Date: 20070305
Docket: T-291-03
Citation: 2007
FC 246
Ottawa, Ontario, March 5, 2007
PRESENT: The Honourable Madam Justice Hansen
BETWEEN:
BRIAN
DONALD HICKEY
Plaintiff
and
HER
MAJESTY THE QUEEN
Defendant
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1] The Plaintiff,
a federal penitentiary inmate, was administered twice the recommended daily
dose of an antiviral medication by prison health care employees. The Plaintiff
alleges that this over medication caused him to develop a painful peripheral
sensory neuropathy from which he continues to suffer today. He seeks damages
for the Defendant’s negligence.
Issues
[2] The
issues as framed by the parties are the following:
1.
On a balance of probabilities, was the onset of peripheral
neuropathy in the Plaintiff caused by the over-dosage of d4T?
2.
Given the decision in Oswald v. Canada, [1997] F.C.J. No.
203, is the Plaintiff precluded from suing Correctional Service Canada (CSC)?
3.
Does Correctional Service Canada owe a higher standard of care to
the inmates in its charge because of its position of absolute control?
4.
Is the action defeated by the British Columbia Limitations Act,
R.S.B.C. 1996, c. 266?
5.
If liability is established, what quantum of damages should be
awarded to the Plaintiff?
[3] Although,
as will be seen below, the principles articulated in Oswald are
determinative of the outcome of this action, in my view, it is important from
the Plaintiff’s perspective to have the negligence claim considered on its
merits.
Agreed Facts
[4] The
following is a recital of the agreed facts. The Plaintiff’s first penitentiary
placement was at Matsqui Institution in British Columbia in June 1996. In
1998, he was transferred to Kent Institution in British Columbia. This was
followed by an involuntary transfer to the Special Handling Unit (SHU) in Quebec.
He was released to Millhaven Institution in May 2000 and in August of the same
year he was voluntarily transferred to Kingston Penitentiary. In May 2001, he
was transferred to Warkworth Institution where he is presently incarcerated.
[5] At
Matsqui it became known that the Plaintiff was infected with the human
immunodeficiency virus (HIV). Dr. E. Dick was the institutional physician at
Matsqui rendering health care at the institution pursuant to a contract between
Dr. Dick and Correctional Service Canada.
[6] The
Plaintiff was referred to an outside physician to receive medical care and
treatment from an HIV specialist, Dr. J. Montaner, Director of the AIDS
Research Program and the Infectious Disease Clinic affiliated with St. Paul’s
Hospital in Vancouver, British Columbia. Dr. Montaner saw the Plaintiff
on two occasions in October and November 1996. He recommended that the
Plaintiff commence a course of antiretroviral medications to treat the HIV.
[7] Dr.
Montaner prescribed an antiretroviral regime of drug therapy that included a
medication called d4T or Stavudine. The prescribed dosage of the d4T was 40 mg
tablets to be administered twice a day. Dr. Dick agreed with Dr. Montaner’s
recommendation and decided to prescribe d4T. However, Dr. Dick erred in the
amount he indicated should be administered to the Plaintiff. The incorrect
dosage was administered by employees of the Health Care Unit (HCU) until about
February 1997. (The parties acknowledged in the agreed statement of facts that
this will require further interpretation by the Court.)
[8] The
parties agree that peripheral neuropathy is a form of nerve damage that can
cause the symptoms indicated. They also agree that pain from this condition
can be severe and may result in hypersensitivity to touch resulting in it being
unbearable to wear shoes, socks or to lie under bedclothes.
[9] The
Plaintiff was also seen by Drs. Ford and Keyes. They are in agreement with
respect to the following:
-
The Plaintiff had and still has peripheral neuropathy which was
both symptomatic and demonstrable on electro-physiological assessment and that
symptomatically this neuropathy involved both hands and lower legs.
-
The medication d4T can cause neuropathy even in recommended
doses.
-
HIV can also cause neuropathy.
-
The Plaintiff was given an incorrect dose.
