but did not and as time went on and she improved he did not. Then, when she was back in hospital in January, he meant to tell her but again did not. Shannon then stated it was a mistake and he should have told her, "You were bad not to tell," and then focussed the conversation on her present circumstances and her wish to get better. She expressed the feeling that doctors were avoiding her and sounded skeptical of her symptoms. She stated she just wanted to get better and put this all behind her. ... [43] Ms. Shobridge was understandably upset by the disclosure made by Dr. Thomas on February 6. The extent and effect of her reaction to this news is very much in issue. She testified that she felt frightened, very emotional, and alone. She left the hospital, vomited, and sat in a park for a long time. About one week later, she consulted a lawyer. This action was commenced a year later on February 11, 1997. (v) Further medical treatment [44] At the February 6 meeting, Ms. Shobridge stated that she wished to find a surgeon on the North Shore to care for her. Dr. Thomas made arrangements for Ms. Shobridge to see another surgeon, Dr. Richard Lewis, who treated her for persistent discomfort around the incision. Dr. Lewis ordered an ultrasound and CT scan, both of which were negative. [45] Dr. Randsalu referred Ms. Shobridge to Dr. Howard Pendleton, a specialist in obstetrics and gynaecology. Dr. Pendleton first saw Ms. Shobridge on March 13, 1996 concerning abdominal pain and swelling. Ms. Shobridge was concerned about her fertility. An ultrasound was performed on April 10,1996 which suggested fibroids in her uterus (which had also been noted by Dr. Thomas during his care of Ms. Shobridge). [46] On May 10, 1996 Dr. Pendleton performed a laparoscopic review of Ms. Shobridge's pelvis. Adhesions of the bowel from the previous sepsis were identified and some were divided. [47] On September 17, 1996 Dr. Pendleton performed a myomectomy (surgical removal of the uterine fibroids). At the same time, Dr. David Kester, a plastic and reconstructive surgeon, excised all of the existing scars and reduced the pouching on the abdomen. Dr. Kester noted in his opinion dated March 15, 1999 that "[U]nfortunately, Ms. Shobridge did have ongoing problems with wound infection at that time [September 1996] and this likely resulted again of (sic) some slight widening of the scars although not as initially." [48] Later in his report, Dr.Kester stated: Ms. Shobridge's functional disability as far as her abdominal incision scars are concerned have been relieved. Cosmetic disability will remain at a minor level and be unchanged after further scar reivision (sic)." [49] In about October or November 1996, Ms. Shobridge met her husband Amin (Eric) Mirhashemi. They began living together in late 1996 or early 1997. Ms. Shobridge became pregnant with their first child in April 1997. She and Mr. Mirhashemi married in July 1997. Their baby boy was born on January 15, 1998 by Caesarean section as the baby's head had not entered the pelvis. Ms. Shobridge became pregnant with their second child in June 1998. A second son was born in March 1999 by Caesarean section elected by Ms. Shobridge. (vi) Psychological and Psychiatric treatment [50] Ms. Shobridge met with a psychologist, Paul Murray, on February 19, 1996 who saw her briefly and provided support for what he described as "lack of trust" associated with her several surgeries, problems with healing and decreased self- esteem due to "emotional trauma." [51] Dr. Azim, a psychiatrist, saw Ms. Shobridge on referral from Dr. Randsalu in January 1997, at which time he diagnosed Ms. Shobridge as having major depression. Ms. Shobridge did not continue to see Dr. Azim. She testified that Dr. Azim saw her only once and that his receptionist would not give her a further appointment, or at least no appointment for a long time into the future. However, that evidence is inconsistent with Ms. Shobridge's own diary, which shows appointments with Dr. Azim on January 18, 22, 24, 31 and February 14, 1996, all of which Ms. Shobridge cancelled. Ms. Shobridge had another appointment with Dr. Azim on May 7, 1997. She did not show up. Dr. Azim telephoned her home as well as her family physician's office because he was concerned about her condition, her asking for an appointment, and then not showing up. [52] Dr. Randsalu referred Ms. Shobridge to a psychiatrist, Dr. Brian Harris, who first saw her in March, 1998. Dr. Harris has seen Ms. Shobridge approximately 60 times since March, 1998. By his own rather startling admission, he has not yet begun to treat her, but has as he said, heard Ms. Shobridge repeat her story over and over again. Dr. Harris has diagnosed Ms. Shobridge as suffering from post-traumatic stress disorder, rooted, he says, in the "disintegration of trust" created by the cover-up of the events surrounding the September, 1995 surgery. C. Ms. Shobridge's present status [53] According to Dr. Pendleton, who has been the physician most actively involved in Ms. Shobridge's care for the past 3 1/2 years, Ms. Shobridge continues to have persistent pain which lasts many days. However, Dr. Pendleton agreed, under cross-examination, that he could not find any specific pathology to which her chronic pain could be attributed. Even with her various surgeries and sepsis, Dr. Pendleton would not expect Ms. Shobridge to have chronic pain. Nevertheless, he said she has a very real and difficult problem. Ms. Shobridge is now taking Tylenol 3 once or twice a day as needed. Dr. Pendleton agreed that there are days when she does not require any pain medication. [54] Ms. Shobridge testified that she has daily pain which she described as feeling "like someone is cutting your insides." She contrasted her current pain to the menstrual cramps she previously experienced and distinguished it as a "pinching" pain. She has difficulty lifting her oldest son and has a difficult time putting the children into the car. She is capable of doing light housework, but relies on her husband to do heavy lifting. She feels isolated and lonely living in Richmond where the family moved to be close to her husband's work place. Her parents and friends live on the North Shore. Ms. Shobridge described her most troublesome pain as that which disturbs her sleep. [55] Ms. Shobridge says that she experiences frightening dreams in which she or her husband are being chased (possibly by doctors), or where she is left ignored and alone in a hospital room. [56] Ms. Shobridge attempted to return to work at Eaton's in December 1996 and January 1997. She testified that she had insufficient stamina to do the work and has not attempted to return to work since. [57] Mr. Mirhashemi testified that his life with Ms. Shobridge has been "busy." This is of course understandable in that they are the parents of two young boys, one 17 months old and the other 4 months old. Mr. Mirhashemi stated that his wife's pain and sickness slows them down. He testified that he sometimes feels as though he is married to a 60 year old woman. He feels burdened with a disproportionate share of the child and home care responsibilities. Sexual relations between them are painful for Ms. Shobridge and Mr. Mirhashemi stated "that part of our marriage is not there." Mr. Mirhashemi stated that his wife is not now the positive, vivacious and optimistic person he met in November 1996. He does not blame his wife for anything and, on a positive note, stated "we are going to get through it." [58] Dr. Harris' view of Ms. Shobridge's psychiatric status is set out at length in his report dated April 8, 1999. At p.11, Dr. Harris states: Generally speaking, an improvement is occurring albeit slowly. Unfortunately, the symptoms themselves are not disappearing. What looks like progress continues to include bouts of tears and hopelessness. It seems to me that Mrs. Shobridge is presently on a therapeutic plateau, with an unknown prognosis lying ahead. ... For all the many factors already described the prognosis must be guarded. Unfortunately what Dr. Azim called a "simple" (my words) Major Depressive Disorder with a good prognosis, has become much more complicated than what Dr. Azim probably envisaged. I would expect in the course of time that Mrs. Shobridge will eventually improve. I cannot however state how long this will take, or