Baglot v. Fourie, [2019] BCSC 122

Full Decision

The defendant admits prescription error but denies that Toradol received by plaintiff caused an ulcer, repeat intestinal bleeding and chronic pain. There is no other change in the plaintiff’s life to explain sudden decline. By causal inference, judge finds defendant caused injury to plaintiff.

Facts:

The plaintiff was hospitalized for symptoms relating to Crohn’s disease. His condition worsened in hospital including after being incorrectly prescribed Toradol, including two episodes of internal bleeding. The plaintiff alleged that Toradol was known to cause duodenal ulcers in patients with Crohn’s disease. The defendant admitted his negligence in prescribing Toradol to the plaintiff.

Surgery was required to repair the perforated ulcer. The plaintiff was hospitalized for 53 days and had a near death experience. The plaintiff developed chronic pain and became dependent on opioids. He left the hospital severely depressed, with posttraumatic stress disorder and visceral hypersensitivity. He became totally disabled.

The defendant admitted the prescription error but denied that it caused the ulcer, bleeding and the psychiatric injuries sustained by the plaintiff. The defendant attributed the ulcer to undertreated Crohn’s disease and prior injuries the plaintiff sustained in several motor vehicle collisions.

Issues:

Was there a causal connection between the prescription of Toradol and the ulcer and psychiatric injuries? Did the plaintiff fail to mitigate his injuries?

Causation Analysis:

The trial judge’s analysis considered each injury to the plaintiff as a discrete issue. These issues included the exacerbation of the plaintiff’s Crohn’s disease, malnourishment in hospital, cause of the first and second internal bleeds, cause of peritoneal adhesions, visceral hypersensitivity, opioid use, and PTSD.

The cause of the second internal bleed was the most contested and the analysis informed most of the causation analysis. The half-life of Toradol was short and the defendant argued that it was too remote to be the cause of a bleed that occurred days after it was administered. The plaintiff’s experts suggested that the inflammatory changes resulting from Toradol impacted the plaintiff beyond the half-life of the negligently administered drug.

The expert evidence before the trial judge offered no certainty as to the precise cause of the second bleed. There were numerous possible causes for the bleeding. The defendant argued that the underlying Crohn’s disease was responsible for the bleeds. The plaintiff’s treating gastroenterologist noted that the ulcer was located in a completely different area of his gastrointestinal tract than that affected by his Crohn’s disease.

Without conclusive expert evidence, the trial judge drew a causal inference in favour of the plaintiff. She noted that the plaintiff had no other intestinal bleeds in the “years before or after his hospitalization despite his active Crohn’s disease”. After the prescription of Toradol, the plaintiff had two bleeds. This made it “more probable than not that the second bleed was caused by the prescription error and its sequelae. It fits with the temporal sequence of events.” (para 320). She cited Ediger v. Johnston, 2013 SCC 18, in support of this approach.

Besides drawing an inference based on the close timing of the negligence and the bleeds, the judge also suggested various causes for the second bleed that arose from the consequences of the defendant’s prescription of Toradol. This included: “the compromised lining of Mr. Baglot’s stomach due to the dilatory effects of the NSAID, the surgery and the potential ischemia from the surgery, the prolonged hospitalization, the psychological stress due to the hospital stay, and the use of heparin”.(para 321)

The postoperative peritoneal adhesions were a likewise a consequence of the additional abdominal surgeries required to correct the bleeds attributed to the Toradol.

The judge’s temporal analysis extended to the visceral hypersensitivity, PTSD, opioid use. The conditions were diagnosed after the prolonged hospitalization resulting from the administering of Toradol. The plaintiff had none of these problems prior to the defendant’s conduct despite poorly managed Crohn’s disease. Without any other way to explain the sudden onset of these conditions after the defendant’s negligence, the trial judge inferred that they resulted from the defendant’s negligence.

Mitigation and Damages:

The plaintiff failed to mitigate his psychiatric injuries by not attending scheduled psychiatric appointments and his damages were reduced for 10%. It is unclear in the judgment as to whether there was an explanation as to why the plaintiff failed to attend these appointments.

Damages were further reduced by 30% as the plaintiff was deemed to be a crumbling skull plaintiff as his Crohn’s disease would progress and further impair his daily life.

Analysis:

The plaintiff had a long and complex medical history arising from Crohn’s disease. He had injuries from previous car collisions. He had not always followed his doctor’s advice in managing his conditions. However, he had never experienced life-threatening bleeds until after receiving Toradol.

The defendant’s argument that the plaintiff had caused his own demise by poorly managing his Crohn’s disease ended up supporting the plaintiff’s position on causation. The evidence showed years of non-compliance with therapy, yet he had never prolonged hospitalization, ulcers and internal bleeding.

Justice D. MacDonald managed to avoid being bogged down by muddled and seemingly unpersuasive expert evidence from both parties. The inflammatory response to Toradol was the only change in the plaintiff’s life to explain his deterioration. There was enough supporting expert evidence by the plaintiff’s experts to support this causal inference. Justice MacDonald’s decision embodies the common sense approach to causation that the SCC has reiterated for over two decades.

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