-
The correct and widely accepted procedure in the event of a
neuropathy occurring in a patient taking d4T is to stop the medication until
symptoms resolve and restart at a dosage less than the maximum recommended.
-
Dr. Montaner stated in a letter to the Plaintiff’s attending
physician that his neuropathy was related to d4T.
[10] Before
turning to a review of the evidence, a brief explanation of some of the terms
used below will facilitate an understanding of the facts. D4T, also known as
Stavudine or Zerit, is one of a class of medications commonly used in
conjunction with other drugs to treat HIV. The notation “bid” in a
prescription indicates that the medication should be administered twice per
day, “qid” indicates that it should be taken four times per day, and “po” means
that it is administered orally. The viral load is a measure of the level of
virus circulating in the blood stream and is, therefore, also a measure of the
amount of virus in the tissues of the body. A CD4 count is a measure of the
number of circulating lymphocytes in the blood stream and in the tissues of the
body.
Evidence
[11] In
June 1996, it became known that the Plaintiff was infected with HIV and tested
positive for hepatitis C. His earlier tests for HIV in 1994 and 1995 were
negative. The Plaintiff was referred to Dr. Montaner who saw him in October
and November 1996.
[12] Following
a physical examination and laboratory testing, Dr. Montaner reported the
results of his consultation to Dr. Dick, the institutional physician at
Matsqui, on November 15, 1996.
[13] In
his report, Dr. Montaner noted that the Plaintiff’s CD4 count was moderately
low at 340 and his viral load was high at 89,000 copies/ml.. Dr. Montaner
observed that this testing indicated a moderately advanced immunodeficiency and
that the Plaintiff should be offered antiretroviral therapy. Dr. Montaner
detailed two possible types of drug therapies. Following a discussion of the
two potential therapies, Dr. Montaner writes “[i]f you so agree, I would
recommend that he be offered d4T 40 mgs po bid plus 3TC 150 mgs po bid plus
Indinavir 800 mgs po tid.”
[14] Dr.
Dick’s November 18, 2006 entry in the Plaintiff’s Doctor’s Orders and Progress
Notes (Progress Notes) states that Dr. Montaner “recommended triple therapy”
and something for generalized pain. It continues as follows:
“Rx Frost 642
… pain
d4T 40 mg po
qid
3TC 150 mg po
bid
?Indinavir
(check with Dr. Montaner)”
A further entry the same day
indicates that someone checked with Dr. Montaner concerning the Indinavir.
[15] According
to the Progress Notes, the Plaintiff was first administered the d4T, together
with the other two HIV medications on November 18, 2006. The dosage of the d4T
given to the Plaintiff was 40 mg. four times per day. The December 18, 1996,
entry in the Progress Notes indicates that Dr. Dick discussed the use of
morphine for pain control and the fact that Dr. Montaner had not made any
recommendation for pain relief. Dr. Dick advised the Plaintiff that morphine
would not be used at that point in time.
[16] On
January 3, 1997, the Plaintiff complained to the nursing staff that he was not
on the triple therapy.
[17] On
January 16, 1997, an Advocacy Services Developer with the British Columbia
Persons with AIDS Society wrote to Dr. Dick in response to a telephone call
from the Plaintiff a “number of weeks” earlier requesting assistance regarding
concerns he had with his medical treatment, in particular, the pain he was
experiencing. The writer relates that the Plaintiff informed him that he
suffers from chronic pain in the legs, knees and back due to various injuries
and broken bones sustained over the years. The Plaintiff also reported an
increase in the pain that he attributed to the progression of his HIV disease
and that the pain was unbearable.
[18] On
January 17, 1997, the Plaintiff informed the HCU that he had stopped taking his
antiviral agents. He was advised by the staff that this was unwise. An entry
in the Progress Notes later the same day, indicates that the Plaintiff had
returned all of his medications to the HCU. According to the Progress Notes,
the Plaintiff informed the HCU staff on February 12, 1997 that he had started
taking his HIV medications. On this same day, the entry in the Progress Notes
indicates that the d4T should be twice daily and not four times daily.
