IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150729

Docket: S120608

Registry:
New Westminster

Between:

Brenlee Kemp on
her own behalf and as
Executrix of the Estate of Shannon Jean Kemp, Deceased

Plaintiff

And

Vancouver Coastal
Health Authority Ltd., dba
Vancouver General Hospital,
Riyad B. Abu-Laban,
David G. Brough, Larry Dian, Tania E. Fitzpatrick,
Ruth I. Schmalz, Steven K. Wong,
David Sweet, Steven Sutcliffe,
Dean Chittock, M. Doe

Defendants

Before:
The Honourable Madam Justice Arnold-Bailey

Reasons for Judgment – Summary Trial Applications

Introduction

[1]              
This is a summary trial application brought pursuant to Rule 9-7 of the Supreme
Court Civil Rules, BC Reg, 168/2009 (the “Rules”) on behalf of
certain defendants in this action who seek the dismissal of the plaintiff’s
claims against them. Brenlee Kemp (the “Plaintiff”) is suing the Vancouver
Coastal Health Authority Ltd. (“VCHA”) and various medical doctors in relation
to her mother, Shannon Kemp’s care and death in the Emergency Department of the
Vancouver General Hospital (“VGH”) on June 28, 2007. Shannon Kemp was 88 years
old and had been directed to go to the Emergency Department by an internal
medicine specialist to whom she had been referred by her family doctor due to a
decline in her health. There, Shannon Kemp’s condition deteriorated further
until she died after efforts to resuscitate her failed.

[2]              
The Plaintiff opposes the defendants’ applications, submitting that this
matter is not suitable for summary trial and to adjudicate it in summary trial
proceedings would be unfair and unjust. The Plaintiff also opposes the
defendants’ applications on their merits.

[3]              
The Plaintiff founds her claims against the defendants in negligence and
battery in relation to her mother’s admission to hospital on June 28, 2007 and
on a prior admission to VGH from November 9 to 16, 2006. The essence of her
position is that negligent care by the physicians and the nursing staff caused
or contributed to the death of her mother, who otherwise would not have died. The
Plaintiff also claims for the infliction of nervous shock upon her caused by
the negligent actions or omissions of the physicians and/or the nursing staff who
attended upon her mother.

[4]              
The Plaintiff is suing on her own behalf and on behalf of Shannon Kemp’s
estate. The Plaintiff claims damages under various heads of damages for the
torts alleged in relation to Shannon Kemp and for her own nervous shock. She
also claims damages under the Family Compensation Act, R.S.B.C. 1996,
c. 126 [FCA] for the death of her mother.

[5]              
The defendant, VCHA, which operates VGH, seeks to have the action
against it dismissed. It runs the Emergency Department at VGH and employs the
staff, including the nurses who work at VGH.

[6]              
Of the ten physicians named as defendants (including M. Doe), four of
them, Riyad B. Abu-Laban, David Sweet, Steven Sutcliffe and Dean Chittock (the “Defendant
Physicians”) seek to have the action dismissed against them by way of summary
trial. The Defendant Physicians are those doctors who attended to assist or
were involved in the care and failed resuscitation effort regarding Shannon
Kemp in the Emergency Department of VGH on June 28, 2007. All the physicians named
in this action are represented by one lawyer, Mr. Michael Thomas, who
brings the present application on behalf of the Defendant Physicians.

[7]              
The other physicians named as defendants were involved in Shannon Kemp’s
care prior to her June 28, 2007 admission to the Emergency Department at VGH. These
defendants do not seek dismissal of the claims against them at this stage of
the proceedings. They include: Dr. Steven K. Wong, a general internist who
had seen Shannon Kemp on several occasions, the last being on June 28, 2007,
when he indicated that she should attend the VGH Emergency Department for
rehydration given her poor condition (and sent with her a letter indicating
details of his care and concerns); Dr. David G. Brough, Shannon Kemp’s
family doctor, who had been treating her for various ailments and concerns; Dr. Tania
E. Fitzpatrick and Dr. Ruth I. Schmalz, two general practitioner locums
who filled in for Dr. Brough and saw Shannon Kemp; and Dr. Larry
Dian, a physician with a speciality in geriatric medicine who saw Shannon Kemp
in November 2006.

[8]              
The issues that the Court must decide are first, whether this case is
suitable for summary judgment and if so, whether the VCHA or the Defendant
Physicians are entitled to succeed with their applications to have the
Plaintiff’s claims dismissed based on weaknesses in the Plaintiff’s case.

The Plaintiff’s Amended Notice of Civil Claim

[9]              
The Plaintiff’s original Notice of Civil Claim was filed on October 14,
2010. Because of the protracted prior history of this matter (as accurately set
out in the written submissions made on behalf of the Defendant Physicians) and
the fact that the Plaintiff was only able to retain her current legal counsel
after considerable delay and difficulty, the Court permitted her counsel, Mr. Alan
Ross, to seek a considerable number of amendments to her Notice of Civil Claim,
which was subsequently permitted to be amended by order dated November 19, 2013.
This process was in essence a line-by-line review in court with the amendments
being either agreed to or objected to by counsel for the VCHA and the Defendant
Physicians and ruled upon by the Court. It took the majority of court time during
the days that had been previously set for the VCHA and the Defendant Physicians
to have their applications for summary judgment heard, at what was then already
the third hearing date.

[10]           
It is the Amended Notice of Civil Claim, filed December 23, 2013, which
sets out the Plaintiff’s claim.

[11]           
To provide a context for the Plaintiff’s claim it is useful to set out
the relief she seeks, and then later provide a summary of her affidavit
evidence.

[12]           
In Part 2 of the Amended Notice of Civil Claim the Plaintiff seeks:

1. Damages under the Family Compensation Act, RSBC
1996 Ch. 126;

2. Damages for negligent infliction of nervous shock upon the
Plaintiff including;

(a)  general damages;

(b)  special damages;

2A. Damages in respect of battery upon Shannon Kemp [paragraph
numbers from Statement of Facts omitted but referring to the re-catheterization
during the November 8-16, 2006 VGH admission, and the administration of various
medications and the physical injury to Shannon Kemp from resuscitation efforts
during her admission to the VGH Emergency Department on June 28, 2007].

3. Aggravated and punitive damages;

4. Special costs or, alternatively costs;

5. Interest pursuant to the Court
Order Interest Act, RSBC 1996 Ch. 79.

[13]           
Specifically, in relation to the VCHA, the Plaintiff’s claims arise from
two hospital admissions to VGH, the first being November 8 to 16, 2006, and the
second being on June 28, 2007. The Plaintiff claims that:

4.         VGH was negligent in its care of Shannon Kemp.
Particulars of VGH’s negligence include:

a)     on Shannon
Kemp’s admission on November 8, 2006, its employed nurse catheterized Shannon
Kemp when no such invasive procedure was medically indicated;

b)     after a
UTI [urinary tract infection] developed, its employed nurse, on November 10,
2006, re-catheterized Shannon Kemp notwithstanding the express refusal by both
Shannon Kemp and the Plaintiff to such a procedure, thus constituting battery;

c)     failing,
in a timely way, to identify clinically apparent evidence of Shannon Kemp’s UTI
and to request medical assessment;

d)     failing to
establish and adhere to, in the environment surrounding Shannon Kemp, a
reasonable standard of environmental cleanliness and hygiene protocol (among
its treatment providers) thus enabling the transmission to Shannon Kemp of MRSA
[Methicillin-resistant Staphylococcus aureus];

e)     failing to
regularly monitor and reposition the bedridden Shannon Kemp during her week-long
November 8-16 admission;

f)       on
June 28, 2007:

                                                                  
i.         
not delivering to the responsible physician a letter and enclosures
directed, in the name of Dr. Bruce Campana, to be considered in conjunction
with Shannon Kemp’s presentation;

                                                                 
ii.         
failing to properly triage Shannon Kemp resulting in a lengthy delay in
treatment;

                                                                
iii.         
failing to provide Shannon Kemp with a medical alert bracelet that
sufficiently detailed medications of concern;

                                                               
iv.         
delaying treatment and negligently providing treatment to Shannon Kemp
consequent on an alleged policy of the VGH intensive care unit not to treat
patients beyond a certain age;

                                                                 
v.         
failing to meet the reasonable standard of nursing care by failing to
appropriately monitor Shannon Kemp’s vital signs, medications and fluid balance
and to intervene as indicated.

[14]           
In relation to the Defendant Physicians (the four physicians seeking
summary judgment), who attended upon Shannon Kemp at the VGH Emergency on June
28, 2007, the Plaintiff claims that:

10.       Abu-Laban was negligent in that:

 on June 28, 2007 he:

a)     failed to
reasonably obtain and consider Shannon Kemp’s medical history and neglected to
accord weight to Shannon Kemp’s medical history as provided to him including:

                                                        
i.         
her presenting condition was not acute in onset but rather was of four
weeks’ duration;

                                                       
ii.         
the fact that she was on warfarin therapy and her blood thinness had
been greatly elevated above her established target therapeutic range;

                                                      
iii.         
she had suffered from, but was no longer suffering from MRSA; in fact
she was free from infection;

                                                     
iv.         
she was intolerant to antibiotics (which had contributed to her
presenting condition) and severely allergic to penicillin and sulfa drugs;

resulting in his failure to
diagnose Shannon Kemp’s condition and in his wrongful treatment of her;

b)     neglected
to address in a timely way Shannon Kemp’s unstable prevailing emergency – her
severe hypotension;

c)     neglected
to provide sustained and focused treatment to address Shannon Kemp’s
hypotension;

d)     administered
antibiotic medication when it was not required and it was contraindicated in
all the circumstances;

e)     directed a
blood draw which was not justified and which further destabilized Shannon
Kemp’s already precarious condition.

11.       Sweet, Sutcliffe, Chittock and M Doe, who together
formed the resuscitation team negligently:

a)     failed to
diagnose, or alternatively, misdiagnosed, Shannon Kemp’s condition and to
recognize that it had been caused by wrongful treatment given her that day;

b)     failed to
heed the advice of the Plaintiff that Shannon Kemp was having an adverse
reaction to medications being administered;

c)     failed to
cease administration of said medications, thus perpetuating Shannon Kemp’s
adverse reaction;

d)     administered
medications and fluids where were contraindicated and/or provided in excessive
dosages or volumes;

e)     forcefully
intubated Shannon Kemp with a greatly oversized endotracheal tube

                                              
i.         
when intubation was not medically indicated, resulting in increased
morbidity;

                                             
ii.         
when consent of Shannon Kemp, or the Plaintiff on her behalf, was
refused;

                                            
iii.         
over the active resistance of Shannon Kemp thereby causing grievous
physical injury;

f)       caused
abdominal injury by inappropriate application of chest compressions, or
otherwise.

12.       The chest compressions,
forced catheterization [specific paragraph references omitted but referring to
the November 8-16, 2006 hospital admission], and intubation, administration of
medications and other treatments referred to [specific paragraph references
omitted but referring to the June 28, 2007 admission] did not have Shannon
Kemp’s, or the Plaintiff’s, consent, and they constituted battery.

[15]           
Although not included in the Relief Sought portion of the Amended Notice
of Civil Claim (but included in Part 3: Legal Basis) that “[a]s a direct or indirect
result of the injuries suffered by the Plaintiff due to the Defendants’
negligence”, the Plaintiff claims damages for the cost of past and future
“health care services” pursuant to s. 2 and s. 3 of the Health
Care Costs Recovery Act, S.B.C. 2008, c. 27, as those terms are
defined in s. 1 of the same Act, including the costs for counselling,
ongoing medical care and treatment for severe post-traumatic stress disorder,
grief and emotional shock.

Evidentiary Matters

[16]           
In the course of hearing these summary trial applications, counsel for
the Plaintiff objected to some of the evidence relied upon by the defendants.
These objections were not timely, given the length of time these applications
had been before the Court, and were made in a “piecemeal” fashion. Had each
objection been individually argued and decided, the time set for these
applications would have been absorbed by evidentiary issues and the hearing
would not have concluded. Had the Court engaged in this process it would have
resulted in the vast majority of the Plaintiff’s objections not being sustained.
Once again, these applications would not have concluded within the time set for
the hearing. With a three week trial scheduled to begin in the fall of 2015, this
would have likely necessitated a further adjournment of the trial. As such an
outcome was not in the interests of justice, the Court proceeded as set out
below.

[17]           
After the July 2014 hearing dates, during which the summary trial
applications did not conclude, and prior to the January 2015 hearing dates, the
Court directed that counsel for the Plaintiff prepare written submissions
setting out his objections to the evidence before the Court, which he did.
Counsel for each of the VCHA and the Defendant Physicians prepared written
responses, to which the Plaintiff then filed further responses. The Court has
read and considered these submissions.

[18]           
In order that a complete record of the submissions regarding evidentiary
issues exists, the Court directs that a binder containing clean copies of them
be filed and marked as Exhibit A for Identification. It will contain the
following: the submissions of counsel for the Plaintiff (14 pp.), dated
September 5, 2014; the submissions in response filed on behalf of the Defendant
Physicians (35 pp.), dated October 2, 2014, which extract the portions of the
evidence objected to by the Plaintiff (as the Plaintiff referenced the items
objected to by paragraph and sentence number, but not the actual text) and
provides their response; objections made on behalf of the Defendant Physicians
(9 pp.), dated October 2, 2014; the submissions filed in response on behalf of
the VCHA (19 pp.), dated October 3, 2014; the Plaintiff’s response to
submissions on behalf of the VCHA (5 pp.), dated November 26, 2014; and the
Plaintiff’s response to the objections made on behalf of the Defendant
Physicians (5 pp.), dated November 26, 2014.

[19]           
The Court has approached the task of deciding these applications based
on the materials filed by each party, being mindful of the rules of evidence
and disregarding the irrelevant and the argumentative. The Court has considered
hearsay as inadmissible for its truth but admissible for the fact it was said.
The Court has also been mindful of the scope and expertise of expert witnesses
in the context of their reports and the requirements of Rule 11 of the Rules
when their opinions are tendered for their truth. Accordingly, any expert
medical opinions contained in the hospital records are admissible for proving
the factual record but not for the truth of their contents: Egli et al v.
Egli et al, 2003 BCSC 1716 [Egli] at paras. 25-28. Insofar as
counsel for the Plaintiff objected to the admissibility of certain factual
underpinnings for expert reports relied upon by the VCHA or the Defendant
Physicians, the Plaintiff, her previous counsel acting as agent and her present
counsel had the majority of those opinions for a considerable time and did not
previously voice any objection to them. With the exception of the Seymour Medical
Clinic records, generally speaking, the factual basis for the opinions
expressed by experts is in evidence. The ultimate weight to be attached to such
opinions is a matter for the Court.

[20]           
The Plaintiff’s materials also fall prey to having objections raised
about certain of their contents, particularly with regards to hearsay and
opinion evidence. However, I decline to redact portions of her affidavits or
exclude them. Rather, where the Plaintiff provided potentially inadmissible
opinion evidence (not being a physician or a medical specialist), the Court has
regarded it as evidence of the Plaintiff’s observations and as part of the
narrative she places before the Court, as opposed to accepting her opinions on
medical matters as evidence admissible for their truth. I also note that the
Plaintiff’s objections to certain facts as referred to in the expert opinions
relied upon by the defendants being unproven is somewhat specious, as the
Plaintiff herself at many places in her affidavits provides details about her
mother’s prior health and medical conditions as she perceived them, as do the
experts upon whose opinions she relies upon to defend against these
applications, namely Ms. Rohrback and Dr. Lawson.

[21]           
It is my overall view that the objections raised by the Plaintiff to the
evidence tendered by the VCHA and the Defendant Physicians, are not valid and
are without merit. I accept counsels’ submissions on behalf of the VCHA and the
Defendant Physicians with regards to the Plaintiff’s objections.

[22]           
Several individual evidentiary matters warrant brief comment.

[23]           
The Court has decided these applications without Shannon Kemp’s medical
records from the Seymour Medical Clinic because counsel for the defendants
understood that the Plaintiff’s counsel had withdrawn his objection and agreed
to their admission. However, on the last afternoon of hearing these
applications, it came to light that he had not. Rather than adjourn this matter
further, counsel agreed that the Court would proceed without those records for
the purposes of these applications. I have done so.

[24]           
I add that although some of the expert opinions filed by each party
refer to Shannon Kemp’s prior medical history, of which the Seymour Medical
Clinic records were one likely source, the main focus of these applications has
been the treatment of Shannon Kemp by medical staff and physicians at VGH
during her two admissions, and not her prior medical history or treatment. It
is evident that Shannon Kemp was not well when she attended VGH for medical
treatment, in particular on June 28, 2007. The Plaintiff’s own affidavits made
that clear. To the extent that the defendants’ expert witnesses have summarized
Shannon Kemp’s medical history or opined on its impact on how she presented to
VGH, I have not attributed any significant weight to that evidence.

[25]           
Counsel for the Plaintiff withdrew his objection to the admissibility of
the hospital records made on the basis of s. 51 of the Hospital Act, R.S.B.C.
1996, c. 200. He reminded the Court that the hospital records are evidence
as to the facts noted in them but not as to the opinions contained therein. The
hospital records contain important evidence for all parties. They are
admissible by agreement and have been relied upon by all parties.

[26]           
A frequent objection by the Plaintiff to the affidavits filed by the
Defendant Physicians is that the physicians, all of whom have no memory of
treating Shannon Kemp, may not rely on their notes contained in the hospital
records. There is no merit to this objection.

[27]           
Taking the Plaintiff’s objections to Affidavit #3 of Dr. Abu-Laban
as one such example of the type of objections raised, (See pp. 10-12 of
the Defendant Physicians’ response submissions), I find that Dr. Abu-Laban
may properly interpret his notes made contemporaneously as he treated Shannon
Kemp. He had a legal obligation to make such notes and the notes comply with
s. 42 of the Evidence Act, R.S.B.C. 1996, c. 124. The hospital
records in evidence contain his notes. His writing is hard to read in some
areas, he uses abbreviations and his notes are cryptic at times. It is entirely
proper that he provide affidavit evidence regarding what his notes indicate or
suggest to him. It is also entirely proper that he comment on portions of the
Plaintiff’s affidavits with which he disagrees. He may give evidence as to his
standard practice. Evidence of standard practice combined with memory refreshed
by contemporaneous notes has been found to be reliable and persuasive evidence:
Larson v. Lucky et al, 2005 BCSC 829 at paras. 18-20; and Belknap
et al v. Meakes (1989), 64 D.L.R. (4^th) 452 (B.C.C.A.) at
465-466.

[28]           
To the extent that Dr. Abu-Laban and other physicians who swore
affidavits in these applications had no memory of treating Shannon Kemp and had
to rely on records made contemporaneously or immediately after the fact, such
that their evidence amounted to past recollection recorded, I am satisfied that
their evidence meets the criteria for admissibility referred to in R. v.
Meddoui (1990), 61 C.C.C. (3d) 345 at 352, (Alta. C.A.); and R. v.
R.(J.), [2003] O.J. No. 3215 (Ont. C.A.).

[29]           
To the extent that any deponent strays into argument, I have not
considered these comments in formulating my reasons.

[30]           
Having considered the evidence in light of the objections raised and the
responses to those objections and based on my findings above, I turn to the
evidence and other aspects of the present applications.

A summary of the Plaintiff’s evidence

[31]           
Shannon Kemp’s medical records from the Seymour Medical Clinic where her
general practitioner, Dr. Brough, worked are not in evidence. Dr. Wong
may also have had an affiliation with that clinic. Having thought that the
Plaintiff’s counsel had agreed to their admission and learning only of his
objection during reply submissions, counsel for the defendants agreed to proceed
without the records from the Seymour Medical Clinic as opposed to further
delaying this matter. Given that the focus of the present application relates
to VGH hospital admissions and the physicians who attended upon Shannon Kemp in
the VGH Emergency department, the additional information about Shannon Kemp to
be gleaned from those records would have been only peripherally relevant.

[32]           
The Plaintiff has deposed many details relating to Shannon Kemp’s health
and her and her mother’s involvement with health care providers. By virtue of
her training and work as a dentist, the Plaintiff has an ability to observe and
describe medical matters, which is evident in her affidavits. There are five affidavits
of the Plaintiff’s before the Court (Affidavits #7, #10, #11, #12 and #13), of
which #11 and #13 relate primarily to the application of the Defendant
Physicians. There is also a brief extract of the Plaintiff’s examination for
discovery from August 11, 2011, when she was assisted by her former agent. The
Plaintiff declined a subsequent request to attend for further examinations for
discovery on scheduled dates, despite filing a significantly Amended Notice of
Civil Claim. Ultimately, the VCHA and the Defendant Physicians decided to
proceed with their applications rather than to incur any additional delay.

[33]           
The following evidence is taken from the Plaintiff’s Affidavit #10,
sworn May 23, 2014, which is her most fulsome affidavit.

[34]           
According to the Plaintiff, Shannon Kemp’s health difficulties started
in February 2005 when she fell over a coffee table in the dark, breaking three
ribs. She was seen by a Dr. Kassen following this incident. In October
2006, Shannon Kemp fell against a chair and fractured her femur while trying to
kick off a shoe. She was admitted to VGH where the fracture was treated and
then transferred to the UBC Hospital on October 18, 2006 for rehabilitative
therapy, where she remained until October 27, 2006. On November 8, 2006, the
Plaintiff took Shannon Kemp to the Seymour Medical Clinic to see her usual
“GP”, Dr. Brough, as Shannon Kemp was complaining of chest tightness. She
was seen by a locum, Dr. Schmalz, who weighed her. The Plaintiff states
that Shannon Kemp’s left femur was re-injured in the course of stepping onto a
scale in the doctor’s office. As a result, Shannon Kemp was admitted to VGH on
November 9, 2006 and remained there until November 16, 2006. During this time
the Plaintiff states her mother was subjected to the re-insertion of a Foley
catheter in her presence, which she claims was done over objections expressed
by her and her mother, at para. 22. She states that her mother had a
urinary tract infection upon release for which she was receiving treatment as
well as “undiagnosed cellulitis of her right calf.” As her mother’s condition did
not improve, the Plaintiff took Shannon Kemp to a previously booked appointment
with Dr. Dian at the UBC Hospital on November 20, 2006. During this visit,
the Plaintiff learned that this was the doctor about whom her mother had
previously complained as being unable to “understand her.” In the Plaintiff’s
opinion Dr. Dian had erroneously interpreted things that her mother had
told him. The Plaintiff observed that Shannon Kemp “presented with malaise and
with a swollen, tender, red [right] calf” and her left calf did not exhibit
those symptoms, her ankles were not swollen and she was not short of breath.

[35]           
The Plaintiff deposed that on November 21, 2006 an ulcer appeared on her
mother’s right calf. Shannon Kemp was seen by Dr. Brough on November 21,
23 and 24, 2006 for examination and treatment of the right leg infection,
during which Dr. Brough did not swab the ulcer for culture despite her
mother’s recent discharge from hospital, nor did he order any further
investigations. Between November 21 and 23, the ulcer worsened and Dr. Brough
prescribed Suprax. The Plaintiff states that during these appointments her
mother was not treated for volume overload or any signs of heart failure.
Shannon Kemp was seen again by Dr. Brough on December 1, 2006 when the
ulcer was still present. The Plaintiff states that the ulcer did heal
completely in January 2007, leaving a large scar.

[36]           
The Plaintiff stated that investigations of her mother’s heart by Dr. Isserow,
a cardiologist, indicated that her mother’s ventricular function was normal.
She also deposed that throughout January and February 2007 her mother’s
condition had improved significantly from November 2006 and she was approaching
her pre-fracture level of functioning.

[37]           
However, on March 9, 2007, swelling suddenly returned to Shannon Kemp’s
right calf at the same site as previously. After investigations at Mount St.
Joseph Hospital that indicated the presence of “subcutaneous edema”, the
Plaintiff took her mother back to see Dr. Brough, where she was seen by Dr. Schmalz
on March 12, 2007. Dr. Schmalz concluded that it was “unlikely an
infection” and took no further action. When Dr. Brough saw Shannon Kemp on
April 3, 2007 for “evaluation of the persistent right calf cellulitis”, he
prescribed Keflex. Shannon Kemp saw Dr. Brough again on April 10, 2007, as
the Keflex had not had a positive effect. He recommended that Shannon Kemp
attend at VGH Emergency for an opinion from the internal medicine service.
According to the Plaintiff they were both reluctant to re-attend at VGH and instead
they went back to Dr. Brough on April 25, 2007, asking that Shannon Kemp
be re-directed to the internal medicine specialist at the Seymour Medical
Clinic. Dr. Brough refused this request and became angry, stating “Not
everything has to be treated and this (pointing at Shannon Kemp’s leg) will not
be treated.” He did not examine Shannon Kemp or make any referral for further
treatment.

[38]           
Thereafter, the condition of Shannon Kemp’s right calf worsened. The
Plaintiff described their efforts to have Dr. Brough treat the problem or
make an effective referral to an internal medicine specialist that were
unsuccessful until the results of a swab that she insisted he take from the
open sores on her mother’s leg on May 14, 2007, came back positive for MRSA. At
this point, he facilitated Shannon Kemp seeing an internal medicine specialist,
Dr. Wong.

[39]           
When the Plaintiff and Shannon Kemp attended on May 25, 2007 to see Dr. Wong,
he prescribed test doses of the antibiotic Septra (in addition to the
Tetracycline prescribed by Dr. Brough on May 22), to which Shannon Kemp
had an adverse response. Dr. Wong discontinued the Septra and prescribed
another antibiotic, Rifampin, to which Shannon Kemp also had adverse side
effects, including malaise and nausea, resulting in diminished intake of fluids
and food. The Plaintiff’s view was that by the end of May 2007 her mother
“suddenly appeared clinically ill – she was listless and quite unlike her usual
animated self.”

[40]           
On June 7, 2007, Shannon Kemp re-attended Dr. Wong who, according
to the Plaintiff, agreed with Plaintiff’s decision to take her mother off the
medication Lasix as she was dehydrated. He did not examine her obviously ill
mother or take her blood pressure or pulse. He indicated that her kidney
function was “off” but did not treat it or make recommendations for monitoring.
Dr. Wong indicated that he was referring Shannon Kemp to Dr. Stiver,
an infectious disease specialist for treatment of the MRSA infection. On June
11, 2007, Dr. Stiver saw and treated Shannon Kemp, recommending that she
return to be seen by Dr. Wong, who declined to see her. Upon further
decline, the Plaintiff took her mother back to the Seymour Medical Clinic where
she was seen by Dr. Fitzpatrick, a locum for Dr. Brough. Dr. Fitzpatrick
was unable to measure Shannon Kemp’s blood pressure as the cuff was too large
for her arm and reinstituted the Lasix medication.

[41]           
When Shannon Kemp again saw Dr. Stiver on June 21, 2007, he urged
the Plaintiff to follow up regarding her concerns about her mother with Dr. Wong,
who according to the Plaintiff declined to see them. When Dr. Stiver
called to indicate some test results, he re-iterated the need for Shannon Kemp
to see Dr. Wong. When advised of the Plaintiff’s difficulties in obtaining
an appointment with Dr. Wong, Dr. Stiver indicated that he would
contact Dr. Wong. The Plaintiff then received a call from Dr. Wong,
who told the Plaintiff to discontinue certain of her mother’s medications, to
keep her well hydrated and to have kidney functions tests done on May 25 and
every ten weeks thereafter. He indicated that Shannon Kemp’s condition was
amenable to treatment, and if she did not respond to the treatment he
recommended then she would “come around quickly with IV hydration.” He advised
he would call with test results on June 25 and see Shannon Kemp in his office
on June 28. The Plaintiff indicated that she took her mother to have the blood
test ordered by Dr. Wong on June 25. She did not hear back from Dr. Wong.
On June 26, 2007 the Plaintiff was preparing to take her mother to hospital for
IV hydration when she received a call from a nurse who indicated that she had
spoken to Dr. Wong, and that her mother need not go to hospital and he
would see her on June 28 in his office as planned. The Plaintiff indicated that
in the week between June 21 and 28, 2007, the remaining ulcers on her mother’s
right leg had healed and she had not developed any new lesions. The Plaintiff
deposed that as of that date her mother showed no signs of inflammation, edema,
cellulitis or infection.