what symptoms may stay permanent or what psychiatric scars will remain. The very fact of her trust having been violated by the cover up is the single most important factor that is interfering with a more hopeful prognosis. Today Mrs. Shobridge tells me she has trust in me, but I know that her trust is fragile and her therapy and prognosis depends on this. [59] Dr. Harris was subjected to a thorough cross-examination by counsel for Dr. Thomas which, in my opinion, left Dr. Harris' credibility in tatters. My conclusion in this regard is supported by the following inadequacies in Dr. Harris' report and his testimony at trial: (a) Dr. Harris had seen Ms. Shobridge as a child as a result of difficulties she was experiencing at school. In his report he stated that she had a learning disability. However, he did not know, because he never asked her, that she suffered from dyslexia. (b) He accepted Ms. Shobridge's explanation as to why she did not continue to see Dr. Azim. He never spoke with Dr. Azim and was unaware that Ms. Shobridge had unilaterally cancelled the numerous appointments Dr. Azim had scheduled for her. (c) Dr. Harris assumed that Ms. Shobridge enjoyed full physical health prior to the presacral neurectomy. He did not know that she was having to take two or three days off work each month. He stated that he had no need to know why she had had any surgery. (d) Dr. Harris' clinical notes of his 60 visits with Ms. Shobridge take up only 16 pages of large, double- spaced script. As his testimony demonstrated, his notes are woefully inadequate. Although he stated that he had an excellent memory, he was unable to confirm very much, if anything, of what Ms. Shobridge might have told him at any given appointment. Some notes are dated but left blank. (e) Nowhere in Dr. Harris' chart has he set out the features of Ms. Shobridge's alleged post-traumatic stress disorder. He said he did not make any notes in his records about her diagnosis because, in his words, "it is in my mind." Dr. Harris stated that he sees approximately 1600 patients in a year and that he keeps relevant information regarding them in his head. (f) Dr. Harris does not normally prescribe medication for his patients. When Ms. Shobridge asked for medication to alleviate her anxiety related to this trial, Dr. Harris prescribed Ativan which, after reading the pharmaceutical guide provided to him by Mr. Hinkson, he conceded was contraindicated for patients with depression. Dr. Harris decided to prescribe Ativan after discussing the matter with another psychiatrist whose name he could not remember. He was unclear as to whether he advised that psychiatrist of Ms. Shobridge's depression in asking for advice as to how to treat her. (g) At p.8 of his report, Dr. Harris stated that when Ms. Shobridge first went to his office in March 1998, "she was able to give a clear chronological history later confirmed as accurate." However, he was unable to say how or if such confirmation was made. It is unlikely that it was. Dr. Harris admitted that he had not reviewed Dr. Randsalu's chart and was thus unaware that Ms. Shobridge had been treated for stress and sleeplessness by Dr. Randsalu in 1992. (h) Any inconsistencies in Ms. Shobridge's statements (of which there were many) were attributed by Dr. Harris to post-traumatic stress disorder. He would not entertain the possibility that Ms. Shobridge might not be telling the truth. He equated all such inconsistencies to her "confused state." (i) Dr. Harris was unaware that Ms. Shobridge had returned to work at Eaton's in December 1996, although in his report he states that he would encourage her to return to work. (j) At p.9 of his report, Dr. Harris states that "her states of arousal were also very easily triggered, she described unusual and impulsive rage reactions toward her husband, mother, mother-in-law and brothers and was surprised herself at the intensity of the reactions." There is no documentation of examples of such behaviour in Dr. Harris' chart. (k) Dr. Harris, in his testimony and his report, engaged in frequent hyperbole in his descriptions of Ms. Shobridge's symptoms and prognosis, as for example, in his description of Ms. Shobridge having been "disembowelled." The effect served only to diminish Dr. Harris' credibility. (l) Perhaps the most troubling aspect of Dr. Harris' evidence was the astonishing admission that he has not, after 60 visits with Ms. Shobridge, begun to treat her. Yet he professes to speak of her therapeutic prognosis. It is very difficult to see how he can make any such prognostications without having treated her with therapy of any kind. [60] These are but a few examples of the inadequacies in Dr. Harris' evidence. After the first day of cross-examination, Dr. Harris offered an explanation for his acknowledged inadequacies in note-taking and charting his patient's progress. However, his explanation did nothing more than confirm that he was a totally partisan witness, completely lacking in objectivity. He agreed that he believed his role is to be Ms. Shobridge's advocate. Unfortunately, he was also argumentative, unresponsive and petulant. In short, he was a poor and unpersuasive witness. [61] During the trial, Ms. Shobridge was examined by another psychiatrist at the request of counsel for the nurses and the hospital. That psychiatrist was not called as a witness. No explanation was proffered for that psychiatrist not giving evidence. Counsel for Ms. Shobridge argued that I should draw an inference from the failure to call the psychiatrist, suggesting that the only inference to be drawn is that the uncalled psychiatrist would have confirmed Dr. Harris' opinion. [62] The general rule governing when an adverse inference is properly drawn against a party for failing to call a witness is set out in Barker v. McQuahe (1964), 49 W.W.R. 685 (B.C.C.A.), at 689: An [adverse] inference may be drawn against a litigant who, without sufficient explanation, fails to call a witness who might be expected to give important supporting evidence if his case were sound. [citations omitted] [63] Although no explanation for failing to call the psychiatrist was given (or indeed, asked for), I infer that the poor quality of Dr. Harris' evidence was obvious to counsel, thus rendering it unnecessary to call evidence to rebut his opinion. [64] Furthermore, counsel for Dr. Thomas, who had made a pre- trial application to adjourn the trial in order to obtain an independent psychiatric assessment of Ms. Shobridge (and was refused) made it plain that he would not consent to the tendering of the evidence. Indeed, admission of the evidence late in the trial would almost certainly have led to an adjournment to permit Dr. Thomas' counsel to obtain an independent psychiatric assessment. [65] I would not therefore, in the circumstances of this case, exercise my discretion and draw an adverse inference from the failure to call the psychiatrist. LIABILITY [66] As noted earlier, the hospital and defendant nurses admit liability in relation to the failure to count in the abdominal roll used by Dr. Thomas during the presacral neurectomy. They also admit that the applicable standard of care for operating room nurses included recording in the patient's chart that an abdominal roll was removed on December 4, 1995 and either informing the head nurse of the incident or submitting an incident report. [67] Dr. Thomas admits that he owed Ms. Shobridge a duty of care to provide medical treatment consistent with that of a reasonable obstetrician and gynaecologist in the circumstances of this case. [68] Ms. Shobridge's counsel defined two fundamental issues concerning liability: (a) Does the surgeon have any legal responsibility for the retention of the abdominal roll?; and (b) Was it a lapse from acceptable practice not to disclose the discovery of the abdominal roll to the patient and then to instigate a cover-up? Both issues require consideration as to whether liability should be assessed and apportioned as between the hospital and the nurses on one side, and Dr. Thomas on the other. [69] Before dealing with the issues defined above, I propose to first address two other liability issues raised by Ms. Shobridge in her statement of claim. These issues are: first, whether the hospital's use of a non-radiopaque roll was negligent; and, second, whether