[19] The
Plaintiff saw Dr. Montaner again on September 11, 1997. Dr. Montaner reported
to Dr. Dick on that same day as follows:
… He [the Plaintiff] tells me
that he was able to tolerate the medications without problems and within
several weeks of starting the treatment, his viral load had come down to 560
copies/ml.. My secretary contacted the laboratory at St. Paul’s Hospital and
we were not able to find objective evidence of this result. It would be
greatly appreciated if you could clarify this for me.
We did find in St. Paul’s
laboratory a plasma viral load from January 1997, which was high at 57,000
copies/ml.. This is rather worrisome, because it would indicate that while he
was taking treatment his viral load was extremely high and therefore it would suggest
that he has developed resistance. Once again, when specifically interrogated
as to whether or not he was taking treatment during those dates, he could not
be perfectly clear about it. He is under the impression that he took the
treatment until about 3-4 months ago. It would be greatly appreciated if you
could provide me with objective information regarding the history of
antiretroviral therapy used by Mr. Hickey. Similarly, I would appreciate it if
you could provide me with details regarding dosage and compliance.
Mr. Hickey also indicated that he
was taking d4T at a dose of 40 mg. four times daily which would be twice the
recommended dose. In the context of this, it is not surprising the fact that
he complains of leg aches and throbbing pains compatible with persistent
peripheral neuropathy, which often results as a complication of d4T therapy.
This is more likely to occur if higher doses of d4T have been used. He tells
me the symptoms have been present for well over six months and that they
started progressively since he stated the treatment.
[20] Dr.
Montaner expressed concern with the Plaintiff’s report that he had not been
taking the HIV medication, Indinavir, at precisely eight hour intervals as
recommended. He also discussed other treatment options and the importance of
determining whether the Plaintiff had developed a resistance to the medications
and requested further information regarding the particular medications the
Plaintiff had been taking and the timing of the medications. As to the
alternative treatment options, he observes that one of the drugs could cause a
worsening of the peripheral neuropathy. For this reason, he recommended a
consultation with a neurologist prior to adopting a different treatment.
[21] Dr.
Dick responded to the request for information on September 17, 1997. He
reported that the Plaintiff had complained of leg pain prior to any antiviral
therapy and wanted narcotics for the pain. He stated that the Plaintiff had
started antiviral therapy on November 18, 1996, however, the d4T was started at
40 mg. four times daily until the error was discovered in January when it was
change to 40 mg. twice daily. On January 17, 1997, the Plaintiff told him that
he had stopped taking the antiviral drugs and he had cautioned him about the
possibility of becoming resistant to the medications. On February 12, 1997 the
Plaintiff told him that he had resumed taking his antiviral medications. Dr.
Dick also included the following summary of the results of the relevant
laboratory tests: the CD4 counts were 460 in June 1996, 340 in October 1996,
700 in January 1997, 750 in March 1997, and 740 in June 1997; the viral loads
were 570 in January 1997, 880 in March 1997, and 57,000 in June 1997.
[22] The
Crown called Dr. Keyes as an expert witness. With the consent of the
Plaintiff, he was qualified as an expert in the field of neurology and
neurophysiology particularly as these areas related to the treatment of HIV and
AIDS patients for the purpose of providing an opinion as to the cause, symptoms
and treatment of peripheral neuropathy generally and as it relates specifically
to the Plaintiff.
[23] Dr.
Keyes first saw the Plaintiff in October 1997 at the request of Drs. Montaner
and Dick. According to Dr. Keyes, at this consultation, the Plaintiff
complained of lower limb pain, sensory changes and cold sensations in both legs
from the toes to the knees, global weakness in both lower legs, a global loss
of muscle bulk associated with a significant weight loss, and a numbness and
freezing sensation in the fingers of both hands. The Plaintiff stated that the
lower leg symptoms began while he was receiving the triple antiviral therapy
consisting of 3TC, indinavir, and a third antiretroviral. He could not
remember the name of the third drug. The Plaintiff also reported that he had
taken the antiretroviral medications for six months but had stopped taking the
antiretroviral medications several months prior to his consultation with Dr.
