IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Pausch v. Vancouver Coastal Health Authority, |
| 2014 BCSC 2552 |
Date: 20141223
Docket: S099345
Registry:
Vancouver
Between:
Arnold Brent
Pausch
Plaintiff
And
Vancouver Coastal
Health Authority
operating as UBC
Hospital, Jane Doe and John Doe
Defendants
Before:
The Honourable Madam Justice Sharma
Oral Reasons for Judgment
Counsel for the Plaintiff: | K. Koller |
Counsel for the Defendants: | E. Stanger M. Peirce |
Place and Date of Trial: | Vancouver, B.C. October 14-17, 20 and |
Place and Date of Judgment: | Vancouver, B.C. December 23, 2014 |
Table of Contents
A. Mr.
Pauschs Exposure to Noise
B. Safety
Protocols and Policies for MRI Scans
D. Mr.
Currys Typical Procedure
E. Mr.
Pauschs Symptoms After the 2008 Scan.
I. Mr.
Pauschs Other Legal Claims
V. WAS THE STANDARD OF CARE
BREACHED?
[1]
Mr. Pausch claims he developed tinnitus and increased hearing loss after
undergoing an MRI scan at the MRI clinic of the defendant, Vancouver Coastal
Health Authority, operating as UBC Hospital, in 2008 (I will refer to all
defendants in the singular throughout my reasons). He submits the defendant is
liable because there was no specific check done to ensure the headset given to
him for noise protection was free of defect and properly placed on his person. The
defendant agrees it owed a duty of care to the plaintiff but says the plaintiff
has not proven any other element of negligence. It says the claim must be
dismissed.
I. FACTS
[2]
The parties agree on certain facts. Mr. Pausch attended UBC Hospital on
January 2, 2008, and underwent an MRI conducted by Mr. Blaine Curry (the 2008
Scan). The MRI was for Mr. Pauschs cervical, thoracic and lumbar spine (called
a CTL scan) and lasted about one and a half hours.
[3]
Mr. Pausch attended UBC again on January 30, 2009, for an MRI which was
conducted by Ms. Karen Smith, an employee of the defendant (the 2009 Scan).
This was also a CTL scan.
[4]
There was also no controversy about how an MRI works. Dr. Reinsberg gave
a simplified explanation of how MRI machines work. He has extensive experience
working with MRI machines for cancer research. Most of his evidence was helpful
but not strictly relevant to the legal issues. There are some facts from his
testimony that provide useful context to the legal issues in this case.
[5]
MRI machines generate loud noises when in operation. The noise is made
by large copper coils through which an electric current is passed. The current
is rapidly pulsed. This causes the coils to twitch, resulting in noise. The
pulsing also manipulates the gradient of the magnetic field. Altering the
gradient of the magnetic field focusses the images taken on different aspects
of the body part being scanned.
[6]
Dr. Reinsberg also explained that an MRI scan consists of a number of
sequences, which are a series of images taken of the targeted body part at
the same gradient. Each sequence is done at a different magnetic resonance thus
providing a different perspective of the scanned body part. Sequences last
anywhere from 30 seconds to as much as three to five minutes.
[7]
MRI machines are equipped with a speaker and microphone system that
allows the technologist (who sits in another room operating the MRI machine) to
communicate with the patient, and vice versa. In addition, when headsets are
used, that communication is conveyed through the headset itself. The patient is
also given an alarm bell to alert the technologist if he or she requires
assistance.
[8]
The magnetic field of the MRI machine is extremely strong and is always
engaged. Thus, safety procedures are very important to ensure no metal is
brought into the MRI room.
A. Mr. Pauschs Exposure to Noise
[9]
Mr. Pausch has worked continuously as an auto mechanic since 1982, first
at Canadian Tire and then for the Abbotsford School District (the District). His
work has included repairing school buses, cars, trucks, scissor lifts, grass
cutting machinery, trailers and various other machinery. With the District, he
worked in a large building which housed many different mechanics. At any
moment, someone (including himself) could be operating very noisy equipment,
such as sledgehammers, air hammers or large engines.
[10]
The District provided to its employees hearing protection that fit over
the ears, or ear muffs, but Mr. Pausch found them uncomfortable. He preferred
to use small foam earplugs that are placed directly in the ear canal. He estimated
he only used the ear muffs 5% of the time that he wore ear protection at work.
[11]
Mr. Pausch was extremely careful about wearing ear protection at work
whenever there was loud noise. In part, this was because he relied on his
hearing to diagnose engine problems. But there were occasions at work when
someone else in the building did not warn others of the upcoming use of a very
loud tool. At those times, Mr. Pausch would have been exposed to extremely loud
noises, but he said he would plug his ears with his fingers to minimize that
exposure. If the noise continued, he would insert ear plugs. He says he
constantly reminded co-workers to provide a warning before using very loud
equipment. More generally, he claimed to be fastidious about workplace safety.
He served on the Districts safety committee for over 20 years.
[12]
In addition to supplying ear protection, the District made available
annual hearing tests. Mr. Pausch underwent these tests whenever he could and the
results of those tests were put into evidence.
[13]
Mr. Pauschs diligence about hearing protection extended outside of
work; he has been known to wear foam earplugs at social events at which loud
music is played, including at his daughters wedding. He has always carried
earplugs with him and has had them in probably every jacket pocket and in his
car. He encouraged family members to always carry ear protection.
[14]
In their testimony, Mr. Pauschs wife and son admitted Mr. Pauschs
reminders about hearing protection could be annoying and amount to nagging.
Mrs. Pausch recounted several instances that demonstrated her husband was
fastidious about hearing protection and admitted to being embarrassed at times
by his insistence at wearing ear plugs at social events. She said she finds the
foam earplugs all over the house (such as in the washer and dryer) and in the
car.
[15]
Mr. Pausch has enjoyed hunting, sometimes with his son. He owns
specialized tactical headphones which his son confirmed Mr. Pausch wore when
they went hunting.
B. Safety Protocols and Policies for MRI
Scans
[16]
Ms. Karen Smith gave evidence on behalf of the defendant. She was an
impressive witness with exemplary credentials. I found her credible and
reliable and do not hesitate to accept her evidence without qualification.
[17]
The plaintiff said that it was telling that the defendant did not
offer Ms. Smith as an expert. I disagree. An expert is retained to provide
neutral and independent evidence to assist the court. The defendant is entitled
to want and expect its former or current employees to work together with its
counsel in presenting its case in the manner it sees fit. It might be
problematic for a party to attempt to qualify as an expert its own lay witness
who is testifying about crucial events. For one thing, the party would be
suggesting to the court that its witness was capable of offering opinions about
her own conduct (in this case, the 2009 Scan).