[42]           
The Plaintiff took her mother to see Dr. Wong on June 28, 2007, for
“evaluation of her condition, namely four weeks of clinical illness and
malaise.” When Dr. Wong took Shannon Kemp’s pulse he said “your pressure
is in your boots” and recommended that she receive IV hydration at VGH Emergency.
Before leaving, they waited for “at least half an hour” for a letter that Dr. Wong
wrote to Dr. Campana at Emergency. He did not call or recommend an
ambulance to take her there immediately. Leaving Dr. Wong’s office at
approximately 11:15 a.m., the Plaintiff took Shannon Kemp to VGH Emergency and arrived
at approximately 1:00 p.m.

[43]           
Upon their arrival at VGH Emergency, the Plaintiff deposed that they
approached an admitting clerk who took the letter from Dr. Wong and
directed them to the waiting area. Shortly thereafter the same clerk called
Shannon Kemp aside and took her blood pressure and pulse. Then they were
directed back to the waiting area until they were called again and taken to the
treating area, where a nurse gave Shannon Kemp a gown and asked her to change. She
was then seen by Dr. Abu-Laban, an Emergency room physician, who examined
Shannon Kemp for less than 10 minutes. He removed the band aid that the
Plaintiff had placed over her mother’s newly healed right leg. The Plaintiff
told him about her mother’s medical history, including that she had had a MRSA
infection that had been addressed by Dr. Stiver, who had confirmed that
she was free of that infection, confirmed by tests, and that no further
antibiotics were required. The Plaintiff deposed that she told Dr. Abu-Laban
that no further antibiotics were to be given to her mother, as she had been
sickened by antibiotics. In response, Dr. Abu-Laban said nothing, and did
not ask her any questions. The Plaintiff deposed that at no time that day did Dr. Abu-Laban,
or any other physician, indicate that sepsis was a factor in her mother’s
demise.

[44]           
The Plaintiff deposed that at no time did Dr. Abu-Laban discuss the
seriousness of her mother’s condition with her, the treatment to be provided or
“that full resuscitative efforts would be provided … should the situation
deteriorate.”

[45]           
Shortly after Dr. Abu-Laban’s attendance a nurse started an IV line
in Shannon Kemp’s left arm and another nurse attached a bag of saline to that
IV. A second nurse inserted a second IV catheter in her right wrist and drew
two vials of blood, which, according to the nursing notes, occurred at 14:25
hours. Another physician came by and examined Shannon Kemp for less than five
minutes and then left, saying nothing. Shortly thereafter, a bag of antibiotic
medication was attached to the right wrist IV. After a brief time, the
Plaintiff noticed that her mother “had suddenly become contorted and her eyes
were unfocused, as if she had had a seizure.” The physician who had examined
Shannon Kemp returned and the nurse said to him, “We were just chatting and
then this happened”.

[46]           
Within five minutes, three physicians arrived at the same time and one
of them “pushed” the Plaintiff aside and drew a curtain around Shannon Kemp’s
bed. The Plaintiff said that she saw her mother breathing and moving just
before she was pushed aside. Shortly after the curtain was drawn, one of the
physicians came and spoke to the Plaintiff, saying to her, “We don’t
resuscitate old people here, especially those with health problems.” The
Plaintiff deposed that she responded that her mother’s presentation was not due
to any pre-existing condition, but was an adverse response to the medications
being given to her by IV, and she instructed that the medications be
discontinued immediately, at which time the physician left. The Plaintiff
deposed that about this time Dr. Abu-Laban came out from behind the
curtain and said to her, “They don’t want to help her but I told them to.” Then
each of the two physicians behind the curtain came out and spoke to the
Plaintiff one at a time, and the Plaintiff deposed that she told them her mother
was strong and she begged them to help her mother. Each of them returned to
behind the curtained area.

[47]           
After a brief time, Dr. Abu-Laban came to the Plaintiff and told
her that the medications the doctors had given her mother had “got her pressure
up” and then the Plaintiff was permitted to see her.

[48]           
When the Plaintiff saw her mother she deposed that she was shocked by
her mother’s appearance. Her mother’s face was scarlet, exiting her throat was
a large endotracheal tube and her lower lip was torn and bleeding. Despite
this, the Plaintiff said that her mother’s eyes were focused on her and the
Plaintiff “could see that she was conscious and in agony.” After spending a
brief time with her mother, the Plaintiff said that the curtain was drawn
again, excluding her. After a short time one of the doctors came out from
behind the curtain and said, “It’s a surgical problem now. It’s no longer our
problem.” He continued to say “something to the effect that he could see from
an ultrasound that fluid had entered my mother’s abdomen.” Then, after a brief
time, the Plaintiff heard a physician say “I’m calling it. Time of death, 4
o’clock.”

[49]           
When the Plaintiff approached her mother this time she deposed that she
“was repulsed by the sight of the large endotracheal tube, which was still in
place” and the “gravity of her injuries was overwhelming.” The Plaintiff noted
that in addition to the torn lip, her mother had a broken nose, a dislocated
jaw, a tooth broken off at the gum line and extensive facial bruising. She also
noted that internal bleeding continued to well up through her throat and her
abdomen was grossly distended. The Plaintiff stated that her mother’s condition
horrified her and that memories of it continue to torment her to the present.

[50]           
She also deposed that after her mother’s death Dr. Abu-Laban spoke
to her and told her that he had not expected any of this to happen. He stated
that when he examined her, her abdomen and bowel functions were normal, she had
no related abdominal complaints or tenderness and he had only given her
antibiotics in case she had contracted something.

[51]           
On November 14, 2013, about six months prior to Affidavit #10, the
Plaintiff swore Affidavit #7 in response to the affidavits filed by Drs.
Abu-Laban, Brough, Dian, Fitzpatrick, Schmalz and Wong.

[52]           
For the purpose of these applications, only her evidence with regards to
VGH and Shannon Kemp’s VGH admission in November 2006 and regarding Dr. Abu-Laban
is relevant.

[53]           
The Plaintiff’s Affidavit #7 contains the following:

·      
Regarding the VCHA, that Shannon Kemp was catheterized with a
Foley catheter upon her admission to VGH on November 9, 2006. On November 10,
2006, when the Plaintiff entered her mother’s hospital room, nurses were
attempting to re-catheterize her and one of the nurses told the Plaintiff that
the catheter had fallen out. The next day, November 11, the Plaintiff saw that
the catheter had become choked with white blood cells to the exclusion of
urine. A nurse told the Plaintiff that she had noticed that Shannon Kemp had a
urinary tract infection on November 10, 2006, prior to the re-insertion of the
catheter. (Nothing was stated about the forced re-catheterization of Shannon
Kemp alleged to be a battery in this affidavit.)

·      
Upon her arrival at the VGH Emergency with Shannon Kemp, they
approached a female admitting nurse and the Plaintiff told her that they had
been sent by Dr. Wong for IV hydration of her mother and that “we were
there just for that purpose.” She also advised the nurse of the written
instructions for Dr. Campana from Dr. Wong, Dr. Campana being an
“ER” physician to whom Dr. Wong had apparently spoken earlier in the day.
The admitting nurse took the envelope and directed them to take a seat in the
waiting room.

·      
According to the Plaintiff, “shortly thereafter,” which she
estimated to be within ten to 15 minutes, her mother was called aside by the
admitting nurse who took her blood pressure and pulse. They were then redirected
to wait in the waiting room until called again.

·      
At approximately 2 p.m., the Plaintiff and her mother were called
from the waiting room and led to a curtained-off stretcher in the treatment
area, where Shannon Kemp was given a hospital gown by a nurse and asked to
change into it, which she did. Shortly thereafter, Shannon Kemp was seen by the
attending Emergency room physician, Dr. Abu-Laban, who the Plaintiff
estimates initially attended upon her mother commencing a few minutes after 2
p.m.

·      
The Plaintiff said that Dr. Abu-Laban proceeded to examine
her mother. She estimated that Dr. Abu-Laban spent “not more than ten
minutes” with her mother. The Plaintiff told him that her mother was
high-functioning, but she had been ill over the last four weeks and her oral
intake had been reduced as she was intolerant of the antibiotics she had been
taking.

·      
The Plaintiff observed Dr. Abu-Laban to remove the Band-Aid
she had placed over the superior aspect of her mother’s right calf where there
was new pink skin as a result of the previously healed over ulcer, her mother
having no reddened lesions or ulcers on her leg or heel on June 28, 2007.

·      
The Plaintiff deposes that she told the following things to Dr. Abu-Laban
to which he had no response: that her mother had ulcers of her leg and a
pressure sore on her buttock, but they had resolved; that she had a MRSA infection
but that had been addressed by Dr. Stiver, who had advised that her mother
was currently free of infection, as confirmed by recent tests ordered by him,
and that Dr. Stiver had said no further antibiotics were required; and
that her mother had been sickened by the antibiotics used to treat MRSA, that
they did not want any more antibiotics, and that no antibiotics were to be
given to her mother.

·      
With regards to the history noted by Dr. Abu-Laban (Affidavit
#1, at para. 8), the Plaintiff noted some of what Dr. Abu-Laban “documented” to
be incorrect, namely: her mother had been ill for four weeks, not two as he
noted; she did not tell him that her mother required hospital admission; and he
was not told that her mother’s “high-functioning status” ended with her October
2006 fracture.

·      
At no time while Dr. Abu-Laban was with her mother on that
occasion did he mention the “possibility that her presentation was caused or
exacerbated by underlying sepsis,” or anything to that effect. Further, at no
time on June 28, 2007, did Dr. Abu-Laban or any other physician at VGH
tell the Plaintiff that sepsis was a factor in her mother’s demise. The first
that the Plaintiff heard of this was on May 24, 2011 at Dr. Abu-Laban’s
examination for discovery.

·      
The Plaintiff expressly denies that she had any discussions
whatsoever with Dr. Abu-Laban about the seriousness of her mother’s
illness, the treatments he was providing to her or that he had reached a
determination that resuscitative efforts would be provided to Shannon Kemp should
the situation deteriorate (which is contrary to what Dr. Abu-Laban put in
his notes and stated at para. 11 of his Affidavit #1). The Plaintiff
asserts that Dr. Abu-Laban “neither said nor did anything to indicate to
me that her condition was serious or needed to be addressed urgently.”

·      
After her mother’s death, the Plaintiff deposes that Dr. Abu-Laban
said to her, “I did not expect this to happen. Her abdomen and bowel function
were normal. When I examined her she had no abdominal complaints or tenderness.
I only gave her antibiotics in case she had something.”

·      
With regards to Dr. Abu-Laban directing that her mother
received antibiotics, the Plaintiff deposes that Dr. Abu-Laban did not
tell her that he intended to give her mother antibiotics, nor did she suspect
he would, given that the Plaintiff had indicated on her mother’s behalf that
there was neither need nor consent to their use.

·      
The Plaintiff deposes to the following chronology of events after
Dr. Abu-Laban left her and her mother at approximately 2:15 p.m.: a nurse
attached a bag of normal saline to the IV in her mother’s left arm; a separate
IV bag containing antibiotic medication (400 mg. ciprofloxacin and 600 mg.
clindamycin) was piggybacked onto the saline IV in her mother’s left arm; issues
with the patency of the IV in her mother’s left arm caused a nurse to install a
second Gelco IV port in her mother’s right wrist/forearm (which the Plaintiff
says occurred at approximately 2:20 p.m., and not 3 p.m. as appears on p. 38
of the hospital records); this second IV port remained disconnected from the
bags of fluids or medications; at about 2:27 p.m. several vials of blood were
drawn through the port in Shannon Kemp’s right arm, which was followed by a
drop of her blood pressure to 50/33 at 2:30 p.m. at approximately 2:40 p.m.,
the bag of antibiotic medications was moved from the left arm IV to the right
wrist/forearm IV, which took about five minutes and during which Shannon Kemp
did not appear to be in distress; when the nurse left, the Plaintiff sat down
beside her mother but was not looking directly at her, and then a sudden
commotion caused the Plaintiff to look at her mother, whose body position had
become contorted and her eyes unfocused; a male nurse who had been assisting
said, “We (referring to himself and Shannon Kemp) were just chatting and then
this happened”; within five to six minutes from the nurses comment four men
whom the Plaintiff had not seen before arrived; and she was pushed away from
her mother’s bedside and the curtain was closed.

[54]           
The Plaintiff swore a supplementary affidavit on July 18, 2014,
Affidavit #12, in which she deposed the following:

·      
That Shannon Kemp was re-catheterized on November 10, 2006, that
this occurred despite her objections and those of the Plaintiff, and “[i]n the
face of her obvious intent to re-catheterize my mother notwithstanding our
objections and my physical attempt to prevent the re-catheterization, a second
nurse carried out the re-catheterization with the assistance of xylocaine, a
local anesthetic.”

·      
That the Plaintiff took her mother to the VGH Emergency on June
28, 2007 by car and transport chair and her mother did not walk into Emergency
but came in the transport chair where she remained until a bed became
available.

·      
During the time from when Dr. Abu-Laban first saw Shannon
Kemp and she became “contorted” with a seizure, Shannon Kemp was not given any
supplemental oxygen. A pulse oximeter repeatedly fell off Shannon Kemp’s finger
despite frequent attempts by a nurse to re-position it. Apart from the oximeter,
the Plaintiff does not recall any leads continuously connecting Shannon Kemp to
any form of monitor and no nurse examined Shannon Kemp with a stethoscope.

·      
With regards to the three physicians who came to attend to
Shannon Kemp within five minutes of her apparent seizure, the Plaintiff
confirmed that they were Drs. Sweet, Sutcliffe and Chittock, as the Plaintiff
saw each of them at their recent examinations for discovery.

·      
On June 28, 2007, that in addition to Dr. Chittock commenting
to the Plaintiff that they did not resuscitate old people there, especially
those with health problems (as she had previously deposed to in her Affidavit
#10, at para. 65), just before he entered the curtained area where Shannon
Kemp was, he said the following, or very similar words: “We’ll continue for now
but if she survives we’re going to have a long talk in the ICU about
discontinuing her support.”

·      
Shortly after the Plaintiff was permitted to see her mother she
was again separated from her mother by the curtain being pulled around Shannon
Kemp’s bed. Dr. Abu-Laban came out and asked the Plaintiff what her
mother’s reaction to penicillin was and then returned to her mother. Almost
immediately, Dr. Chittock came out and asked the Plaintiff the same
questions.

·      
At no time did Dr. Wong, the internist, ever discuss issues
in relation to cardiac arrest, “code status” or resuscitation with the
Plaintiff. Nor did the Plaintiff have any such discussions with any of the
other defendants, other than her exchange with Dr. Chittock, in which he
made the comment “We don’t resuscitate old people here, especially those with
health problems.”

[55]           
In her application seeking dismissal of the applications for summary
trial brought on by the VCHA and Defendant Physicians, on the basis that their
applications will not assist the efficient resolution of this proceeding, the
Plaintiff relies on the affidavits sworn and filed by the various physicians
named as defendants (not limited to the Defendant Physicians), the hospital records
of Shannon Kemp (appended to the Affidavit of Michael Peirce #4, sworn on
December 6, 2012), aspects of the expert report of Dr. Skinnider, an
internal medicine specialist, tendered on behalf of the VCHA (appended to the
Affidavit of Michael Peirce #6, sworn May 12, 2014) and the various expert
reports relied upon by the physicians appended to the Affidavit of Catharine
Cichecki #7, sworn May 2, 2014; namely, the expert reports of Dr. Paul
Mitenko, Dr. S.W. Pillay, Dr. Roderick L. McFadyen, Dr. Tricia
Ewert, Dr. Graeme D. McCauley, and Dr. Lorne D. Porayko.

[56]           
The Plaintiff also relies upon the expert opinion reports obtained by
her, appended to the Affidavit of Mary Ho #2, sworn May 23, 2014, which are the
reports of Dr. Grant Stiver, dated May 7, 2014 (Ex. “A”); Dr. Williard
Johnston, dated May 13, 2014 (Ex. ”B”); Dr. Andrew Lawson, dated May 21,
2014 (Ex. “C”); Dr. Robert Ley, dated May 21, 2014 (Ex. “D”); and Nurse Winona
Rohrback, dated May 22, 2014 (Ex. “E”).

[57]           
Evidence filed in this matter relevant to the determination of the issue
of suitability for summary trial is also, where relevant, considered on the
substantive applications. For example, the Court is unaware of any distinctions
being drawn on behalf of the Plaintiff regarding evidence to resist
determination by way of summary trial and evidence to resist the dismissal of
the claims sought by the VCHA and the Defendant Physicians. The Court will
consider all admissible evidence on all the issues to be decided.

The Plaintiff’s position with regard suitability for summary trial

[58]           
As the applications for dismissal are brought by only four of the ten
defendants with the trial scheduled to occur in the fall of 2015, the
Plaintiff’s counsel submits that regardless of their outcome, permitting the
VCHA and the Defendant Physicians to bring their summary trial applications will
only serve to increase the total hearing time of this matter as opposed to
shortening it, resulting in decreased efficiency in the ultimate resolution of
this proceeding. As such, her counsel submits it is not an appropriate, fair,
just or efficient resolution of the Plaintiff’s claims against the defendants
for the Court to render judgment in these summary trial proceedings.

[59]           
Furthermore, counsel for the Plaintiff submits that permitting the VCHA
and the Defendant Physicians to proceed and to potentially have parts of the
action dismissed against them will result in a fragmenting of the litigation
tantamount to “litigating in slices” and will open the door for the remaining
defendants to point blame at those who have had the claims against them
dismissed. It is accurate to say, based on the affidavit evidence of the
Plaintiff and the submissions made on her behalf, that she is adamantly opposed
to any resolution of this case other than by way of a trial before judge and
jury, which will subject the conduct of all the defendants regarding Shannon
Kemp’s decline and demise to full, open and public scrutiny before a court
where the trier of fact is composed of her peers. From her point of view, anything
short of that will amount to a great injustice.

[60]           
I have considered the authorities relied upon by the Plaintiff to
support a dismissal of the applications for summary judgment brought on behalf
of the VCHA and the Defendant Physicians, and will refer to them in the context
of my analysis of the law regarding summary trials.

The applications of the VCHA and the Defendant Physicians

[61]           
The application brought on behalf of the VCHA for summary judgment seeks
to have all the Plaintiff’s claims against it dismissed. It is useful to
provide a brief overview of VCHA’s position.

[62]           
First, with regards to the negligence alleged by the Plaintiff against VCHA,
the Court is asked to determine whether VCHA or its employees met the standard
of care expected of them in the treatment and care they provided to Shannon
Kemp and, further, whether the actions or omissions of VCHA or its employees caused
or contributed to the death of Shannon Kemp.

[63]           
The position of the VCHA is that even if the facts as deposed to by the
Plaintiff were accepted as true and reliable, which it submits they ought not
to be, the Plaintiff has failed to provide any evidence of causation with
regards to the negligence as alleged and the death of Shannon Kemp. Specifically,
insofar as there was any delay in terms of Shannon Kemp being appropriately triaged
in the VGH Emergency Department on June 28, 2007, it was minimal and delay has
not been shown to have caused or contributed to her death. Furthermore, in the
event there were breaches in the standard of care provided by the nursing staff,
which it disputes, the evidence of the Plaintiff’s medical experts does not
address the specifics of the alleged failures in the terms of a reasonable standard
of care. Instead, the Court is being asked to infer cause of death that is not
shown to relate to issues of delay, failure to communicate information
regarding Shannon Kemp’s condition or her reported intolerance of certain
medications, or failure to adequately monitor her vital signs, medications,
oxygen saturation or fluid levels, and to intervene as indicated.

[64]           
The VCHA submits that the only specific allegation regarding what is
alleged to have been the administration of improper amounts of two medications
to Shannon Kemp during resuscitation efforts is clearly explained by the
affidavit evidence of Nurse Waugh, who deposed that she incorrectly recorded the
amounts in the hospital records, as opposed to errors in the actual amounts of
medications drugs administered. In any event, VCHA submits the evidence does
not support an inference that these medications had a causal connection to the
death of Shannon Kemp.

[65]           
With regards to any alleged negligence by the VCHA regarding Shannon
Kemp’s earlier VGH hospital admission in November 2006, the VCHA submits that
the Plaintiff has failed to bring forward any evidence on standard of care or
causation and has, in the course of these proceedings, limited this aspect of her
claim to an alleged battery of Shannon Kemp by virtue of a re-catheterization
on November 10, 2006. In terms of an alleged lack of consent to that procedure,
the VCHA submits the Plaintiff has filed conflicting affidavits and the
re-catheterization of Shannon Kemp was done by nurses at the hospital upon a doctor’s
orders. Furthermore, counsel for the VCHA submits that this alleged battery
cannot support a claim under the FCA because it did not cause or
contribute to the death of Shannon Kemp, who left hospital and lived a further
seven months, and thus any causal connection is broken.

[66]           
The Defendant Physicians also seek to have the Plaintiff’s claims
against them dismissed by way of summary judgment. Their counsel submits that
even accepting the facts as deposed to by the Plaintiff regarding her mother’s
treatment and unfortunate demise, which they dispute, the Plaintiff is unable
to establish negligence in relation to any of the Defendant Physicians. Counsel
submits that not only do the expert reports obtained by the Plaintiff fail to
establish any breaches of the standard of care, but the Plaintiff has also failed
to establish that any of the alleged breaches by the Defendant Physicians
caused Shannon Kemp’s death. No autopsy was carried out upon Shannon Kemp to
determine the cause of her death. Their counsel also submits that no claim for
battery in relation to Shannon Kemp may be made out given her “full code” resuscitation
status when she arrived at the VGH Emergency Department on June 28, 2007.

[67]           
In relation to the Plaintiff’s claim for damages for nervous shock, both
counsel for the VCHA and the Defendant Physicians submit that this aspect of
the Plaintiff’s claim may not succeed without a finding of negligence, which
the Plaintiff cannot establish. Further, the nervous shock as alleged relates
to the appearance of the deceased Shannon Kemp after the failed resuscitation
attempt on June 28, 2007, to which the evidence shows the Plaintiff consented.
They further submit that punitive and aggravated damages are not available with
regards to any alleged battery upon Shannon Kemp under the FCA.

[68]           
Counsel for the VCHA submits that this is not a case where the VCHA is bound
up with the other defendants, including the Defendant Physicians, who do not
seek to blame the VCHA or its employees for any wrongdoing. He points out that the
parameters of the evidence of all the physicians have been set, as they have sworn
affidavits. Those physicians seeking the dismissal of claims against them in
this application have also been examined for discovery. Therefore, there is no
likelihood that the other defendants will attempt to shift the blame to the
VCHA after the claims against it have been dismissed to avoid their own
liability.

[69]           
In addition, counsel for the Defendant Physicians points out that he is
acting for all the physicians in this case, not just the Defendant Physicians
seeking summary judgment. Given the affidavits that each has sworn, this is not
a case where the individual physician defendants seek to blame each other to
avoid being found liable.

[70]           
Both counsel for the VCHA and the Defendant Physicians submit that the
Plaintiff has had years to mount her case in support of the claims she makes
against the defendants in the context of their present summary trial
applications. She has been afforded every opportunity to put her case before
the Court given the protracted nature of these proceedings up to this point,
which has included adjournments, substantial late amendments to her Notice of
Civil Claim and considerable latitude extended to her by the Court by way of
extensions of time limits and permission to file late materials. Given the
nature of their applications and the fundamental deficits in the Plaintiff’s
case, they submit that it would be unfair and unjust not to determine the
issues they have placed before the Court by way of summary trial.

[71]           
The Court has had the benefit of extensive submissions on the law and
the evidence, all of which have been carefully considered in reaching a
decision upon this matter. Normally, this would not need to be articulated.
However, as the Plaintiff through her counsel sought at one point to receive a
copy of the Chief Justice’s internal court memorandum assigning this case to this
judge (which, as an internal document, the Court declined to provide), ostensibly
it would seem for the purpose of mounting an application for recusal given her
dissatisfaction with some of the Court’s earlier case management rulings, such
an articulation seems necessary.

The law regarding summary trials

[72]           
Rule 9-7 of the Rules permits a party to an action to apply to
the court for judgment by way of summary trial either on an issue or generally.
Such applications are determined on affidavit evidence, the expert reports
relied upon by the parties, and, if notice has been given, examination for
discovery evidence, interrogatories and admissions.

[73]           
Pursuant to Rule 9-7(11), an application may be brought by the opposing
party to be heard before or at the same time as the hearing for the summary
trial, seeking to adjourn the summary trial or for a determination that the
summary trial application will not assist the effective resolution of the
proceeding.

[74]           
In the present case, the Plaintiff brings such an application in the
face of the summary trial applications brought by the VCHA and the Defendant
Physicians, wherein they seek to have parts of her claim dismissed.

[75]           
Rule 9-7(15) states that:

(15) On the hearing of a summary trial application, the court
may

(a)        grant
judgment in favour of any party, either on an issue or generally, unless

(i)         the
court is unable, on the whole of the evidence before the court on the
application, to find the facts necessary to decide the issues of fact or law,
or

(ii)        the
court is of the opinion that it would be unjust to decide the issues on the
application,

(b)        impose
terms respecting enforcement of the judgment, including a stay of execution, and

(c)        award costs.

[76]           
In Gichuru v. Pallai, 2013 BCCA 60 [Gichuru], D. Smith J.A.,
for the Court of Appeal, summarized the law regarding the suitability of a case
for summary trial:

[30]         In Inspiration
Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202
(C.A.), the court confirmed that the court under this rule “tries the issues
raised by the pleadings on affidavits”, that “a triable issue or arguable
defence will not always defeat a summary trial application”, and that “cases will
be decided summarily if the court is able to find the facts necessary for that
purpose, even though there may be disputed issues of fact and law” provided
that the judge does not find “it is unjust to do so” (p. 211). In
determining the latter issue (whether it would be unjust to proceed summarily),
the Chief Justice identified a number of relevant factors to consider (at
p. 215):

In deciding whether it will be
unjust to give judgment the chambers judge is entitled to consider, inter alia,
the amount involved, the complexity of the matter, its urgency, any prejudice
likely to arise by reason of delay, the cost of taking the case forward to a
conventional trial in relation to the amount involved, the course of the
proceedings and any other matters which arise for consideration on this
important question.

[31]        
To this list has been added other factors including the cost of the litigation
and the time of the summary trial, whether credibility is a critical factor in
the determination of the dispute, whether the summary trial may create an
unnecessary complexity in the resolution of the dispute, and whether the
application would result in litigating in slices: Dahl v. Royal Bank of
Canada et al., 2005 BCSC 1263 at para. 12, upheld on appeal at 2006
BCCA 369.

[77]           
If adequate notice is given to an opposing party that a summary trial
application is going to be brought, an obligation then falls on that party to
take every reasonable step to complete as much of the pre-trial procedure as
necessary to achieve the best mastery of the facts as is reasonably possible
before the summary trial proceeding: Anglo Canadian Shipping Co. v. Pulp,
Paper and Woodworkers of Canada, Local 8 (1988), 27 B.C.L.R. (2d) 378
(C.A.). Failure to take such steps cannot serve to frustrate the summary
trial process. The respondent to such an application cannot insist on a full
trial in the hope that with viva voce evidence, something additional and
favourable might turn up: Everest Canadian Properties Ltd. v. Mallmann,
2008 BCCA 275 at para. 34.