Keyes.
[24] Based
upon his physical and neurological examination of the Plaintiff, Dr. Keyes was
of the opinion at that time that the Plaintiff had a very mild to mild
peripheral sensory neuropathy involving the lower limbs only with a greater
involvement in the left lower limb. Nerve root irritation in the lower back
was suspected as contributing to the left lower symptoms in particular.
[25] Dr.
Keyes concluded that the cause of peripheral sensory neuropathy was most
probably related to the HIV disease and that the antiretroviral medications
were a less likely possibility given that the Plaintiff had stopped taking
those medications several months prior to the October 1, 1997
consultation. Dr. Keyes was also concerned that the Plaintiff’s lower limb
symptoms were also related to his lower back problems. For this reason, he
recommended that the Plaintiff undergo a CT scan to evaluate the presence or
absence of lower back nerve root dysfunction. He also recommended that the
Plaintiff undergo a nerve conduction study and EMG to evaluate the type and
extent of the peripheral neuropathy.
[26] Dr.
Keyes recommended to the Plaintiff that the best treatment for his peripheral
neuropathy was to restart his antiretroviral medication to suppress the HIV
virus which, in turn, would improve his immune system function and would
probably result in gradual improvement in the peripheral neuropathy. The
Plaintiff indicated to Dr. Keyes that he was not inclined to take
antiretroviral medications.
[27] On
January 12, 1998 after a significant amount of HIV medications were found
during a search of the Plaintiff’s cell, he acknowledged to HCU staff that he
had not taken his antiviral medications since January 1997.
[28] The
Plaintiff saw Dr. Keyes on March 9, 1998 for a neurological reassessment and
for the recommended nerve conduction study and EMG. On that date the Plaintiff
stated that all of his symptoms, particularly his lower limb symptoms, had
worsened since the first consultation. He had increasing pain in his left leg
that was burning, throbbing, and aching. He had similar but less severe
symptoms in his right leg. He also complained of pain involving his neck and
back.
[29] Based
on his neurological assessment, Dr. Keyes found that the Plaintiff’s
neurological findings remained unchanged and were no worse in comparison to the
October 1997 assessment. That is, there were signs of a mild persistent but
not progressive peripheral neuropathy.
[30] Based
on the nerve conduction and EMG studies, Dr. Keyes was of the view that the
Plaintiff had no neurophysiological evidence of any significant abnormalities
affecting the sensory or motor nerves in the upper limbs that would cause any
of his upper limb symptoms. With regard to the lower limbs, Dr. Keyes noted
that the Plaintiff had a very mildly abnormal nerve conduction study affecting
the lower limbs consistent with a mild peripheral sensory neuropathy and a very
mild motor neuropathy of the lower limbs. Dr. Keyes reiterated his earlier
concern that nerve root irritation or compression in the lower back remained a
possible explanation for the Plaintiff’s lower limb symptoms. He repeated his
earlier recommendation that the Plaintiff undergo a CT scan to evaluate this
possibility.
[31] A
subsequent CT scan in July 1999 revealed a disc protrusion in the lower back
and at one level lower, a bulging disc and thickening of the ligaments. This
suggested to Dr. Keyes that the difference in the Plaintiff’s symptoms between
the left and right leg, with the left leg being more symptomatic, was in part
related to the disc abnormality. As well, the combined effect of the two
abnormalities explained the lower back pain.
[32] Dr. Keyes explained that a clinical differentiation between a
d4T type drug- induced peripheral neuropathy and an HIV/AIDS related peripheral
neuropathy is very difficult because they often have the same symptoms. Both
types are primarily sensory in nature with pain, numbness, and tingling
involving the toes and feet. The HIV related neuropathy has a somewhat higher
incidence of involvement of the motor nerves. The drug-induced neuropathy has
a slightly increased incidence of pain compared to the HIV neuropathy.