Dr. Thomas's failure to diagnose the presence of a foreign body as the source of Ms. Shobridge's persistent infection was negligent. These questions were not stressed by Ms. Shobridge's counsel in argument. [70] The value of a radiopaque roll (as opposed to a non- radiopaque roll) is that its presence is much more likely to be revealed by X-ray. Thus, had the roll retained inside Ms. Shobridge been radiopaque, the use of an X-ray would likely have revealed its presence. As such, submits Ms. Shobridge, the failure to use a radiopaque roll increased the risk of non- detection and, accordingly, amounts to negligence on the part of the hospital. [71] In the circumstances of the case at bar, I need not consider whether a hospital's use of non-radiopaque surgical materials is negligent since at no time was an X-ray used in the effort to identify the source of Ms. Shobridge's infection. Since an X-ray was not used, the roll's radiopaqueness was not relevant to Dr. Thomas's failure to detect the roll's presence. Causation, therefore, is not established and, accordingly, this negligence claim fails. [72] Likewise, in my view, the claim that Dr. Thomas was negligent in failing to diagnose the presence of a foreign body in Ms. Shobridge's abdomen must also fail. I simply cannot say on the basis of the evidence tendered that a failure to observe the appropriate standard of care was proved on a balance of probabilities. While it is true that Dr. Thomas failed to consider the possibility of the presence of a foreign body, the evidence suggests that this possibility was simply not indicated by Ms. Shobridge's symptoms. Furthermore, I am not convinced that Dr. Thomas was insufficiently attentive: significantly, Dr. Thomas consulted in early November 1995 with Dr. Marinatos, who apparently also failed to consider the possibility of the presence of a foreign body. [73] Finally, the question of Dr. Thomas's decision to perform the presacral neurectomy, while not directly raised by the pleadings, was addressed in expert evidence. In particular, Dr. Pendleton criticized Dr. Thomas's decision to perform the procedure as premature. I conclude, however, that the decision was well within Dr. Pendleton's own defined criteria. Ms. Shobridge experienced dysmenorrhea over a five year period which had not responded satisfactorily to conservative treatment, including birth control pills. The alternative treatment of anti-prostaglandins was not available to Ms. Shobridge because she cannot swallow pills. Dr. Thomas' decision was a reasonable one, supported by the defendants' experts, Dr. Kinney and Dr. Hudson. A. Responsibility for the retained abdominal roll [74] Dr. Thomas' position is that it was reasonable for him to rely on his experienced and capable nursing colleagues to complete and correctly record the sponge count at the opening and closing of the presacral neurectomy. Dr. Thomas, who had never before performed a presacral neurectomy, says he was necessarily focussed on the surgery which was in the area of the anatomy proximate to two major blood vessels: the aorta and inferior vena cava. Dr. Thomas' position is that the evidence overwhelmingly establishes that it was the nurses' responsibility to keep track of sponges (which, in medical parlance, generically includes abdominal rolls). [75] The hospital and nurses say that it is not enough for Dr. Thomas to argue that he relied upon the formalized system employed in the operating room to account for all instruments and sponges used in the surgery unless the applicable standard of practice required him to do no more. [76] Counsel for Dr. Thomas placed particular reliance on the recent decision of the Quebec Court of Appeal in Thomassin v. H¢pital de Chicoutimi, 11 August 1997, Quebec Registry No. 200- 09-000521-903, a case in which a general surgeon failed to remove a compress used in surgery to remove Mr. Thomassin's gall bladder. The hospital policy required three formal counts of compresses, sponges, instruments and needles. Before the incision was closed, the nursing staff informed the surgeon that the count was correct. After examining the operative field, the surgeon closed the incision. A few months after the operation, the patient suffered pain. Another operation, performed by the same surgeon, disclosed the retained compress which had caused the infection. [77] The Quebec Court of Appeal upheld the trial judge's finding that the surgeon was not liable for failing to remove the compress. The evidence, accepted by the trial judge, permitted findings that the surgeon was correct in not palpating the operative cavity which would risk bleeding; the surgeon had maintained continual visual control over the operative field; and the surgeon could rely on the nurses' count which had been done in keeping with the hospital rules. [78] In the course of upholding the trial decision, the Court of Appeal referred to the trial judge's reasons, at 8: It is important to note that, in many of the cases cited by the attorneys at the hearing, there was no set procedure within the surgical unit for counting the supplies the surgeon used; the surgeon inevitably became the only person responsible for a foreign body's being left in the surgical cavity. Although to the layman this may seem like gross negligence, such is not the case. But it must be recognized that science has developed: surgery has become multidisciplinary; operations are themselves much more advanced and complex; lives are being saved today which, several decades ago, we helplessly watched slip away; To reduce the risk of compresses being left behind, as in the case at bar, the hospital service, in cooperation with the surgeons, has established a rigorous control procedure. Everything that is given to (sic) surgeon is counted during of (sic) the operation. A tally is also done by the hospital service, which tells the surgeon whether the count is accurate or not. Unless it is shown that the defendant surgeon was personally negligent in the final examination of the surgical cavity--which is not the case here--if the fact that he relies on the information given to him by the nurse and the nursing assistant becomes a[t] fault, that fault is not concomitant with but consecutive to the calculation error made by the defendant hospital's nursing staff. [79] As in Thomassin, there is no question that it is the nurses' responsibility to count the sponges, needles and instruments. The hospital policy required eight counts. The hospital and the nurses have admitted the error in failing to record the abdominal roll in the initial count. Having failed to do so, the failure to remove the abdominal roll was not triggered by the count. [80] The hospital, nurses, and Ms. Shobridge argue that Dr. Thomas ought to have made a mental note of having used the abdominal roll. Dr. Thomas says he was preoccupied with his task: the surgery. Nurse Kennedy, who has been a nurse for 22 years with extensive operating room experience, and who was the scrub nurse at the presacral neurectomy on September 13, 1995, agreed that the count sheet must be accurate because it is relied upon by the entire surgical team. She also acknowledged that the underlying reason for the count sheet is because memory is inherently unreliable. [81] The expert evidence in this case differs from that in Thomassin. Dr. Pendleton stated that standard surgical practice would include carrying out an exploration of the abdomen before closing the incision to an extent which would have disclosed the presence of the abdominal roll. Dr. Dianne Miller, an obstetrician and gynaecologist and assistant professor of medicine at U.B.C., agreed that standard and accepted surgical practice included exploring the abdomen before closing. Dr. Miller testified that, in order to end up with what happened in this case, "two errors" were required: one surgical and the other nursing. [82] Dr. Stephen Hudson, a specialist in obstetrics and gynaecology, stated in his report that: At the time of abdominal closure after a procedure such as this, it is the surgeon's responsibility to first of all explore the abdomen and secondly, to check with the scrub nurse that the count is correct. Drs. Pendleton and Miller agreed with that view. [83] Dr. Thomas says that he complied with that standard because he conducted a "visual inspection" of the