[18]
In 2008, Ms. Smith was co-manager (along with another woman with whom
she job shared) of the defendants MRI department at UBC Hospital. Currently
she is the Regional Practice Lead for the defendant which means she oversees 13
MRI sites. It is part of her responsibility to establish best practices for
those operations.
[19]
She qualified as an X-Ray technician in 1979 and later obtained
qualifications to operate CT machines. In 1987, she became an MRI technologist.
Ms. Smith successfully advocated for the creation of MRI technology as a
discipline in Canada and assisted in creating the Canadian Association of
Medical Radiation Technologists. This is the certifying body for MRI
technologists and it also establishes competency profiles and best practices.
She was involved in the creation of those, as well as the national exam for
technologists. British Columbia has its own association and it has adopted the
national standards for competency.
[20]
In 2008, Ms. Smith was in charge of staff scheduling, training new staff
and evaluating students who did practicums at UBC, in addition to being
responsible for the maintenance of the machines. At that job, she helped
develop the clinical and research protocols. She also continued to perform
scans herself.
[21]
With the supervising physician, she developed the Hearing Protection in
the MR Environment policy. It states, in part:
Acoustic noise levels during MR scanning generally fall
between 65 and 95 decibels (dB), but can reach more than 120 dB depending on
the pulse sequence, magnetic field strength and other factors.
Hearing protection may lower this exposure by about 20 to 30
dB, depending on the type of protection and their proper use.
[22]
The policy also states that all patients must wear protection that meets
WorkSafeBC guidelines: foam ear plugs, ear muffs or MRI compatible headphones.
If a patient refuses to wear the protection, the scan will not be done.
[23]
Ms. Smith confirmed that patients were allowed to choose the type of
hearing protection (earplugs or ear muffs) they wanted to wear during the
procedure. She testified that UBC never ran out of earplugs and always had a
standing order for the products. Mr. Curry also testified that he could not
recall a situation where ear plugs were not available.
[24]
I summarize those portions of Ms. Smiths testimony that I find to be
the important facts regarding hearing protection for MRI scans:
· An
MRI machine produces loud noises that can harm hearing if proper hearing
protection is not worn.
· The
noise is loud enough that it can harm a patients hearing, potentially
resulting in permanent hearing loss.
· If
a patient pushes the call button during a sequence, it is expected the scan
will stop immediately and the technologists will check on the patient.
· The
technologist performing the scan has the ultimate responsibility for patient
safety during the MRI scan.
· The
length of the scan and type of procedure is related to the potential extent of
damage to hearing.
· The
proper use of hearing protection is critical.
C. The 2008 Scan
[25]
Mr. Pausch had four MRI scans before January 2008. One in either 2003 or
2004 related to injuries when he fell off some icy stairs. That fall resulted
in surgery and possible neurological injury.
[26]
On January 2, 2008, he attended UBC Hospital for an MRI scan of his
spine. He said everything proceeded normally until just before he got into the MRI
machine. Mr. Pausch testified he asked for foam earplugs. He claimed he
had only ever worn foam earplugs during his previous MRI scans. Mr. Pausch said
Mr. Curry told him they had run out of earplugs.
[27]
Mr. Pausch did not request that Mr. Curry search for earplugs because Mr. Pausch
always felt the scans were done under strict time constraints. Instead, Mr.
Pausch was given and accepted a headset. He cannot remember if he put the
headset on himself or what position (sitting, lying down) he was in when it was
placed on him.
[28]
Mr. Curry does not have any specific recollection of Mr. Pausch or the
scan he performed that day.
[29]
Well into the procedure, Mr. Pausch testified he began to feel
uncomfortably warm and he pressed the call button. He said there was no
immediate response. He was nervous that the call button was not working. When
that particular sequencing was done, he told Mr. Curry about his discomfort.
Mr. Pausch claims nothing was done to address his concern. Instead, Mr. Curry told
him only one more sequence needed to be done and suggested Mr. Pausch just put
up with his discomfort until it was over. Mr. Curry denied this could have happened.
He said if a patient expressed concern about their comfort at any point during
a procedure, he would immediately stop the sequencing and check on the patient.
[30]
There was no evidence that Mr. Pausch mentioned to Mr. Curry or anyone
else his concern that the call button malfunctioned during his scan.
[31]
Mr. Pausch testified that as soon as he got out of the machine, he
didnt feel right; he noticed a ringing sound in his head and felt something
was different with his hearing. He also felt a bit disoriented. He did not
speak to Mr. Curry about his symptoms. He said Mr. Curry quickly rushed him out
of the MRI room back to the changing area. Mr. Curry agreed he does try to
ensure patients exit in a timely fashion, for safety concerns, but he did not
accept he would have rushed Mr. Pausch.
[32]
Mrs. Pausch was in the waiting area and testified she saw Mr. Pausch
leave the MRI room and walk to the changing area. She said he looked confused
or stunned. Mr. Pausch changed his clothes and starting walking with his wife
away from the clinic. He told her about his symptoms. She also remembered that
he leaned on her for support which was very unusual behaviour. He continued to
complain about the symptoms and when they got to the elevators, they decided to
return to the clinic to report a problem.
[33]
The evidence about what happened when they returned, and even if they
returned at all, was inconsistent and confusing. Mr. Pauschs testimony changed
and both his and his wifes evidence was inconsistent with previous statements that
had been made.
[34]
By one account, they went back to the clinic and Mr. Pausch spoke with
the receptionist asking to see Mr. Curry. The receptionist went to find him but
returned and said Mr. Curry had already left. By another account, the
receptionist simply told Mr. Pausch to see his family physician. By another
account, however, Mr. Pausch says he called the UBC MRI clinic the next day to
report his symptoms and it was the person he spoke to in that phone call that
told him to see his family physician. When confronted with his examination for
discovery evidence, however, he could not recall if the receptionist was even
at the desk when they returned, or whether he spoke to her.
[35]
Mrs. Pauschs evidence at trial was only generally consistent with
Mr. Pauschs trial evidence. About five years ago, she wrote a statement
describing the events and she agreed when cross-examined that her statement was
truthful and represented her best recollection of events in January 2008 when
she wrote it. Her statement does not mention them returning to the clinic or
speaking to the receptionist.
D. Mr. Currys Typical Procedure
[36]
Mr. Blaine Curry is a certified MRI technologist. He was working at St.