[33] In
terms of a cure, Dr. Keyes explained that HIV neuropathy like the HIV disease
itself cannot be cured. The maximum improvement can be achieved by treatment
of the HIV disease and suppression of the HIV virus within the peripheral
nerves affected by the virus. If this is successfully done, a patient can see
significant symptomatic improvement and in some cases symptomatic resolution.
However, this does not indicate that the peripheral neuropathy has been cured.
It simply means that it is being held “at bay” like the underlying disease.
[34] In
contrast, with a drug-induced peripheral neuropathy, once the drug is
discontinued the majority of individuals experience a symptomatic resolution
and cure.
[35] According
to Dr. Keyes, this is one of the ways in which the two types of peripheral
neuropathy can be distinguished. In those instances where an individual has
HIV and is taking a d4T type medication and it is not known whether one or both
are contributing to the peripheral neuropathy, the appropriate treatment is to
stop the drug and treat the HIV with a combination of antiretrovirals to
suppress the HIV virus and maximize the potential recovery of the preripheral
neuropathy due to HIV.
[36] Typically,
in those individuals with a potential combination of drug-induced and HIV
related peripheral neuropathy, the individual will improve over a period of
weeks or months following the discontinuance of the d4T type drug. If the HIV
remains persistent and untreated or unresponsive for a variety of reasons, then
the residual clinical symptoms are probably related to HIV.
[37] This
is explained by the fact that HIV and d4T type drugs affect the cells of the
peripheral nerve fibers differently. D4T type drugs cause mitochondrial
dysfunction. The mitochondria allow a cell to take in and process the
nutrients it requires to stay alive. The HIV virus is directly toxic to and
causes a disruption of the individual cell structure that allows nerve impulses
to move through the body, for example, from the spinal cord, into the leg and
down to the foot. Discontinuance of a d4T type drug permits the mitochondria
in the cells to repair themselves and the cell function will return to normal.
Although the timeframe for this to occur is variable, typically six months or
more after the drug has been discontinued, the effect of the drug on the
peripheral nerves is no longer a factor and is no longer present. The hallmark
of a d4T type drug-induced neuropathy is the improvement and resolution in the
majority of cases after discontinuing the drug.
[38] With
HIV related neuropathy, the treatment of the HIV permits the cell structure,
not the mitochondria to recover. Typically the recovery process for
HIV-induced neuropathy is much longer than the drug-related neuropathy with a
minimum timeframe for recovery being twelve to twenty-four months.
[39] Accordingly,
for those individuals with both HIV and drug-related neuropathy, improvement
occurs in two phases. Upon discontinuing the d4T type medication, improvement
is seen over a three to six month period but the symptoms do not resolve. For
those individuals who are also being treated for the underlying HIV, over the
subsequent six to eighteen months further improvement is evident.
[40] This
is do to the fact that mitochondrial improvement is more rapid than cell
structure improvement, that is, the reconstruction of the anatomy of the
peripheral nerve is a slower process.
[41] In
terms of whether the recovery rate would be affected by the fact that the
dosage of d4T administered is twice the upper recommended limit, Dr. Keyes made
the following observations. First, even in those individuals who have received
an appropriate dose of d4T, the approximate rate of peripheral neuropathy
occurrence is 25%. Second, the recovery rate from d4T-induced neuropathy is
related to a number of factors, such as, individual patient sensitivity and
the influence of other drugs.
[42] In
general, the higher the dose of a d4T type drug, the more likely the occurrence
of a drug-induced neuropathy. Further, the longer the drug is administered
there is a greater likely hood of neuropathy.
[43] While
there is an increased incidence of peripheral neuropathy associated with an increase
in the dosage of the d4T, it does not appear to affect the long-term outcome to
the extent that this can be stated given the small numbers of individuals who
have been administered increased doses.
[44] As
to the likelihood of developing peripheral neuropathy with HIV/AIDS,
Dr. Keyes noted that the incidence of HIV induced neuropathy varies from
5-10% of all individuals having a low viral load and a high CD4 count.