operative field. [84] Dr. Gary Kinney, an obstetrician and gynaecologist, whose expert report was tendered by Dr. Thomas, stated that, as a surgeon, he relies on the nurses' count to ensure that nothing was left behind. He noted that sponges placed in the abdominal cavity can became saturated with blood, making them difficult to differentiate from other abdominal contents. He stated that a dedicated search for a sponge is not necessary unless the count is reported as incorrect. [85] In my opinion, the preponderance of evidence suggests that Dr. Thomas, in the circumstances of this case, bears some responsibility for failing to remove the abdominal roll on September 13, 1995. My reasons for making this finding are as follows: (a) Although Dr. Thomas says that he conducted a visual inspection of the operative field, he was aware, because he did it, that the abdominal roll had been used to pack the bowel into the upper abdomen, away from the operative field and therefore outside his field of vision. Thus, he knew Ä or ought to have known Ä that a visual inspection was not capable of identifying all sponges inserted. (b) Dr. Thomas agreed that he did not explore the abdomen at all, although he agreed that in a "perfect world" he would have. I do not accept the submission that palpating the abdominal cavity on September 13, 1995 could have led to peritonitis or a possible bowel obstruction. That submission rests on the presence of pus in the abdominal wall on December 4, 1995 which, as the evidence shows, was created by the retained abdominal roll. There is no evidence that suggests, as was the case in Thomassin, that manual exploration of the operative site posed a danger to Ms. Shobridge. (c) The abdominal roll used by Dr. Thomas was very large. In using it, he unravelled it as he packed the bowel into the upper abdomen so as to clear his view of the operative field. Only one such roll was used. This was a singular event of the surgery. (d) Dr. Thomas acknowledged that the surgeon and the nurses in the operating room act as a team. The whole team is responsible for ensuring that all instruments and sponges are removed, including the surgeon. Dr. Thomas further acknowledged his responsibility when, in reference to his reluctance to disclose his error to Ms. Shobridge, he admitted that, in his words, "I had let her down." [86] Allocating responsibility for the failure to remove the abdominal roll is not easy. However, my review of Frandle v. MacKenzie (1990), 51 B.C.L.R. (2d) 190 (C.A.) has led me to the view that a 50 percent - 50 percent division is appropriate. In Frandle, a surgeon was found negligent in failing to order a formal sponge count and in failing to conduct a proper search of the incision before closing. The nurses were not under a formal obligation to monitor sponges unless directed to do so by the physician. In the case at bar, the obligation was imposed by the hospital, which required a formal count. In not counting the abdominal roll at the beginning of the procedure, the nurses failed to meet the obligation. This, in my view, increases the nurses' level of responsibility in contrast to Frandle and, in normal circumstances, may result in a greater degree of responsibility upon the nurses. [87] Nevertheless, in this case, I think Dr. Thomas' decision to place the balance of the unclipped abdominal roll outside the operative field increases his responsibility relative to the nurses. In saying this, I acknowledge that had the nurses properly counted the abdominal roll, Dr. Thomas' actions may not have been problematic. However, that action by Dr. Thomas increased the need to explore the cavity outside his visual range. In these circumstances, it cannot be enough that he did only what he would have done had nothing been placed outside the operative field. [88] I am unable to say which of the two errors committed was more significant. In accordance with the Negligence Act, R.S.B.C. 1996 Ch. 333, s.1(2), I therefore find that liability must be apportioned equally. B. The acceptable practice of disclosure [89] The evidence overwhelmingly supports a finding that Dr. Thomas was obliged to disclose the discovery of the retained abdominal roll as soon as reasonably practicable. Indeed, Dr. Thomas concedes that he should have informed Ms. Shobridge at the latest on December 14, 1995 when she saw him at his office. [90] Dr. Thomas' position, however, is that there is no evidence to support the allegation that the delay compromised her subsequent clinical course. Counsel for Dr. Thomas argues that there is no suggestion in the clinical notes and records of either Dr. Davis or Dr. Lewis to indicate that delay in disclosing to Ms. Shobridge adversely affected the treatment provided by them. That submission is problematic for there is no suggestion that either Drs. Davis or Lewis were ever told of the retained abdominal roll. [91] It is, however, significant that neither physician testified to the contrary or to the effect that their treatment would not have been different. Thus, it is impossible to say whether Ms. Shobridge's clinical course would have been different had Drs. Lewis and Davis been informed. [92] It is abundantly clear that the delay in the disclosure prevented Ms. Shobridge from knowing the source of her infection. On January 26, 1996 Dr. Sandy reported to Dr. Randsalu that Ms. Shobridge was "deathly afraid that she is developing another collection there because of the discomfort she is having." The knowledge that the information was available but withheld from her led, as she stated to Dr. Murray on March 5, 1996, to "a lack of trust now." Dr. Azim recorded, on January 17, 1997, that Ms. Shobridge did not trust her doctors. There can be little doubt that Ms. Shobridge would have experienced less anxiety and uncertainty about her condition after December 4 had she known the source of the infection. [93] Ms. Shobridge had placed considerable trust in Dr. Thomas, to the point, in December 1995, of asking that her mother not be informed of the December surgery because her mother wanted Ms. Shobridge to be transferred from Dr. Thomas' care. Dr. Thomas was well aware of Ms. Shobridge's concerns and frustration in the apparent intransigency of her infection. It cannot come as a surprise then that Ms. Shobridge would feel profound disappointment when she was informed that the cause of her complaints, spanning then some five months, was the abdominal roll which Dr. Thomas failed to remove. Even on February 6, 1996 Ms. Shobridge's faith in Dr. Thomas had not been completely eroded, for she was able to say that she believed Dr. Thomas had her best interests in mind. [94] However, Dr. Thomas' conduct goes beyond the failure to promptly disclose to Ms. Shobridge the existence of the abdominal roll. The only possible interpretation of Dr. Thomas' actions at and subsequent to the December 4 surgery is that he was covering up his own failures in order to avoid legal responsibility. This finding is grounded in the following evidence: (a) Dr. Thomas told the nurses that "there would be no paperwork on this." (b) Dr. Thomas told the nurses that he would speak to Sherry Stojkovich the morning after the December 4 surgery. When she was unavailable, he made no efforts to speak to anyone else in authority at the hospital. (c) Dr. Thomas' operative report, dictated that same day, makes no reference to the recovered roll. (d) On December 20, 1995, more than two weeks after the discovery and at which time one might presume Dr. Thomas to have recovered from the shock he expressed experiencing on December 4, he wrote a consultation report which was to accompany Ms. Shobridge to the Vancouver General Hospital. No mention is made in that report to the recovered roll as the source of Ms. Shobridge's infection. (e) Even when the inevitable must have been apparent when he met with Valerie Campbell, Dr. Thomas was still of the view that "no one outside this room needs to know." [95] There is no question that Dr. Thomas owed a duty of care to Ms. Shobridge to tell her, as his patient, what had happened. The nurses, on the other hand, owed no such duty. Their duty was to complete an incident report in accordance with hospital policy. They knew it was Dr. Thomas' duty to inform his patient, not their duty. They were anxious that he do so. They