Pauls Hospital full-time in January 2008 but also worked as a casual
technologist in other centres, including at UBC Hospital where he worked about
one shift a week. In 2006 he was contracted with General Electric (GE) to
work as an Applications Specialist. In that position he trained technologists on
MRI machines made by GE and did troubleshooting for protocol issues.
[37]
He performed the scan on Mr. Pausch on January 2, 2008, at UBC Hospital
but has no recollection of Mr. Pausch or the scan he performed on him that day.
[38]
He did recall that the policies for MRI technologists at UBC were
similar to those at St. Pauls Hospital. He also confirmed that all of the
patients he scanned at the UBC clinic were outpatients.
[39]
He described the steps in a typical MRI scan he performs as follows:
· The
patient registers with the receptionist and waits until called forward. The
patient is given forms to complete before the scan.
· The
receptionist alerts the technologist that the patient has arrived.
· Mr.
Curry meets the patient in the waiting room and reviews the forms with the
patient and ensures the forms were dated and signed.
· After
changing clothes, but before they enter the MRI room, Mr. Curry does a visual
inspection of the patient to see if the patient has forgotten to remove any items,
such as jewelry, or if they forgot to mention they had tattoos (both constitute
a safety hazard). Once that is done, they enter the MRI room.
· Mr.
Curry asks the patient to sit on the MRI table and he explains the procedure to
the patient again. He advises patients that the MRI is very loud and they need
protection for their ears. He also explains the use of the emergency call
button.
· He
then asks if the patient prefers ear plugs or headsets and he gives them
whatever is requested. If a patient requests ear plugs, the patient is allowed
to insert them themselves.
· If
the patient chooses headphones, the patient lies down before the headsets are given
to him or her to put on.
· For
hygienic reasons, new disposable covers are placed on the headset before
handing it to the patient (he demonstrated how this was done during his
testimony). Because of the shape of the headphones and how they are slanted, it
is inevitable that Mr. Curry ends up seeing them close-up.
· He
checks if the patient is comfortable (may be a thumbs up or tap check), gives the
call button to the patient and then aligns the patient with the machine (this is
done with a laser).
·
He asks the patient after each sequence how they are doing,
unless it is made clear to him or he understands that the patient would prefer
not to be asked every time (which makes some patients uneasy), in which case he
checks after every two sequences.
[40]
Mr. Curry confirmed that there was no written policy in place at any
facility in BC at which he worked requiring headsets to be specifically checked
for defects. He also confirmed it was unlikely that he would have done a
specific check for that during Mr. Pauschs scan, although he would have handled
and looked at the headset when putting the hygienic covers on.
E. Mr. Pauschs Symptoms After the 2008 Scan
[41]
Mr. Pausch said he had a horrible night trying to sleep after the 2008
Scan. Mrs. Pausch testified that he would hold his head and looked extremely
uncomfortable. Mr. Pausch claims his hearing loss worsened after the 2008 Scan.
He had greater difficulty following conversations at large gatherings and this
diminished his enjoyment at social functions. Mrs. Pausch testified that in
group settings, she often had to repeat or summarize conversations for Mr.
Pausch. She said this was markedly worse after 2008. He did not seem to whisper
in those situations and she felt awkward and self-conscious because people
might have heard him asking her to repeat the discussion. Sometimes she asked
him to wait for her to explain to him later, which irritated him.
[42]
Even when watching TV, both Mr. Pauschs wife and son said he often needed
be told what happened or what was said. They both perceived his loud speaking
to have gotten worse in the last five or six years conceding that he always
spoke loudly. His son noticed, however, that the hearing aids made a drastic
improvement with his dads hearing. Mr. and Mrs. Pauschs evidence was
consistent on that point.
[43]
Mr. Pauschs son also testified that his dad stopped listening to
portable music with headphones or ear buds in the last five or six years. This
evidence is curious because Mr. Pausch was adamant that he never listened to
music with headphones or ear buds. He specifically recalled seeing a poster at
the UBC MRI clinic advertising that patients had the option of listening to
music from the supplied headsets at the time of both the 2008 Scan and the 2009
Scan. He said he remembered the poster specifically because listening to music
is not something he would be interested in doing during an MRI. He also said he
never really listened to music with headphones. There was an indication in some
documents that Mr. Pausch did, in fact, listen to music during the 2008 Scan.
[44]
Mr. Pausch currently wears hearing aids paid for by WorkSafeBC. He has
not purchased or tried hearing aids that are specifically designed to assist
people suffering from tinnitus.
F. The Tinnitus
[45]
Mr. Pausch described the ringing in his head to be similar to a kettle
whistle. A 30 second sample of noise was played in court that he said mimicked
the sound he constantly hears. The sample was played from the American Tinnitus
Associations website.
[46]
He says this ringing is constant but fluctuates in pitch and volume. The
tinnitus causes difficulties with Mr. Pauschs concentration and he said it makes
him moody, irritable and angry. He also claimed it interferes with his ability
to fall asleep, partially because his experience is worse in quiet
environments. In a louder situation, external noise helps to mask the ringing sound.
Stress aggravates the tinnitus. He understands there is no cure for tinnitus;
he has to learn to cope with it.
[47]
Mrs. Pausch confirmed Mr. Pauschs evidence that he often awakes during
the night or early morning and simply watches TV rather than trying to fall
asleep again.
[48]
Mr. Pausch has tried putting a water fountain and a fan in his bedroom
because it was suggested their sound may act as white noise to mask the
tinnitus. Those measures were short-lived, even if effective, and abandoned
because Mrs. Pausch found them annoying. He has not attempted an under
pillow device which is marketed for tinnitus or hearing aids specifically
designed for tinnitus.
[49]
In 2010 or 2011, Mr. Pausch attended a group session at St. Pauls Hospital
offering support and follow-up for people suffering from tinnitus. The goal is
to assist patients to cope with the condition since there is no cure. One to
one counselling sessions are available at a cost of $250 for the first session
and $120 for each thereafter. Each group session costs $75. Mr. Pausch only
attended a group session once and has not attempted one to one counselling.
G. Medical Evidence
[50]
Mr. Pausch saw his family doctor soon after the 2008 Scan. That doctors
clinical notes were accepted into evidence as authentic by consent. The doctor
did not testify.
[51]
There is no notation about hearing issues until the entry for January
31, 2008, where the phrase still ringing in ears appears, implying the doctor
had been told at a previous appointment about the tinnitus. When asked about
this, Mr. Pausch said he cannot recall telling the doctor about his hearing problems
at the first appointment.