[78]           
The burden of proof remains upon the plaintiff, even in a summary trial
application brought by the defendant. It is incumbent upon the plaintiff in
such circumstances to put before the court evidence necessary to prove their
case, as the following passage from Gichuru states:

[35]         The
authorities are also clear that a summary trial, although heard on affidavits
in chambers, remains a trial of the action for which the plaintiff (even if not
the applicant) retains the onus of proof of establishing his or her claim(s)
and the defendant (even if not the applicant) retains the burden of
establishing any defence that is raised. Mr. Justice Wood, writing for the
Court in Miura v. Miura (1992), 66 B.C.L.R. (2d) 345 (C.A.), clarified
this issue (at page 352):

There is no reason why the onus
should be reversed simply because the defendant moves for judgment under Rule
18A, thus requiring the plaintiff to prove her case in a summary trial
proceeding. …

… the onus of proof does not
shift simply because a trial is conducted summarily under rule 18A [now R.
9-7]. As in an ordinary trial, the party asserting the affirmative of an issue
must prove it on a balance of probabilities. I believe that such a result is
also consistent with what was said by McEachern, C.J.B.C. in Inspiration
Management et al. v. McDermid et al. [citation omitted] at page 215 of the
report:

The test for R. 18A, in my view, is the same as on a trial.
Upon the facts being found the chambers judge must apply the law and all
appropriate legal principles. If then satisfied that the claim or defence has
been established according to the appropriate onus of proof he must give
judgment according to the law unless he has the opinion that it will be unjust
to give such judgment.

[79]           
In the context of a claim for medical malpractice this includes a plaintiff
filing the appropriate expert evidence as is necessary to prove his or her
claim: Shannahan v. Fraser Health Authority, 2010 BCSC 144 [Shannahan]
at para. 4.

[80]           
Rule 9-7(15) permits the court to grant judgment in favour of a party
“on an issue or generally”. The decision whether an action or specific issues
within it are suitable for summary trial may be a subtle and refined one. It is
relatively simple and straightforward to decline to decide matters by way of
summary trial and send the parties to trial when there are conflicts in the
evidence or if issues appear to be linked or inter-related. However, in this
day and age the court must engage in very close scrutiny of the nature of the
conflicts in evidence and/or the alleged inter-linking of issues to do justice,
as the court is to pay heed to the interests of all parties, including those
who seek judgment by way of summary trial. The object of the Rules as
stated at Rule 1-3(1) is “to secure the just, speedy and inexpensive
determination of every proceeding on its merits.” To secure such an object,
according to Rule 1-3(2), proceedings must be conducted in ways “so far as is
practicable … that are proportionate to (a) the amount involved in the
proceeding, (b) the importance of the issues in dispute, and (c) the complexity
of the proceeding.”

[81]           
The recent comments of Karakatsanis J. for the Supreme Court of
Canada in Hryniak v. Maudlin, 2014 SCC 7 [Hryniak] speak to the
general efficacy of summary trials in present times (although in relation to Ontario
summary trial procedures that differ somewhat from those in BC):

[1]        Ensuring access to justice is the
greatest challenge to the rule of law in Canada today. Trials have become
increasingly expensive and protracted. Most Canadians cannot afford to sue when
they are wronged or defend themselves when they are sued, and cannot afford to
go to trial. Without an effective and accessible means of enforcing rights, the
rule of law is threatened. Without public adjudication of civil cases, the
development of the common law is stunted.

[2]        Increasingly,
there is recognition that a culture shift is required in order to create an
environment promoting timely and affordable access to the civil justice system.
This shift entails simplifying pre-trial procedures and moving the emphasis
away from the conventional trial in favour of proportional procedures tailored
to the needs of the particular case. The balance between procedure and access
struck by our justice system must come to reflect modern reality and recognize
that new models of adjudication can be fair and just.

[3]        Summary
judgment motions provide one such opportunity […]

[4]        In
interpreting these provisions, the Ontario Court of Appeal placed too high a
premium on the “full appreciation” of evidence that can be gained at a
conventional trial, given that such a trial is not a realistic alternative for
most litigants. In my view, a trial is not required if a summary judgment
motion can achieve a fair and just adjudication, if it provides a process that
allows the judge to make the necessary findings of fact, apply the law to those
facts, and is a proportionate, more expeditious and less expensive means to
achieve a just result than going to trial.

[5]        To
that end, I conclude that summary judgment rules must be interpreted broadly,
favouring proportionality and fair access to the affordable, timely and just
adjudication of claims.

[Emphasis added.]

[82]           
However, it is accepted law in BC that deciding certain issues in an
action by way of a summary trial proceeding and leaving others for trial may
result in unfairness, injustice and may become a hindrance to a “just, speedy
and inexpensive determination” of the dispute “on its merits” (Rule 1-3(1)). This
undesirable state of affairs is referred to as “litigating in slices” and is to
be avoided, in which case the judge ought to dismiss the application as unsuitable
for summary trial: Bacchus Agents (1981) Ltd. v. Philippe Dandurand Wines Ltd.,
2002 BCCA 138; Coast Foundation v. Currie, 2003 BCSC 1781 [Coast
Foundation] at paras. 12, 13 and 15-18.

[83]           
One undesirable effect of litigating in slices may be that the claims
against certain defendants in a law suit are dismissed by way of summary
judgment, leaving the remaining defendant or defendants with the option of
shifting liability to those former defendants no longer at risk when the case
does come on for trial. This ought not to occur, and was addressed by the late
Chief Justice McEachern in Thomson v. Kootenay Lake District Hospital and
Health Services Society, [1985] B.C.J. No. 2697 at para. 7.

[84]           
It is not just any conflict in the evidence that renders a matter
unsuitable for summary judgment. This principle is well articulated by D. Smith J.
in her summary of the law regarding the suitability of matters for summary
trial in Bell v. Levy, 2011 BCCA 417 [Bell] at para. 64, as:

[64]      …“Head on” conflicts in
the evidence that go to the core issue in the action will generally provide an
impediment to disposition of an action by way of summary trial, especially
where findings of credibility are a central issue in the dispute [Case
references omitted].

[85]           
In such instances, the evidence needs to be tested at trial with the
additional information that process provides to the trier of fact, rendering
the summary trial process inappropriate: Hussey v. McMillan, 2010 BCSC
342 at paras. 16-17.

[86]           
However, where one party asserts an absence of evidence on a key
ingredient of the claim and the judge on summary trial agrees, the issue may
well be amenable to adjudication in this manner, despite the opposing party
voicing its disagreement as to the meaning or significance of the presence or
absence of such evidence. In such instances, it may not properly be said that
there is clear conflict in the evidence going to a core issue: Bell at paras. 86-87.

[87]           
Some multi-issue cases have been found to be appropriate for summary
trial because they involve an adjudication upon the clear legal requirements of
the cause of action for which evidence is required, or although some issues are
linked or inter-related, the determination of a primary or fundamental issue
serves to completely or substantially resolve the law suit.

[88]           
An example of the former arises in Shannahan, a medical
negligence case, where the plaintiff failed to produce evidence regarding
standard of care and causation, two of the requirements for a finding of
negligence. As a result, his case against several hospitals and a number of
doctors was dismissed by way of a summary trial.

[89]           
An example of the latter may be found in KCC 264 Holdings Inc. v.
Circadian (Atkins 2010) GP Ltd., 2014 BCSC 1183, where, at para. 31,
Maisonville J. determined that she was able on the evidence before her to
decide the issue of fundamental breach of contract in the negative, which
resolved other matters at issue such that any problem of “litigating in slices”
disappeared.

[90]           
Although it is not entirely clear to what extent the scope of a judge to
decide key issues upon which there is conflicting evidence by way of summary
trial in BC is changed, if at all, by virtue of the comments of the Supreme
Court of Canada in 2014 in Hryniak, the preponderance of opinion is that
because of the differences in the language in the Ontario court rules, it may
have little effect. In N.J. v. Aitken Estate, 2014 BCSC 419 [Aitken
Estate], Ehrcke J., in dismissing an application for summary trial as
not being in the interests of justice, commented as follows:

[33]         In my
view, Hyrniak v. Mauldin does not change the law regarding summary
trials in British Columbia, and does not render the jurisprudence from our
Court of Appeal obsolete.

[34]        
It must be remembered that Hyrniak v. Mauldin was dealing with the
Ontario rules, which are different from our rules in British Columbia. In
particular, at para. 68, the Court stressed the fact that under Ontario
Rule 20.04(2) “The court shall grant summary judgment if, (a) the court
is satisfied that there is no genuine issue requiring a trial . . .” In
contrast, our Rule 9-7(15) uses the word “may” rather than “shall”. I therefore
do not take Hyrniak v. Mauldin to derogate from the proposition that in
British Columbia, the question of whether a matter is suitable for summary
determination is within the discretion of the trial judge, provided, of course,
that that discretion must be exercised judicially.

[91]           
However, in my view, the comments of the Supreme Court in Hryniak
do offer some guidance in courts in BC with regards to determining whether
adjudicating a matter by way of summary trial is in the “interest of justice”
(the Ontario rule). They serve as a reminder that courts called upon to make
such determinations must be alive to the cost of proceeding to trial, both in
terms of time and money, proportionate to the amount at issue in the litigation.

[92]           
BC Rule 9-7(15), which sets out the powers of the
court in relation to adjudicating summary trials, permits a judge to decline to
grant judgment if the court is unable to find the facts necessary to decide the
facts or the law, or if it would be “unjust” to decide the issues in this
summary way. One may reasonably conclude that what is “unjust” may be informed
by what is not in the “interest of justice”, as considered in Hryniak:

[60]      The “interest of justice” inquiry
goes further, and also considers the consequences of the motion in the context
of the litigation as a whole. For example, if some of the claims against
some of the parties will proceed to trial in any event, it may not be in the
interest of justice to use the new fact-finding powers to grant summary
judgment against a single defendant. Such partial summary judgment may run the
risk of duplicative proceedings or inconsistent findings of fact and therefore
the use of the powers may not be in the interest of justice. On the other hand,
the resolution of an important claim against a key party could significantly
advance access to justice, and be the most proportionate, timely and cost
effective approach.

[Emphasis added.]

[93]           
A determination as to when the court is unable on
the whole of the evidence “to find the facts necessary to decide the issues of
fact or law” (Rule 9-7(15)(a)(i)) must take into account the BC jurisprudence based
on the more restrictive language of the BC Rule, couched in the discretion
afforded to the court by its specific language. However, when considering a second
alternative within Rule 9-7(15) regarding what is “unjust” (Rule 9-7(15)(a)(ii)),
the scope for consideration by the court is arguably broadened by the language
of the Supreme Court in Hryniak beyond the traditional high standard
afforded by a full trial to take into account for “proportionality, timeliness
and affordability.”

[94]           
In Lougheed v. Wilson, 2014 BCSC 2073 [Lougheed], Dardi J.
of this Court, declined to decide issues related to a defamation action by
summary trial. She referred to the decision of Ehrcke J. in Aitken
Estate with regards to the suitability analysis in BC continuing to be
guided by jurisprudence from the Court of Appeal, but stated:

[84]      Nevertheless, it is
important to recognize that the Court in Hryniak affirmed that the trial
judge, in undertaking the suitability determination, must always balance
proportionality and efficiency with the necessity of ensuring a fair and just
process. The Hryniak decision recognized that a summary process which
does not lend a trial judge confidence in his or her conclusions can never be
viewed as proportionate

[95]           
Quoting from Dahl and Coast Foundation, Dardi J.
noted in Lougheed, at para. 88 that the court must be alive “to the
implications of isolating specific issues for determination and the extent to
which overlapping issues will necessarily require re-canvassing at later
proceedings”, and the fact that “[s]uch overlapping issues need not be
identical” to raise this concern. Dardi J. further notes that a cautious
approach must be taken to deciding some but not all issues in a complex case,
given the decision of the Court of Appeal in Mayer v. Mayer, 2012 BCCA
77. However, in the event the judge does decide to grant judgment on an issue
or generally in a summary trial, the decision to proceed in this manner is a
discretionary one, entitled to deference unless it is clearly wrong and may
result in an injustice: Gichuru at para. 34.

[96]           
As was insightfully stated by McEachern C.J.B.C., in Mariotto v.
Waterman (1996), 32 B.C.L.R. (3d) 125 at 126-127 (C.A.) in the context of an
application for leave to appeal a dismissal of a summary trial application for a
minor personal injury claim arising from a motor vehicle accident, a judge
should be “careful but courageous” in assisting the parties to resolve an
action under this rule if it can be done without injustice. When this injustice
can be avoided, it is always hoped that judges will give judgment, although there
are cases for which it would be unsafe to do so.

Determination regarding the suitability of issues by summary trial

[97]           
In my view, the majority of issues that counsel for the VCHA and the
Defendant Physicians have brought forward are suitable for adjudication by way
of summary trial. This is so because they exhibit clear deficiencies or an absence
of evidence in relation to the Plaintiff’s case regarding the essential
ingredients of the torts she alleges were committed by VGH nursing staff during
Shannon Kemp’s November 2006 admission, and by the nurses and the physicians who
attended to Shannon Kemp during the June 28, 2007 Emergency admission. Proof of
breach of standard of care and causation in relation to negligence with regards
to Shannon Kemp’s death are at issue, or, in the case of battery, the elements
of consent and potentially withdrawal of consent to treat.

[98]           
In particular, while there is an absence of a consensus regarding the
cause of Shannon Kemp’s death, the defendants submit that the evidence produced
by the Plaintiff does not significantly challenge the evidence of the
defendants’ experts on this issue. That being so, the defendant VCHA and the
Defendant Physicians submit that the issue of causation is not a complex
question in terms of the expert reports presented. I agree. As well, the
Plaintiff’s claim for nervous shock rests on establishing a case in negligence
against the VCHA and/or the Defendant Physicians with regards to the failed
resuscitation attempt of Shannon Kemp.

[99]           
The Plaintiff’s assertion that her case against the defendants is one
that is cumulative and inter-locking falls flat without evidence on each of the
essential elements of the torts she alleges in relation to each of the
defendants, including the VCHA and the Defendant Physicians. An absence or
insufficiency of evidence against one defendant does not become present or stronger
when combined with an absence or insufficiency of evidence against another
defendant. The Plaintiff is obliged to put her case forward in these
proceedings. She has had more than an ample opportunity to amend her Notice of Civil
Claim (which has been done extensively) and to marshal the evidence and the law
to support her claims. There is no rational basis upon which to found an
assumption that aspects of her case will get stronger between now and a future
trial.

[100]       
I also note that regardless of the outcome of these applications, the
Plaintiff’s central claim, founded in negligence, remains intact against those
physicians who she asserts failed to treat her mother in accordance with the
expected standard of care prior to her mother going to the VGH Emergency
Department on June 28, 2007.

[101]       
To the extent the Court is obliged to assess conflicting evidence going
to a key issue, in particular where findings of credibility are required, those
issues will generally be reserved for trial except in rare instances where other
reliable evidence exposes such obvious deficiencies or frailties that a fair
and just adjudication in summary trial proceedings may be made with confidence,
and such a determination can be made without raising the usual concerns
regarding “litigating in slices” or overlapping issues.

[102]       
Given the comments in Hryniak, at para. 60 that “the
resolution of an important claim against a key party could significantly
advance access to justice, and be the most proportionate, timely and cost
effective approach”, it is useful to briefly discuss those topics in the
context of the present applications.

[103]       
In terms of proportionality, the Court heard nothing from the Plaintiff about
the quantum of damages that might be awarded in this action. However, counsel
for the VCHA submits that the amount involved in a potential award to the Plaintiff
does not appear substantial, insofar as awards in similar circumstances are in
the range of $10,000. The Plaintiff’s claim under the FCA for the loss
of her 88-year-old mother, regardless of the extent to which the Plaintiff
loved and misses her mother, is alleged to be unlikely to attract a large
damage award. Similarly, the Plaintiff’s claim for personal damages related to
nervous shock is submitted to have a low overall assessment having regard to
the Plaintiff’s history of psychological difficulty prior to these events, as
detailed in the Plaintiff’s expert report from Dr. Ley, her treating
psychologist.

[104]       
There is nothing timely about these proceedings, as is clearly
demonstrated by their chronology of events. Many years have passed since the
events involving Shannon Kemp occurred in 2006 and 2007. The Plaintiff
commenced her claim in June 19, 2009, shortly before the expiration of the
limitation period. At this point, the action is almost six years old, with the
events of the claim having occurred eight or more years ago. The history of
this action is rife with appearances where little or nothing was achieved, or where
the Plaintiff failed to comply with earlier orders or directions of the Court.
The defendants have already been put to considerable time and expense. The Plaintiff’s
delays have meant that many of the specific particulars of negligence have not
been raised until recently. In relation to the VCHA, certain key details of the
alleged negligence did not arise until May 23, 2014, when the Plaintiff
delivered the Rohrback expert report. The same is true with regards to three of
the Defendant Physicians, Dr. Chittock, Dr. Sutcliffe and Dr. Sweet,
who were only added as defendants by order dated August 30, 2011.

[105]       
The Plaintiff only recently amended her Notice of Claim after a
protracted hearing on November 18 and 19, 2013. It was filed December 23, 2013,
adding some claims and deleting or changing others. The recently added
physicians were only served with the amended Notice of Claim in late December
2013. It has been a difficult task for the defendants to attempt to marshal the
available evidence many years after the treatment of Shannon Kemp, and their
counsel have stressed the need for a prompt resolution of this case. With good
reason, they remain skeptical that the Plaintiff has a serious intention of
actually resolving this matter, anticipating an application to adjourn the
upcoming trial.

[106]       
In my view, this is a case where the interests of justice are served by
a fulsome assessment of the claims made by the Plaintiff against the four
Defendant Physicians and the VCHA in summary trial proceedings as long as the
assessment is informed and guided by the legal parameters set out above. The
trial in this action, which at present will continue in any event in relation
to the five physicians not involved in the present applications, will be a
considerably more focused, fair and cost effective one if claims without any
realistic prospect of success based on a lack of evidence may be pruned away.
This is particularly so given the scope of the action, which names ten
physicians (including one M. Doe) as defendants, and spans a time frame of
approximately nine months when there were many physicians involved in Shannon
Kemp’s care (not all of whom have been sued), and during which Shannon Kemp underwent
two hospital admissions at VGH and one at UBC Hospital.

[107]       
For these reasons, the Court finds that it is necessary to undertake a rigorous
analysis of the claims advanced by the Plaintiff that are challenged by the
VCHA and the Defendant Physicians in their summary trial applications, while
fully appreciating that there are still a number of issues against other
defendants that may well proceed to trial. Therefore, the Plaintiff’s
application pursuant to Rule 9-7(11) that this action is not suitable for
determination by way of summary trial is dismissed.

Negligence

General Principles

[108]       
According to well-established law, as succinctly stated by McLachlin C.J.C.
in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27:

[3]    
A successful action in negligence requires that the
plaintiff demonstrate (1) that the defendant owed him a duty of care; (2) that
the defendant’s behaviour breached the standard of care; (3) that the plaintiff
sustained damage; and (4) that the damage was caused, in fact and in law, by
the defendant’s breach.

[109]       
If a plaintiff cannot prove each and every one of these four
requirements, then the action will be dismissed: “Legal Liability of Doctors
and Hospitals in Canada”, Pickard & Robertson, 4^th Edition,
2007 Thomson Canada Ltd. [Legal Liability of Doctors and Hospitals] at
p. 212.

[110]       
In the present applications the focus is on standard of care and
causation.

Standard of Care

[111]       
To succeed in negligence, a plaintiff must establish that the
defendant’s behaviour breached the standard of care. In the context of the present
application, the Plaintiff alleges that the physicians who treated Shannon Kemp
did not meet the requisite standard of care, with a focus on the treatment
provided by the Defendant Physicians.

[112]       
A physician must possess and use the reasonable degree of learning and
skill ordinarily possessed by practitioners in similar communities in similar
cases. If a physician has acted in accordance with a practice accepted by a
responsible body of medical practitioners, he cannot be found to be negligent.
Accordingly, plaintiffs must establish that the defendant physicians failed to
meet the standard of care of the ordinary competent practitioner of similar
qualifications in the same circumstances: Belknap v. Meakes (1989), 64
D.L.R. (4th) 452 at 473-474 (B.C.C.A.); ter Neuzen v. Korn, [1995] 3
S.C.R. 674 [ter Neuzen] at paras. 33-34.

[113]       
Except in those rare cases where the standard medical practice is
“fraught with obvious risks”, as discussed by Sopinka J. (quoting Fleming,
The Law of Torts, (7^th ed., 1987)) in ter Neuzen, expert
opinion evidence is required to be tendered by a plaintiff to support their
claim that a physician failed to meet the standard of care, at paras. 39-41.

[114]       
In Branco v. Sunnybrook & Women’s College Health Sciences Centre,
[2003] O.J. No. 3287 (Ont. S.C.J.), Justice Spence of the Ontario Superior
Court of Justice addressed the need for expert opinion evidence in cases where
a plaintiff alleges negligence in a medical malpractice action as follows:

8.

[…]

The onus of proof at trial is on the plaintiff. In an action
alleging medical malpractice, a Court may not make findings of either breach of
the standard of care or causation except on the basis of expert opinion
evidence to support those findings. There is no genuine issue for trial in the
absence of an expert medical report establishing a breach of the standard of
care and causation

Where expert evidence is required
in order to establish an element of the plaintiff’s case, and the plaintiff has
failed to put forward such evidence in response to a motion for summary
judgment, there is no genuine issue for trial and summary judgment will be
granted: Ngo v. Toronto Western Hospital, supra, at paras. 2
and 3; Barber v. Mustard, supra.

[115]       
The actions of the nurses at VGH are also alleged by the Plaintiff to
have been negligent. In this regard, I note that nurses, and other health care professionals
who are not doctors, are held to the standard of the normal, prudent
practitioner of their professions with the same experience and standing as the
defendant: Legal Liability of Doctors and Hospitals at pp. 235-236.

[116]       
In Shannahan, N. Smith J. considered a number of allegations
against nursing staff, laboratory staff and others employed at a hospital
similar to some of the claims of negligence advanced in the present case. The
learned justice notes the need to provide an evidentiary basis to prove a
failure to meet the recognized standard of care:

[18]         The
plaintiff also makes a number of allegations related to the specific work
performed by nurses, laboratory staff, hospital pharmacists, and a
physiotherapist. All of these people were employees of the FHA, which would be
vicariously liable for any negligence on their part that the plaintiff is able
to prove. The plaintiff’s allegations include errors and omissions in clinical
records, failure to warn of potential side effects of medication, and failure
to follow up on delayed lab test results. I do not intend to review every one
of these allegations in detail because the plaintiff has put forward none of
the evidence that would be necessary to succeed in a medical negligence case
based on them.

[19]        
A poor result or adverse outcome in medical care does not, in itself, form the
basis of a successful medical negligence claim. The plaintiff must first prove
that the medical professionals involved failed to meet the accepted and
recognized professional standard of care that was required in the
circumstances. In ter Neuzen v. Korn, [1995] 3 S.C.R. 674 at para. 38
of the Supreme Court of Canada held the following:

[38]      It is
generally accepted that when a doctor acts in accordance with a recognized and
respectable practice of the profession, he or she will not be found to be
negligent. This is because courts do not ordinarily have the expertise to tell
professionals that they are not behaving appropriately in their field.

[117]       
In cases where negligence is alleged in relation to nurses, expert
evidence is also generally necessary to establish a breach of the standard of
care, as was recognized in Shannahan at para. 21:

[21]      Although ter Neuzen
dealt with the standard of care for doctors, cases involving alleged negligence
of nurses also generally require expert evidence to establish the expected
standard of care : Heidebrecht v. Fraser-Burrard Hospital Society, [1996]
B.C.J. No. 3042 (B.C.S.C.); and Tekano.

[118]       
Thus, it is not for the VCHA or the Defendant Physicians to prove or
disprove standard of care. The burden rests with the Plaintiff, and if she
fails to discharge that burden then the Plaintiff’s claims are without the
necessary evidentiary foundation upon summary trial and must be dismissed: Pushee
(Guardian ad litem of) v. Roland, 2002 BCSC 1771 at para. 16; Hampton
v. Marshall, [1996] B.C.J. No. 1948 (S.C.) at paras. 16 and 18;
and Shannahan at para. 40.

Causation

[119]       
To succeed in negligence, a plaintiff must also establish causation,
namely that the plaintiff’s damage was caused in fact and in law by the
defendant’s breach. The principles of causation in tort have been recently
considered by the Supreme Court of Canada in Clements v. Clements, 2012
SCC 32, which reaffirmed the basic test for causation. The test remains the “but
for” test, which is that the injury would not have occurred without the
defendant’s negligence. The burden is upon the plaintiff to produce evidence of
causation. As previously stated, this does not change in a summary trial
application, and is succinctly articulated by N. Smith J. in Shannahan
as follows:

[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.

[120]       
Instructive in this regard are the comments of Picard J.A. and
Gerald Robertson Q.C. in Legal Liability of Doctors and Hospitals at
p. 395:

Summary dismissal may also be
granted in medical negligence cases if the plaintiff fails to provide evidence
of causation. However, the Supreme Court of Canada has emphasized that “it is
not essential to have a positive medical opinion to support a finding of
causation,” [footnote: Snell v. Farrell (1990), 72 D.L.R. (4^th)
289 at 306] and that in some circumstances “an inference of causation may be
drawn, although positive or scientific proof of causation has not been
adduced.” [footnote: Ibid. at 301] Therefore, a plaintiff’s failure to
provide expert evidence with respect to causation (in response to an
application for summary dismissal) will not necessarily be fatal, if there is
other evidence from which a court could properly draw an inference of causation.
However, if the defendant has produced expert evidence refuting causation, and
there is no expert evidence to the contrary from the plaintiff, it is very
unlikely that the court will find than an inference of causation can be drawn,
and hence summary dismissal will be granted. [footnote of citations omitted]

[121]       
Therefore, unless a proper inference of causation may be drawn from the circumstances
alone, the Plaintiff must adduce expert evidence with regards to the alleged
negligent acts or omissions causing or materially contributing to her mother’s
death. Without that expert evidence and faced with expert evidence on behalf of
the VCHA or the Defendant Physicians that refutes causation, the dismissal of the
Plaintiff’s claims is likely to ensue.

Battery

[122]       
The Plaintiff alleges that a battery occurred when Shannon Kemp was
re-catheterized in the VGH admission in November 2006. She further alleges that
a battery was committed upon Shannon Kemp on June 28, 2007, when Drs. Sweet,
Sutcliffe, Chittock and M Doe performed chest compressions, intubation, and the
administration of medications and other treatments in the course of trying to
resuscitate Shannon Kemp. She also alleges that Dr. Abu-Laban administered
antibiotic medications to Shannon Kemp without consent.

[123]       
According to Legal Liability of Doctors and Hospitals, at
p. 121, the tort of battery is committed by “intentionally bringing about
harmful or offensive contact with the person of another”, and “save in
exceptional circumstances, medical treatment performed without consent
constitutes a battery.” A plaintiff alleging battery does not have to obtain
medical evidence from an expert, as the issue is whether the treatment was
performed without consent, and the onus rests upon the doctor to prove that a
valid consent was obtained. Unlike negligence, foreseeability is not relevant
and the doctor is liable for all the direct consequences of the battery,
foreseeable or not. Damages may be awarded for the mental distress and anguish
of a patient who learns that a treatment was performed without their consent
even if the patient sustains no physical injury.

[124]       
Also, paraphrasing from Legal Liability of Doctors and Hospitals at
pp. 49-54: consent or implied consent to medical treatment negates the
commission of the tort of battery; express consent may be oral or written, but
it does not necessarily have to be explicit; consent may also be implied from
the words or conduct of a patient; consent may be withdrawn, even after
treatment has commenced, and if a doctor continues with the treatment once it
is clear that the patient has withdrawn consent, it is battery, except where
the termination of treatment would be life-threatening or pose immediate and
serious problems to the health of the patient; and compliance with the
procedure is a relevant factor to consider when assessing whether express or
implied consent was provided by the patient.

[125]       
The Plaintiff provided the Court with an extract from The Canadian
Law of Consent to Treatment, 3^rd Edition, (Butterworths, 2003) by
Lorne Rozovsky. In that text at p. 158, Mr. Rozovsky states that
there are only four bases upon which a medical or surgical procedure can be
performed without consent. The only two exceptions of any potential
applicability in the present case are when a patient has a life- or health-threatening
emergency requiring immediate care and the patient is incapable of giving
consent, or where the patient who, although capable of giving consent, requires
immediate treatment and for whom it would be impractical to adhere to the
requirements of the consent process.