However, the longer the HIV disease is untreated or under treated, the greater
the incidence of neurological complications. The average incidence of
peripheral neuropathy in patients with HIV being 30-35% and, with the use of
nerve conduction studies, the incidence is 40-50%.
[45] In
Dr. Keyes’ opinion, given the length of time that the Plaintiff took the d4T,
the less the likelihood that the peripheral neuropathy observed in October 1997
was related to the d4T and that it was more likely related to HIV.
[46] As
well, the longer an individual is off d4T, the more likely it will be to notice
improvement from drug-induced neuropathy. Since the Plaintiff was off the d4T
for approximately eight or nine months prior to being examined in October 1997,
any potential contribution of the d4T would have been virtually nil and the
persistence and presence of neuropathy at that time was related to the HIV that
had not been treated over that same time period.
[47] Dr.
Keyes acknowledged that the information he received in October 1997 as to when
the Plaintiff was diagnosed with HIV and the length of time the Plaintiff took
the antiretroviral medications was not reliable. With the correct information
regarding the date of the HIV diagnosis and the length of time the Plaintiff
took the medications, Dr. Keyes’ opinion remained unchanged that HIV was the
primary cause of the peripheral neuropathy observed in October 1997 and it is
certainly the cause of the persistent symptoms at this time.
[48] The Plaintiff called Dr. Peter Ford as an expert witness. He
was qualified as an expert witness, namely, as a physician with particular
expertise in HIV/AIDS and its treatment. He provided the following
evidence.
[49] He
first saw the Plaintiff and examined him in August 2000. At that time, he
reviewed the Plaintiff’s chart and was aware that the Plaintiff had been
administered an incorrect dose of d4T. The Plaintiff complained of a burning
pain in his feet and legs that had started about two weeks after he began
taking antiviral medications. The Plaintiff stated to him that he was
continued on the correct dose of d4T after the incorrect dose was discovered.
He also reported that he did not stop taking the medication until an AIDS
agency in Vancouver told him that it was likely his symptoms were a
complication of the drug therapy. Dr. Ford noted from the chart that on
several occasions the Plaintiff complained of leg pain. Although, the nature
of the pain was never clarified, it appeared that the complaints started
shortly after the Plaintiff started taking the d4T. A physical examination was
not done until September 1997 when he was diagnosed with peripheral neuropathy.
[50] When
Dr. Ford examined the Plaintiff in August 2000, the neuropathy was still
clearly present and very painful. Further, the neuropathy not only involved
the legs and feet but the hands as well. There were signs of sensory loss and
dysesthesia in the legs and the hands. Dr. Ford was unable to comment on
whether the neuropathy had become worse after its onset in 1996 but noted that
it certainly had not gotten better.
[51] Dr.
Ford testified that the three drugs initially prescribed for the Plaintiff’s
HIV infection were the standard initiation therapy for HIV at that time.
However, the dosage for the d4T as recorded in the Plaintiff’s chart was twice
the upper recommended dose of 40 mg. twice per day. Dr. Ford was under the
impression that the Plaintiff took the incorrect dose of the d4T for almost two
months.
[52] Regarding
the question of what caused the Plaintiff’s peripheral neuropathy,
Dr. Ford noted that HIV alone is capable of producing peripheral
neuropathy and, in fact, is one of the most common neurological complications
of the disease. However, in the Plaintiff’s case the peripheral neuropathy is
not likely due to HIV alone because HIV induced peripheral neuropathy usually
comes on slowly and usually just involves the legs with the hands becoming
involved later. According to Dr. Ford, when a patient presents with peripheral
neuropathy symptoms in the legs and hands one thinks of drug toxicity. Dr. Ford
observed that the Plaintiff had symptoms in hands, feet, and lower legs when he
was examined by Dr. Keyes.