[52]
The notes are not helpful because the lack of a notation of tinnitus is
not determinative that Mr. Pausch did not tell his doctor about his condition.
[53]
What is more relevant is Mr. Pauschs testimony that he cannot recall
whether he told his doctor at the first visit about his issues with his
hearing. Given that the first visit was about 10 days after the 2008 Scan, when
it would be clear the issues were not temporary, it is surprising that Mr.
Pausch cannot remember telling his doctor about it. This is even more curious
given Mr. Pauschs claim that he was advised by someone at the UBC clinic
either the day of or day after to see his family doctor about the ringing in
his ears.
[54]
Mr. Pausch also confirmed he suffered from other health issues. The only
ones relevant to this case are injuries he sustained in his neck, back and
elbow, the latter requiring surgery. These injuries caused pain and may have
interfered with his sleep. Mrs. Pausch testified that back pain often caused
her husband to wake up. Similarly, Mr. Pausch cannot determine what might wake
him during the night, but he said the tinnitus makes it difficult for him to
fall asleep.
i. Audio testing
[55]
Mr. Pauschs doctor referred Mr. Pausch to a specialist. The first
specialist he saw retired, so the follow-up was with Dr. Steinberg. Dr.
Steinberg did not testify, but some of his documents were entered into evidence
and were reviewed by an expert, Dr. David, who did testify.
ii. Expert Evidence
[56]
The plaintiff proffered Mr. Richard Myszkowski as an expert but in
reasons delivered October 20, 2014, indexed as 2014 BCSC 2036, I excluded
portions of his report. What remained as admissible evidence were his answers
to two questions: (1) what is the responsibility of the MRI technologist
conducting the MRI with regard to hearing protection; and (2) what steps must
the MRI technologist take in order to protect the patients hearing? In answer
to the second question, his report stated:
The technologist must provide
earplugs, ear bud headphones, or full covering headphones to every patient
having an MRI scan. An explanation of the noise of an MRI scan should also be
explained to the patient. Proper instructions for use should be given to the
patient. Once given, comfort and positioning of the headphones or earplugs
should be checked by the technologist.
[57]
With regard to the first question, the following steps are most relevant
to Mr. Pauschs claim (the rest of the steps identified by Mr. Myszkowski
were generally consistent with both Mr. Currys and Ms. Smiths evidence):
· If
full coverage headphones are to be used, the headphones are cleaned prior to
each patient.
·
At the time of cleaning, if there is any damage to the foam or
tubes running to the headphones, it would be addressed and new headphones
provided or tubing reconnected.
[58]
Mr. Myszkowski agreed this is not an in-depth examination but a quick
check done while cleaning. This step is slightly different at UBC because it used
disposable paper/fabric covers. The reason for that is rubbing alcohol may
damage the plastic or rubber components of the headset. Nevertheless, there is
an opportunity for the technologist to handle and examine the headset. Mr.
Myszkowskis report also said:
The technologist will check that
the full coverage headphones or ear buds are placed correctly and that they are
comfortable to last the duration of the examination. If they are not
comfortable, they should be repositioned to ensure patient comfort and
effectiveness.
[59]
Mr. Myszkowski confirmed in cross-examination that the patient is in the
best position to know if the headset or ear plugs are properly placed. He
agreed that if the patient expresses no concern about ear plugs or headset, and
a basic visual inspection is done, then it is safe to proceed with the scan.
[60]
I note that Ms. Smiths and Mr. Currys evidence was consistent overall with
Mr. Myszkowskis.
[61]
Dr. Eytan David is an otolaryngologist, also referred to as an ears,
nose and throat (ENT) doctor, who gave opinion evidence on behalf of Mr.
Pausch. He was a credible and reliable witness.
[62]
His impressions after reviewing the medical records provided to him
were:
Mechanism of possible injury including prolonged MRI
scanning, and onset and progression of symptoms over time, is suggestive of
causal connection between MRI scanning and [Mr. Pauschs] symptoms of tinnitus.
There appears to have been significant deterioration in measured audiograms
pre and post MRI suggestive of noise induced hearing loss in the frequency
specific range between 3,000-6,000 Hz. In the context of no other
unprotected noise exposure in the interim, a causal connection between MRI
scanner and noise induced hearing loss can be stated more likely than not.
[Emphasis added]
[63]
His ultimate conclusions were:
1. There is medical evidence of interval deterioration
in hearing testing pre and post the 2008 Scan.
2. Tinnitus is a result of this measurable deterioration in
hearing.
[64]
In his testimony, Dr. David explained three events that can be
causatively linked to tinnitus, based on a meta-analysis of the medical
literature: head injuries, noise-induced trauma and pre and post-incident
change in hearing. Dr. David confirmed that it is possible for noise trauma to
be sufficient, independent of documented change in hearing, to link the trauma
to tinnitus. He also agreed that it may be possible for a person more
vulnerable to loud noises to be wearing hearing protection appropriately and
still suffer injury when undergoing an MRI. The reason is that each individual
has a different tolerance to loud noise.
[65]
Dr. David based his conclusions on an examination and comparison of some,
not all, of Mr. Pauschs hearing tests and the fact that Mr. Pausch
reported the ringing in his ears immediately after the 2008 Scan.
[66]
The defendant challenged Dr. Davids methodology of comparing hearing
test results. There were nine test results entered into evidence: five were
done by WorkSafeBCs mobile clinics on behalf of the District, one by Dr.
Steinberg (the specialist to whom Mr. Pausch was referred), one at St. Pauls
Hospital, one at Costco and one with Dr. David. They range from October 2, 2002
to June 2012.
[67]
Dr. David decided to compare the March 2007 WorkSafeBC test to the
October 8, 2008 test done at St. Pauls Hospital to determine pre and post MRI
hearing levels. He had confidence in the latter because he knows the setting
and methodology of tests done at St. Pauls Hospital are reliable and match his
own process. He was reluctant to rely on WorkSafeBC tests because those are
done in mobile units by contractors and the testing conditions are unknown and
may be significantly inconsistent with tests done in a medical setting.
[68]
The defendant says I should discount Dr. Davids opinion because he had
no logical reason to prefer the March 2007 WorkSafeBC test over earlier ones
(done in October 2002 and December 2003). The defendant further points out that
using either an average or one of the earlier tests would likely have changed
Dr. Davids opinion. It is accepted that a change of more than 10 dB
between two tests signals a change in hearing. The defendant suggested Dr.