[126]       
Under the heading “Proof of battery”, the same text states the following
at pp. 159-160:

Unlike in negligence …, injury does not have to be shown in
battery. Since a battery action has nothing to do with professional standards,
expert witnesses are not required. The question is not whether the defendant
did or did not abide by current standards. The only issue is whether there was
interference with the patient’s body without justification authorized by law.
Did the patient consent to the care or treatment, or was there any lawful
justification for the care or treatment without consent? The proof of battery,
therefore, is strictly that of fact, rather than opinion.

The onus of proving consent is on
the defendant… The plaintiff does not have to prove that he or she did not
consent. The defendant must prove that the patient did consent and therefore,
has no claim for battery.

[127]       
The authorities provided by the Plaintiff, Gerula v. Flores,
[1995] O.J. No. 2300 (C.A.) and Malette v. Shulman, [1990] O.J. No. 450
(C.A.), underscore the fundamental importance of a patient’s consent to medical
treatment and that it be a true and informed consent.

[128]       
However, in the context of the present case, I note that no claim for
battery, which is a personal tort, can survive the death of the battered
person. The recognized legal maxim is action personalis moritor cum persona.
Therefore, the Plaintiff cannot make her own claim for the battery on
behalf of her mother: Allan Estate v. Co-operators Life Insurance Co., 1999
BCCA 0035 at para. 45.

[129]       
The Plaintiff’s claims for the torts of battery of her mother she
alleges in relation to the VCHA and the Defendant Physicians may only be
advanced by the operation of s. 2 of the FCA, if she is able to prove
that the batteries (allegedly committed during the November 2006 re-catheterization
and during the June 2007 treatment and resuscitation efforts) were wrongful acts
that caused Shannon Kemp’s death. Without proof that the alleged battery caused
Shannon Kemp’s death, these aspects of the Plaintiff’s claim are not actionable
at law.

[130]       
Similarly, the Plaintiff may not advance claims on behalf of her mother
for aggravated or punitive damages: Glenn v. Seair Seaplanes Ltd., 2012
BCSC 1726 at paras. 10-11.

[131]       
Therefore, for the Plaintiff’s claims in battery, she must prove that
the various acts were performed by nursing staff or attending physicians
without consent, and that the said wrongful act caused her mother’s death.

Nervous Shock

[132]       
The Plaintiff seeks general and special damages with regards to the
infliction of “nervous shock” upon her arising from the negligent treatment of
her mother by the Defendant Physicians and the VCHA.

[133]       
In Devji v. Burnaby (District), 1999 BCCA 599; leave to appeal
denied [1999] S.C.C.A. No. 608, the Court of Appeal considered the test of
liability for damages for nervous shock and foreseeability. In the opening of
the judgment, McEachern C.J.B.C. (Ryan J.A. concurring) stated the
following:

[2]        Claims for damages for nervous shock (sometimes
called post-traumatic stress disorder, or psychological illness or injury) have
existed for a long time, and the law has been evolving incrementally. Such
claims commonly arise when a person who is not physically injured suffers
psychiatric injury usually as a reaction to a frightening experience or to the
injury or death of another person (usually a close relative) as a
consequence of the negligence of another person. Because the plaintiff is
not physically injured, and may not even come into contact with the defendant,
the psychiatric injury alleged is an extra step removed from the negligence of
the defendant, and the difficult questions of proximity and duty of care arise.

[Emphasis added.]

[134]       
More recently in Mustapha v. Culligan of Canada Ltd., 2008 SCC
27, McLachlin C.J.C. further discussed the nature of a psychiatric
injury that can result in a successful negligence action at paras. 8-9:

8 Generally, a plaintiff who suffers personal injury will be
found to have suffered damage. Damage for purposes of this inquiry includes
psychological injury. The distinction between physical and mental injury is
elusive and arguably artificial in the context of tort. As Lord Lloyd said in Page
v. Smith, [1996] 1 A.C. 155 (H.L.), at p. 188:

In an age when medical knowledge is
expanding fast, and psychiatric knowledge with it, it would not be sensible to
commit the law to a distinction between physical and psychiatric injury, which
may already seem somewhat artificial, and may soon be altogether outmoded. Nothing
will be gained by treating them as different "kinds" of personal
injury, so as to require the application of different tests in law.
[Emphasis added.]

9 This said, psychological
disturbance that rises to the level of personal injury must be distinguished
from psychological upset. Personal injury at law connotes serious trauma or
illness: see Hinz v. Berry, [1970] 2 Q.B. 40 (C.A.), at p. 42; Page
v. Smith, at p. 189; Linden and Feldthusen, at pp. 425-27. The
law does not recognize upset, disgust, anxiety, agitation or other mental
states that fall short of injury. I would not purport to define compensable
injury exhaustively, except to say that it must be serious and prolonged and
rise above the ordinary annoyances, anxieties and fears that people living in
society routinely, if sometimes reluctantly, accept. The need to accept such
upsets rather than seek redress in tort is what I take the Court of Appeal to
be expressing in its quote from Vanek v. Great Atlantic & Pacific Co. of
Canada (1999), 48
O.R. (3d) 228 (C.A.): "Life goes on" (para. 60).
Quite simply, minor and transient upsets do not constitute personal injury,
and hence do not amount to damage.

[135]       
For present purposes it is sufficient to note that any claim for damages
for nervous shock advanced by the Plaintiff rests on a finding of negligence.
In the event that either the VCHA or the Defendant Physicians are found to have
been negligent in their care or treatment of Shannon Kemp, then issues of
foreseeability, proximity, duty of care and whether any limitations with
regards to public policy negate the duty of care will arise with regards to the
Plaintiff’s claim that she is entitled to damages for nervous shock.

Negligence, Battery and Emotional Shock as alleged against the VCHA

Evidence relied upon by the VCHA

[136]     In support
of its application, the VCHA has filed: Michael Peirce Affidavit #4, containing
a certified copy of the VGH records in relation to Shannon Kemp’s hospital
admissions from November 9 to 16, 2006, and on June 28, 2007 (the “hospital
records”); Dr. Riyad Abu-Laban Affidavit #2, sworn April 25, 2014; Michael
Peirce Affidavit #6, attaching the expert report of Dr. Douglas Skinnider
#1, dated December 6, 2012 and the addendum report of Dr. Douglas
Skinnider #2, dated May 12, 2014. (With regards to the hospital records, I note
that when the experts refer to hospital records page numbers the number referred
to is typically three lower as the hospital records provided to the court have
an additional three pages included at the front).

[137]     The VCHA
also relies upon the following evidence filed by the Defendant Physicians:
Catherine Cichecki Affidavit #7 with the expert report of Dr. Lorne
Porayko, dated March 30, 2014, attached; Dr. Sweet Affidavit #3, sworn
July 17, 2014; and Dr. Chittock Affidavit #3, sworn July 3, 2014.

[138]     The VCHA
has filed two responding affidavits: Krystie Waugh Affidavit #1, sworn July 18,
2014, and Lori Korchinski Affidavit #1, sworn July 18, 2014.

[139]     In
accordance with s. 51 of the Hospital Act, the VCHA tendered as
evidence a certified copy of Shannon Kemp’s hospital records pertaining to her
admissions to VGH from November 9 to 16, 2006, and on June 28 2007, for the
proof of the contents of the factual matters recorded therein, in accordance
with Reid v. Balcaen, 2003 BCSC 1533 and Egli.

[140]    
The VCHA also relies on evidence of the routine practice of nursing
staff as evidence of what likely occurred on a particular day. In particular,
with regard to medical negligence cases, VCHA relies on the comments of the
Court of Appeal in Belknap v. Greater Victoria Hospital Society, 64
D.L.R. (4th) 452 (C.A.):

[39]  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 in that way on the day in question.

Characterization of the Plaintiff’s claims against the VCHA

[141]     Counsel
for the VCHA divided the Plaintiff’s allegations into a number of categories.

[142]     The first
is with regards to the Plaintiff seeking a remedy under the FCA (previously
stated to be the Family Compensation Act) relating to the death of her
mother, Shannon Kemp, and alleging that the VCHA provided negligent care which
caused or contributed to the death of Shannon Kemp. The Plaintiff alleges
numerous particulars of negligence against the VCHA in the Amended Notice of
Civil Claim arising from the care provided by nursing staff during the hospital
admission in November 2006 and on June 28, 2007 when Shannon Kemp died.

[143]     In the
next category are the allegations of battery in relation to the re-insertion of
a Foley catheter during Shannon Kemp’s admission to VGH in November 2006 to
treat severe left hip pain (alleged to have been aggravated by re-injuring it
subsequent to a left hip fracture and surgery in October 2006), and with
regards to the resuscitation efforts performed upon Shannon Kemp on June 28,
2007.

[144]     The last
category of allegations is a personal claim by the Plaintiff alleging that the
VCHA negligently caused her nervous shock and psychological injury by her
witnessing the attempted resuscitation of Shannon Kemp and by her observing the
physical appearance of Shannon Kemp after the failed resuscitation attempt.

Shannon Kemp’s Admission to VGH in November 2006

[145]    
It is most useful to refer directly to the portion of the Amended Notice
of Civil Claim that sets out the Plaintiff’s claims against VGH, and therefore
the VCHA, regarding Shannon Kemp’s November 2006 admission to VGH, and then to
address each specific allegation. It states:

4.         VGH was negligent in its care of Shannon Kemp.
Particulars of VGH’s negligence include:

a)     on Shannon
Kemp’s admission on November 8, 2006, its employed nurse catheterized Shannon
Kemp when no such invasive procedure was medically indicated;

b)     after a
UTI [urinary tract infection] developed, its employed nurse, on November 10,
2006, re-catheterized Shannon Kemp notwithstanding the express refusal by both
Shannon Kemp and the Plaintiff to such a procedure, thus constituting battery;

c)     failing,
in a timely way, to identify clinically apparent evidence of Shannon Kemp’s UIT
and to request medical assessment;

d)     failing to
establish and adhere to, in the environment surrounding Shannon Kemp, a
reasonable standard of environmental cleanliness and hygiene protocol (among
its treatment providers) thus enabling the transmission to Shannon Kemp of MRSA
[Methicillin-resistant Staphylococcus aureus];

e)    
failing to regularly monitor and reposition the bedridden Shannon Kemp
during her week-long November 8-16 admission;

[146]     I will
address each one of these claims in turn.

4 a): A nurse catheterized Shannon Kemp
upon her admission to VGH on November 8, 2006 when no such invasive procedure
was medically indicated

[147]     Although
the Plaintiff alleges that a nurse catheterized Shannon Kemp without medical
indication, the hospital records show that the Foley catheter was clearly
ordered by the admitting physician (hospital records at p. 134) at 0515
hours on November 9, 2006, when Shannon Kemp was admitted to VGH for the
re-injury of her left hip. The hospital records indicate that a number of
investigative techniques and medications were ordered by the admitting
physician, including “Foley to straight drainage”.

[148]     There is
no evidence to support the claim that this was not a medically-indicated
procedure. Shannon Kemp went to the hospital for severe pain in her left hip,
which had previously been operated upon. She required a number of procedures
while in hospital to improve her health and this was one of them. The Plaintiff
does not depose otherwise. In short, there is no evidence to support this claim
and it is to be dismissed.

4 b): A nurse re-catheterized Shannon Kemp
on November 10, 2006 after Shannon Kemp and the Plaintiff expressly refused
such a procedure, committing a battery

[149]     The
nurses’ notes in the hospital records show that a re-catheterization of Shannon
Kemp occurred on November 10, 2006 without any indication of an absence of
consent or any note of objection by the Plaintiff or Shannon Kemp. This occurred
after the latter was noted to have a distended bladder and the initial catheter
was found to be bypassing urine (hospital records at p. 162, notes from
1630 to 1900 hours).

[150]     In this
regard, the note at 1700 hours indicates that the nurse removed the old Foley
catheter from Shannon Kemp as it was found to be bypassing urine and her
bladder was distended. According to the note at 1900 hours, another Foley
catheter was inserted with difficulty after waiting for the xylocaine order to
arrive from the pharmacy, after which the urine drained.

[151]     The note
at 2000 hours included that the patient’s daughter remained at her bedside and
the patient claimed to be comfortable. The replacement Foley catheter was “in
situ” and urine was draining. At 2200 hours, the patient’s bandages were adjusted
and when the patient’s daughter indicated that her mother was “short of breath”
and the amount of oxygen being administered was increased. The nurse noted that
the patient was “quite comfortable.”

[152]     Then next
day, November 11, 2006, the nurses’ notes indicated overall improvement of
Shannon Kemp and the Foley catheter continued to drain urine with a note of
“serosang discharge due to trauma during the difficulty of catheterization.”
The patient was reported as taking fluids very well and her vital signs had
improved. She was encouraged to move and was re-positioned.

[153]    
In the Plaintiff’s Affidavit #7, sworn November 14, 2013, at para. 14,
she deposes:

…At the time of my mother’s
admission on November 9, 2006 she was catheterized with a Foley catheter. The
next day (November 10), on an occasion when I entered my mother’s room, there
were nurses attempting to re-catheterize her. [One of the nurses told me that
the catheter had fallen out]. The next day (November 11) I saw that the
catheter had become choked with white blood cells to the exclusion of urine. I
was told by a nurse that she had noticed that my mother had a urinary tract
infection on November 10, 2006 prior to the re-insertion of the
catheter).

[154]    
In the Plaintiff’s Affidavit #10, sworn May 23, 2014, at para. 22,
she deposes:

Following my mother’s injury
during the November 8 appointment with Dr. Schmalz, she was admitted to
VGH from November 9 to 16, 2006. During this admission my mother was subjected,
in my presence, to the reinsertion of a Foley catheter. That reinsertion was
done over objections expressed to the nurses by both my mother and me.

[155]    
Then, in her Affidavit #12, sworn July 18, 2014, at para. 2, the
Plaintiff deposes:

With respect to paragraph 22 of my affidavit #10, it was on
November 10, 2006 that my mother was re-catheterized. The objections by my
mother and me were ignored by a nurse who appeared determined to re-catheterize
my mother. In the face of her obvious intent to re-catheterize my mother
notwithstanding our objections and my physical attempt to prevent the
re-catheterization, a second nurse carried out the re-catheterization with
the assistance of xylocaine, a local anesthetic.

[Emphasis added.]

[156]     The
Plaintiff has referred to re-catheterization of her mother without consent as a
battery (although it is listed as a particular of negligence in para. 4 of
the Amended Notice of Civil Claim). There is simply no cogent evidence to support
this allegation and much to disprove it. The nurses’ notes are detailed and
contain no references to any objections from either the patient or her daughter
prior, during or after the re-catheterization. Had the Plaintiff physically
intervened as she claims in her most recent affidavit, although she does not
say how or what she did, it is reasonable to expect that at a minimum the
nurses would have noted such an event.

[157]     Furthermore,
the Plaintiff’s last affidavit is ambiguous with regards to the ultimate
re-catheterization insofar as it does not state that once the Xylocaine had
been obtained and applied that she and/or her mother continued to object. It is
clear from the nursing note made immediately following at 2000 hours that the
patient claimed to be comfortable. Practically speaking, Shannon Kemp would
have had to cooperate to some degree to have a Foley catheter re-inserted. She
was clearly conscious and communicative at the time and having trouble passing
urine. While no doubt painful and unpleasant, there is no suggestion in the
detailed nurses’ notes or elsewhere that Shannon Kemp withdrew her consent to
treatment with regards to the re-insertion of the Foley catheter and urine
drained thereafter.

[158]     A larger
problem exists, however, with regards to this claim of battery. As previously
indicated, battery as a personal tort does not survive the death of the
battered person under the recognized legal maxim of action personalis
moritor cum persona. In the event that the Plaintiff was able to prove that
the alleged battery of her mother as a wrongful act caused her mother’s death,
then such a claim could be advanced by operation of the s. 2 of the FCA.
There is no such evidence with regards to this alleged battery. Her mother was
discharged from VGH and lived almost an additional seven months. Therefore,
this claim of battery must be dismissed.

4 c): Failed to identify evidence of a
urinary tract infection in Shannon Kemp and request medical assessment

[159]     The
evidence shows that nurses monitored the output of the re-inserted Foley
catheter. On November 13, 2006, when Shannon Kemp began to complain of pain and
the catheter was not draining in the middle of the night, the nurses brought it
to the attention of the physician in the morning (hospital records, p. 164,
notes from 0230 and 1000 hours). Dr. Slater examined the patient and
ordered a urine culture on November 13, 2006 (hospital records, p. 139). Dr. Slater
obtained the urine culture results and ordered the antibiotic Cipro and the
discontinuance of the Foley catheter (hospital records, p. 138).

[160]     It cannot
be claimed that the nursing staff failed to take proper steps to address
Shannon Kemp’s urinary tract infection or to promptly request an assessment by
a physician. There is no expert evidence that this complaint and infection
ought to have been handled otherwise. This claim of negligence against the VCHA
must fail.

4 d): In the environment surrounding
Shannon Kemp that VGH failed to establish and adhere to a standard of
environmental cleanliness hygiene protocol enabling the MRSA to be transmitted
to Shannon Kemp

[161]     The
Plaintiff is unable to pursue this allegation, as she has failed to provide any
evidence regarding the hospital’s cleanliness. This claim also must fail. In
addition, the Plaintiff’s expert, Dr. Stiver, indicates that Shannon
Kemp’s MRSA infection was resolved by the time of her admission to VGH on June
28, 2007.

4 e): that VGH staff failed to regularly
monitor and reposition the bedridden Shannon Kemp during her week-long November
8-16, 2006 admission

[162]     Contrary
to this claim by the Plaintiff, the evidence clearly shows that Shannon Kemp
was not bedridden during her hospital stay in November 2006. In particular,
there are numerous references in the hospital records to Shannon Kemp becoming
mobile and moving about during this time, summarized as follows:

·      
p. 118 – November 9, 2006 physiotherapy note;

·      
p. 119 – November 10, 2006 physiotherapy note of 30 feet
ambulation with a walker;

·      
p. 163 – November 11, 2006 nursing note – patient repositioned;

·      
p. 164 – November 12, 2006 nursing note – patient up walking with
daughter and using walker;

·      
p. 165 – November 13, 2006 nursing note – walks to chair x 3 and
tolerating sitting for 1 hour each;

·      
p. 165 – November 14, 2006 nursing note – reposition in bed in
high fowlers position;

·      
p. 119 – November 14, 2006 physiotherapy note – ambulated 30 feet
with walker, sat up in chair 1 hour, up to chair ad lib with nursing throughout
the day;

·      
p. 166 – November 15, 2006 nursing note – Doing well Friday, up
walking with walker to B.R. and around ward; and

·      
p. 166 – November 16, 2006 nursing note – Showered and up with
walker – presently sitting in chair at her request. Excited to return home.

[163]     There is
no evidence to the contrary. Nor is there any evidence to support a claim that
the nursing care provided to Shannon Kemp during the November 2006 hospital
admission, in terms of monitoring or repositioning her, fell below the
appropriate standard of care.

[164]     For these
reasons, this claim too must be dismissed.

Conclusion regarding Shannon Kemp’s November 2006 admission to VGH

[165]     I find,
based on the evidence provided and the Plaintiff’s materials filed in response,
that the Plaintiff has failed to bring forward any evidence in relation to
standard of care or causation that supports the claims asserted in the
pleadings relating to the alleged negligent care of Shannon Kemp during her
hospital admission in November 2006 or any allegation of infection with MRSA.

[166]     There is
also no cogent evidence that Shannon Kemp withdrew her consent to treatment
with regards to the re-catheterization on November 10, 2006, or that she or the
Plaintiff on her behalf withdrew consent to the procedure being performed upon
her once a local anaesthetic had been employed. There is no legal or
evidentiary basis upon which the Plaintiff may found a claim against the VCHA
for battery by the nursing staff regarding the performance of this procedure
upon Shannon Kemp.

[167]     With
regards to Shannon Kemp’s November 9 to 16, 2006 admission to VGH, I note that
Rule 9-7(15) permits the court to grant judgment in favour of a party “either
on an issue or generally”. I am of the view that these specific aspects of the
Plaintiff’s claim must be dismissed by way of summary judgment.

[168]     I make
this finding mindful that other aspects of the Plaintiff’s claims may proceed
to trial. However, the specific claims against the VCHA with regards to the
November 2006 admission of Shannon Kemp to VGH are separate and distinct from
other issues that may arise from her treatment out of hospital or the events
leading up to or on June 28, 2007. They are not intertwined, inextricably or
otherwise, with the allegations against the Defendant Physicians seeking
summary judgment or the remaining physician defendants. Furthermore, there are
no aspects of the June 28, 2007 allegations against the VCHA or the Defendant
Physicians that are altered or affected by this decision regarding Shannon
Kemp’s November 2006 admission. I find this to be the only reasonable outcome
with regards to this aspect of the application for summary judgment brought on
behalf of the VCHA in view of the fact that there is no reliable or cogent
evidence, expert or otherwise, to support the claims of negligence or battery
against it arising from Shannon Kemp’s November 2006 VGH admission.

The June 28, 2007 admission of Shannon Kemp to the VGH Emergency Dept.

[169]    
With respect to the alleged negligence by VGH staff alleged to have
caused or contributed to Shannon Kemp’s death on June 28, 2007, the Plaintiff
alleges the particulars in the Amended Notice of Civil Claim, as stated at para. 4:

(f)         on June 28, 2007:

                                              
i.         
not delivering to the responsible physician a letter and enclosures
directed, in the name of Dr. Bruce Campana, to be considered in
conjunction with Shannon Kemp’s presentation;

                                             
ii.         
failing to properly triage Shannon Kemp resulting in a lengthy delay in
treatment;

                                            
iii.         
failing to provide Shannon Kemp with a medical alert bracelet that
sufficiently detailed medications of concern;

                                           
iv.         
delaying treatment and negligently providing treatment to Shannon Kemp
consequent on an alleged policy of the VGH intensive care unit not to treat
patients beyond a certain age;

                                             
v.         
failing to meet the reasonable standard of nursing care by failing to
appropriately monitor Shannon Kemp’s vital signs, medications and fluid balance
and to intervene as indicated.

[170]     The
Plaintiff relies upon her affidavits and portions of Shannon Kemp’s hospital
chart to support these allegations. She also relies upon the expert report of
Winona Rohrback, a nurse, dated May 23, 2014, which sets out the alleged
breaches of the standard of care by VGH nursing staff. I will refer to the
specific aspects of Ms. Rohrback’s opinion in relation to the specific
allegations as alleged in conjunction with the evidence of the Plaintiff. In
addition, the Plaintiff also relies upon the expert report of Dr. Andrew
Lawson, an Emergency medicine physician, as it may show further deficiencies in
the triage care delivered by the staff at VGH, and the impact of delay upon the
eventual outcome for Shannon Kemp.

(f) i Failure to deliver to the
responsible physician Dr. Wong’s letter of June 28, 2007 and enclosures
addressed to Dr. Campana that accompanied Shannon Kemp to the VGH Emergency

[171]    
Dr. Wong’s letter, dated June 28, 2007, was addressed as “Dear
Bruce” in reference to Dr. Bruce Campana. Dr. Wong enclosed notes
from his clinic from the previous month or so. In the letter, he makes
reference to Shannon Kemp previously having been a high functioning woman with
chronic Atrial Fibrillation (“AF”) and her prior left hip surgery at VGH the
preceding year. He also described Shannon Kemp being followed for MRSA
cellulitis, which improved with medications, but that she reacted to various
drugs with nausea and vomiting. She had also previously been given high
diuretics that had resulted in renal failure. Dr. Wong described Shannon
Kemp on June 28 as “a bit confused and dizzy but remains alert and oriented to
person.” He stated “I can’t measure a BP [blood pressure] and can barely
palpate a pulse. HR [heart rate] is around 100 in AF. The leg is improved
without edema.” He then provided information about which medications had been
stopped and which ones Shannon Kemp continued to take. He then concludes the
letter:

She obviously needs to stop the BP-active meds but is
sufficiently volume deplete that I don’t think we can manage her outside any
more. I’ve finally convinced them to go to ER.

I have discussed code status
outlining poor prognosis in the event of arrest however her daughter is
reluctant for a no code status.

[172]     Counsel
for the VCHA submits that the Plaintiff has failed to prove that a letter was
not delivered to the responsible physician, and that it is apparent from the
Plaintiff’s Response she has abandoned efforts to prove this aspect of her
claim.

[173]     Dr. Abu-Laban,
who was the Emergency physician who first saw Shannon Kemp, has provided an
affidavit that indicates he does not recall whether or not he saw Dr. Wong’s
letter (Dr. Abu-Laban Affidavit #2, at para. 5). I agree with the
submission on behalf of the VCHA that the best evidence is what is contained in
the hospital records. It is apparent from the hospital records that the letter
is present in with the other hospital records pertaining to Shannon Kemp at
p. 9, along with a series of clinic notes sent by Dr. Wong at
pp. 10-18. Therefore, one may reasonably infer that the letter was likely
placed there at the time of Shannon Kemp’s admission to Emergency. It is not
possible to say whether any of the Defendant Physicians who attended Shannon
Kemp in the VGH Emergency on June 28^th saw or read the letter,
although it is clear that they attempted to address aspects of Shannon Kemp’s
medical condition that were similar to those referred to in the letter. More
importantly, there is no evidence that the presence or absence of this letter
on her chart had any effect on the treatment provided by the responsible
physician, Dr. Abu-Laban (Dr. Abu-Laban’s Affidavit #2, paras. 4-9).

[174]     Therefore,
I find that there is no evidence of negligence on behalf of the VCHA, either
with regard to standard of care or causation, from an alleged failure to
deliver this letter with enclosures to the physician in the VGH Emergency
responsible to treat Shannon Kemp, and no evidence that any alleged failure to
deliver the letter negatively impacted the care provided to Shannon Kemp.

(f) ii Failing to properly triage Shannon
Kemp resulting in a lengthy delay in treatment

[175]     This
aspect of the negligence being alleged by the Plaintiff relates to the standard
of care exhibited by nursing staff at VGH in failing to properly triage Shannon
Kemp that, in turn, resulted in “a lengthy delay” in treatment. In my view,
this allegation encompasses the issues of both the delay in providing treatment
and the quality of the treatment provided by the nurses involved in triage
that, in turn, led to Shannon Kemp being seen by the Emergency physician, Dr. Abu-Laban,
who then undertook her care and made various orders.

[176]     The
hospital records show that Shannon Kemp arrived at the VGH Emergency Department
at 1308 hours and was assessed by the triage nurse at 1310, at which time a
series of vital signs were taken (hospital records, p. 39). The presenting
complaint was recorded as “low BP/dehydration”. Atrial Fibrillation and surgery
on her left hip were noted. It was also noted, “Told by GP to come to ER
because she is dehydrated + unable to get a pulse or BP. Pt drowsy. Confused.
Dizzy. Weak Pulse.” Her present medications were listed and an allergy to
“penicillin/sulfa” was noted. Her blood pressure was 86/39.

[177]     At 1315
hours, the triage nurse noted that there were no beds available in acute, and
the patient was waiting on a “str” at triage with family (hospital records,
p. 43). The Plaintiff takes issue with the notation that her mother was
waiting on a stretcher, as she deposes that her mother remained in the push
chair she used to bring her mother to the Emergency Department. Given that
Shannon Kemp was subsequently provided a bed and treatment, the failure of the
triage nurse to correctly note that she was in a push chair instead of on a
stretcher while awaiting a bed is not significant.

[178]     The
hospital records contain notes made by Dr. Abu-Laban that he saw Shannon
Kemp at 1340 (hospital records, p. 8). This handwritten notation time has
been overwritten, but it is clearly “1340” with the “40” having possibly been
written over a “20”. Using the later of the two times (which favours the
Plaintiff in terms of her allegation of delay), 1340 hours, there is no other evidence
that contradicts the timing of these notes. In fact, the nursing note of
Krystie W. (Waugh) (hospital records, p. 43) at 1400 hours states:
“Received pt. from triage. Pt. Alert but confused. IV of NS infusing. Dr. Abu-Laban
in to see pt. Pt. has ulcer to R heel. Blood work being taken and geri nurse in
to see.” This note, although made at 1400 hours, clearly relates to a number of
events that had already taken place by the time it was made, fitting generally
with the initial time of 1340 hours, as noted by Dr. Abu-Laban.