gave him time to do the obviously right thing. When it became apparent that Dr. Thomas was not going to tell the truth, Nurse Toovey constructed a scenario which she believed would encourage Dr. Thomas to reveal the discovery of the recovered abdominal roll. [96] There is also no question that the nurses failed in their duty to file an incident report. They have admitted that failure. However, I am unable to find that it was foreseeable to the nurses that their failure to file an incident report, or to refer to the recovered roll in the nurses' notes, would cause any damage to Ms. Shobridge. Furthermore, there is no evidence that Ms. Shobridge would have been informed earlier if an incident report had been filed. [97] The hospital also argues that Dr. Thomas took over as the nurses' superior when he: told Nurse Toovey not to refer to the roll in her notes; told Nurse Toovey that he would tell Sherry Stojkovich; and told Nurses Toovey and Kwok that "no one else needs to know about this." Given my finding regarding the unforseeability of harm in failing to file an incident report, it is unnecessary to deal with this alternative argument. I would, however, reject this argument. The evidence established that all of the nurses who testified regarded themselves as professionals. My sense of their evidence was that they were not blindly following an order from Dr. Thomas. Rather, they trusted him and expected that he would inform Sherry Stojkovich and, ultimately, his patient. Moreover, as with the filing of the incident report, there is no evidence that Ms. Shobridge would have been informed earlier even if Dr. Thomas had spoken with Nurse Stojkovich. [98] In my view, the full burden of any damage flowing from the failure to disclose rests with Dr. Thomas. (i) Fiduciary duty [99] Counsel for Dr. Thomas cited the following passage from Stamos v. Davies (1985), 52 O.R. (2d) 10 (Ont. H.C.J.) where Krever J. (as he then was) held, at 23: Even if it is shown that there was a breach of the duty to inform by the physician, no liability will ensue unless there is a causal connection between that breach and the damage suffered. [100] Counsel for Dr. Thomas argues that the only alleged causal link between the failure to disclose and the damage suffered is described in the evidence of Dr. Harris, the credibility of which I have already questioned at length. Nevertheless, I am able to find evidentiary support for a finding that Ms. Shobridge was emotionally upset, mistrustful, and depressed as a result of the delayed disclosure from the evidence of Dr. Azim, Dr. Sandy and Dr. Murray. I therefore find that Dr. Thomas breached his fiduciary duty to inform Ms. Shobridge and in so doing caused her to suffer damages. The extent of the damage suffered by Ms. Shobridge is another matter, to be dealt with in the assessment of damages. (ii) Deceit [101] Ms. Shobridge advances a claim based on deceit. The necessary requirements to establish the tort of deceit are well-known: Derry v. Peck (1889), 14 App. Cas. 337 (H.L.); Bradford Third Equitable Benefit Bldg. Soc. v. Borders, [1941] 2 All E.R. 205 (H.L.). [102] I find that the evidence falls short of proving the requisite elements of deceit on the part of Dr. Thomas. Although he acted unethically and with apparent disregard for the welfare of his patient, he did not make a false representation of fact to Ms. Shobridge which she acted upon to her detriment. DAMAGES [103] The determination of damages in this case is inherently difficult because the pain, suffering, and losses Ms. Shobridge has experienced are not easily segmented. Thus, the physical complaints arising from the retained abdominal roll are not easily distinguished from the emotional complaints arising from the prolonged infection and the subsequent delayed disclosure. [104] It is also important that the hospital and nurses be held responsible only for those damages flowing from their negligence: Athey v. Leonati (1997), 140 D.L.R. (4th) 235 (S.C.C.). (i) Non-pecuniary damages [105] Ms. Shobridge advances a claim for non-pecuniary damages in the mid-to upper range of the rough upper limit imposed in the Trilogy and Lindal cases. That would place her claim at between $135,000 to $200,000. [106] Counsel for Dr. Thomas and for the hospital and nurses suggested a range between $50,000 and $75,000. [107] The decisions referred to by counsel reflect that disparate range. Counsel for Ms. Shobridge referred to Muir v. Alberta (1996), 132 D.L.R. (4th) 695 (Alta. Q.B.) where the court awarded $250,280 for pain and suffering resulting from an unauthorized sterilization. The court found that the wrongful sterilization inflicted catastrophic physical and emotional damage on the plaintiff which "changed, warped and haunted her life." [108] Counsel for the hospital and nurses referred to Audet v. Sachindis (4 May 1993), Vancouver No. B906221 (S.C.) in which the court awarded $75,000 for non-pecuniary damages arising from a motor-vehicle accident. In Audet, the plaintiff suffered a ruptured spleen and other injuries. The court found that, apart from some slight sensitivity and the effect of the scar from the surgical repair of the spleen, the plaintiff had fully recovered from his injured spleen and other complaints by about four months after the accident. The plaintiff also claimed significant mental trauma which the court found was worthy of a "significant" award. [109] Counsel for Dr. Thomas referred to Frandle v. MacKenzie, supra, in support of his submission as to the appropriate range of non-pecuniary damages. In Frandle, the Court of Appeal held, at 194-95: It is submitted on behalf of the plaintiff that he suffered considerable pain as a result of these extra operations arising from the negligence of the doctors and the nurses, that following the operations he developed a rash from an allergic reaction to antibiotics. He developed problems with the intravenous and with the packing of the wound when the object was removed. He also suffered mental anguish with respect to the concern which he had about cancer when the wound did not heal satisfactorily and was a continuing problem to him. ... Counsel have cited a number of cases which are helpful in ascertaining the proper range for the assessment of damages in a case like this where multiple operations are required as a result of negligence. The range seems to properly lie somewhere between $20,000 to $30,000. ... [110] In Day v. Creedon, [1997] B.C.J. No. 1127 (Q.L.) (S.C.) the court awarded $15,000 for non-pecuniary damages in circumstances where the surgeon operated on the wrong side of the plaintiff in the repair of a hernia. The plaintiff was particularly angry at the surgeon because he felt the doctor had failed to apologize. The plaintiff felt invaded and had a great deal of distrust. The damage award included compensation for mild to moderate depression, a scar, and pain and suffering which affected the plaintiff for approximately two years after the surgery. [111] In considering the appropriate award of non-pecuniary damages in this case, I am mindful of several factors: (a) Ms. Shobridge experienced unquestioned pain and suffering between September 13 and December 4, 1995. She was exposed to numerous treatments, tests, and procedures which caused further discomfort. She was despondent at the undue and unexplained delay in her recovery. All this was directly attributable to the negligence of the doctor and the nurses involved in the September 13 surgery. (b) Ms. Shobridge suffered additional pain and suffering from the December 4 surgery and for a considerable period of time following that surgery. Her physical complaints from both surgeries appear not to have resolved by September 1996. It is significant that the myomectomy performed by Dr. Pendleton was unconnected to the September 13, 1995 surgery or any sequelae of the retained abdominal roll. The defendants in this case should not shoulder responsibility to the extent that the myomectomy caused additional pain to Ms. Shobridge. (c) Ms. Shobridge should be compensated for the discomfort arising from the surgery performed by Dr. Davis in December 1995 and for any pain and suffering associated with Dr. Kester's reconstructive surgery (which, to complicate the assessment, was performed at the same time as the myomectomy performed by