David was cherry-picking the one test that resulted in illustrating interval
hearing loss because at no frequency is there more than a 10 dB change between
the St. Pauls Hospital and the 2002/2003 tests.
[69]
Dr. David explained the March 2007 test was the one closest in time
before the 2008 Scan and that is why he used it. In my view, that is logical.
This test was less than a year before the 2008 Scan; the other two were both
more than four years before the 2008 Scan. Given there was no known qualitative
difference between the three WorkSafeBC tests, it does make intuitive sense to
pick the one closest to the event in question.
[70]
However, the defendant did point out other qualities of the March 2007
test that raise questions in my mind about Dr. Davids opinion. Most notably,
it shows that, at frequencies of 1K in the left ear and 3K in the right ear, Mr.
Pausch detected sound at 0 dB, meaning he detected sound when none was played.
No other test (except Dr. Steinbergs, which Dr. David did not rely on)
contained a zero result. No explanation was provided for that result.
[71]
Also, the March 2007 test appears to show an improvement in Mr. Pauschs
hearing from the previous tests: in his left ear at 3K and 4K frequencies
(those being most relevant in terms of interval hearing loss most likely to
lead to tinnitus), and in the right ear at 1K, 2K and 25K. As I understood the
evidence, noise-induced hearing loss does not improve because it is caused by
nerve damage. Given that, the March 2007 test results are odd.
[72]
However, I found Dr. David credible and reliable and neutral. I do not
accept the defendants suggestion that he was cherry-picking the test most
favourable to Mr. Pausch, but the anomalies in the March 2007 test raise
significant empirical concerns about Mr. Pauschs hearing before the 2008 Scan,
therefore, I approach Dr. Davids opinion with caution.
H. The 2009 Scan
[73]
In early 2009, Mr. Pausch had another MRI scheduled at UBC Hospital.
He called the clinic ahead of his appointment to inform it of his
difficulties at his last MRI scan. Ms. Smith recalled getting a message to call
Mr. Pausch in January 2009. A phone message to call Mr. Pausch dated January
13, 2009 was put into evidence. Mr. Pausch expressed concern to Mrs. Smith
about his upcoming MRI scan because of what he felt had happened in 2008. She
set up a time for them to meet in her office. She had the impression the main
purpose of that meeting was to expedite Mr. Pauschs MRI. When a
cancellation came up on January 30, Mr. Pausch took the appointment.
[74]
Mrs. Smith was challenged in cross-examination about the timing and
content of that meeting, but her evidence did not waiver.
[75]
Ms. Smith performed the 2009 Scan. She had a good recollection of that
procedure because of her previous contact with him. Because of his concern with
what he said happened at the 2008 Scan, she took extra precautions for hearing
protection: Mr. Pausch wore both ear plugs and a headset and she wedged large
foam pieces (which are typically used to help support a patient in a particular
position when needed) between the CLT coil and the headset he was wearing.
[76]
Mr. Pauschs recollection differs. He said after getting on the table,
Ms. Smith put the headset on him, he lay down, she adjusted his head, wedged
something between his ears and the machine and then removed the headset.
[77]
Ms. Smith flatly denied taking the headset off. She also explained that
patients lie down before the headset is put on because it could be bumped and
then need to be re-adjusted if put on earlier. She wedged some foam between his
headset and the machine for extra protection.
[78]
I find on a balance of probabilities that Ms. Smiths recollection is
accurate. Mr. Pauschs situation was unique in her experience which is why her
interactions with him stand out in her memory. She recalls the phone
conversation and their meeting; she has a specific recollection of performing
the 2009 Scan and of wedging foam beside Mr. Pauschs head. All of these
actions were unusual so it is reasonable her recollection of the events would
be more accurate. Also, both she and Mr. Curry confirmed it was standard
practice for patients to lie down and then be given a headset.
I. Mr. Pauschs Other Legal Claims
[79]
Mr. Pausch has commenced at least five other law suits. Three of those
were started before January 2008 and include a claim for damages for some of the
symptoms he claims in this case were caused by the 2008 Scan.
[80]
Mr. Pausch also has instigated approximately 59 claims at WorkSafeBC. He
says that prior to the 1990s, any and all safety issues or injuries (even a
paper cut) were supposed to be reported to the designated first aid person.
Mr. Pausch believes that person was obliged to send a report about the issue or
injury to WorkSafeBC, which automatically generated a new claim number, even if
no follow-up was requested or required. There was no evidence from WorkSafeBC
to confirm this was the practice followed.
[81]
According to Mr. Pausch, that practice changed. Now, not every report to
the designated first aid person results in a new claim number. I understood
there is some type of screening function performed between receiving information
from an employee and a claim number assigned by WorkSafeBC.
[82]
Mr. Pausch offered this explanation as a way of downplaying the number
of claims he had at WorkSafeBC; he claims a number of the claims may simply be
incident reports for which no follow-up was needed. However, a majority of
Mr. Pauschs WorkSafeBC claims were opened after 1989, when he says the
system changed.
[83]
Most significantly, in 2012, Mr. Pausch filed a hearing loss claim with
WorkSafeBC. His claim was accepted because WorkSafeBC found that he suffers
from industrial hearing loss as a result of the work he does. Mr. Pausch,
however, was also seeking compensation for tinnitus as a permanent disability.
Relying on Dr. Steinberg, he argued that the tinnitus was related to his
work because the industrial hearing loss made him more vulnerable to developing
tinnitus.
[84]
He believes his claim was rejected because the tinnitus arose
immediately after the 2008 Scan. He appealed that decision, but the appeal was
dismissed. Because his claim was successful, in part, WorkSafeBC pays for his
hearing aids. Mr. Pausch says the hearing aids do not assist with the
tinnitus. I find Mr. Pauschs litigation and WorkSafeBC history are relevant
because they show his willingness to seek compensation for similar symptoms
from multiple sources. In particular, he was unable to persuade me his WorkSafeBC
claim for tinnitus was anything other than strategic. While he is entitled to
pursue all legal avenues for redress, I found his explanations and descriptions
of symptoms to be suspicious.
II. CREDIBILITY
[85]
The defendant calls into question Mr. Pauschs credibility and emphasizes
the following examples as illustrative of inconsistencies in his testimony.
[86]
Mr. Pausch wrote a letter to the defendants Director of Patient Relations
in February 2009 (more than a year after the 2008 Scan) requesting financial
assistance to buy hearing aids and tinnitus maskers. The letter states [o]n January 2,
2008 I had a MRI done and the technician said that they had new hearing
protection in which I could listen to the music of my choice. Nowhere in the
letter does it state that he was told ear plugs were not available because they
ran out of supply, which is odd because that is a chief complaint in this case
and a fact pled in the notice of civil claim.