[179]     In Dr. Abu-Laban’s
Affidavit #1, he indicated that he is a specialist in emergency medicine. Dr. Abu-Laban
deposed that he has no recollection of providing treatment to Shannon Kemp
(Affidavit #1). He relied on his notes to provide a time of 1340 hours when he
first saw her, at para. 7. He deposes at para. 10 that he was concerned
that she was “critically ill” and that “there was a possibility that her
presentation was caused or exacerbated by underlying sepsis.” He then sets out
the various steps he took to treat Shannon Kemp. He made a subsequent note at
1400 hours, listing the tests and treatments to be administered. This also fits
with his initial contact with Shannon Kemp being at 1340 hours, and then him
further noting the steps he considered to be required at the later time of 1400
hours. The Court has taken into account that at his examination for discovery, Dr. Abu-Laban
was referred to a note by Nurse Waugh from 1400 that he was in to see the
patient. He agreed (Q and A #223) that this was likely the first time he saw
Shannon Kemp. However, the Court does not interpret his answer to this
reference by Nurse Waugh at 1400 to contradict his own note made at 1340 hours
as being an accurate reflection of when he first saw Shannon Kemp on June 28,
2007.

[180]     The
hospital records indicate that Shannon Kemp’s blood pressure continued to fall.
It was 70/40 at 1400 hours, 60/28 at 1425 hours, 50/35 at approximately 1435
hours, 60/35 at 1450 hours, 50/30 at 1500 hours. It continued to be low until
after the first round of resuscitation efforts, when it rose from 50/28 at 1518
hours to 130/96 at 1525 hours. Her blood pressure remained higher for a time
before dropping again to 76/49 at 1544 hours, with her death being pronounced
at 1600 hours.

[181]     The
Plaintiff’s evidence regarding the time in triage is that her mother was
sitting for the duration of her time in triage awaiting a bed (Plaintiff’s
Affidavit #7, para. 21). Her evidence is that Shannon Kemp was then
transferred to a curtained area in Emergency, was given a gown and changed into
it, and then Dr. Abu-Laban came in to see her. The evidence of the
Plaintiff recites a series of events from when she says Dr. Abu-Laban left
them after his first attendance (which she estimates was at approximately 2:15
p.m.), after which her mother began to receive saline via the IV in her left
arm, through to 2:40 p.m., when the nurse attached the bag of antibiotic
medication to the right IV (Affidavit #7, para. 30(e)). The Plaintiff
deposes “At that time my mother did not appear to be in distress.” It was after
this that the Plaintiff noted her mother’s body position had contorted and her
eyes had become unfocused.

[182]     The
Plaintiff has made much of the apparent inconsistency in terms of the time
noted by Dr. Abu-Laban as to his initial assessment of Shannon Kemp (1320
v. 1340 hours) and the nursing note recorded at 1400 hours. Otherwise, her
evidence as to the sequence of events is generally consistent with the timing
outlined in the hospital records.

[183]    
The Plaintiff has provided expert opinion evidence in a report of Winona
Rohrback, a Registered Nurse. Ms. Rohrback’s opinion with regards to “June
28, 2007 – Emergency Department Triage” is contained at p. 7 of her
report. After having reviewed the time line set out in her opinion, which
includes having Shannon Kemp sit in her transport chair in Emergency for
approximately 45 minutes from after her vital signs were taken at 1:10 p.m.
until her vital signs were taken again at 2 p.m. (which is an overestimate,
given Dr. Abu-Laban’s note at 1340), Ms. Rohrback provides the
following opinion:

Mrs. Shannon Kemp arrived at Vancouver Coastal Health –
Vancouver General Hospital – emergency department and was assessed by the
triage nurse. After a thorough review of the triage assessment that Mrs. Kemp
received by the triage nurse, I am of the opinion that the expected standard of
care was not met.

The Canadian Emergency Department Triage and Acuity Scale
(CTAS) have been used in Canadian Emergency Departments since it was first introduced
in 1999. Triage is the process by which nurses sort and prioritize patients
based on the nurse’s findings during their assessments. The CTAS is a 5-level
triage scale that is used by the triage nurse to determine the urgency of the
patient to be seen by the physician. The CTAS levels and time intervals for
physician assessment or nursing reassessment are:

Level 1 – Resuscitation – Continuous care

Level 2 – Emergent – Every 15 minutes

Level 3 – Urgent – Every 30 minutes

Level 4 – Less Urgent – Every 60 minutes

Level 5 – Non Urgent – Every 120 minutes

The triage nurse assigned Mrs. Kemp an Acuity Level of
2. According to the CTAS guidelines Mrs. Kemp should have been seen by a
physician or had a reassessment done at 15 minute intervals. Mrs. Kemp was
not reassessed while she waited in the waiting area.

Mrs. Kemp’s initial blood pressure was 89/39. A normal
blood pressure falls within the range of 100 to 140 mmHg over 60 to 90 mmHg.
The triage nurse was aware that Mrs. Kemp was also dizzy and confused.
These symptoms should have given the triage nurse a high index of suspicion
that Mrs. Kemp could be having symptoms related to her low blood pressure.
The standard of care requires the triage nurse to reassess Mrs. Kemp at 15
minute intervals, recognize serious and life threatening symptoms and expedite
interventions based on her/his findings. Interventions called for include:
lying the patient down, given the patient supplement oxygen and calling for an
ECG.

Mrs. Kemp had a weak pulse,
a cardiac history, and low blood pressure with dizziness and confusion. In
regards to assessments and interventions the triage nurse did not meet the
standard of care expected of a triage nurse working in the Emergency Department
when caring for Mrs. Kemp.

[184]     I accept
the submission on behalf of the VCHA that Ms. Rohrback’s opinion does not
establish a standard of care applicable at VGH or any hospital in British
Columbia. There is no reference by Ms. Rohrback to any real-world
implementation of the CTAS guidelines in a hospital setting. She does not say
that another hospital similarly-situated to VGH meets these guidelines as a
general standard of care. I also note that in the response affidavit of Lori
Korchinski (Affidavit #1 sworn July 18, 2014), the current nursing manager of
the VGH Emergency department, she attaches a copy of the current CTAS
guidelines as updated since 1999. The CTAS guidelines themselves state at
p. 2, “The time responses are ideals (objectives) not established care
standards.”

[185]     I also
note that counsel for the VCHA has provided authority that CTAS guidelines have
been rejected as evidence of the standard of expected care by a triage Emergency
nurse: Hasselsjo v. St. Joseph’s Hospital, 2010 ONSC 800 at paras. 5-9,
51.

[186]     The VCHA
submits that the Plaintiff’s apparent position relating to triage is that a
delay of 15 minutes beyond the “ideal” timeline provided by the CTAS guidelines
until Shannon Kemp was seen by Dr. Abu-Laban, or could have been
reassessed by a triage nurse, raises the amount of any ensuing delay to a
proximate cause of the death of Shannon Kemp; and, further, that this delay and
the failure to take the various steps recommended by Ms. Rohrback and
referred to by Dr. Lawson caused or contributed to her death.

[187]     As
previously indicated, I accept based on Dr. Abu-Laban’s two notes at 1340
and 1400 that he first saw Shannon Kemp at 1340 hours. After he saw her and
issued his orders, there is no indication that the nursing staff failed to
carry out what he directed to be done in a timely way. Therefore, approximately
30 minutes passed from when Shannon Kemp was checked by a triage nurse at
approximately 1310 hours and when she saw Dr. Abu-Laban at 1340 hours.
Applying the CTAS guidelines, which I find are not evidence of standard of
care, one 15 minute check to reassess Shannon Kemp had been missed. I find that
there is no evidence that this lack of a check or delay contributed to or
caused Shannon Kemp’s demise. Even if Dr. Abu-Laban’s notes were to be
incorrect and he did not see Shannon Kemp until 2 p.m., which I do not accept,
there is no evidence that delay in triage prior to Shannon Kemp seeing a
physician had any effect on her further decline or her demise. Steps were taken
to begin hydrating Shannon Kemp with a saline IV immediately upon Dr. Abu-Laban
giving the orders to do so and, even so, her blood pressure continued to fall.

[188]     For these
reasons, I conclude the Plaintiff has failed to provide evidence of the
required standard of care with regards to the timeliness of checks in triage in
the present case and there is no evidence that delay in triage caused or
contributed to Shannon Kemp’s death.

[189]     In
addition and as set out above, Ms. Rohrback also indicated that the triage
nurse or nurses failed to take specific actions, namely that they should have
laid Shannon Kemp down, administered supplemental oxygen and called for an ECG.

[190]     I find
that there is no evidence the alleged failure to lie Shannon Kemp down earlier
in triage had any effect on the outcome. I also find that there is no evidence
an ECG review in triage is possible, or that even if one had been obtained it
would have had any effect on the outcome. Two ECGs were completed in this case,
one at 1413 hours and one at 1535 hours (hospital records, pp. 27- 28).
These were done as a result of Dr. Abu-Laban’s orders at 1400 hours
(hospital records, p. 38). The Plaintiff has produced no evidence
interpreting these ECG results or establishing that if an earlier ECG had been
completed that it would have resulted in different treatment, such that the
outcome of care in this case would have been different. Without such evidence,
the Plaintiff’s claim in this respect must fail.

[191]     There is
no evidence that providing a patient with supplemental oxygen is possible in
the triage area at VGH, or if such oxygen had been given over period of triage
(from 1310 to 1340 hours when, according to his notes, Dr. Abu-Laban saw
Shannon Kemp, or from 1310 to 1400 when nursing records indicate Shannon Kemp
had been placed in a treatment bed and various steps had been undertaken), it
would have resulted in a different outcome for Shannon Kemp or prevented her
death from occurring.

[192]     The
opinion of an expert relied upon by the Plaintiff, Dr. Andrew Lawson, an Emergency
medicine specialist from Mission Viejo, California, dated May 21, 2014,
addresses the treatment of Shannon Kemp by physicians, and not nursing care in
triage. In particular, Dr. Lawson addresses breaches of the standard of
care in relation to Dr. Wong (the internist who saw Shannon Kemp in his
office during the morning of June 28, 2007) and the Emergency physicians. In
terms of the physicians, Dr. Lawson refers to their failure to attend to
Shannon Kemp’s hypothermia by warming her, by not ensuring that she received
supplemental oxygen, not apprising themselves of material changes in her
condition in order to promptly provide remedial intervention and not ensuring
proper continuous monitoring of her vital signs. He also opines that the level
of care of the intensive care physicians fell below the appropriate standard of
care in a number of ways.

[193]    
In terms of delay, Dr. Lawson wrote that had Dr. Wong ensured
that Shannon Kemp received “prompt and proper treatment – begun within, say, 30
minutes of Dr. Wong’s examination [on June 28, 2007] – I am confident that
she would have survived.” Apart from that comment, his report does not
differentiate between the various alleged breaches of the standard of care by
physicians and triage or Emergency nursing staff. It concludes with the following
generalized comment:

It is my opinion that the
breaches of the standard of care were the cause of the death of Mrs. Kemp.
Further, in my opinion, Mrs. Kemp would not have suffered and died but for
those breaches of care.

[194]       
Therefore, with regards to the VCHA nursing care, Dr. Lawson’s
non-specific, omnibus-type opinion regarding breaches of the standard of care
does not address the manner of triage or the impact of any alleged delays in
triage. It is a conclusory opinion based upon speculative facts and as such
does not assist the Court: 927966 Ontario Ltd. v. Cogenix Development Corp.,
2000 BCSC 747, at para. 10.

[195]    
In addition, the VCHA has provided evidence of Dr. Douglas
Skinnider, an internal medicine specialist physician, in his addendum report
dated May 12, 2014, regarding the issue of delay in initiation of treatment
after 1308 hours. Dr. Skinnider’s opinion (at p. 1) answers the
question posed to him about delay in triage as follows:

1. Did any delay between Shannon Kemp’s arrival at VGH at
1308 on June 28, 2007 and the commencement of treatment by order of Dr. Abu-Laban
at 1400, cause or contribute to the death of Shannon Kemp?

There is no evidence that the
time that passed between the arrival of Mrs. Shannon Kemp at the Emergency
Room of the Vancouver General Hospital June 28, 2007, at 1308h to the start of
her therapy at 1400h specifically caused or contributed to her death. On
arrival at the triage area, she was recorded as attending as “self/walk in,”
not brought by ambulance and noted by triage staff to be “dehydrated/low BP.”
Contributing to this state in large part were her medications which included a
diuretic (furosemide) and hypotensive agents (nitroglycerin patch, candesartan,
spironolactone, and metropolol). In fact her vitals [sic] signs recorded at
1310h were temperature 35.3, pulse 99, blood pressure 86/39, respiratory rate
16. These values are consistent with a gradual onset dehydrated state with the
absence of a tachycardia explained by the beta-blocker medication. There was no
significant fever to suggest overwhelming sepsis nor any tachypnea to suggest
respiratory distress. It was noted that she was confused and had a weak pulse.
Nursing notes state “no beds in acute” and she waited in the triage area with
her daughter until a bed was available, which was appropriate. There was [sic]
no clinical features recorded to suggest an acute critical illness that
required immediate intervention.

[196]    
Further, in the same report (at p. 2) Dr. Skinnider addresses
the second question put to him as follows:

2. If there had not been any delay in the initiation of
treatment on her arrival at 1308, would Shannon Kemp have been more likely than
not to have survived.

There is no indication that
had Mrs. Shannon Kemp been seen any earlier than she was, that if the
fluids and IV clindamycin had been given any earlier, that she would have been
more likely to have survived. She had been at least one hour into rehydration
therapy when she suddenly deteriorated so her fluid status was positive when
compared to that on arrival. [Emphasis added.]

[197]     For these
reasons, I find that this aspect of the negligence being alleged by the
Plaintiff with regard to the nursing staff at VGH failing to properly triage
Shannon Kemp must fail, as there is no evidence of breach of an established
standard of care with regards to either the nature of treatment provided or
delay in treatment (as opposed to missing one 15 minute check as per the CTAS
guidelines for Level 2), and also no cogent evidence that any of these alleged
breaches contributed to or caused Shannon Kemp’s death.

(f) iii Failing to provide Shannon Kemp
with a medical alert bracelet that sufficiently detailed medications of concern

[198]     The
Plaintiff has not presented any evidence of this aspect of the claim and
appears to have abandoned this allegation. Shannon Kemp’s hospital chart shows
that an allergy sheet was completed by Dr. Abu-Laban, noting a reaction to
Penicillin and Sulfa (hospital records, p. 7). The triage notes show that
allergy to Penicillin and Sulfa were recorded and an armband for allergies was
placed on Shannon Kemp (hospital records, p. 39). This aspect of the claim
is dismissed.

(f) iv Delaying treatment and negligently
providing treatment to Shannon Kemp consequent to an alleged policy of the VGH
intensive care unit not to treat patients beyond a certain age

[199]     The Court
interprets this claim of alleged negligence, related to delaying treatment and
negligently providing treatment to Shannon Kemp, to be linked with an alleged
policy of the VGH intensive care until not to treat elderly patients,
specifically patients in their late eighties, as was Shannon Kemp.

[200]    
Shannon Kemp’s hospital records contain an entry by Dr. Abu-Laban
contemporaneous with his initial contact with Shannon Kemp that the “patient is
full code as per discussions with daughter” (hospital records, p. 8). Dr. Abu-Laban
deposes (Affidavit #1, at para. 11) that:

…My orders also indicate that Ms. Kemp
was a “full code as per discussion with daughter.” This would indicate that I
had spoken with Ms. Kemp’s daughter about the seriousness of her illness,
discussed the treatments that I was providing to Ms. Kemp and had reached
a determination with her that full resuscitative efforts would be provided to Ms. Kemp
should the situation deteriorate.

[201]     Dr. Abu-Laban
further deposes (Affidavit #3, at para. 5(b)) that his notes “clearly and
explicitly documents that I had a discussion with Brenlee Kemp about the care
that was provided to Shannon Kemp and that fact that a mutually agreed-upon
decision was reached that full resuscitative efforts would be provided to her
mother.”

[202]     Among the
amendments to the Notice of Civil Claim in November 2013 is the Plaintiff’s
assertion that no such discussions occurred. Statements to the same effect are
contained in her Affidavit #7 at para. 27. The VCHA submits the fact that
the Plaintiff insisted on adding this allegation to the claim shows her
complete lack of ability to objectively review the circumstances of her
mother’s death, and ought to cast doubts on her reliability as a witness.

[203]     With
regards to this claim, I find there is no need to make credibility findings as
between what may have been said by Dr. Chittock to the Plaintiff or in any
conversations between the Plaintiff and Dr. Abu-Laban. Regardless of what
may have been said, Shannon Kemp received treatment, including extensive
medical interventions for the purpose of prolonging her life. Those efforts
resulted in a marked improvement in her dangerously low blood pressure and the
performance of other interventions designed to assist her, including a number
of diagnostic tests. She then took a turn for the worse and the physicians
engaged in further extensive efforts to resuscitate her, which were ultimately
unsuccessful, and which the Plaintiff now alleges constituted a battery upon
her mother.

[204]     The
Plaintiff has not presented any evidence of the alleged policy of
non-resuscitation of elderly people that she alleges delayed treatment of her
mother and caused her to receive negligent care, except a comment she alleges
was made to her by Dr. Chittock on June 28, 2007, while she and her mother
were at the VGH Emergency (Plaintiff’s Affidavit #12, para. 6). The
Plaintiff deposes that Dr. Chittock said to her “We do not resuscitate old
people here, especially those with health problems” (Affidavit #10, para. 65).
Further, the Plaintiff claims that Dr. Chittock said to her just before he
entered the curtained area where Shannon Kemp was, the following, or very
similar words: “We’ll continue for now but if she survives we’re going to have
a long talk in the ICU about discontinuing her support” (Plaintiff’s Affidavit
#12, para. 6). For his part, Dr. Chittock deposes (Dr. Chittock
Affidavit #3, at para. 9) that had he attended upon Shannon Kemp in the
VGH Emergency department, his attendance would have been recorded in the
clinical notes (contained in the hospital records), which it is not. He also
deposes, at para. 12 that had he attended, he would never have made the
comments that the Plaintiff attributes to him in her Affidavit #11.

[205]     Regardless
of what may have been said, it is abundantly clear, based on the actions of
Drs. Abu-Laban and Sweet in particular, and a review of the hospital records
that in fact every effort was made to resuscitate Shannon Kemp. In addition,
there is also evidence from the Plaintiff that she begged two of the physicians
who came out from the curtained area where Shannon Kemp was to help her mother,
as her mother was strong. These doctors returned to where her mother was behind
the curtain and, shortly thereafter, Dr. Abu-Laban told the Plaintiff that
the medications they gave Shannon Kemp got her pressure up and the Plaintiff
was permitted to see her (Plaintiff’s Affidavit #10, at para. 67).

[206]     In
addition, Dr. Porayko, who provided an expert opinion on behalf of the
Defendant Physicians, has indicated that the resuscitation attempts were beyond
what would be considered the normal standard of care (Catherine Cichecki
Affidavit #7, attaching Dr. Porayko’s opinion, at p. 13 of his
report).

[207]     Therefore,
even if VGH and/or the VCHA had a policy to discourage or limit “full code”
resuscitation status to elderly patients, of which there is no evidence other
than the words the Plaintiff attributes to Dr. Chittock, extensive efforts
to resuscitate Shannon Kemp occurred. The Plaintiff has failed to present any
basis in fact with regards to this allegation. This aspect of the Plaintiff’s
claim must be dismissed.

(f) v Failing to meet the reasonable
standard of nursing care by failing to appropriately monitor Shannon Kemp’s
vital signs, medications and fluid balance and to intervene as indicated

[208]     The
Plaintiff provided further particulars of this aspect of the claim in the
Application Response provided on July 17, 2014, with this hearing commencing on
July 22, 2014. Therefore, the Plaintiff provided these further particulars
regarding alleged negligence exceedingly late in the context of these
applications. They occur after a number of years (in which the Plaintiff had
ample time to develop her claims and plead them), a detailed in-court review of
all the particulars of the Plaintiff’s claims in court in November 2013 (when
extensive amendments to the Notice of Civil Claim were permitted), and after
the VCHA and the Defendant Physicians had prepared and served their
applications for summary trial and supporting materials (including their
opinions of various experts to comments on aspects of the Plaintiff’s claims).
They also occur well beyond what the Rules permit. However, given the
parties’ submissions and in all the circumstances, it is prudent for the Court
to address them.

[209]    
These further particulars relate to the alleged failure of VGH nursing
staff to “appropriately monitor Shannon Kemp’s vital signs, medications and
fluid balance and to intervene as indicated”, and they arise from the report of
the Plaintiff’s nursing expert, Ms. Rohrback, dated May 22, 2014. They are
that nurses at VGH failed to meet the reasonable standard of nursing care by:

a)     In
conjunction with physicians who were treating Shannon Kemp, administering
excessive doses of certain medications including 5 mg of Atropine and 2 gm of
Versed.

b)     Failing to
ensure that Shannon Kemp’s vital signs were being measured continuously by an
electronic monitoring device.

c)     Failing to
ensure that Shannon Kemp’s oxygen saturation levels were continuously
monitored.

d)    
Failing, while Shannon Kemp was being infused with saline solution (to a
total of 7 litres), to monitor her urinary output.

[210]     First, I
will address b), c) and d) together. I will then deal with a) regarding the
alleged administration of excessive doses of Atropine and Versed.

b), c) and d) – failure to appropriately
or continuously monitor Shannon Kemp`s vital signs, including her oxygen levels
and her urinary output

[211]     Generally
speaking, there is little information in the Plaintiff’s affidavits about the
alleged failure of VGH nursing staff or the attending physicians to
appropriately or continuously monitor her mother. In her Affidavit #12, at para. 4
the Plaintiff deposed that she “recalls there being no leads continuously
connected to my mother from any form of monitor”. I note that she does not
specifically state that her mother was not monitored.

[212]     In the
same affidavit, at para. 4, the Plaintiff deposes that between the time
that Dr. Abu-Laban first saw her mother and when her mother “suddenly
became contorted”, her mother was not given supplemental oxygen and the pulse
oximeter that she describes as “an instrument which measures oxygen saturation
of the blood” “repeatedly fell off her finger notwithstanding frequent attempts
by a nurse to re-position it”, nor did a nurse examine her mother with a
stethoscope.

[213]    
The Plaintiff’s nursing expert, Ms. Rohrback, states at pp. 7-8
of her report that:

It is my opinion that the nurses caring for Mrs. Kemp,
specifically Krystie W. Registered Nurse … did not meet the expected standards
of care.

The expected standards of nursing care would include the
nurse completing a thorough assessment of Mrs. Kemp. The assessment would
include listening to Mrs. Kemp’s heart and lung sounds. Nurse Krystie W.
did not document Mrs. Kemp’s breath sounds or circulatory status when she
assumed Mrs. Kemp’s care. In failing to provide appropriate nursing
assessments Nurse Krystie W. did not meet the standards of nursing expected
while caring for Mrs. Kemp in the emergency department.

Mrs. Kemp’s Blood pressure was 70/40 mmHg when Nurse
Krystie W. assumed her care. Blood pressure below 70 mmHg can damage brain,
heart and kidney tissues due to inadequate perfusion of the tissues. This
condition called for immediate medical and nursing interventions – the
placement on a cardiac monitor, administration of supplemental oxygen and
continuous monitoring. These steps were not taken.

Mrs. Kemp did not have
oxygen administered until 3:00 p.m. when she was being bagged manually. Mrs. Kemp’s
oxygen saturation reading was not measured until 3:10 p.m. By failing to
administer oxygen to Mrs. Kemp, failing to monitor her oxygen saturation,
and failing to place her on a cardiac monitor, the nurses fell below the
expected standard of nursing care for a nurse working in the emergency
department.

[214]     Shannon
Kemp’s hospital records contain evidence about the steps taken by nursing staff
to monitor her condition. The hospital records contain many entries recorded by
the nursing staff with regards to the different forms of monitoring of Shannon
Kemp that took place on June 28, 2007 (pp. 39-50). In particular, commencing at
1400 hours and continuing with much greater frequency from 1500 onwards, these
records contain blood pressure readings, heart rate, oxygen saturation levels
and respiration rates.

[215]     Nurse
Krystie Waugh’s Affidavit # 1, sworn July 18, 2014, is relevant to these
claims.

[216]     Summarizing
Nurse Waugh’s affidavit, she deposes that she has no actual recollection
of Shannon Kemp’s admission on June 28, 2007, and that her evidence is based on
her review of the nursing notes and her recollection of her usual practice. She
was one of the nurses who provided care to Shannon Kemp in the VGH Emergency on
that day and that she is the nurse referred to as “Krystie W.” or “KW” in the
chart. Although she was not certain if she was the attending nurse or the
“float” nurse, after 1500 the notes indicate that she became the nurse who
recorded the events regarding the attempts to resuscitate Shannon Kemp. She
deposes that the usual practice is for one nurse to be responsible to keep a
record of the resuscitation, while the other nurse or nurses provide the actual
care to the patient in support of the physician leading the resuscitation.

[217]     Nurse Waugh
deposed at para. 6 that Shannon Kemp was located in bed A09 in the acute care
area, and at the time of her admission “all of the acute care beds, including
bed A09, had continuous cardiac monitors”. She stated it was her “routine
procedure to place patients on the continuous cardiac monitor on arrival in the
room once they were in bed.” Nurse Waugh deposed that an
“Electrocardiogram strip of Lead II” was included in the hospital chart (at
p. 43). It is printout of a short section of cardiac monitoring
information obtained by pushing a button on the continuous cardiac monitor. The
fact that the hospital chart contained this information, in addition to Ms. Waugh’s
standard practice, confirms to Nurse Waugh that Shannon Kemp was on a
continuous cardiac monitor once in bed A09, at para. 7.

[218]     Nurse Waugh
also deposed at para. 8 that the continuous cardiac monitor includes an
oxygen saturation probe and that her routine practice was that she would place
an oxygen saturation probe on the finger of every patient brought into the
acute care area. With regards to why there are no oxygen saturation levels
results recorded on p. 40 from 1400 to 1510 hours, Nurse Waugh did
not recall, except she stated that it is possible that the oxygen probe was not
working, or that it could not obtain a reading from Shannon Kemp.

[219]     Nurse Waugh
interpreted her note at 1400 hours (hospital records, p. 43) – “Received pt.
from triage. Pt. Alert but confused. IV of NS infusing. Dr. Abu-Laban in
to see pt. pt had ulcer to [right] heel. Blood work being taken and geri nurse
in to see.” – as representing a series of events “commencing from the time of
admission to the Emergency department at bed A09” (Krystie Waugh Affidavit #1,
at paras. 9-10). Based on reviewing the hospital records (at p. 40)
she describes at para. 11 placing an IV access in Shannon Kemp’s left arm and
attaching a 1 litre bag of normal saline solution at 1400 hours and immediately
beginning to run that fluid as a bolus. She makes reference to blood work being
taken from Shannon Kemp at 1412 hours. Based on her usual practice, this time
represents the time that she entered “the bloodwork into the computer for processing
in the lab” and a second sample was entered into the computer at 1427 hours for
blood culture purposes (at para. 13). She also refers to a second
intravenous being inserted by another nurse at 1500 hours.

[220]     Based on
the affidavit evidence of Nurse Waugh and the hospital records, I find
that Shannon Kemp was on the continuous cardiac monitor, which produced the two
electrocardiogram strips at p. 43 and p. 49. These strips were
produced by the pressing of a button on the continuous cardiac monitor as described
by Nurse Waugh, and Shannon Kemp would have been attached to the monitor
to produce such strips. In addition, Nurse Waugh at para. 14 also
indicated that the hospital records (at p. 28) show that Shannon Kemp
received an ECG by a cardio-technologist at 1413 hours that required a separate
set of leads attached to a machine separate from the continuous cardiac monitor
system.