Dr. Pendleton). (d) I think it is doubtful that the two Caesarean sections for the birth of Ms. Shobridge's children were necessitated as a result of the complications from the September 13 surgery. Dr. Pendleton was candid in his evidence that the first Caesarean section was largely attributable to the baby's head not entering the pelvis. The second caesarean section was performed at Ms. Shobridge's request. (e) Ms. Shobridge's mental health is the most problematic aspect of the case, largely due to the unsatisfactory nature of Dr. Harris' evidence. Although Dr. Harris relies on the DSM IV to support his prognosis that Ms. Shobridge has a 50 percent chance of recovery from the post-traumatic stress disorder, of which he says she is a "text-book example", the DSM IV in fact provides that 50 percent of patients recover within three months. There is no persuasive evidence that Ms. Shobridge in fact suffers from post-traumatic stress disorder. Certainly, Dr. Harris' clinical records do not support such a finding. The more likely diagnosis, provided by Dr. Azim, is that Ms. Shobridge suffers from depression. While I accept that Ms. Shobridge's depression is partly rooted in her prolonged recovery and her profound disappointment in Dr. Thomas, there are also other factors which contribute to her depression (which Dr. Harris grudgingly conceded): (i) she has a strained relationship with her mother and husband; (ii) her husband's employment status has been unsettled and they have serious financial concerns; (iii) she has two small children under the age of two years who represent significant expense and responsibility; (iv) she and her family live in cramped living quarters measuring approximately 800 square feet; and (v) she does not have ready access to transportation. (f) The pelvic pain currently experienced by Ms. Shobridge is qualitatively different from that experienced prior to September 13, 1995. However, the pain is readily treatable with at most one or two Tylenol per day. (g) Ms. Shobridge's back pain is no different from that experienced before September 13, 1995, and is not attributable to the actions of the defendants in this case. (h) Ms. Shobridge's complaints of fatigue must be measured in relation to her current status as the mother of two very young children who are in her full-time care. (i) Ms. Shobridge's pre-morbid condition was not free of complaint, most notably from pelvic pain and periods of stress and depression. She was, however, generally optimistic, positive, and out-going. For the past 3 1/2 years she has had little cause to be so, except for the period in late 1996 and early 1997, when she met her husband and since the birth of her children. As Ms. Shobridge testified, her children have contributed greatly to her emotional well-being and feelings of self-worth. She is a good mother who derives a real sense of enjoyment and accomplishment from her children. (j) Ms. Shobridge's scar has slightly widened. Dr. Kester feels that a further scar revision may be necessary. Because Ms. Shobridge was pregnant when Dr. Kester last examined her, he recommended that she wait about nine months before considering that procedure (for which, he noted, she would bear financial responsibility). (k) Although Ms. Shobridge was described by her husband and Dr. Harris as anxious, confused, and emotionally distraught, Ms. Shobridge herself presented as a confident, out-going and engaging witness. She answered questions unhesitantly and, at times, vigorously. Her demeanour in the witness box was certainly in sharp contrast to her portrayal by others. I also observe that Ms. Shobridge tended, either consciously or unconsciously, to exaggerate her accomplishments and to minimize her inherent difficulties. This left the further impression that her complaints arising from this most unfortunate incident were tinged with exaggeration. [112] Considering all of those factors together with all of the other evidence, I conclude that Ms. Shobridge's non- pecuniary damages should be assessed at $85,000. Although I have found the nurses 50 percent liable for Ms. Shobridge's loss, certain aspects of that loss are not attributable to the nurses' conduct, namely the loss stemming from the failure to disclose the recovered abdominal roll. In recognition of s.1(3) of the Negligence Act, and doing the best I can with the uncertainties posed by the evidence, I consider that the majority of Ms. Shobridge's loss stemmed from the September 13, 1995 surgery. I therefore conclude that the defendant hospital and nurses are responsible for $40,000 of the assessed non- pecuniary damages. Dr. Thomas is responsible for $45,000. PAST INCOME LOSS [113] Ms. Shobridge advances a claim of four years of past wage loss of approximately $120,000. [114] Counsel for Dr. Thomas contends that Ms. Shobridge was capable of returning to work by December 1, 1996. That contention is supported by the evidence of Dr. Pendleton, who stated to Imperial Life that Ms. Shobridge would be in a position to return to work within six weeks of the September 1996 myomectomy. Dr. Lewis provided an opinion to Imperial Life on May 8, 1996 that she would be capable of returning to work "at least part time in the next few weeks." Dr. Davis advised Imperial Life that Ms. Shobridge could return to work on a full-time basis by mid-February 1996. Dr. Kester noted that Ms. Shobridge experienced post-operative abdominal pain following the September 1996 surgery which necessitated further exploration. However, Dr. Kester was of the view in November 1996 that Ms. Shobridge's wounds "remained reasonably unwidened" and would require only minor scar revision in future. [115] Under cross-examination, Dr. Pendleton confirmed that, but for her pregnant state, Ms. Shobridge was capable of returning to work in September 1997. [116] Ms. Shobridge returned to work in December 1996 for approximately two months, but left, citing fatigue and an inability to cope with the job. She became pregnant in April 1997 and, since then, has been either pregnant or caring for an infant. [117] Counsel for Dr. Thomas cited Lowe v. Jenkinson (1994), 94 B.C.L.R. (2d) 147 (C.A.) for the appropriate test to be applied. Southin J.A. formulated the question, at 154: When a person injured by the negligence of a defendant asserts a loss of income, there are two questions to be asked: 1. When was the plaintiff sufficiently recovered from his injuries to be gainfully employed? 2. If he has not returned at the date of trial to the employment which he had at the time of the accident because he can no longer do that work, why has he not become gainfully employed in some other occupation? As to these two points, see Sekhon v. Gill (1991), (sub nom. Sandhu v. Braich) 61 B.C.L.R. (2d) 273 (C.A.), at p. 284, and Duhra v. Basram (1991), 60 B.C.L.R. (2d) 78 (C.A.). And later, at 155: In personal injury cases where the defendant denies the plaintiff's assertion that his claimed loss of earnings in whole or in part arose from his injury, what is at issue is not failure to mitigate, of which the burden of proof is upon the defendant, but causation. ... The burden of proof of causation lies always upon the plaintiff who must, therefore, adduce some evidence which, in the absence of evidence to the contrary, shows that his post-accident inability to earn income or to earn as much as he did before he was injured by the negligent act of the defendant is attributable to the fault of the defendant. What evidence will be sufficient must of necessity vary from case to case, but it is not enough, as I see the matter at present, for the plaintiff to say at trial, "Four years ago you knocked me down. I broke my leg. I have not worked since. Therefore, I am entitled to four years' wages." Such a bald syllogism is fallacious. [118] It is extremely difficult to accurately determine the date at which Ms. Shobridge was capable of returning to work. I accept that, when she returned to work at Eaton's in December 1996, the work was more than she could then cope with at that time, and that it was reasonable to take some additional time to recover. Giving her the benefit of the doubt, I think that Dr. Pendleton's evidence that she was capable of working in September 1997 is likely the fairest date at which to fix her ability to return to work. Ms. Shobridge's past income