[87]
Twice the letter says he had worn ear plugs and ear muffs for past MRI
scans, suggesting he wore both simultaneously. This contradicts his testimony
where he insisted he had always worn only earplugs prior to the 2008 Scan. He
claimed his letter was simply a mistake.
[88]
In my view, his answer is too simplistic. Mr. Pauschs evidence
(supported by his wife and son) was emphatic that he is almost obsessive about
hearing protection. He was adamant that he preferred ear plugs and claimed to
rarely wear headphones. Given that, it is hard to accept that when writing a
letter seeking redress for something he says caused a debilitating condition
like tinnitus, he would be careless with his words, especially with regard to
the critical event. The timing is also suspicious because the letter was
written shortly after the 2009 Scan where he did wear both ear plugs and
headphones.
[89]
Mr. Pausch claims that he had only mild hearing issues prior to 2008,
but the 2008 Scan pushed him over the edge and directly led to the tinnitus.
His evidence on the extent of his hearing difficulties prior to the 2008 Scan
was inconsistent and confusing. As he was taken to a number of forms he filled
out himself, his evidence would vary as to what he meant by things that he
wrote and often that testimony differed in a significant way from the ordinary
interpretation of the document, from his own previous testimony or from
evidence given at his examination for discovery.
[90]
He also demonstrated selective memory. While able to describe some
previous litigation in detail, he claimed not to have any recollection of one
lawsuit he filed. At times his understanding and explanation of policy and law
relating to WorkSafeBC claims were sophisticated; at other times he claimed not
to understand or to be ignorant of matters relating to his own claims.
[91]
For all these reasons, I find Mr. Pauschs credibility is impaired and I
approach his own description of the state of his hearing prior to the 2008 Scan
with caution. I also question the events as described by him on January 2,
2008.
III. ISSUES
1.
Did the defendant fail to meet the requisite standard of care required
of an MRI technologist?
2. If the answer
is yes, was that failure a proximate cause of the injury?
IV. ANALYSIS
[92]
The parties agree on the applicable legal principles. The defendant
referred to Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 at para. 3,
which sets out four elements of negligence: (1) the defendant owes a duty of
care to the plaintiff; (2) the defendant breached the standard of care; (3) the
plaintiff suffered injury and; (4) the injury was caused by the defendants
conduct.
[93]
The plaintiff relies on Ryan v. Victoria (City), [1999] 1 S.C.R.
201 at para. 28:
28 Conduct is negligent if it
creates an objectively unreasonable risk of harm. To avoid liability, a person
must exercise the standard of care that would be expected of an ordinary,
reasonable and prudent person in the same circumstances. The measure of what is
reasonable depends on the facts of each case, including the likelihood of a
known or foreseeable harm, the gravity of that harm, and the burden or cost
which would be incurred to prevent the injury. In addition, one may look to
external indicators of reasonable conduct, such as custom, industry practice,
and statutory or regulatory standards.
[94]
The defendant admits that it owed a duty of care to Mr. Pausch, so the
plaintiff must prove on a balance of probabilities that the standard was
breached and that the breach caused injury.
V. WAS THE STANDARD OF CARE BREACHED?
[95]
The defendant agrees it had the responsibility to ensure patient safety
when conducting an MRI scan. The dispute arises over what needs to be done in
terms of hearing protection to meet the standard of care. In this case, the
plaintiff says that Mr. Curry failed to check whether Mr. Pausch was properly
wearing the hearing protection and that failure breached the standard of care. The
specific question is, what constitutes a proper check of hearing protection?
[96]
The plaintiff points to the defendants failure to adduce expert
evidence as a factor weighing in favour of his case. The defendant notes the
plaintiff had no expert evidence about the applicable standard of care once I
excluded portions of Mr. Myszkowskis expert report.
[97]
In my view, the question about standard of care posed in this case does
not require expert evidence. The proper placement of a headset (or ear plugs)
is within the common knowledge and competence of the average person. There is
no special skill or instruction required for a person to properly don
headphones or ear plugs. Nor is the answer to the question beyond the courts
ability to answer based on the evidence of lay witnesses.
[98]
The plaintiff says it is common sense that the overriding duty to ensure
patient safety would necessitate that the MRI technologist check to see hearing
protection is used properly. I agree, but that does not answer the more
specific question of what exactly needs to be done to constitute checking to
see hearing protection is used properly?
[99]
The plaintiff says I should not accept Mr. Currys testimony that he
visually checked Mr. Pauschs hearing protection. This position is explained in
the plaintiffs written argument at paras. 55 and 56:
Mr. Curry testified in his direct examination that during the
time the patient put the headphones on, and while he was standing next to the
patient positioning them and performing the landmarking tasks, he was
performing a visual inspection.
Mr. Curry did not explain what he
was doing as part of this visual inspection apart from being in close proximity
to the patient. As noted, he agreed that he was not specifically checking the
seal between the headset and the patients head during this time.
[100] The
plaintiff says because there is no mention of a visual check in Mr. Currys
July 2014 affidavit (in which he describes his regular practice), I should
discount his claim that he visually checked the headset placement. The
plaintiff also says evidence of usual practice is not direct evidence of what
was done in January 2008.
[101] I do not
agree with the plaintiff. The facts pled in the notice of civil claim do not
identify the failure to check as an element of the negligence; rather, the main
complaint is that the defendant ran out of ear plugs. The defendant points
out that it was not until the trial that it became apparent the check was the
main focus. More importantly, as the above quotes recognized, the visual
check did not really constitute a separate test within Mr. Currys practice
and was nothing more sophisticated than looking at the headset after being
placed. For those reasons, the failure to mention visual check in his
affidavit is not significant.
[102]
The defendant says evidence of ones usual practice can be relied upon
to find what was done on the day in question, citing Belknap v. Meakes (1989),
64 D.L.R. (4th) 452 at 465:
If a person can say of something
he regularly does in his professional life that he invariably does it in a
certain way, that surely is evidence and possibly convincing evidence that he
did it that way on the day in question.
[103] The
plaintiff relies on Chasse v. Evanson, 2006 ABQB 342 at para. 75, for
the proposition that Mr. Currys usual practice is not direct evidence of
whether he met the standard of care during the 2008 Scan; it is only
circumstantial evidence from which an inference can be drawn. This principle is
no different than what the defendant relies on. Whether by direct evidence or
inference, the issue is whether the defendants conduct breached the standard
of care on the day in question. In fact, in Chasse at para. 77, the
court did conclude it could infer from the defendants evidence about his
invariable practice that he met the standard of care, citing Belknap.