[221]     Nurse Waugh
also noted at paras. 15-16 that the hospital records (at p. 43) indicated
to her that Shannon Kemp received antibiotics by IV administered by another nurse
at 1440 hours and that at 1500 hours efforts were being made by physicians to
resuscitate Shannon Kemp, who she opines “appears to have deteriorated rapidly
as she was not transferred to the trauma room and resuscitation efforts were
made in room A09.”I find that it cannot be reasonably concluded that Shannon
Kemp was not appropriately or continuously monitored from 1400 hours onwards in
terms of cardiac monitoring.

[222]     With
regards to monitoring Shannon Kemp’s oxygen saturation levels, it is evident
from the hospital chart that there was difficulty in obtaining an oxygen
saturation level reading for Shannon Kemp during her admission. The triage
record (hospital records, p. 39) shows that the triage nurse was unable to
obtain an oxygen saturation reading at 1310 hours. The vital signs chart shows
that no oxygen saturation results were noted in the chart between 1400 and 1510
hours. The evidence of Nurse Waugh indicates that it is her normal practice to
attach the oxygen saturation monitoring device to the finger of a patient when
they are in the acute Emergency area, as this monitor is part of the continuous
cardiac monitor system. She explained the absence of readings during that time
as either due to machine malfunction or the oxygen probe on Shannon Kemp’s
finger not being able to obtain a reading.

[223]     The VCHA
points out that there is no evidence of the standard of care expected of a
nurse who attempts to obtain an oxygen saturation reading and cannot due to the
idiosyncrasies of the patient. There is no description of other steps that nursing
staff faced with such a situation ought to pursue, nor has the Plaintiff
produced any evidence that there are any other options available to determine a
patient’s oxygen saturation level in such circumstances.

[224]     I accept
the submission made by counsel for the VCHA that Ms. Rohrback’s opinion at
p. 8 of her report that “Mrs. Kemp’s oxygen saturation reading was
not measured until 3:10 p.m” is based on the assumption that the nursing staff
were not attempting to monitor Shannon Kemp’s oxygen saturation level. It is
more consistent with the available evidence that the oxygen saturation
monitoring device was unable to obtain a reading from Shannon Kemp based on the
prior unsuccessful attempt at 1308 hours and the notation of the nurse
conducting the initial triage that she was unable to obtain a reading of
Shannon Kemp’s oxygen saturation level and the Plaintiff’s own observation that
the monitor kept falling off Shannon Kemp’s finger.

[225]     Therefore,
I find that the evidence of the Plaintiff, the absence of recorded oxygen
saturation levels from 1400 to 1510 hours and the expert evidence of Ms.
Rohrback fall far short of establishing a breach of the standard of care of
Shannon Kemp in this regard. I also note that Dr. Abu-Laban did not order
oxygen to be administered following his examination of the Plaintiff at 1340
hours when he made other orders regarding her treatment (hospital records,
p. 8). When the first oxygen saturation level was obtained at 1510 hours
it was 96 percent and it began to fall thereafter. Without evidence that it was
possible during the preceding period to obtain such readings from Shannon Kemp
and that the VGH nursing staff failed to do so, it cannot be said that they failed
to meet an accepted standard of care.

[226]     The last
of these alleged failures to monitor or adequately monitor Shannon Kemp with
regards to the alleged negligence on behalf of the VGH nursing staff is that
they failed to monitor Shannon Kemp’s urinary output while she was being
infused with saline.

[227]    
In this regard Ms. Rohrback’s opinion at p. 8 of her report is
as follows:

Nurse Krystie W. documented ‘7^th
liter of normal saline infusing’ (Special Clinical Record – 3:44 p.m. –
p. 47) [p. 50 in court copy]. Administering 7000 cc of fluid to an elderly
patient with a history of congestive heart failure is a large amount of fluid.
When a patient receives too much fluid, intravenously, it can lead to fluids
backing up into the patient’s lungs. When a patient has fluid in their lungs it
decreases the amount of oxygen in the lungs. A decrease in oxygen can lead to
respiratory distress. There was no documentation regarding Mrs. Kemp’s
urinary output. The expected Standard of nursing required Nurse Krystie W. to
monitor the amount of Mrs. Kemp’s output and report it to the physician.

[228]     The
hospital records (at p. 42) show that Shannon Kemp was catheterized for
urine during her admission on June 28, 2007. Affidavit #1 of Krystie Waugh, at para. 23
confirms that the Foley catheter used on Shannon Kemp would have been attached
to a bag that would have provided a visual measure of the urine output at the
side of Shannon Kemp’s bed. Therefore, there was a mechanism in place for the
nursing staff and the attending physicians to observe the level of urine
output. The Plaintiff was infused by six litres of saline during her treatment
and the process of attempting to resuscitate her. There is no evidence that the
physicians were not aware of the urine output level, or that if it was
important to the treatment decisions, they could not have simply asked the
nurse. Furthermore, in terms of any potential liability regarding this issue
for the VCHA, it is clear from para. 22 of Krystie Waugh’s Affidavit #1
that the infusion of a seventh litre of saline during the resuscitation process
would have occurred as a result of a verbal order by the physician.

[229]     Dr. Sweet
was the Emergency medicine physician who tried to resuscitate Shannon Kemp. The
hospital records indicate that he performed an ultra sound upon Shannon Kemp at
1557 hours, as noted by Nurse Waugh (hospital records, p. 50). In Dr. Sweet’s
Affidavit #3, he states at para. 12, “I did not observe any ‘fluid’
entering Mrs. Kemp’s abdomen from the ultrasound scan. If I had observed
fluid I would have documented this finding.”

[230]     My finding
with regards to the Plaintiff’s allegation that the nursing staff, in
particular Nurse Waugh, failed to monitor and document Shannon Kemp’s urine
output while she was being infused with saline, is that there is no evidence
that nursing staff and attending physicians were not observing the level of the
urine in the collection bag as the saline was being administered.

[231]     More
significantly, in terms of excess fluid collecting in Shannon Kemp’s lungs as
causing or contributing to her death, as alluded to by Ms. Rohrback, I
find that the ultra sound at 1557 hours and the affidavit evidence of Dr. Sweet
puts that allegation to rest. It is also worthy to note that Dr. Sweet,
according to his notes made at 1608 hours, eight minutes after he called
Shannon Kemp’s death, indicated that he thought she had died from “a profound
septic shock” but he was not sure, and that when he discussed the situation
with her daughter (the Plaintiff), she was sure that she did not want an
autopsy (Dr. Sweet Affidavit #1, Exhibit “B”).

[232]     Therefore,
with regards to the alleged failure of VGH nursing staff to monitor or
adequately monitor Shannon Kemp’s vital signs, including her heart rate, oxygen
saturation levels and urinary output, the evidence is that either they were
monitored and the results were available as needed (including heart rate and
urinary output) and, with regards to the period of time when oxygen saturation
levels were not recorded, it is more consistent with the available evidence
that they were not able to be recorded.

[233]     In
addition, there is no evidence supporting the over-arching claim that failure
to monitor Shannon Kemp’s vital signs at any time during her hospital admission
to VGH Emergency on June 28, 2007 caused or contributed to her death.

a) VGH nursing staff negligently
administered excessive doses of Versed and Atropine to Shannon Kemp in the
course of the attempted resuscitation

[234]       
These allegations arise from entries made by Nurse Waugh regarding
Shannon Kemp’s treatment as contained in the hospital records. Nurse Waugh was
charting the efforts of the nursing staff and then physicians, including Dr. Sweet,
the Emergency medicine physician, to resuscitate Shannon Kemp once she went into
serious decline. Between 1400 and 1600 hours, Nurse Waugh made at least sixty
lines of entries in a short time, many only a minute or two apart. Both the
Atropine and Versed medications were administered to Shannon Kemp intravenously
while the nursing staff and attending physicians were endeavouring to improve
her condition.

[235]       
Specifically, Nurse Waugh recorded that 5 mg of Atropine was
administered to Shannon Kemp at 1500 hours (hospital records, p. 43),
whereas the usual dose is .5 mg, as was administered to her on two further
occasions at 1518 hours and 1519 hours respectively (hospital records, p. 49).
In addition, the hospital records contain two notes made by Nurse Waugh that
two doses of “1/2 ampule of atropine” were administered at 1554 and 1555 hours
respectively (hospital records, p. 50).

[236]       
With regards to Versed, Nurse Waugh recorded in the same clinical notes
that 2 gm of Versed were administered to Shannon Kemp at 1530 hours. This entry
immediately followed an entry at 1529 that 2 gm of magnesium were administered
to her. Three lines further down Nurse Waugh noted that 2 mg of Versed were
administered to Shannon Kemp at 1532 hours (hospital records, p. 49).

[237]       
The hospital records (at p. 49) show that Shannon Kemp was in
decline. For example, her blood pressure had decreased to 33/14 at 1530 hours.
Prior to this, Dr. Sweet attempted to intubate Shannon Kemp at 1514 hours
and then the records indicate that she was being “bagged via endotrecheal [sic]
tube” at 1516 hours (hospital records, p. 49). For a brief period
thereafter Shannon Kemp’s oxygen saturation levels and blood pressure rose
(circa 1523 hours), but then her condition declined once again. Many doses of
various medications were administered to Shannon Kemp via intravenous lines
during this time and Nurse Waugh made note of what was occurring. As well,
there are entries from other nurses.

[238]       
The Plaintiff alleges that the excess doses recorded in the hospital
records were administered to her mother, and that the administration of an
excessive dose of Versed caused or contributed to Shannon Kemp’s death.

[239]       
In Dr. Lawson’s expert opinion, relied on by the Plaintiff to prove
certain breaches of standard of care by the intensive care physicians, Dr. Lawson
lists, at p. 4, a number of aspects of Shannon Kemp’s care that he
considered to fall below “the appropriate standard of care”. One of the four
items listed is “in ordering 2 grams of Versed, a critically high dose.” Dr. Lawson
then concludes his report by stating that “the breaches of the standard of
care”, one of which pertains to the administration of 2 grams of Versed, “were
the cause of the death of Mrs. Kemp.” He then states, “Further, in my
opinion, Mrs. Kemp would not have suffered and died but for those breaches
of care.”

[240]       
Ms. Rohrback, the nurse who provided the expert opinion relied upon
by the Plaintiff, sets out in her report a detailed summary of Shannon Kemp’s
hospital records, including the medications administered to her. Ms. Rohrback
states the following at p. 8 of her report:

Nurse Krystie W. did not meet the expected standard of
nursing practice for administering medications to Mrs. Kemp. The expected
standard of nursing requires nurses to check the ‘Seven Rights’ of medication
administration: right medication, right client, right dose, right time, right
reason and right documentation (CRNBC, Practice standards for medication
administration [footnote omitted]).

Nurse Krystie W. documented: ‘Atropine 5 mg (milligrams) IIV
[P omitted by Ms. Rohrback] given (Nursing Record and Observations 3 p.m.
– Page 41). According to the advanced cardiac life support guidelines (ACLS)
the appropriate dose of atropine is 0.5 to 1 milligrams [sic] every 3 to 5
minutes and not to exceed 3 milligrams in a total dose [footnote omitted].

Nurse Krystie W. documented: ‘2gr
(grams) Versed IVP given’ (Special Clinical Record – 3:30 p.m. – Page 46.
According to DynaMed the initial dose of Versed (Midazolam) for sedation should
not exceed 2.5 mg (milligrams) [footnote omitted].

[241]       
The evidence of Nurse Waugh regarding the administration of Atropine and
Versed to Shannon Kemp, as contained in her Affidavit # 1, is as follows:

16.       The Hospital chart indicates that at 1500 efforts
were being made by the physicians to resuscitate Ms. Kemp. She appears to
have deteriorated rapidly as she was not transferred to the trauma room and the
resuscitation efforts were made in room A09.

17.       In the Hospital chart at page 43 I record at 1500
the event of the administration of Atropine. The amount of Atropine given was
.5 mg by left IVP, which means that it was injected by syringe into the left
intravenous line. It is not possible that the amount of Atropine given was 5
mg, as the Atropine available in the emergency department comes only in .5 mg
pre-prepared syringes for IV push. A nurse would have to take 10 syringes and
separately inject them into the intravenous to achieve a 5 mg dose. I have
never seen 5 mg of Atropine administered at one time to a patient, and have
never done so myself.

18.       In the Hospital chart at page 49 I record at 1530
the event of the administration of Versed, which would have been completed by
another nurse. The amount of Versed given at the time was 2 mg (milligrams) of
Versed by IV push, not 2 grams of Versed which would be 1000 times the regular
dose and would require an impossible amount of intravenous push syringes. I
have recorded the correct unit at other places in the resuscitation record.

19.       Resuscitation attempts,
like the one described in the notes of Shannon Kemp’s chart, are difficult,
fast-paced events, focused primarily on providing emergent care to the patient.
As a recorder of events I attempt to be as accurate as I can, while ensuring
that my note taking does not take away from me providing assistance to the
medical team and supporting the actual care being provided to the patient.
Notwithstanding my best efforts I appear to have made an error in misplacing a
decimal place for the Atropine reading and recording the wrong denomination of
the Versed medication provided during this process.

[242]       
In Dr. Sweet’s Affidavit #3, sworn July 17, 2014, he deposes at paras. 3-8
that as of June 28, 2007 he was a fully trained Emergency Medicine physician
and had completed the first year of his Critical Care Medicine (commonly
referred to as Intensive Care Medicine) Fellowship, and that he received his
Fellowship in Emergency Medicine on July 1, 2007. As of June 28, 2007, he had
extensive experience in resuscitation and intubations. His consultation notes
indicated to him that he was called to the Emergency department for a
consultation in relation to Shannon Kemp and he attended her at 1507 hours. It
appeared to him that the resident in Emergency required assistance with a
resuscitation and intubation, and contacted him, which was common.

[243]       
With regards to the administration of Versed and Atropine in doses of 2
gm and 5 mg respectively, Dr. Sweet deposes the following:

17.       I did not order 2 grams of Versed. I would not have
allowed 2 grams of Versed to have been administered.

18.       Page 46 of the hospital records indicates that 2
grams of versed were given IVP at 15:30. This is a typographical error. Versed
is administered in milligram doses, not grams. It is kept in the Emergency
Department in 2 mg/2 cc vials and large 50 mg/10 cc vials. Administration of 2
grams would require 1,000 vials and draw up 2 litres of drug to administer as
IV push, or 40 vials and draw up 400 cc of drug and administer as IV push.
Administration would be impossible. Two grams is such a large dose that it is
not physically available in the Emergency Department. The administration of the
dose would take so long that it would not be possible to administer in this
clinical context.

19.       For these reasons it would be impossible to
administer this dose in a British Columbian Emergency Department. A physician
familiar with Emergency Departments in British Columbia would know this.

20.       Page 41 of the hospital
records indicate that Atropine 5 mg was administered. This is another
typographical error. I believe that this medication was ordered before I
arrived at the Emergency Department. Atropine is stored in pre-loaded syringes
of 1 mg/10 cc or in vials of 0.4-0.6 mg/cc. Had I been present I would not have
allowed Atropine 5 mg to be administered.

[244]     Dr. Sweet
commented upon aspects of Dr. Lawson’s expert opinion in the same
affidavit at para. 21, commenting that “[i]t is not apparent how any of
the alleged breaches, with the exception of a 2 gram dose of Versed (which was
not, and could not have been, administered), could have caused or contributed
to Ms. Kemp’s death.”

[245]       
In my view, the evidence of Nurse Waugh and Dr. Sweet makes it
abundantly clear that Nurse Waugh made two recording errors when charting the
resuscitation efforts being made by physicians and nursing staff in relation to
Shannon Kemp, as opposed to documenting the actual administration of larger
doses than are typically prescribed or available. This is patently obvious
given that it would have been noticeably cumbersome and virtually physically
impossible to administer medications in these quantities (ten pre-packaged
doses of Atropine and 1000 times the usual 2 mg dose of Versed) to Shannon
Kemp, or indeed any other patient in the VGH Emergency.

[246]       
This is particularly the case with regards to Nurse Waugh’s error in
relation to Versed, when she recorded 2 gm instead of 2 mg. It is explained
when one looks at the clinical record (hospital records, p. 49) as
immediately above her note of “2 gm versed given IVP” at 1530 hours, is an
entry that refers to “2 gm of magnesium in 100 cc NS given” at 1529 hours.
Nurse Waugh clearly made a simple recording error in her handwritten notes with
regards to dose of Versed given at 1530 hours, influenced by what she had just
noted immediately above, when she incorrectly recorded Versed in grams as
opposed to milligrams.

[247]       
Similarly, Nurse Waugh forgot a decimal point when she noted one
administration of 5 mg of Atropine, when the pre-packaged doses of Atropine
available in the VGH Emergency department were in .5 mg dosages. In other areas
of Shannon Kemp’s hospital records, Nurse Waugh noted .5 mg doses of Atropine
as having been administered. The fact that it would have required ten syringes
of Atropine to be injected into the IV line to accomplish the administration of
5 mg of Atropine supports this finding upon the evidence.

[248]       
It follows that neither the reports of Dr. Lawson nor Ms. Rohrback
assist the Plaintiff to establish the alleged breaches of the standard of care,
or indeed causation where that is referred to, as the evidence does not support
a finding that the higher and incorrect doses of Versed and/or Atropine were
actually administered to Shannon Kemp.

Conclusion regarding allegations of negligence, nervous shock and battery
in relation to the June 28, 2007 admission of Shannon Kemp to the VGH Emergency
department

[249]     For the
reasons set out above, the claims advanced by the Plaintiff on her own behalf
and on behalf of the estate of her deceased mother, Shannon Kemp, must fail.
She has failed to prove any breaches of standard of care and there is no
reliable and cogent evidence with regards to any alleged wrong-doing by VGH
nursing staff causing or contributing to Shannon Kemp’s death or any alleged
breach of policy.

[250]     As noted
above, McLachlin C.J.C in Mustapha outlined the essential
ingredients of a negligence action, which require the plaintiff to establish
(1) that the defendant owed him or her a duty of care; (2) that the defendant’s
behaviour breached the standard of care; (3) that the plaintiff sustained
damage; and (4) that the damage was caused, in fact and in law, by the
defendant’s breach. Failure to establish one or more of these requirements on a
balance of probabilities is fatal to a plaintiff’s negligence claim.

[251]     The
evidence of the Plaintiff regarding causation is found in the reports of Winona
Rohrback and Dr. Andrew Lawson.

[252]    
Ms. Rohrback, after reviewing the record of treatment of Shannon
Kemp and making reference to the CTAS guidelines and expected standards of
nursing care, states only the following as her conclusions at p. 9 of her
report:

In conclusion, I am of the opinion that the nurses,
specifically the triage nurse and Nurse Krystie W. did not meet the expected
standard of care when providing emergency nursing care to Mrs. Shannon
Kemp on June 28, 2007 at Vancouver Coastal Health – Vancouver General Hospital
– in the emergency department.

The failures necessarily resulted
in delays in Mrs. Kemp’s receiving appropriate treatment.

[253]    
Dr. Lawson, after setting out four alleged areas where the
intensive care specialists in his opinion “fell below the appropriate standard
of care for such physicians”, of which only the alleged excessive
administration of Versed has any  bearing on any potential liability for the
VCHA, states the following at p. 4 of his report:

It is my opinion that the
breaches of the standard of care were the cause of the death of Mrs. Kemp.
Further, in my opinion, Mrs. Kemp would not have suffered and died but for
those breaches of care.

[254]     The Court
finds that these expert reports are not of assistance in providing careful,
cogent and factually well-grounded expert opinion evidence regarding standard
of care or causation. They both rely on facts that are proven on the totality
of the evidence not to have occurred or rely on other facts or assumptions that
are not established. They both contain vague, overly broad conclusions where
multiple alleged breaches of standard of care are claimed, without
differentiating between them. Then each expert simply makes bald assertions in
relation to causation when, in the present case, there is no clear cause of
death in relation to Shannon Kemp’s unfortunate demise.

[255]     Further,
even if these statements were to be accepted, they provide no relevant
information to support the burden upon the Plaintiff to prove causation. Ms. Rohrback
does not address what appropriate treatment ought to have been provided or how
the treatment would have changed the outcome in this case. Dr. Lawson
provides no assessment of the cause for Shannon Kemp’s death, and yet he offers
the opinion that the missed treatment he describes would have changed the
outcome of this unknown cause. He too, provides no evidence to the Court as to
how or why different treatment would have prevented the death of Shannon Kemp.

[256]     Given the
Plaintiff’s failure to establish the alleged claims of negligence against the
VCHA, there is no legal basis upon which to ground her claim for damages for
nervous shock. The Plaintiff’s relationship with her mother was clearly a very
close one and important to the Plaintiff’s personal wellbeing. At some point,
likely in the not too distant future, Shannon Kemp was going to die. Regardless
of the circumstances of Shannon Kemp’s death, the Plaintiff would have
experienced the same all-consuming grief. The Plaintiff’s claim for nervous
shock as it relates simply to the death of her mother is not supportable.
Furthermore, if the Plaintiff’s claim for nervous shock is related to a
reaction to seeing her mother’s physical state after the resuscitation attempt,
the Plaintiff would be required to prove that the resuscitation was negligently
performed, and that the negligent act caused Shannon Kemp’s physical
appearance, which then led to the Plaintiff’s nervous shock. In particular,
there is no evidence presented by the Plaintiff to indicate that the nurses or
any other employees of VGH were involved or responsible for any aspect of the
physical state of Shannon Kemp following the resuscitation attempt.

[257]     Finally,
the Court declines to permit the Plaintiff to make a new allegation against the
VCHA that arose only in the Response to this application, which does not arise
from any matter pleaded in the Amended Notice of Civil Claim, namely that the
Plaintiff or Shannon Kemp gave instructions prohibiting the administration of
medications to Shannon Kemp. The VCHA submits that this allegation of battery
ought not to be allowed given that it has never been referred to prior to the
Response.

[258]     I accept
this submission and note that, in any event, the Plaintiff has provided no
evidence that the VCHA or any employee or nursing staff was aware of any
instructions from either Shannon Kemp or her daughter, the Plaintiff,
prohibiting the administration of medications to Shannon Kemp. The Plaintiff
was present throughout much of her mother’s initial time in triage and Emergency
and there is no indication of any limitation being articulated in terms of
improving Shannon Kemp’s condition, except the two drugs she had an allergy to
that were noted (Penicillin and Sulfa drugs). The Plaintiff’s evidence in this
regard is specifically related to her instructions to the Defendant Physicians
only and does not refer to nursing staff (Plaintiff’s Affidavit #7, at para. 23(d)
and Plaintiff’s Affidavit #10, at paras. 58(d) and 65).

Conclusion regarding the Plaintiff’s claims as against VCHA

[259]     For these
reasons I find that the Plaintiff has failed to bring forward any evidence in
relation to standard of care or causation that supports the claims asserted in
the pleadings relating to the alleged negligent care of Shannon Kemp during her
hospital admission at VGH in November 2006. Specifically, the Plaintiff failed
to bring evidence to establish that the catheterization of Shannon Kemp was not
medically necessary; that staff failed to identify and treat her urinary tract
infection; that the environment failed to meet the standard of cleanliness; and
that VGH staff failed to monitor and reposition her throughout the week.

[260]     In
addition, I find no evidence to support a finding against VCHA for battery in
relation to the re-catheterization of Shannon Kemp on November 10, 2006.
Regardless of this finding, the Plaintiff does not have standing to bring a
claim for the intentional tort of battery on behalf of her deceased mother
under the FCA as there is no evidence it caused her mother’s death.

[261]     In
relation to Shannon Kemp’s admission to VGH on June 28, 2007, I find that the
Plaintiff has also failed to provide cogent evidence of a breach of standard of
care or causation to support her claims that VCHA or any employee or nursing
staff are liable for negligently contributing to or causing her death. These
allegations include the failure to deliver Dr. Wong’s letter; failure to
properly triage Shannon Kemp, resulting in delay; failure to provide her an
alert bracelet sufficiently detailing her medications of concern; delaying
treatment consequent to an alleged VGH policy to not treat patients beyond a
certain age; and a failure to meet a reasonable standard of nursing care that
included administering excess quantities of Versed and Atropine. None of these
allegations have been made out by the Plaintiff on a balance of probabilities.

[262]     Lastly,
the Plaintiff has no legal basis with which to bring her claim for damages for
nervous shock, as the underlying claims of negligence as against VCHA have not
been made out.

[263]     The Court
will hear submissions as to costs in relation to the VCHA’s application in due
course at a date and time to be arranged with opposing counsel and Supreme
Court Scheduling in New Westminster.

Negligence, Battery and Emotional Shock as alleged against the Defendant
Physicians (Drs. Abu-Laban, Sweet, Chittock and Sutcliffe)

Introduction

[264]       
The four Defendant Physicians (Drs. Abu-Laban, Sweet, Chittock and
Sutcliffe) seek to have the claims made against them in this action dismissed.

[265]       
Their counsel accurately framed the issues to be decided on this
application as follows:

1.         Did Drs. Chittock and Sutcliffe provide any care
to Shannon Kemp, if so, did they cause or contribute her death?

2.         Did Drs. Abu-Laban and Sweet provide appropriate
care to Shannon Kemp, if not, did any breach in the standard cause or
contribute to her death?

3.         Is this matter
suitable proceeding by way of Rule 9-7?

[266]       
The answers from the Court to the questions posed above are:

1.     Drs.
Chittock and Sutcliffe provided minimal to no care to Shannon Kemp and there is
no reliable evidence that anything they did or failed to do caused or
contributed to her death. The claims against them are dismissed.

2.     Drs.
Abu-Laban and Sweet are not proven to have breached any standard of care with
regards to their assessment and treatment of Shannon Kemp and, in any event,
there is no reliable evidence that anything each of them did or failed to do
caused or contributed to Shannon Kemp’s death. The claims against them based on
negligence are dismissed. Therefore, any claim by the Plaintiff for nervous
shock, which must be founded on a claim for negligence, is dismissed.

3.     All
aspects of the claims against Drs. Abu-Laban and Sweet founded in negligence
are suitable for determination by way of summary trial, and are dismissed.
Similarly, there is no viable claim to be advanced in relation to the
allegation that Dr. Abu-Laban committed battery in prescribing antibiotic
medication that was administered to Shannon Kemp. However, I have concluded
that the allegations of battery and lack of informed consent with regards to
the resuscitation efforts performed by Dr. Sweet upon Shannon Kemp are not
amenable to disposition by way of summary trial due to direct conflicts in the
evidence between of the Plaintiff, Drs. Abu-Laban and Sweet and others with
regards to whether Shannon Kemp was or continued to be “full code” in terms of
resuscitation. This issue requires credibility and reliability findings that
are not amenable to determination by way of summary trial and therefore will
need to proceed to trial.

Evidence

[267]       
In reaching these determinations, the Court has considered the detailed
oral and written submissions on behalf of the Defendant Physicians, the Plaintiff,
legal authorities provided by the parties, the Application Record as compiled
and provided on behalf of the Defendant Physicians, which includes the
affidavits of the Defendant Physicians and the expert opinion evidence relied
up by them, the Plaintiff’s Affidavits #7, 10, 11, 12 and 13, and the expert
opinions that she relies upon (as appended to Mary Ho’s Affidavit #2),
including the expert opinion of Dr. Andrew Lawson as previously referred
to. The Application Record also includes the more recent affidavits (all
Affidavits # 3) of Dr. Abu-Laban, Chittock and Sweet, the hospital records
pertaining to Shannon Kemp and Nurse Krystie Waugh’s Affidavit #1. I have also
considered the portions of examinations for discovery from the Defendant
Physicians as filed and read in on behalf of the Plaintiff.

[268]       
In these reasons the Court will refer to, but does not intend to repeat
in detail, evidence and findings made in relation to the VCHA that are also
relevant to the determinations regarding the Plaintiff’s claims against the
Defendant Physicians. I reiterate that evidence as to Shannon Kemp’s prior
medical condition is not particularly relevant given the focus of the Defendant
Physician’s present application on how Shannon Kemp presented and was treated
at the VGH Emergency on June 28, 2007. The Seymour Medical Clinic records are
not in evidence and have not been considered. However, the contents of Dr. Wong’s
letter that accompanied Shannon Kemp to the VGH Emergency on June 28, 2007 are
admissible, not for their truth but for the fact the statements were made, as
the letter was presented to the nursing staff at VGH and made its way into the
Shannon Kemp’s hospital records.