loss, therefore, extends from approximately October 1, 1995 (the earliest date at which she would have been able to return to work after the presacral neurectomy) to September 1, 1997 (the time at which Dr. Pendleton stated she was capable of returning to work). After that date, Ms. Shobridge's income loss was attributable largely to her decision to have a family. But for that decision, I find that Ms. Shobridge would have been capable of returning to work at Eaton's in September, 1997. [119] I assess the past income loss based on the evidence that she was earning $27,200 when she was hired in February 1994, and that those in the same position currently earn about $36,000. The mid-point of those amounts suggests a monthly salary of $2,633. By this calculation, the total loss for the period was $60,559. From that, I deduct $5,266 representing two months of salary (for the months when Ms. Shobridge worked in December 1996 and January 1997, for which no evidence of income earned was tendered). The net past income loss is therefore $55,293. [120] I allocate the monetary award under this head of damage in the same percentages, and for the same reasons, as I have under the head of non-pecuniary damages. Accordingly, the amount allocated to Dr. Thomas is $29,305, and to the nurses, $25,988. FUTURE WAGE LOSS [121] Ms. Shobridge advances a claim for future wage loss which, if accepted, would amount to $570,713. That claim is based on the assumption that Ms. Shobridge will never recover from the injury inflicted by the retained abdominal roll and the emotional trauma she claims flows from Dr. Thomas' failure to disclose. [122] Counsel for Dr. Thomas conceded that Ms. Shobridge has suffered an impairment of her capacity to earn income, but suggests that any such award should be modest. [123] The only evidence that Ms. Shobridge is physically incapable of work is Dr. Pendleton's evidence in his report, at p.5, that "[S]he continues to be incapacitated and dependent upon varying degrees of pain relief, none of which should be necessary in a healthy young woman of her years." At trial, Dr. Pendleton testified under direct examination: ...I don't think she functions as a normal young mother would function. I think there are occasions when her pain is so severe that she is in distress. She certainly needs pain relief albeit, I think, at present, less than she did. And thus, her day-to-day functioning in terms of her household chores, her care of her child and being pain free are impaired. Under cross-examination by Mr. Hinkson, Dr. Pendleton stated [at 87]: Q And was your view in September of 1997 that she was able to return to work but for her pregnant state? A Yes. Q And that once she delivered her child, she would be able, as soon as she got hopefully home care or nanny care or something, to then go back to perform her job? A I would hope she would have been able to, yes. Q Well, doctor, it's not a case of hoping. You said she should be able -- she will be able. A She will likely be able to. Q And that was your view? A Yeah. [124] The only evidence that supports Ms. Shobridge's contention that she is incapacitated from future work by reason of her post traumatic stress disorder is that of Dr. Harris and a vocational consultant, Derek Nordin, whose opinion relies upon Dr. Harris' evidence. I need not repeat my concerns in respect of his evidence. However, even Dr. Harris acknowledged that Ms. Shobridge's condition is improving. [125] In my view, the evidence of Dr. Pendleton and Dr. Harris falls far short of establishing an inability on Ms. Shobridge's part to enjoy future employment and income earning ability. Ms. Shobridge's current complaints of pain are manageable with Tylenol. She was, according to Dr. Pendleton, capable of returning to work in September 1997. Her alleged incapacity really rests on Dr. Harris' opinion, an opinion that does not accord with the fact that Dr. Harris has not seen fit to treat Ms. Shobridge, and thus her recovery from the psychiatric disorder he says she suffers has been delayed by 18 months. [126] An award for future income loss or loss of opportunity must be considered in light of the decision in Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393 (C.A.) which applied the test in Brown v. Golaiy, [1986] B.C.W.L.D. 349 (S.C.) at 399-400: The means by which the value of the lost, or impaired, asset is to be assessed varies of course from case to case. Some of the considerations to take into account in making that assessment include whether: 1. The plaintiff has been rendered less capable overall from earning income from all types of employment; 2. The plaintiff is less marketable or attractive as an employee to potential employers; 3. The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and 4. The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market. [127] Counsel for Ms. Shobridge reviewed in detail her work history at Eaton's in an effort to substantiate his assertion that Ms. Shobridge's future prospects were, in effect, golden. The reality of her situation was that she achieved only modest success at school. The tests performed by the vocational consultant, Derek Nordin, in April 1999, demonstrated that Ms. Shobridge achieved a grade 3 level in mathematics and a grade 9/10 level in spelling. He agreed with the supposition that Ms. Shobridge may have been pushed through school like many other children with learning disabilities. [128] Mr. Nordin's report as to Ms. Shobridge's vocational capacity was marred by several fundamental misapprehensions on his part. Mr. Nordin was not aware that Ms. Shobridge suffers from dyslexia. He did not review her school records and assumed that, as Ms. Shobridge told him, she had done well in school. He assumed that Ms. Shobridge correctly advised him that she earned $29,000 per year at Eaton's. He did not know that she missed work as a result of menstrual pain, but agreed it was important to know that. He was not aware that Dr. Davis and Dr. Lewis thought she could return to work in 1996 or that she did in fact return to work in December, 1996. [129] In consequence of those fundamental inadequacies in his report, I give no weight to Mr. Nordin's opinion that Ms. Shobridge is not currently able to engage in competitive employment. Furthermore, Mr. Nordin's opinion rests in significant degree upon the opinion of Dr. Harris to which I have been able to accord little or no weight. [130] Although I am not persuaded that Ms. Shobridge is entitled to future income, I do accept that her capacity to earn income has been diminished by reason of her absence from the work force for more than two years; her (at least temporary) loss of self-worth and the positive and optimistic views she previously enjoyed; and the loss of opportunities of advancement at Eaton's, modest as they were. [131] In my opinion, a fair assessment of Ms. Shobridge's loss of future earning capacity is $50,000. As with the assessment of non-pecuniary damages, it is difficult to assign responsibility for this loss between Dr. Thomas, on the one hand, and the hospital and nurses on the other. However, having regard to the fact that Ms. Shobridge's impairment is, to a significant degree, rooted in her diminished sense of self-worth, I would assign the greater proportion of this responsibility to Dr. Thomas. I think a fair division is $30,000 to Dr. Thomas and $20,000 to the hospital and nurses. FUTURE CARE [132] The test for determining the appropriate award of cost of future care is an objective one based on medical evidence: Melina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.). The medical evidence must show that the future care claimed is reasonably necessary, and not merely beneficial. In Arkestan v. Burgess, [1989] B.C.J. No. 264 (Q.L.) (B.C.S.C.), Hinds J. (as he then was) considered a claim for cost of future care and stated as a guiding principle, at p.7: [Proving the cost of future care] is not merely a matter of establishing whether something would "benefit the plaintiff", it is a matter of the plaintiff establishing on a balance of probabilities that certain equipment and services are reasonably necessary for her future care. [133] Ms. Shobridge advances a claim for a full-time, live- in nanny, housekeeping services for the balance of her life- time, and provision for a transmission