[104] The
evidence of Mr. Myszkowski, Ms. Smith and Mr. Curry was remarkably similar in
terms of what general steps to take when conducting an MRI. Mr. Pauschs
recollection of the 2008 Scan was poor; when asked a series of questions about
his position, who put the headset on and when that was done, he could not
recall. In the face of that, I accept Mr. Currys testimony that he would
normally visually check the placement of the headsets. I also accept the
visual check was nothing more than looking at the headset. Mr. Myszkowskis evidence
suggests such a check would be adequate. He also agreed that if the patient
indicated he or she was comfortable after placing the headphones or ear plugs,
a visual check was sufficient to ensure hearing protection was adequate and the
technologist could proceed with the scan.
[105] The
plaintiff says Mr. Curry failed to specifically check to see if the seal was
complete between the cups of the headset and Mr. Pauschs head. He points to
Ms. Smiths evidence that she did that when she performed the 2009 Scan.
But Ms. Smith was clear that, because of Mr. Pauschs specific concerns,
she took extra steps with regard to hearing protection. I did not understand
her evidence to be that checking the seal was an expectation for standard MRI
procedures.
[106] More
persuasive, however, is Mr. Pauschs own evidence that he could not recall if
he felt anything was wrong with the placement of the headphones. Mr. Myszkowski
agreed that the patient is in the best position to determine if headphones are
properly worn. This is common sense. It is also highly relevant that Mr. Pausch
is fastidious about hearing protection. I believed his testimony that if he
thought there was something wrong with the headphones he would have asked for
assistance.
[107] The
plaintiff says none of these facts about Mr. Pausch exempt the defendant from
conducting a proper check. That may be true, but his evidence does tend to
prove that the headphones were, in fact, properly placed during the 2008 Scan.
What remains to be determined is, what is a proper check?
[108] Properly
wearing headphones and ear plugs is an everyday, simple and common task. There
is no magic or skill to ensuring they are properly worn. In my view, it is
impossible, without input from the patient, to know whether headphones or ear
plugs are properly placed. In the case of ear plugs, a visual check can only
determine if the ear plug has fallen out or not. Whether it is correctly placed
can only be known by the patient who will be able to feel if it has expanded in
the ear canal and is likely to stay in place. The MRI headset must be put on
the patient when he or she is lying down so it is impossible to thoroughly view
its placement.
[109] In my
view, the patients feedback is the most reliable check that hearing
protection is worn properly. A visual check by the MRI technologist is an
additional measure in case the headphones have become obviously misaligned or
the ear plugs have fallen out, and, for whatever reason, the patient has
failed to alert the technologist. Such a visual check is easily and quickly
done. Mr. Myszkowskis evidence supports this conclusion as noted above.
[110] I find
that a proper check requires the MRI technologist to get feedback generally
from the patient and to look at the patient once the hearing protection has
been placed to make sure the ear plugs have not fallen out or the headset has not
become obviously misaligned. I find it is more likely than not that Mr. Curry did
these two things and, therefore, he met the standard of care.
[111] The
plaintiffs notice of civil claim also says ear plugs were not available on
January 2, 2008, and the defendant is liable for not ensuring an adequate
supply. Mr. Pausch says he was told the clinic had run out of ear plugs.
[112] The
evidence was the clinic had a standing order and earplugs were in abundance
around the clinic, including two boxes in the MRI room itself. Ms. Smith and
Mr. Curry said they were never aware of there not being enough earplugs at the
clinic. I accept their evidence and I, therefore, find that it is highly
unlikely that the clinic would have run out of ear plugs or that Mr. Curry said
it had.
[113] Based on
the discussion above, I make the following conclusions. In light of the
evidence, the standard of care required of an MRI technologist when checking
hearing protection provided to a patient involves two things: (1) the
technologist must receive feedback from the patient about their comfort level
after the ear plugs or headset are placed, and; (2) the technologist must look
at the patient for the purpose of seeing whether or not the ear plugs have
fallen out or the headset has become obviously misaligned. In my view, it would
be unreasonable to place any greater duty on MRI technologists because, by far,
the most reliable check on the proper placement of hearing protection is the
patients feedback. He or she is absolutely in the best position to judge
whether the earplugs or headsets are placed correctly.
[114] I also
find that nothing more than a visual check done while either putting on hygienic
covers or cleaning the cups of the headphones is required in terms of
inspecting the headset for damage. In my view, that visual inspection would
catch obvious defects such as ripped or broken portions of the headsets. Any
other defect in its function could not be ascertained by an MRI technologist
handling the headset. I find that Mr. Currys visual check was, in effect, the
same as recommended by Mr. Myszkowski.
[115] I am
satisfied that, in this case, Mr. Curry met the standard of care required of
him. I infer from his description of his usual practice that it is more likely
than not that he did perform both elements of a check of the adequacy of
hearing protection during the 2008 Scan. In my view, the relative consistency
amongst the evidence of Mr. Myszkowski, Ms. Smith and Mr. Curry about the usual
practice supports this conclusion.
[116] Even if
there was some uncertainty on this point (which there is not), I also find that
Mr. Pauschs evidence about the care he has taken with his hearing makes it
highly unlikely that the headset was not placed correctly without him noticing
or seeking assistance to adjust it. I am satisfied on a balance of
probabilities that he did not need or seek such assistance because the headset
was properly placed.
[117] Accordingly,
I find the plaintiff has failed to establish the 2nd branch of
negligence and the claim fails on that ground.
VI. CAUSATION
[118] Although
it is unnecessary to do so, I will provide my conclusions on causation in the
event I am wrong about the breach of standard of care. Again, the legal
principles are not in dispute. Put very briefly, the plaintiff has the burden
of proving that but for the defendants negligent conduct, the injuries would
not have occurred. The description earlier in these reasons about how MRI
machines work and the mechanism by which they may cause hearing damage was also
not in dispute.
[119] The
plaintiff relies first and foremost on his own testimony, supported by his
wife, about his tinnitus and increased hearing loss after the 2008 Scan.
[120] He also
relies on Dr. Davids expert opinion that it is more likely than not that there
is a causal connection between the MRI scan and Mr. Pauschs noise-induced
hearing loss, which is an accepted cause of tinnitus. The plaintiff emphasizes
that the frequencies affected in Mr. Pauschs hearing (3,000 to 6,000 hertz) are
those associated with noise-induced hearing loss due to the physical properties
and shape of the inner ear. Dr. David referred to this as appearing as
notching on audiograms.