[269]       
In addition to the previously summarized affidavits sworn by the
Plaintiff in this matter set out in relation to the VCHA, the Court has also
considered the Plaintiff’s Affidavit #11, sworn May 26, 2014, in response to
the affidavits of Drs. Sutcliffe, Sweet and Chittock. In this affidavit the
following is of potential relevance to this application:

·      
Approximately one hour before
Shannon Kemp’s death the Plaintiff observed three physicians who she believes
were Drs. Sutcliffe, Sweet and Chittock to arrive “virtually at the same time”
at her mother’s bedside;

·      
Shortly after the curtain was
drawn around her mother’s bed with the Plaintiff on the outside, a physician
who the Plaintiff believes to have been Dr. Chittock made the comment to
her, “We don’t resuscitate old people here, especially those with health
problems.” The Plaintiff deposes that she responded that her mother’s
“presentation (as if having had a seizure) was not due to any pre-existing
condition but was an adverse response to the medications (which [she] believed
were antibiotics) being given [to] her intravenously” and she instructed that
the medications be discontinued immediately. She then deposes that the same
physician said words to the effect that “[w]e’ll continue for now but if she
survives there’ll be a long talk with the head (or supervisor) of ICU about
discontinuing her support.” The Plaintiff then believes that this physician
re-entered the curtained off area where her mother was, because when she was
allowed to re-enter the area she saw this physician at her mother’s bedside
with Drs. Sweet, Sutcliffe, Abu-Laban and an unidentified male;

·      
Shortly thereafter, Dr. Abu-Laban
advised the Plaintiff that the medications her mother had been given had got
her pressure up. The Plaintiff was allowed to see her mother for a brief time
before she was again excluded by the curtain from her mother’s bedside. Not
long after that, a physician who the Plaintiff believes was Dr. Sweet came
out from behind the curtain and said, “It’s a surgical problem now. It’s no
longer our problem”. He went on to say something to the effect that he could
see from the ultrasound that fluid had entered her mother’s abdomen, and then
he returned to her mother’s bedside, behind the curtain. Shortly thereafter,
she heard the same doctor say “I’m calling it. Time of death, 4 o’clock”;

·      
A moment or two after her mother’s
death was announced, the Plaintiff deposes that she saw Drs. Sutcliffe and
Chittock leave the area of her mother’s bedside while Drs. Sweet and Abu-Laban
remained;

·      
The Plaintiff wished to conduct
examinations for discovery of Drs. Sweet and Chittock to determine the nature
and extent of the supervisory relationship of Dr. Chittock in relation to Dr. Sweet
and the actions of each of them at her mother’s bedside;

·      
 With regards to Dr. Sutcliffe,
the Plaintiff deposes that he was within the curtained off area where her
mother was being treated for much if not the entire time that Dr. Sweet
was with her mother. A resident said to have been Dr. Sutcliffe’s resident
assessed her mother at approximately 2:35 p.m. and left, and was the first
physician to return after her mother had what appeared to be a seizure shortly
before 3 p.m., once again providing no treatment to her mother or directions to
the attending nurses; and

·      
The Plaintiff deposed that she
wished to examine Dr. Sutcliffe with respect to what he observed to take
place at her mother’s bedside, the identity of his resident and any discussions
he had with any resident or physician relating to her mother.

[270]       
The Court has also considered the contents of Plaintiff’s Affidavit #13,
sworn January 16, 2015, which provides a few further explanatory details
regarding the attendance of Drs. Sweet, Sutcliffe and Chittock at her mother’s
bedside.

Plaintiff’s claims against Drs. Sweet, Sutcliffe, and Chittock in relation
to Shannon Kemp’s decline and resuscitative efforts

[271]       
Under Part 1 of the Statement of Facts in the Amended Notice of Civil
Claim, the Plaintiff included the following in the factual basis for her
action:

62.       Shortly after the
antibiotics began infusing into Shannon Kemp’s right arm, her condition
suddenly deteriorated and she became unresponsive, whereupon others (Sweet,
Sutcliffe, Chittock and M Doe) attended.

63.       Over the course of
the next 45 minutes, those attending Shannon Kemp:

(a)   employed chest compressions and assisted respirations
(“bagging”);

(b)   infused an excessive quantity of saline;

(c)   without her consent administered medications,
including:

(i)         Ketamine and
Versed;

(ii)        additional
antibiotics, including Vancomycin;

(d)   intubated her over her resistance and without consent
from her or from anyone on her behalf. As a result of the intubation, Shannon
Kemp suffered grievous injuries, including:

(i)         a dislocated jaw;

(ii)        a broken nose;

(iii)       lacerations to
her lips;

(iv)       a tooth fractured
off at the gumline;

(v)        extensive facial
and peri-oral bruising;

(vi)       extravasation of
fluid into her arm;

(vii)      serious injuries
to her throat;

(e)   caused significant abdominal injury resulting in
exsanguination.

63A.     As a result of the
conduct referred to in paragraph 63 Shannon Kemp experienced physical and
emotional suffering.

[272]       
In her Amended Notice of Civil Claim the Plaintiff claims that:

11.       Sweet, Sutcliffe,
Chittock and M Doe, who together formed the resuscitation team negligently:

(a)        failed to
diagnose, or alternatively, misdiagnosed, Shannon Kemp’s condition and to recognize
that it had been caused by wrongful treatment given her that day;

(b)        failed to heed the
advice of the Plaintiff that Shannon Kemp was having an adverse reaction to
medications being administered;

(c)        failed to cease
administration of said medications, thus perpetuating Shannon Kemp’s adverse
reaction;

(d)        administered
medications and fluids where were contraindicated and/or provided in excessive
dosages or volumes;

(e)        forcefully
intubated Shannon Kemp with a greatly oversized endotracheal tube

(i)         when intubation
was not medically indicated, resulting in increased morbidity;

(ii)        when consent of
Shannon Kemp, or the Plaintiff on her behalf, was refused;

(iii)       over the active
resistance of Shannon Kemp thereby causing grievous physical injury;

(f)         caused abdominal
injury by inappropriate application of chest compressions, or otherwise.

12.       The chest
compressions, [omitted reference to the forced catheterization referring to the
November 8-16, 2006 hospital admission], and intubation (para. 63(d)), administration
of medications (paras. 59(c), 60(c) and 63(c)) and other treatments
referred to did not have Shannon Kemp’s, or the Plaintiff’s, consent, and they
constituted battery.

Dr. Dean Chittock

[273]       
The Plaintiff’s allegations of negligence regarding the unsuccessful
resuscitation attempt performed upon her mother by physicians include Dr. Dean
Chittock and are as set out immediately above.

[274]       
Dr. Chittock was the supervising physician in the intensive care
unit on June 28, 2007. There is an ample body of evidence to support a finding
that Dr. Chittock was not actively involved in the care of Shannon Kemp on
June 28, 2007. In Dr. Chittock’s Affidavit #1 at paras. 3-5, he
deposes that he has no recollection of providing treatment to Shannon Kemp,
that he reviewed the clinical records and there is no indication that he was
involved in her care. He stated that while the MSP record indicates that his
billing number was used to bill for care provided to Shannon Kemp by the
intensive care unit, it is impossible for him to determine the extent of his
involvement from the MSP record, which shows a payment to his group practice of
$508.90 with regards to a consultation with Shannon Kemp on June 28, 2007
(according to the record put to Dr. Chittock and discussed in Qs and As
262-265 at his examination for discovery on June 26, 2014).

[275]       
In his Affidavit #3, Dr. Chittock deposes at paras. 5-9 that
he was the on call “intensivist” at VGH on that day, and that upon reviewing
the clinical records it is apparent to him that the Intensive Care Unit was
contacted for a consultation regarding Shannon Kemp in the Emergency
Department. The records also stated an intensive care resident responded to the
consultation request and attended upon her, that the attending resident
requested further assistance from the Intensive Care Unit and that Dr. David
Sweet responded and attended upon Shannon Kemp as a result. Dr. Chittock
further deposes that Dr. Sweet was a fully trained emergency medicine
physician who had considerable experience, training and expertise in
intubations and resuscitation, and that there was no reason for Dr. Sweet
to contact him during his consultation with Shannon Kemp or for Dr. Chittock
to attend at the Emergency Department. Furthermore, had he attended then his
attendance would have been recorded in the clinical notes (hospital records).

[276]       
In relation to Dr. Chittock’s alleged involvement in the care of
Shannon Kemp, Dr. Sweet deposes in his Affidavit #3 at paras. 4-7
that he was called to the Emergency Department to assist an Intensive Care Unit
resident who was attending on Shannon Kemp, and that it was common for an
Intensive Care Unit resident to respond to the initial request. Dr. Sweet
stated that there would be no reason for him to have contacted Dr. Chittock
and that he did not believe he did, given that, as of that date, he had
extensive experience in resuscitations and intubations given his training in Emergency
medicine and Critical Care medicine.

[277]       
After a detailed review of the hospital records pertaining to Shannon
Kemp and the treatment provided to her on June 28, 2007 by the attending
physicians, Dr. Lorne Porayko, a Critical Care physician and
anaesthesiologist, was asked to comment on the care provided to Shannon Kemp by
Dr. Chittock. Dr. Porayko stated the following at pp. 3-4 of his
report:

Dr. Chittock was not
directly involved in the care of Ms. Kemp and, as such, his actions are
not mentioned in the hospital records. This is not unusual at all: Dr. Chittock’s
role as the consultant staff critical care physician is to supervise trainee
physicians at all levels providing care in the intensive care unit. Dr. Sweet
was a fully certified emergency room specialist performing his sub-speciality
training in critical care medicine at the time of Ms. Kemp’s presentation,
an experience called a ‘fellowship’. Fellows are the most experienced trainees
and are in turn, responsible for supervision of more junior house staff. Under
normal circumstances, a fellow would be expected to support the clinical activities
of the house staff (as Dr. Sweet did in this case) and contact the
consultant for advice regarding direction of care in ambiguous clinical
circumstances.

[278]       
Having reviewed the circumstances surrounding any alleged involvement of
Dr. Dean Chittock in the treatment of Shannon Kemp, I find that there is
simply no evidence that he provided any treatment or care to her. How it was
that his practice group received payment for services relating to Shannon
Kemp’s treatment at the VGH Emergency is not explained other than he may have
attended for a consultation or possibly the services provided by Dr. Sweet,
who was actively involved in the resuscitation attempt upon Shannon Kemp, were
billed to his supervisor’s practice group. I note that there is no separate entry
on the MSP billing record for services rendered that day to Shannon Kemp by Dr. Sweet,
who did treat her.

[279]       
In any event, there is no evidence that Dr. Chittock provided any
care to Shannon Kemp or actively supervised Dr. Sweet in a manner that
would make him accountable for Dr. Sweet’s actions. Dr. Sweet is very
clear in his evidence that the responsibility to resuscitate Shannon Kemp was
his and he was in charge of the “code.” Dr. Chittock denies making the
comments attributed to him by the Plaintiff, but even if he did, there is no
evidence of him doing anything to treat Shannon Kemp, let alone providing
treatment below a reasonable standard of care. Consequently, Dr. Chittock
may not be considered to have caused or contributed to the death of Shannon
Kemp. All claims made against him, whether in negligence or battery, are
dismissed.

Dr. Steven Sutcliffe

[280]       
The allegations of negligence made against Dr. Steven Sutcliffe are
as set out above and are the same as made against Drs. Chittock and Sweet.

[281]       
Dr. Sutcliffe is an Internal Medicine specialist. In his Affidavit
#1, he deposes at paras. 3-8 that he has no recollection of providing
treatment to Shannon Kemp and no personal records of his encounter with her.
The hospital records indicate the emergency room physician requested a
consultation with the general medicine service and the intensive care unit, and
that Dr. Sutcliffe reviewed Shannon Kemp with a resident. They concurred
that she was suffering from hypovolemic plus or minus septic shock and that she
was critically ill. Dr. Sutcliffe indicated that the general medicine
service is not a critical care service, and that the consultation between
himself and the resident could only have lasted a few moments given Ms. Kemp’s
critical condition. The hospital records also indicated to Dr. Sutcliffe
that the intensive care unit was resuscitating Shannon Kemp when he attended. Dr. Sutcliffe
stated he was not on that team and did not participate in resuscitating her.

[282]       
Dr. Sutcliffe’s brief handwritten note at Exhibit “B” of his
affidavit, dated June 28, 2007, indicates that he discussed her case with the
resident, Dr. Abou-Mourad.  His note then reads “ICU consulting and Ms. Kemp
is being resuscitated with [illegible] and [illegible] intubation as this is
apparently her and her daughter’s wish.” Dr. Sutcliffe completed the
discharge summary (hospital records, p. 5) upon which he noted that
Shannon Kemp had died, the cause as sepsis and that there was to be “no
autopsy.” At his examination for discovery held on June 17, 2014, Dr. Sutcliffe
agreed that he had been involved in making an independent assessment of the
status of Shannon Kemp (Q and A 131). Dr. Sutcliffe indicated that he had
no recollection of remaining with Shannon Kemp until she died, but indicated
that “typically [he] would stay around” (Q and A 235). He acknowledged that the
MSP printout showed him as receiving a fee of $137.05 with regards to his
attendance upon Shannon Kemp on June 28, 2007. At his examination for
discovery, Dr. Sutcliffe indicated that he relied on the resident, Dr. Abou-Mourad’s
assessment of Shannon Kemp (Q and A 570).

[283]       
The detailed notes of Dr. Abou-Mourad (hospital records, pp. 22-23)
are recorded as commencing at 2:35 p.m. and corroborate Dr. Sutcliffe’s
evidence. Dr. Abou-Mourad’s notes indicate that he physically examined
Shannon Kemp and noted her prior medical history, the medications she had been
taking and her vital signs. He noted that “ER consulted CTU [Clinical Teaching
Unit]” and he saw her and immediately consulted ICU “since her daughter
insisted that she is functional and is full code.” Dr. Abou-Mourad also
noted that according to her daughter, Shannon Kemp was allergic to Sulpha and Penicillin
and her blood pressure was 88/39. He noted the steps to be taken were that the
“IV NL” was to be run wide open, to consult with ICU and [illegible] and to
initiate CPR and antibiotics and that she was seen with Dr. Sutcliffe.

[284]       
Dr. G.D. McCauley is a respirologist and was also an intensivist
until 2013. He has a background in general internal medicine, respirology and
intensive care. Dr. McCauley was asked to comment on the care provided to
Shannon Kemp by Dr. Sutcliffe. Dr. McCauley states the following at
pp. 1-2 of his report notes:

Dr. Sutcliffe appeared to be the attending on the
Clinical Teaching Unit at that time, and reviewed Shannon Kemp, I believe in
the Emergency Department, documenting shock of uncertain etiology, on the background
of known aortic stenosis and atrial fibrillation, and problems with a decubitus
ulcer and subsequent infection.

He noted that the ICU consultant team had seen Mrs. Kemp,
and she was being actively resuscitated at that time. Clearly her care was beyond
the purview of the Clinical Teaching Unit, and he quite appropriately left her
ongoing care to the Intensive Care Unit physicians.

It is my opinion that Dr. Sutcliffe
followed what would be considered a very appropriate standard of care in making
this decision, as clearly her level of intervention was beyond the teaching
unit expectation, and the appropriate consultants were already involved in her
care.

[285]       
I find that other than the consult with the general medicine resident, Dr. Abou-Mourad,
about Shannon Kemp, Dr. Sutcliffe was not actively involved in Shannon
Kemp’s care. Therefore, there is no basis in fact or in law to maintain an
action in negligence and/or battery against Dr. Sutcliffe and the claims
against him are dismissed.

Dr. David Sweet

[286]       
The Plaintiff alleges that Dr. David Sweet was negligent in his
care of Shannon Kemp and committed a battery upon her in relation to actions
related to the resuscitation efforts. They are the same as the allegations made
against Dr. Chittock and Sutcliffe and are set out above.

[287]       
At the time Dr. Sweet attended on Shannon Kemp he was a fellow in
the Intensive Care Unit (also referred to as Critical Care) at VGH working
under Dr. Chittock. As of June 28, 2007, Dr. Sweet had completed all
the requirements for his certification as a Critical Care specialist and was
awaiting that designation. He is the intensive care physician who tried
unsuccessfully to resuscitate Shannon Kemp following deterioration of her
condition.

[288]       
At his examination for discovery on July 8, 2014, Dr. Sweet
indicated that he did not have a recollection or a note of having discussed
Shannon Kemp’s resuscitation status with the Plaintiff, but he stated, “The
impression when I arrived was that she had informed other physicians or those
physicians felt in discussion with them that full resuscitation efforts were
warranted.” (Q and A 254). Thus, Dr. Sweet understood that Shannon Kemp
and her daughter wanted full resuscitative efforts which, given Shannon Kemp’s
condition, included the administration of various medications, chest
compressions, and endotracheal intubation. Dr. Sweet agreed that he was
“the code leader” of the resuscitation (Q and A 285). Dr. Sweet indicated
that the roles performed by the two nurses usually present in such instances
are to administer medications, place IVs and assist physicians (Q and A 298). Dr. Sweet
indicated that he was the one responsible for making decisions as to what was
to be done for the patient, which could include things like chest compressions,
endotracheal intubation and deciding on medications to be administered. It
would also include the placement of arterial lines and making the decision as
to when someone is not going to survive and ceasing resuscitation efforts (Qs
and As 297-300 and 317-319). He also agreed that with regards to administering
medications he would ask the nurse to provide the medication and then the nurse
takes the responsibility to locate and administer it (Q and A 322). Dr. Sweet
recognized that on the hospital records there was reference to 2 gms of Versed
being administered to Shannon Kemp at 1530 hours and 5 mg of Atropine being
administered at 1500 (Q and A 347). He agreed that from 1507 hours onwards all
medication administered were on his order (Qs and As 362-363). Dr. Sweet
was unable to say what the problem was with his first attempt to intubate
Shannon Kemp at 1507 (Q and A 552), but his second attempt was successful after
he administered Ketamine, which is a sedative (Q and A 557).

[289]       
In his Affidavit #1, Dr. Sweet deposes at paras. 3-6 that he
has no recollection of providing treatment to Shannon Kemp and indicated that
the note he made at the time (Exhibit “B”) provides him with the greatest
amount of information about his involvement. In that note, commencing with a
time of 1608 hours, Dr. Sweet described what he observed regarding Shannon
Kemp and noted that the family, FP (family physician) and IM (internal
medicine) doctor indicated that she was “full code.” He described that during
the 30 minutes they were with her, they did get her blood pressure back and she
was in “afib”. Then, over time, her blood pressure declined. He described the
nature of her decline and how he decided to cease resuscitation efforts when
there was a measure of no cardiac activity. He considered that she had likely
died from profound septic shock, but he could not be sure, and noted that her
daughter declined an autopsy.

[290]       
Dr. Sweet’s Affidavit #3 responds to the portion of Dr. Andrew
Lawson’s expert opinion relied upon by the Plaintiff to prove breaches of the
standard of care in relation to the intensive care physicians. This portion of Dr. Lawson’s
report states:

4.         The intensive care physicians who were called in
fell below the appropriate standard of care for such physicians in the
following ways:

(a)        in initiating treatment without first assessing
the patient’s status;

(b)        in performing chest compressions on a conscious
patient;

(c)        in performing an endotracheal intubation:

(i)         on a
conscious and resisting patient; and

(ii)        in
doing so without first administering sedation and paralytic agents:

(d)        in ordering 2 grams of Versed, a critically high
dose.

It is my opinion that the
breaches of the standard of care were the cause of the death of Mrs. Kemp.
Further, in my opinion, Mrs. Kemp would not have suffered and died but for
those breaches of care.

[291]       
In Dr. Sweet’s Affidavit #3, at para. 11, he denies the
discussion that the Plaintiff alleges took place between them. He states that
Shannon Kemp did not suffer from a surgical problem, and even if she had, which
she did not, it still would have been his responsibility to look after her
before she went to the operating room and afterward. Dr. Sweet deposes
that he “would never say that Ms. Kemp, or any patient, was ‘no longer our
problem’.” Further, at para. 12, he states that he did not observe any
“fluid” entering Ms. Kemp’s abdomen from the ultrasound scan, as if he had,
he would have documented this finding.

[292]       
Dr. Sweet deposes that while he took issue with the facts and
opinions expressed by Dr. Lawson, on advice he responded to only three
issues: (a) initiating treatment without first assessing the patient; (b)
performing chest compressions on a conscious patient; and (c) ordering 2 grams
of Versed, a critically high dose.

[293]       
With regards to initiating treatment without first assessing the
patient, Dr. Sweet deposes the following at para. 15:

When I arrived at the Emergency
Department my note indicates that Ms. Kemp was obtunded and being
resuscitated with a bag-valve-mask. It appears that I arrived after Ms. Kemp
had received CPR and her pulse had recovered. I assessed Ms. Kemp before
providing treatment to her. This is my standard practice and I would not have
provided treatment to Ms. Kemp without first assessing her.

[294]       
With regards to performing chest compressions on a conscious patient, Dr. Sweet
deposes the following at para. 16:

I would have assisted with the
resuscitation as necessary upon my arrival. The records indicate that the
initial resuscitation was successful and that Ms. Kemp regained a pulse.
CPR was discontinued once she regained a pulse. I would not initiate CPR on a
conscious patient.

[295]       
With regards to ordering 2 grams of Versed, a critically high dose, Dr. Sweet
deposes the following at paras. 17-18:

I did not order 2 grams of Versed. I would not have allowed 2
grams of Versed to have been administered.

Page 46 of the hospital records
indicates that 2 grams of versed were given IVP at 15:30. This is a
typographical error

[296]       
Dr. Sweet then continues to set out the reasons why it was not
possible to administer such a large dose of Versed and that the reference to 2
grams of Versed refers to 2 mg of Versed. Dr. Sweet also deposes at para. 20
that the hospital records that refer to Atropine 5 mg being administered to Ms. Kemp
is another such error and that while this notation precedes his arrival to
treat Shannon Kemp, had he been present he would not have allowed Atropine 5 mg
to be administered. The Court has previously dealt with these notation errors
in dealing with the application of the VCHA, finding that these recordings of
medications were recording or “typographical” errors, as referred to by Dr. Sweet,
and do not represent quantities of medications actually administered to Shannon
Kemp. This finding means that there is no basis in fact for this aspect of Dr. Lawson’s
opinion.

[297]       
Dr. Sweet deposes at para. 21 that he is unable to evaluate Dr. Lawson’s
statement with respect to how the alleged breaches in the standard of care
caused Ms. Kemp’s death, as Dr. Lawson does not provide an
explanation or opinion as to what caused her death or how the alleged breaches
caused or contributed to Ms. Kemp’s death.

[298]       
As previously commented upon, the Court does not find Dr. Lawson’s
non-specific, omnibus-type of opinion regarding the alleged breaches of the
standard of care by the intensive care physicians (namely Dr. Sweet) to be
of assistance to the Plaintiff in proving this aspect of her claim. It is a
broad, conclusory opinion based upon speculative facts and as such does not assist
the Court. It is also clear that given the highly specialized nature of the
treatment provided to Shannon Kemp by Dr. Sweet that a cogent, specific
expert opinion regarding alleged breaches in the standard of care is required
for the Plaintiff to prove that Dr. Sweet was negligent in terms of
breaching a reasonable standard of care. This is not one of those rare
instances in medical malpractice cases where the nature of the actions
themselves supports such a finding.

[299]       
In addition, Dr. Lawson’s opinion does not assist the Plaintiff in
proving that the actions of Dr. Sweet caused or contributed to Shannon
Kemp’s death.

[300]       
Dr. Lorne Porayko, a Critical Care physician and anaesthesiologist,
provided an opinion relied upon by the Defendant Physicians regarding Dr. Sweet’s
attendance upon Shannon Kemp and his subsequent resuscitation efforts.

[301]       
At the outset of his report, Dr. Porayko summarizes the care
provided to Shannon Kemp by Dr. Sweet as follows:

C) Opinion

Summary of Care Provided by Dr. Sweet, Critical Care
Fellow:

Dr. Sweet was summoned to the Vancouver General Hospital
Emergency Room (“the ER”) by an unidentified Intensive Care resident on a
‘stat’ basis in order to assess and manage Ms. Kemp, a frail, elderly lady
with life threatening shock of unknown cause, a history of protracted right
lower leg MRSA cellulitis, moderately severe aortic stenosis complicated by
congestive heart failure and diuretic associated renal insufficiency, as well
as a hip fracture pinning procedure 8 months prior that had a stormy
postoperative course. It’s unclear how much of Ms. Kemp’s past medical
history Dr. Sweet was made aware of before he initiated his resuscitative
efforts, due to the emergent nature of the situation; however, his note
(section 10, page 18 and 19) makes it clear that he did know that the patient’s
daughter had indicated that the patient desired full resuscitative efforts.

On June 28, 2007, the patient presented to the ER at 1308
hours with hemodynamic signs of shock. She was treated by Dr. Abu Laban,
emergency physician, at approximately 1400 hours with intravenous crystalloid
fluid boluses and broad spectrum antibiotics. The Clinical Teaching Unit
(“CTU”) was consulted to provide further care and the team assessed the patient
at 1435 hours. During the assessment and approximately at 1500 hours, the
patient deteriorated such that the CTU physicians felt that chest compressions
and further intravenous fluid was warranted (section 10, page 21). The vital
signs are not recorded at that point; however, a respiratory services notation
at 1515 hours indicates that the patient was cyanotic and undergoing
endotracheal intubation (section 10, page 23) and the nurses notes record
“Atropine 5 mg IVP given, pt being bagged manually” which would suggest
treatment of hemodynamically unstable bradycardia and respiratory insufficiency
(section 10, page 41). At 1505 hours, the nurses notes describe delivery of
chest compressions and a neurological response from the patient in terms of
“patient coughing, pushing endotracheal tube” which prompted termination of CPR
efforts (section 10, page 41). Several boluses of vasopressors were
subsequently given through a peripheral intravenous (100 mcg of phenylephrine
at 1506, 1507, 1510 hours and 200 mcg at 1515 hours, as well as a dopamine
infusion at 400 mcg/hour). Ketamine sedation was delivered intravenously also
at 1515 hours (section 10, page 42).

The endotracheal intubation procedure occurred between 1507
to 1516 hours (section 10, pages 42 and 46) and required 3 attempts. Further
boluses of atropine (0.5 mg at 1518 and 1519 hours) and vasopressor were
delivered (100 mcg phenylephrine and 500 mcg of epinephrine at 1518 hours as
well as an increase in the dopamine infusion at 1522 hours) (section 10, page
46). From 1516 hours until 1522 hours (post epinephrine bolus), the patient’s
blood pressure was very low, with a nadir of 33 mmHg systolic and a peak of 59
mmHg. She also had a physiologically inappropriate bradycardia during this
period with a heart rate between 34 to 64 beats per minute.

There was a marked hemodynamic response at 1522 hours,
temporally correlated with the large epinephrine dos administration: the
patient’s blood pressure rose immediately to 98/64 and went as high as 160/108
at 1527 hours. The heart rate also improved increasing to 131 at 1522 hours and
remaining above 100 until 1539 hours. A central line was placed in the right
femoral vein at about 1523 hours and around this time, the 6^th liter
of normal saline was infusing.

At 1542 hours, the patient’s
hemodynamics deteriorated once again, with her blood pressure dropping from
80/52 and a heart rate of 87 down to systolic values in the 50’s similar to her
earlier crisis. Along the same time course, the heart rate dropped from 87 to
the 30’s and 40’s, implying an impending circulatory arrest. More
phenylephrine, amiodarone (for heart rate control), vancomycin (for MRSA),
higher dose dopamine, bolus epinephrine, and atropine were all delivered,
without a hemodynamic response. At 1557 hours, the patient had no palpable
pulse and Dr. Sweet performed a focused ultrasound examination of Ms. Kemp’s
heart which demonstrated cardiac standstill. Further resuscitation efforts were
terminated and the patient was pronounced dead at around 1600 hours.