upgrade on her automobile every eight years. The cost would be $278,980. [134] The only medical evidence to support this claim is Dr. Pendleton's opinion that Ms. Shobridge's day-to-day performance of her household chores and child minding abilities are impaired by her pain. Dr. Pendleton did not say that Ms. Shobridge medically required any of the services that are claimed. The provision of such services falls, in my view, within the ambit of non-pecuniary compensation; that is to say, they are services that would make Ms. Shobridge's life more bearable or enjoyable, but are not reasonably necessary. To that extent, I have considered and included them in my award of non-pecuniary damages. AGGRAVATED DAMAGES [135] The appropriate approach to be taken in assessing a claim for aggravated and punitive damages is set out in Huff v. Price (1990), 51 B.C.L.R. (2d) 282 (C.A.). The court held, at 300: It is obvious that there is a close relationship between aggravated damages and punitive damages. The harshness of the defendant's conduct may give rise to a proper liability on the defendant's part for both aggravated damages and punitive damages. But it is important that the plaintiff should not be compensated twice for the same harm and it is important that the defendant should not be punished twice for the same moral culpability. Accordingly, the best course is to assess the plaintiff's damages for pecuniary losses first and the plaintiff's damages for non-pecuniary losses second. The damages for non-pecuniary losses may be awarded or augmented on the basis of an assessment of the harm suffered by the plaintiff as a result of the high-handedness, or the wilful or reckless indifference to the plaintiff's rights, of the defendant. If such an award or augmented award is made for non-pecuniary losses then it is correct but not essential to refer to and to classify that award as aggravated damages. [136] As stated in Vorvis v. Insurance Corp. of B.C. (1989), 58 D.L.R. (4th) 193 (S.C.C.) aggravated damages constitute an augmentation of non-pecuniary damages and, as such, are compensatory in nature. Such an award is measured by intangible elements such as pain, grief, wounded pride, damaged self-confidence or self-esteem, or loss of faith in others. As has been oft noted, it is not the damages that are aggravated but the injury as a result of the defendant's high-handed conduct. [137] In my opinion, Ms. Shobridge's injury was undoubtedly aggravated by Dr. Thomas' conduct in deliberately concealing and suppressing the disclosure of the source of her abdominal infection. It was that conduct which caused Ms. Shobridge to lose confidence in Dr. Thomas and others. The loss was not total, as evidenced by her apparent confidence in Dr. Pendleton, Dr. Kester (whom she saw only once before consenting to the reconstructive surgery), Dr. Harris and others. [138] Nevertheless, the harm was certainly exacerbated by Dr. Thomas' unfortunate lapse. In my opinion, aggravated damages in the amount of $25,000 are warranted. PUNITIVE DAMAGES [139] Ms. Shobridge advances a claim for punitive damages in the range of $100,000 to $250,000. As a matter of basic principle, punitive damages are intended to punish a defendant for egregious conduct where the combined effect of general and aggravated damages is insufficiently punitive. Cory J. in Hill v. Church of Scientology of Toronto (1995), 126 D.L.R. (4th) 129 (S.C.C.) expressed the basic law as follows, at 185-6: Punitive damages may be awarded in situations where the defendant's misconduct is so malicious, oppressive and high-handed that it offends the court's sense of decency. Punitive damages bear no relation to what the plaintiff should receive by way of compensation. Their aim is not to compensate the plaintiff, but rather to punish the defendant. It is the means by which the jury or judge expresses its outrage at the egregious conduct of the defendant. They are in the nature of a fine which is meant to act as a deterrent to the defendant and to others from acting in this manner. It is important to emphasize that punitive damages should only be awarded in those circumstances where the combined award of general and aggravated damages would be insufficient to achieve the goal of punishment and deterrence. [140] Counsel for Ms. Shobridge cited several cases in which punitive damages were awarded; however, in general, I find the cases to be of limited assistance in determining an appropriate award here for several reasons: first, the punitive damages awards in the cases are wide-ranging (from $25,000 to $800,000) and deal with a variety of conduct; second, some of the cases involve corporate defendants, while others involve personal defendants; and, third, the cases span a fifteen year time period, with the most recent being a 1996 judgment. [141] In any event, one case warrants specific reference. In Coughlin v. Kuntz (1989), 42 B.C.L.R. (2d) 108 (C.A.), the relevance of a surgeon's bad faith to the appropriateness of an award of punitive damages was emphasized. There, the defendant performed a novel surgical procedure upon the plaintiff notwithstanding that the College of Physicians and Surgeons had requested that the defendant refrain from performing the procedure until it could be investigated. Additionally, the procedure was unnecessary or, at best, premature. The decision to employ the new surgical technique was found to demonstrate bad faith on the part of the surgeon and, therefore, justified an award of punitive damages in the amount of $25,000. [142] The question of bad faith arises as well in McBeth v. Boldt (1998), 164 D.L.R. (4th) 248 (B.C.C.A.), which is relied upon by counsel for Dr. Thomas. There, the court held that an award of punitive damages could not be supported where there was no evidence of bad faith, deliberate or reckless misdiagnosis, vindictiveness, or malice. Huddart J.A., speaking for the court, held, at 254: ...While the evidence would support a finding of arrogance, high-handedness, and generally a lack of respect for his patient, there is no evidence of bad faith, deliberate or reckless misdiagnosis, vindictiveness or any other such extreme or malicious behaviour. [143] In my opinion, the conduct of Dr. Thomas following the December 4, 1995 surgery and in particular his obvious attempts to conceal his part in the error of the September 13, 1995 surgery demonstrates bad faith and unprofessional behaviour deserving of punishment. I appreciate that Dr. Thomas was horrified and unnerved by his discovery of the retained abdominal roll on December 4. However, that does not excuse his deliberate attempt to suppress the truth from being revealed to Ms. Shobridge and the hospital for a period of two months. It is, in my view, egregious conduct on the part of a medical professional and deserves rebuke. [144] Having determined that judicial rebuke is appropriate in this case, I must consider whether the combined award of general and aggravated damages is of sufficient punitive effect. In my view, it is not. Accordingly, I consider an award of $20,000 to be appropriate in the circumstances. The question of costs was not fully addressed in argument. Counsel are free to apply to address that issue at a later date. [146] In summary, I find that Dr. Thomas is 50 percent responsible for the failure to remove the abdominal roll at the September 13, 1995 surgery. The hospital and nurses are 50 percent responsible. The allocation of damages is made on a slightly different basis given the differing sources of Ms. Shobridge's complaints. The failure to disclose the discovery of the abdominal roll rests solely with Dr. Thomas. The claim in deceit is dismissed. [147] Damages are assessed and assigned as follows: (a) Non-pecuniary damages: $85,000 Dr. Thomas: $45,000 The hospital and nurses: $40,000 (b) Past Income loss: $55,293 Dr. Thomas: $29,305 The hospital and nurses: $25,988 (c) Loss of future capacity to earn income $50,000 Dr. Thomas: $30,000 The hospital and nurses: $20,000 (d) Future care 0 (e) Aggravated Damages Dr. Thomas $25,000 (f) Punitive Damages Dr. Thomas $20,000 $235,293 [Totals:] Dr. Thomas: $149,305 The hospital and nurses: $ 85,988 [148] If I have made any errors in calculations, or have omitted to deal with any matter, counsel may apply. "P.A. Kirkpatrick J." P.A. KIRKPATRICK J.