[121] The
plaintiff also relies on case law establishing that it is acceptable to rely on
common sense (in this case, the timing of the onset of symptoms in relation to
the 2008 Scan) as indicative of causation. I accept that statement of the law.
[122] The
defendant says that the evidence is insufficient to establish that
Mr. Pausch does suffer from tinnitus and/or increased hearing loss. As
discussed above, the defendant says less weight can be placed on Dr. Davids
opinion. It questions the validity of the results of the March 2007 WorkSafeBC
audio test, throwing into doubt Dr. Davids conclusion that Mr. Pausch did
suffer noise-induced hearing loss because either averaging all three prior
tests or using any one of the other two does not result in a change in hearing
levels for Mr. Pausch above the accepted test/re-test variability of 10 dB.
[123] The
defendant also says there are serious credibility issues with Mr. Pauschs
evidence sufficient for the court to question whether he has exaggerated or
overstated evidence about his hearing condition both before and after the 2008
Scan. The defendant refers to the following (some of which is discussed earlier
in these reasons) to support its submission that the evidence cannot support a
finding of causation:
·
There was inconsistent evidence about whether Mr. Pausch and his
wife immediately returned to the clinic to speak to the receptionist.
·
None of Mr. Pauschs treating physicians were called to give
evidence.
·
The medical records do not record Mr. Pausch raising any issue about
his hearing on either the January 11 or January 18, 2008 visit to his family
doctor.
·
Mr. Pauschs other litigation makes claims for damages for
symptoms also claimed in this action.
· Claims
made by Mr. Pausch in his WorkSafeBC claim relating to hearing loss and
tinnitus differ in a way that calls into question the veracity of his testimony
at trial. It is put this way in the defendants final written submissions:
The defendant submits that Mr. Pausch has manipulated his
evidence to benefit both sides of his dilemma. The defendant submits that the
Court should therefore be concerned with his credibility as a witness, and that
the Court should conclude it cannot rely upon Mr. Pauschs testimony as a
result. He has clearly made sworn statements in chief and cross examination
that directly contradict his submissions to the WorkSafeBC, made under a
similar promise to tell the truth.
· One example is in submissions relating
to his WorkSafeBC claim. Mr. Pausch stated he repeatedly complained to his
foreman that he had hearing problems at work for about 24 years. This
contradicted his evidence that his hearing problems only appeared after the
2008 Scan. When confronted with the document, Mr. Pausch said the claims he
made to WorkSafeBC were untrue. In my view, this admission (not being truthful
to a public agency in order to receive financial benefit) is a serious stain on
a witnesss credibility.
· Mr. Pausch filled out a noise
exposure form where it seems to indicate that he was exposed to air tools for 8
hours per day while working for the District from September 1989 to February
2013 with no hearing protection. Mr. Pausch says his answers (making a check
mark under a column listed as no hearing protection) were meant to convey
that the hearing protection was not provided by the employer. That is not a
reasonable interpretation of the form and I reject his explanation.
· Mr. Pausch did not give Dr. David the
information in the above two paragraphs that he gave to WorkSafeBC.
[124] To these
concerns I also add that Mr. Pausch appears to have taken very limited measures
to deal with his tinnitus. As he described it, tinnitus can be a debilitating
condition. He described the whistling noise as being constant and most
difficult to handle in quiet environments because there is nothing to mask it.
Despite this, he has not invested in any device specifically made to address
tinnitus even though they are available. He gave no reason for this.
[125] More
troubling is the fact that he admitted using a fan at night did help (because the
noise mimics white noise) but that his wifes comfort put an end to that. I
find this evidence difficult to reconcile with a person suffering from a
debilitating condition. Surely Mr. Pausch and his wife could figure out a way
for the fan to provide noise but not cause discomfort by merely having the fan
blow in a different direction, or quite frankly, buying extra bedding.
Similarly, a water fountain was abandoned because it had LED lights that Mrs.
Pausch found irritating. Again, no explanation was given for why a different
fountain without lights was not purchased or the lights simply disconnected.
[126] None of
the circumstances discussed above on their own, or in combination with just one
or two others, would be sufficient, in my view, to seriously erode Mr. Pauschs
credibility or his claim that he suffers from tinnitus. However, taken together,
serious questions are raised in my mind about whether he does suffer from
tinnitus.
[127]
Even if I was satisfied that the evidence proves on a balance of
probabilities that he does suffer from tinnitus, I must assess Dr. Davids
opinion and make a conclusion about causation. As noted in Shannahan v.
Fraser Health Authority, 2010 BCSC 144 at para. 25:
Even if the plaintiff had
produced evidence that certain aspects of his care by FHA employees fell below
the applicable standard of care, he has failed to address a further essential
element of a successful medical negligence action–the requirement of proving
causation. The plaintiff must establish that a breach of the standard of care
caused or materially contributed to the loss suffered. Causation need not be
established at the level of scientific proof or 100 percent certainty, but the
plaintiff still has the burden of adducing sufficient evidence to prove
causation on a balance of probabilities: Snell v. Farrell, [1990] 2
S.C.R. 311.
[128] As I
understand the legal test, it is not enough for Mr. Pausch to persuade me that
he has tinnitus and Mr. Curry did not do an adequate check to ensure the
headsets were properly placed; he must also prove on a balance of probabilities
that the failure to check caused or materially contributed to the tinnitus.
[129] Dr. David
concluded it was more likely than not the 2008 Scan was a cause of the tinnitus
because of his interpretation of the audiograms and the immediate onset of
symptoms after the MRI scan. However, Dr. David also testified that each
individuals susceptibility to noise is different. Importantly, he confirmed
that it is possible that someone could have their hearing damaged during an MRI
even if hearing protection was properly placed and free of defect.
[130] The
defendants have raised valid questions about Dr. Davids choice of pre-scan
audiogram which justifies lower weight being attached to his conclusions. When
combined with my finding about Mr. Pauschs impaired credibility and the
possibility for an MRI to damage some individuals hearing absent of problems
with hearing protection, I conclude that the plaintiff has failed to prove
causation.
[131] For all
these reasons, I dismiss the claim.
VII. COSTS
[132] The
parties requested additional time to provide submissions on costs. They have
until January 30, 2015 to submit written submissions no longer than five pages
addressing costs. Given the intervening holiday period, I leave it to counsel
to work out a reasonable schedule for exchanging between them their submissions
before they are submitted to me.
Sharma J.