[302]       
In his report at pp. 4-13, Dr. Porayko comments as follows
upon matters referred to by the Plaintiff in the factual portion of her Amended
Notice of Civil Claim and also on the aspects of her legal claims alleging
negligence and battery upon her mother. Dr. Porayko’s opinions as to the
standard of care of treatments administered to Shannon Kemp by Dr. Sweet
are thorough and well-reasoned. However, in considering Dr. Porayko’s comments
it is necessary to keep in mind that the Court has determined that the battery
issue regarding the full-code resuscitation efforts carried out upon Shannon
Kemp is not suitable for determination by summary trial. It is also necessary
to keep in mind that the Seymour Medical Clinic records he refers to are not in
evidence although they clearly were available to him to inform his broader
opinions as to Shannon Kemp’s medical history and likely cause of death.
Despite these limitations, I find that Dr. Porayko is a well-qualified
expert to provide an opinion of the treatment Shannon Kemp received during
resuscitation. The relevant portions of his opinion are set out below:

Statement of Facts #63.

b) Those attending Shannon
Kemp infused an excessive quantity of saline

“7^th 1L NS
infusing.”

This implies that the patient
received at least 6 litres of fluid and as much as 7 litres total.

In most case series addressing
septic shock, the median amount of fluid administered was approximately 4
litres in the first day, although patients receiving 7.5 litres may have
improved outcomes. Seven litres of fluid total would represent 180 ml/kg of
crystalloid for this diminutive woman which would be on the higher end of
expected fluid requirements, but not definitively excessive. The boluses were
incremental and titrated, which meets standards of care for management of
presumed septic shock.

c) …without her consent
administered medications, including: ketamine and versed; additional
antibiotics, including Vancomycin

Consent was obtained for the
full spectrum of resuscitative efforts as documents by Dr. Wong’s letter
(section 10, page 7), the CTU resident’s record (section 10, page 20). And Dr. Abu-Laban’s
consult (section 10, page 6). Although Ms. Kemp’s daughter expressed
concerns about the use of antibiotics, patients with suspected severe sepsis
should receive parenteral broad-spectrum antibiotics on an urgent basis, as a
delay in administration is associated with an attributable increase in
mortality [footnote omitted]. The antibiotics she received (clindamycin,
ciprofloxacin and vancomycin [footnote omitted]) were appropriately broad
spectrum, necessarily including coverage of MRSA as a potential pathogen. Ms. Kemp
had not had a documented previous serious adverse drug reaction to any of the
medications listed or to any in their respective antibiotic structural class.
In addition, there were no other acceptable alternative antibiotic options that
could have been practically used in this clinical context.

The sedative and analgesic
medications ‘Versed’ (generically identified as midazolam) and ketamine were
appropriately used to provide comfort and muscle relaxation for the
resuscitation procedures that were duly required for a ‘maximum’ resuscitation
efforts. In my opinion, these choices of agent and doses administered were
appropriate for a patient in Ms. Kemp’s physiologic state of severe shock.

d)…intubated her over her
resistance and without consent from her or from anyone on her behalf. ….

Consent for endotracheal
intubation is unequivocally conveyed by a ‘full resuscitation’ designation as
requested by Ms. Kemp and her daughter: airway management is the foremost
and most critical phase of any resuscitation.

Statement of Facts #65:

The plaintiff was shocked
on seeing: that Shannon Kemp had been intubated, that the endotracheal tube
used was grossly oversized, that her face was swollen, distorted and scarlet in
colour and she was lying motionless, palms up and unblinking, as if she was
paralyzed (sic).

The descriptive findings are
consistent with an intubated moribund patient resulting from a failed attempt to
resuscitate a very frail, elderly patient with acute on chronic multi-organ
failure. In other words, this is a typical appearance of a patient who has
died.

The tube used in this case had
a 7 mm internal diameter. This is considerably smaller than the standard size
used for women (7.5-8.0) expected to be ventilated in the intensive care unit
as Ms. Kemp would have if she had survived her cardiac arrest. I suspect
that in this case, the smaller tube was selected because of the patient’s small
stature; however, for the reasons described above, it is extremely unlikely
that a 7.0 ETT was inappropriately oversized.

Legal Basis Item #11:

A. failed to diagnose, or
alternatively, misdiagnosed, Shannon Kemp’s condition and to recognize that it
had been caused by wrongful treatment given her that day;

Drs. Sweet, Sutcliffe and
Abu-Laban all concurred that the most likely mechanism for Ms. Kemp’s
physiological deterioration was septic shock with resulting multi-organ failure
(section 10, pages 19, 17 and 6, respectively). All three clinicians considered
other contributing etiologies including intravascular volume depletion from
poor intake, diuretics and increased insensible losses as well as a cardiogenic
component from her known moderately severe aortic stenosis, diastolic
dysfunction and atrial fibrillation. It is unusual to arrive at a precise
diagnosis in critically ill patients immediately at presentation and in many
cases of septic shock no definitive or conclusive test, such as a positive
blood culture, is ever confirmatory. In a broad population of critically ill
septic patients similar to Ms. Kemp, only 20% of blood cultures are
positive. Certainly, the absence of a positive culture in this case (section
10, page 33) is not convincing evidence that sepsis is excluded as a diagnosis.

In addition, unlike younger
patients where a single definitive diagnosis drives the pathophysiologic
process and is subsequently the focus of treatment (per Occam’s razor), elderly
patients generally have multiple diagnoses all contributing to their demise
(per Hickam’s dictum) [footnote omitted]. In Ms. Kemp’s case, sepsis from
an unknown focus was the most cogent and statistically probable [footnote
omitted] primary diagnosis. It is possible that severe community acquired
pneumonia was a key process responsible for her deterioration: the two chest
radiographs performed (section 10, pages 27 and 28) over the course of the
patient’s final day showed a dramatic change with newly visible interstitial
and airspace disease. This interval finding is likely due to cardiogenic
pulmonary edema, pneumonia (now visible post rehydration) and/or a capillary
leak phenomenon caused by sepsis (also known as acute respiratory distress
syndrome). All 3 conditions can co-exist, particularly in elderly patients with
chronic co -morbidities, such as in this case.

The initial and ongoing
treatment plan of timely administration of broad spectrum antibiotics, titrated
fluid resuscitation and general supportive care was entirely appropriate and is
very unlikely to have harmed this patient or contributed to her death.

B. failed to heed the
advice of the Plaintiff that Shannon Kemp was having an adverse reaction to
medications being administered;

Life threatening anaphylactic
reactions to vancomycin, clindamycin and ciprofloxacin are very uncommon,
particularly in the elderly. The `red man syndrome’ caused by overly rapid
administration of vancomycin can be life-threatening; however, the bright red
flushing phenomenon and urticaria is nearly invariably obvious and was not
noted in any of the clinicians’ records.

The other cardinal signs of
anaphylaxis were not recorded in observations by any of the clinicians
involved, including rash, diarrhea or bronchospasm.

C. failed to cease
administration of said medications, thus perpetuating Shannon Kemp’s adverse
reaction;

I don’t believe that there’s
any convincing evidence that the antibiotics administered caused Ms. Kemp
any material harm.

D. administered medications
and fluids which were contraindicated and/or provided in excessive dosages or
volumes;

This issue is addressed in the
statement of facts section #63 b). The fluid therapy provided was a critical
step in the comprehensive resuscitation that was clearly requested by the
next-of-kin and was clearly indicated. There is no clear evidence that the
volume administered caused attributable harm to the patient.

E. forcefully intubated
Shannon Kemp with a greatly oversized endotracheal tube

i. when intubation was not
medically indicated, resulting in increased morbidity;

ii. when consent of
Shannon Kemp, or the Plaintiff on her behalf, was refused;

iii. over the active
resistance of Shannon Kemp thereby causing grievous physical injury;

F. caused abdominal injury
by inappropriate application of chest compressions, or otherwise

The issues of the endotracheal
tube size, consent for the resuscitation which necessarily includes
endotracheal intubation and the potential for iatrogenic injuries are addressed
in the statement of facts sections #65, #63 c) and #63 d), respectively. There
is no recorded evidence of unusual or unexpected resuscitation associated
injuries under the circumstances.

Legal Basis Item #12:

The chest compressions,
forced catheterization and intubation, administration of medications and other
treatments referred to did not have Shannon Kemp’s, or the Plaints consent, and
they constituted battery.

Consent was obtained for the
full spectrum of resuscitative efforts as documented by Dr. Wong’s letter
(section 10, page 7), the CTU resident’s record (section 10, page 20), and Dr. Abu-Laban’s
consult (section 10, page 6). There is no evidence of refusal of care by the
patient or her surrogates in the records. The patient’s `pushing’ on the
endotracheal tube (section 10, page 31) is very commonly seen during
resuscitations and most likely represented an unconscious reflex to airway
stimulation after brain reperfusion during CPR. The observed activity was
almost certainly not a conscious effort by the patient to indicate that further
resuscitation was not desirable.

These historical points
indicate that the patient likely had NYHA Class II to III congestive heart
failure that would imply an EFFECT heart failure prediction score [footnote
omitted] of over 250. This places her definitively in the `very high risk’
group for both 30 day and 1 year mortality events.

Several patient complaints in
the weeks leading up to her death suggest that the evolving multiple organ
failure process was either subacute or acute on chronic. On June 14, 200 she
was fatigued at rest, anorexic and could not walk unassisted (section 3, page
63). She complained of a cough persisting for the previous week, suggesting a
respiratory tract infection or decompensated heart failure and her renal
function had deteriorated dramatically (section 3, Page 63)

Conclusion:

The records provided describe
an extraordinarily comprehensive resuscitative effort that meets or exceeds the
standards of care for a critical care physician practicing in a quaternary care
hospital in 2007.

[303]       
Based on the foregoing and given the flaws in Dr. Lawson’s opinion,
particularly in view of the finding that 2 mg and not 2 gm of Versed was
administered to Shannon Kemp, and in the face of the evidence of Dr. Sweet
and Dr. Porayko, there is no cogent evidence to support a claim of
negligence against Dr. Sweet; accordingly, that claim is dismissed.

[304]       
The claim of battery arising from the failed resuscitation effort of
Shannon Kemp based on lack of informed consent or withdrawal of consent as
alleged against Dr. Sweet is not dismissed and may proceed to trial, as
there are conflicts in the evidence as to whether Shannon Kemp was or continued
to be “full code” during the resuscitation.

Dr. Riyad Abu-Laban

[305]       
The Plaintiff’s allegations against Dr. Abu-Laban are set out in
the Amended Notice of Civil Claim as follows:

10.       Abu-Laban was negligent in that:

on June 28, 2007 he:

(a) failed to reasonably obtain and
consider Shannon Kemp’s medical history and neglected to accord weight to
Shannon Kemp’s medical history as provided to him including:

(i) her presenting condition was
not acute in onset but rather was of four weeks’ duration;

(ii) the fact that she was on
warfarin therapy and her blood thinness had been greatly elevated above her
established target therapeutic range;

(iii) she had suffered from, but
was no longer suffering from MRSA; in fact she was free from infection;

(iv) she was intolerant to
antibiotics (which had contributed to her presenting condition) and severely
allergic to penicillin and sulfa drugs;

resulting in his failure to diagnose Shannon Kemp’s condition
and in his wrongful treatment of her;

(b) neglected to address in a
timely way Shannon Kemp’s unstable prevailing emergency – her severe
hypotension;

(c) neglected to provide sustained
and focused treatment to address Shannon Kemp’s hypotension;

(d) administered antibiotic
medication when it was not required and it was contraindicated in all the
circumstances;

(e) directed a blood draw which was not justified and which
further destabilized Shannon Kemp’s already precarious condition.

[306]       
In addition, in the factual portion of her Amended Notice of Civil Claim
the Plaintiff makes some additional allegations regarding the actions of Dr. Abu-Laban
in treating her mother. Those are addressed in the opinion of Dr. Roderick
McFadyen and I will not repeat them here.

[307]       
Counsel for the Defendant Physicians summarized the claims against Dr. Abu-Laban
as that he neglected to treat Shannon Kemp’s hypotension in a sustained,
focused and timely way; that he administered antibiotics when it was
contraindicated and that he directed a blood draw which was not justified and
further destabilized Shannon Kemp.

[308]       
Dr. Riyad Abu-Laban, a specialist in Emergency medicine, deposed in
his Affidavit #1 at paras. 4-8 that he has no recollection of providing
treatment to Shannon Kemp. He instead relies upon his notes, which indicate
that he first saw her at 1340 hours, when he documented her history and
physically examined her, noting his findings. At para. 10 Dr. Abu-Laban
deposes that he was concerned that Shannon Kemp was critically ill, that it was
clear she was hypotensive and he felt that “there was a possibility that her
presentation was caused or exacerbated by underlying sepsis.” At para. 11 Dr. Abu-Laban
describes the treatment he initiated at 1400 hours, which included the
administration of Normal Saline by IV with instructions to reassess her vital
signs and to administer the broad-spectrum antibiotics of clindamycin and
ciprofloxacin in specified doses by IV. He also ordered blood tests, routine
and microscopic urine testing and an ECG. A chest x-ray was performed. At para. 12
Dr. Abu-Laban notes that he consulted with the Internal Medicine Service
regarding Shannon Kemp, speaking with them at 1410 hours and “undoubtedly”
requested that Internal Medicine see her immediately. At 1500 hours, he noted
that her status had deteriorated rapidly while she was being assessed by
Internal Medicine and that the Intensive Care Unit was involved. At para. 14
Dr. Abu Laban states that his diagnosis was that Shannon Kemp had “a
functional decline, she suffered from dehydration with recent renal
dysfunction, and that underlying sepsis might exist as a root cause or
exacerbating factor in her presentation.” At paras. 15 -17 Dr. Abu-Laban
indicates that he completed the Notice of Death for Shannon Kemp with a time of
admission to VGH being noted at 1315 and a time of death of 1600 hours. He
described trying to reassure her daughter afterwards regarding the care of her
mother and noted that the cause of death could not be confirmed given that an
autopsy was not performed.

[309]       
In his Affidavit #3, Dr. Abu-Laban deposes at paras. 2-5 that
he made his clinical notes contained in the hospital records contemporaneously
with the treatment that he provided to Shannon Kemp on June 28, 2007. He states
that the Plaintiff did not provide him with the additional points regarding her
mother’s medical history that she sets out at para. 58 of her Affidavit
#10 or he would have included them in his notes. Contrary to what the Plaintiff
deposed in the same affidavit at para. 61, Dr. Abu-Laban states he
did discuss the care that was provided to Shannon Kemp with the Plaintiff and a
“mutually agreed-upon decision was reached that full resuscitative efforts
would be provided to her mother.”

[310]       
Dr. Andrew Lawson, the Plaintiff’s expert, at pp. 3-4 of his
report, lists the aspects where in his opinion the emergency physicians fell
below the standard of care expected of an emergency physician in a major urban
hospital, namely: by not attending to the patient’s hypothermia by warming her;
by not ensuring that she was given supplemental oxygen; by not apprising
himself of material changes in the patient’s status (eg. falling blood
pressure) so that remedial intervention could be employed promptly, as the
patient required faster infusion of fluids and probably vasopressors, which
should have been addressed promptly given the patient’s blood pressure readings
as at 2:25 p.m. and 2:30 p.m.; and by not ensuring proper continuous monitoring
of the patient’s vital signs, including cardiac and oxygen saturation levels.

[311]       
To a considerable extent these various concerns were addressed in the
context of the VCHA’s application. The failings of Dr. Lawson’s report
have previously been set out. In the context of any comments about Dr. Abu-Laban’s
conduct failing to meet a reasonable standard of care, I simply point out that
in the event that the same were to be proven, which they are not, there is no
evidence that anything Dr. Abu-Laban did or failed to do caused or
contributed to the death of Shannon Kemp. To the contrary, Dr. Abu-Laban
appears to have taken the necessary and appropriate steps to treat Shannon
Kemp. This is apparent from the opinion of Dr. McFadyen, an expert relied upon
by the Defendant Physicians.

[312]       
Dr. Roderick McFadyen, an Emergency Medicine physician, provided an
opinion as to the care provided to Shannon Kemp by Dr. Abu-Laban.

[313]       
Dr. McFadyen provided a summary of care at pp. 3-4 of his
report, which, considering all the evidence the Court has reviewed in these
applications, I find to be a most fair and accurate review, with the exception
that Dr. Abu-Laban saw Shannon Kemp once she had been provided a bed in
the acute care area. Dr. McFadyen’s summary is as follows:

Shannon Kemp presented to the Emergency Department at VGH on
June 28, 2007 on the recommendation of Dr. Wong, an Internal Medicine
specialist who had been managing her as an outpatient for some time and who had
seen her in his office that day. His written communication to the attending
Emergency Physician gave some background information regarding her medical
condition and recent clinical course. It indicated that he was concerned with
regards to her altered mental status, unstable vital signs and that he felt she
needed hospital admission for intravenous hyrdration and other treatment. It
also indicated that he had been trying unsuccessfully for some time to convince
Shannon Kemp (and her daughter) that she needed to be admitted to hospital for
treatment but that they had declined to follow that advice. Dr. Wong
indicated that he had “finally” convinced them to go to Emergency, that he had
discussed her wishes regarding resuscitation in the event of cardiac arrest,
that her prognosis was poor in the event of a cardiac arrest but that Ms. Kemp’s
daughter did not want to assign a Do Not Resuscitate status to her mother. (Dr. Wong’s
letter, VGH Clinical Chart, p.7)

Dr. Abu-Laban’s care of Ms. Kemp was initiated at
13:40 in the Triage area of the VGH Emergency Department while arrangements
were made for a bed for her in the acute treatment area of the department. The
acute area was full at the time of her arrival. He documented a thorough
history and physical examination, including his assessment that the patient was
withdrawn, confused and disoriented to time. He ordered an intravenous fluid
bolus and the intravenous antibiotics Clindamycin and Ciprofloxacin at 14:00.
By that time Ms. Kemp was in the acute area of the department. He ordered
appropriate investigations to investigate potential causes of low blood
pressure and altered mental status including Sepsis. He ordered that vital
signs be repeated after the initial fluid bolus to monitor the response to
treatment. He then arranged for consultation with the Internal Medicine
teaching service with a view to hospital admission and further management. He
documented that he had discussed the patient’s “Code Status” (wishes regarding
resuscitation in the event of a cardiac arrest) with Ms. Kemp’s daughter
and that it was her wish that her mother be resuscitated should that happen. He
later documented that Ms. Kemp’s condition had deteriorated during the
assessment by Internal Medicine and that in accordance with the family’s
wishes, the Intensive Care Unit physicians had been involved to provide
critical care and resuscitation as necessary. (VGH Clinical Chart, pp.6, 36
and 38)

It is my opinion that the care
provided by Dr. Abu-Laban to Shannon Kemp as described above was
appropriate and met the standard of care for an Emergency Physician. 

[314]       
At pp. 4-5 of his report, Dr. McFadyen then provides his
opinion on the various claims made by the Plaintiff against Dr. Abu-Laban
regarding his care of her mother. He notes:

Issues raised in the
Statement of Claim:

I will address these
individually:

i) Dr. Abu-Laban
failed to note and/or act upon the Deceased’s drug allergies and sensitivities;

Despite the absence of any
indication of previously documented adverse reactions to medications in Ms. Kemp’s
Pharmanet profile, the Emergency staff at VGH obtained a history of allergy to
Penicillin and Sulfa drugs. Dr. Abu-Laban was aware of this and documented
that knowledge prior to prescribing two antibiotics that were in unrelated
classes and therefore not contraindicated. It is my opinion that there is
therefore no evidence to substantiate this claim.

(ii) Repeated entirely
unnecessary tests further taxing the Deceased’s health;

It is my opinion that the
tests ordered by Dr. Abu-Laban were entirely appropriate to investigate
her presentation.

(iii) Failed to properly
assess and stabilize the Deceased’s condition including low blood pressure;

Dr. Abu-Laban’s thorough
history and physical examination, appropriate investigations and concurrent
treatment with intravenous fluid were appropriate in the circumstance to
properly assess and attempt to stabilize her condition.

(iv) Administered
medications that were contraindicated for the Deceased;

As indicated in my response to
claim ii) there were no contraindications to the antibiotics prescribed by Dr. Abu-Laban.

(v) Administered
medications and inappropriate treatment without the Deceased’s consent and
against her will;

Shannon Kemp was unable to
provide informed consent at the time of her presentation on June 28, 2007 as
indicated by Dr. Abu-Laban’s documentation of her confusion and
disorientation. The medications he prescribed were appropriate and he was
conscientious in confirming with Ms. Kemp’s alternate decision maker that
the family’s wish was for aggressive resuscitation. There is therefore nothing
to indicate that appropriate management for dehydration, possible sepsis, shock
and eventually cardiac arrest would be against the patient’s (or the alternate
decision maker’s) will.

(vi) Failed to keep the
Deceased hydrated.

By ordering that an
intravenous fluid bolus be administered as soon as possible, Dr. Abu-Laban
acted appropriately to treat dehydration and begin the process of keeping the
patient hydrated.

CONCLUSION:

Shannon Kemp was critically
ill by the time she presented to the Emergency Department at the VGH on June
28, 2007. She had been suffering a progressive decline in her condition at home
and had been resisting recommendations that she be admitted to hospital when
her condition was more stable. Despite appropriate attempts by Dr. Abu-Laban,
the attending Emergency Physician and the consultant staff from Internal
Medicine and the Intensive Care Unit that he engaged, she suffered a further
progressive decline in her condition after her arrival at hospital. This
clinical course was compatible with a Shock state the exact nature of which was
not determined prior to her eventual cardiac arrest. The care provided by all
of the physicians involved in her care was appropriate in the circumstance
including that of Dr. Abu-Laban.

[315]       
Given the deficiencies in Dr. Lawson’ opinion, as well as the
evidence of Dr. Abu-Laban and opinion of Dr. McFadyen, I find that
the Plaintiff has not established an evidentiary basis to support her claim
that Dr. Abu-Laban failed to meet a reasonable standard of care, or that
anything he did or failed to do caused or contributed to Shannon Kemp’s death.
Accordingly, the Plaintiff’s claim in negligence as against him is dismissed.

Allegations of Battery or Lack of Informed Consent with regard to the
administration of antibiotics to Shannon Kemp

[316]       
Although not properly pleaded, the Plaintiff alleges a battery was
committed upon her mother by Dr. Abu-Laban when he prescribed antibiotics
to treat Shannon Kemp. Specifically, in the Plaintiff’s Affidavit #10 at paras. 58
and 61, she states that she advised Dr. Abu-Laban that her mother did not
have sepsis, did not require antibiotics and that no further antibiotics were
to be administered to her mother. This evidence is specifically rejected by Dr. Abu-Laban
in his Affidavit #3 at paragraphs 2–5.

[317]       
However, in any event, I accept the submission made by counsel for the
Defendant Physicians that it is unnecessary to resolve this conflict in the
evidence for the purposes of this application. This is because the Plaintiff
has not provided any expert evidence to establish that the administration of
the antibiotics to Shannon Kemp as prescribed by Dr. Abu-Laban caused her
any harm. As previously stated, the Plaintiff may not maintain an action in
battery in relation to her mother under the FCA unless she can prove
that the battery caused her mother’s death, which, with regards to the
administration of antibiotics to Shannon Kemp by Dr. Abu-Laban, she has
failed to do.

[318]       
Dr. Lawson, upon whose expert opinion the Plaintiff relies
regarding the conduct of the emergency physicians, which includes Dr. Abu-Laban,
does not indicate anywhere in his report that the administration of antibiotics
Clindamycin and Ciprofloxacin had any effect on Shannon Kemp, adverse or
otherwise. He does however, reference them being administered to her at 2:40
p.m. in his summary of assumed facts (at p. 2 of his report), so they were
obviously among the facts he did consider.

[319]       
With regards to whether the administration of antibiotics to Shannon
Kemp as prescribed by Dr. Abu-Laban caused her any harm, Dr. Poryako
provided an expert opinion with regards to the medical care rendered to Shannon
Kemp by Drs. Sweet, Sutcliffe and Chittock. While I find his opinion to be
overly-broad and to include on some facts regarding Shannon Kemp’s prior
medical history not in evidence, he is still well-qualified and able to
usefully opine as to the appropriateness of certain treatments provided to
Shannon Kemp at the VGH Emergency Department as she presented on June 28, 2007,
including the administration of antibiotics. With regards to that claim Dr.
Porayko states at p. 10:

I don’t believe that there’s any
convincing evidence that the antibiotics administered caused Ms. Kemp any
material harm.

[320]       
Counsel for the Plaintiff raised the issue of ‘red man syndrome’ as a
possible cause of Shannon Kemp’s death. It is a life threatening anaphylactic
reaction to certain antibiotic medications, including Clindamycin and Ciprofloxacin,
the two antibiotics prescribed to Shannon Kemp by Dr. Abu- Laban. That
issue is also discussed at p. 9 of Dr. Porayko’s report in the
context of the Plaintiff’s allegation that those physicians failed to “heed the
advice of the Plaintiff that Shannon Kemp was having an adverse reaction to
medications being administered”, where Dr. Porayko states as follows:

Life threatening anaphylactic reactions to vancomycin,
clindamycin and ciprofloxacin are very uncommon, particularly in the elderly
[footnote omitted]. The ‘red man syndrome’ caused by overly rapid
administration of vancomycin can be life-threatening [footnote omitted];
however, the bright red flushing phenomenon and urticaria is nearly invariably
obvious and was not noted in any of the clinicians’ records.

The other cardinal signs of
anaphylaxis were not recorded in observations of any of the clinicians
involved, including rash, diarrhea or bronchospasm.

[321]       
There is no evidence that Shannon Kemp had this reaction or suffered any
other adverse effect as a result of the antibiotics prescribed by Dr. Abu-Laban
and no evidence that anything related to the administration of the antibiotics
clindamycin and ciprofloxacin to her played any role in her decline or demise.

[322]       
Therefore, all claims against Dr. Abu-Laban, whether in negligence
or battery, are dismissed.

Conclusion regarding the Plaintiff’s claims as against the Defendant
Physicians

[323]       
For these reasons I find that the claims as against Drs. Chittock and
Sutcliffe are dismissed, as there is no evidentiary basis upon which to
conclude that they did or failed to do anything that caused or contributed to
Shannon Kemp’s death on June 28, 2007 at the VGH Emergency.

[324]       
I also dismiss the claims as against Drs. Sweet and Abu-Laban in
negligence, as the Plaintiff has failed to prove that either breached the
requisite standard of care in treating Shannon Kemp, nor is there evidence that
anything they did or did not do caused or contributed to her death.

[325]       
Given my conclusions as to the Plaintiff’s negligence claims in relation
to the Defendant Physicians, her claim for nervous shock, which must be founded
in a viable negligence claim, is similarly dismissed.

[326]       
In terms of battery, the Plaintiff did not provide sufficient evidence
to prove that Dr. Abu-Laban committed a battery upon Shannon Kemp when he
prescribed her antibiotic medication prior to her death. Even if the consent to
administer the antibiotics was withdrawn, the Plaintiff has provided no
evidence that Shannon Kemp suffered any harm as a result. It therefore, did not
cause her death as required under s. 2 of the FCA. Accordingly,
this claim also must fail.

[327]       
The sole remaining issue is the Plaintiff’s claim of battery and lack of
informed consent relating to the resuscitation attempt of Shannon Kemp
performed by Dr. Sweet. I find that this claim cannot be determined by way
of summary trial due to direct conflicts in the evidence regarding whether
Shannon Kemp was “full code” throughout the resuscitation as between the
evidence of the Plaintiff and others. Given that a determination of this claim
requires credibility and reliability findings, this is the sole claim that must
proceed to trial in relation to the four Defendant Physicians.

[328]       
In terms of costs, the Court will hear submissions as to costs regarding
the Defendant Physicians’ application in due course at a date and time to be
arranged with opposing counsel and Supreme Court Scheduling in New Westminster.

“The Honourable Madam Justice Arnold-Bailey”