[53] In
Dr. Ford’s opinion, there is a high degree of probability that the incorrect
dose of d4T caused the Plaintiff’s peripheral neuropathy. Dr. Ford based this
opinion on two key factors, the Plaintiff’s description of the pain and the
temporal association of the onset of symptoms and the start of the d4T.
[54] In
the literature, peripheral neuropathy is a well known side effect of d4T when
40 mg. is taken twice a day. As well, the larger the dose of the d4T
administered, the quicker the onset of the neuropathy.
[55] In
terms of the timing of the onset of the Plaintiff’s peripheral neuropathy,
Dr. Ford testified that it was known in 1996 that a pre-existing
peripheral neuropathy which can occur as part of an HIV infection could be made
worse by d4T. For this reason, it was unlikely that d4T would have been
prescribed had there been a pre-existing peripheral neuropathy. As well, if it
had been prescribed it would have been in a much lower dose. Additionally, Dr.
Montaner did not mention peripheral neuropathy when he first saw the Plaintiff
prior to being administered d4T. From this it can be inferred that prior to
taking the d4T, the Plaintiff did not have peripheral neuropathy symptoms prior
to taking d4T.
[56] Based
on the fact that the pain the Plaintiff complained of in late 1996 was similar
to the pain the Plaintiff was experiencing in September 1997 when he was
diagnosed with peripheral neuropathy, Dr. Ford concluded that the Plaintiff’s
symptoms in late 1996 were due to neuropathy.
[57] Dr.
Ford observed that although the Plaintiff’s statements regarding the first
onset of symptoms vary, it would appear that he started to experience painful
symptoms three days to two weeks after he started to take d4T. This rapid
painful onset is consistent with drug-related neuropathy and is not consistent
with HIV-induced neuropathy. Although HIV related peripheral neuropathy can be
painful, it usually not acutely onset painful and usually comes on over a
period of months or years. However, the temporal association of complaints
with overdose of drug would be strongly suggestive that it was caused by the
d4T.
[58] Dr.
Ford based his opinion that the peripheral neuropathy was dose related on the
clinical trials of d4T when it was found that at a dose of 40mg. twice a day,
the chance of developing neuropathy in the first six months of therapy was
about 23%. However, the chance of developing neuropathy was significantly less
at about 15% on a dose of 30mg. per day. Further, the higher the dose of the
drug, the quicker the onset of the neuropathy.
[59] Dr.
Ford also observed that the correct procedure to follow upon realizing an error
in dosage would be to correct the dosage if there were no symptoms of
peripheral neuropathy present. In the presence of symptoms, the medication
should be stopped. The d4T may be restarted if the symptoms disappear or
improve but at a lower dose usually not greater than 30 mg. twice a day. If
the d4T is not stopped initially upon the appearance of the neuropathy and the
dose is not reduced, the peripheral neuropathy will persist and will likely
progress.
[60] With
regard to the question as to whether drug-induced peripheral neuropathy is
reversible, in Dr. Ford’s opinion if it is detected early and the drug is
stopped it seems to get better. However, it is generally recognized that if
the drug is not stopped and continued as symptoms worsen, the peripheral neuropathy
may persist and not get a lot better. According to the literature, once a
severe toxicity from d4T is established with damage to the nerves, it may not
improve.
[61] Dr.
Ford disagrees with Dr. Keyes on the issue of mitochondrial involvement. In
Dr. Ford’s view, the Plaintiff’s neuropathy is a consequence of a direct toxic
affect on the nerve.
[62] Finally,
Dr. Ford acknowledges the only way that a firm diagnosis of drug‑induced
peripheral neuropathy can be made is if the peripheral neuropathy resolves
after stopping the drug. If the symptoms persist following drug withdrawal,
other causes may be present.
[63] The Plaintiff testified that prior to taking the antiviral
medications he had pain in his middle and lower back and left knee. After
starting the antiviral medications in November 1996, he states that he started
to feel numbness in his toes and the top of the instep and a burning sensation
in the soles of his feet. At times, he also felt a numbness in his fingers.
