Jackson v. Kelowna General Hospital: SCC passes on opportunity to clarify material contribution test

On Aug. 23, the SCC refused leave to appeal in Nigel Jeremy Jackson v. Kelowna General Hospital et. al (32000). In this medical malpractice case, the BC Court of Appeal considered whether the breach of a nurse’s standard of care in monitoring a post-operative jaw surgery patient’s vital signs did indeed cause or materially contribute to the plaintiff’s claimed brain injury. The Court of Appeal also took into account the plaintiff’s reliance on Resurfice v. Hanke 2007 SCC 7, which in previous threads here at The Court here, here, and here, has been discussed for its contribution (or lack thereof) to the material contribution test. In refusing leave to appeal, the SCC passes on an opportunity to clarify this test.

Facts

On April 19, 2001, the plaintiff underwent surgery to repair a broken jaw, with the surgery ending at 8:20pm. The anesthesiologist ordered the plaintiff be provided with a “patient controlled analgesia” (“PCA”) system, which allowed the plaintiff to self-administer morphine of no more than a maximum allowable dose at set time intervals. The anesthesiologist also ordered that the patient’s vitals signs to be monitored every hour for two hours and then every four hours subsequently unless ordered otherwise.

By 9:45, the plaintiff was moved to the hospital ward, where his vital signs were formally assessed as per the anesthesiologist’s order. Though two separate defendant nurses came into the plaintiff’s room to perform the separate tasks of changing his i.v. bag (11:15pm) and inspecting him visually (midnight), his vital signs were never formally assessed again after the initial assessment at 9:45.

At roughly 12:10am, one of the defendant nurses discovered the plaintiff unresponsively slumped over in his bed and breathing noisily, which prompted an emergency response. It was later found that the plaintiff had aspirated blood and oral secretions, which the trial judge found resulted in the plaintiff suffering a significant reduction of oxygen in his system because of his inability to breathe normally. It was also found that he suffered from respiratory distress, and that he needed to be treated for aspiration pneumonia.

Trial Judge’s findings

Though the trial judge found that the nurses breached the standard of care by failing to monitor the plaintiff’s vitals, she found that the breach did not cause or materially contribute to the plaintiff’s injuries. With respect to causation, she summarizes,

“Although vital signs should have been monitored at 10:45 and 11:45pm, there is simply no indication in the evidence that such monitoring would have revealed any signs of problems developing” She goes on further to say, “[t]his is not a case in which it would be appropriate to infer causation…”

BC Court of Appeal

The BC Court of Appeal upholds the trial judge’s decision. In rejecting the plaintiff’s reliance on Snell v. Farrell [1990] 2 S.C.R. 311, which the plaintiff argued the trial judge incorrectly applied, the decision states, at para. 20,

Snell does not stand for the proposition that an inference of causation may be drawn in the absence of evidence that the negligence caused the injury. The burden is on the plaintiff to prove that a ‘substantial connection between the injury and defendant’s conduct’ is present: Resurfice (at para. 23).

As well, despite a case where the nurses’ failure to monitor the plaintiff’s condition seemed appropriate for the material contribution test as espoused in Resurfice, the decision dismisses its applicability (at para. 21):

The appellant argues that this case meets the two conditions set out (at para. 25 [of Resurfice]) for the “material contribution” test: that it is impossible to prove that the defendant’s negligence caused the plaintiff’s injury, due to factors outside of the plaintiff’s control, and the injury suffered by the plaintiff falls within the ambit of the risk created by the breach. The appellant says that the absence of evidence of his condition at the times his vital signs should have been taken makes it impossible for him to prove causation, and the risk that his condition would change while self-administering morphine was the reason for the requirement that he be monitored at hourly intervals.

[22] The appellant’s reliance on Resurfice is of no assistance. In the absence of evidence that the monitoring of his condition when it was required would have revealed a change in his condition that would have alerted his medical caregivers than an event of respiratory distress could occur, he is unable to prove causation applying either the “but for” test or the “material contribution” test. Further, the Supreme Court’s articulation of the “special circumstances” where the “material contribution” test may be applied does not apply to this case, but to cases where it is truly impossible to say what caused the injury, such as where two tortious sources caused the injury, as in Cook v. Lewis, [1951] S.C.R. 830, or it is impossible to prove what a particular person in the chain of causation would have done in the absence of the negligence, such as in the blood donor cases (Walker Estate v. York Finch Hospital, [2001] 1 S.C.R. 647).

The SCC here had a chance to clarify when the material contribution test applied, but they chose to pass on this opportunity. Perhaps they felt the state of the current jurisprudence was sufficient and that this was a proper application of the guidance set forth therein. However, as has been argued in the links pointed to above, further clarity may indeed be needed, and the SCC chose not to provide it, at least with this case.