He first noticed the new symptoms within a few days of starting the HIV
medications.
[64] He
states that he went to the HCU to complain about the pain in his feet about one
week after he started the HIV therapy. Dr. Dick told the Plaintiff that there
was nothing wrong and did not do anything for the pain.
[65] The
Plaintiff states that things got so bad he telephoned the British Columbia
People with AIDS Society. The individual to whom he spoke upon being told the
amount of d4T the Plaintiff was taking told him to stop immediately because he
was taking too much of the medication. He testified that he stopped taking the
HIV medications at that time.
[66] The
Plaintiff testified that he thinks he took the antiviral medications for about
three or four months even though others say it was only six to ten weeks. He
acknowledges that he only took the HIV medications for any period of time
twice. The first time being when he was initially prescribed the medications
and the second time when he was at Millhaven.
[67] He
also testified that he was on and off his antiretroviral medications numerous
times over the past ten years. This was due to the fact that the antiviral
medications make him violently ill and he was not given any medications for
this side effect.
[68] The Crown also called Mr. Maurice Giroux, a registered nurse
employed by Correctional Service Canada as Chief of Health Services at
Warkworth Institution, to testify. He is responsible for coordinating all
aspects of health care to the inmate population.
[69] He
testified that the institutional physician is generally a contract position.
As these physicians are generally family practice practitioners, inmates are
often referred to outside specialists for consultation. These specialists then
report their findings to the institutional physician who will make a decision
concerning the course of treatment
[70] In
terms of checks in the system to ensure that prescriptions are properly
recorded, Mr. Giroux testified that the inmate files are checked and physician’s
orders are reviewed. Usually, it is the institutional pharmacists who detect
problems, such as, conflicting medications or an incorrect dosage. In these
instances, the institutional physician is contacted prior to the prescription
being filled.
[71] Mr.
Giroux noted that it is only in the last few years that CSC has its own
pharmacy and has employed pharmacists. Prior to this, at least in the Ontario
region, CSC had pharmacists on contract.
[72] Finally,
with regard to the November 18, 1996 entry in the Progress Notes, RX, dr5 40 mg
po qid, Mr. Giroux testified that this would be done by the institutional
physician.
Analysis
[73] 1.
On a balance of probabilities, was the onset of peripheral neuropathy in
the Plaintiff caused by the over-dosage of d4T?
[74] During
oral argument, the Plaintiff reframed the question as whether the incorrect
dose of the d4T caused the onset or contributed to the onset of the peripheral
neuropathy.
[75] The
Plaintiff points to the following evidence in support of his assertion that the
peripheral neuropathy was due to drug toxicity.
-
There is nothing in the medical notes indicating that the
Plaintiff complained of pain consistent with peripheral neuropathy prior to
taking d4T.
-
The Plaintiff’s complaints of peripheral neuropathy type pain
started shortly after the administration of the d4T.
-
The Plaintiff’s lower viral load and increased CD4 count suggest
he took the d4T until at least January 3, 1997.
-
According to the Progress Notes, the Plaintiff restarted the d4T
on February 12, 1997.
-
The Defendant’s answer on written discoveries indicates that the
Plaintiff was given antiretrovirals up until the fall of 1997, however, the
evidence of hoarding the medication indicates there may have been periods of
non-compliance.
-
Dr. Ford’s opinion that the peripheral neuropathy was caused by
drug toxicity.
[76] The
Plaintiff also relies on an October 1999 letter from Dr. Montaner to the
institutional physician at Kent Institution. In the post script, he stated in
response to a question from the Plaintiff regarding the potential consequences
of a double dose of d4T that d4T “… produces peripheral neuropathy in a
dose dependent fashion and therefore it is quite conceivable that d4T use at
double the current recommended dose could be the source of his peripheral
neuropathy or at least could have contributed to this if indeed he was taking
larger than currently recommended dose.”
[77] The
Plaintiff submits Dr. Keyes’ opinion that the neuropathy was HIV related should
be considered in light of Dr. Keyes’ acknowledgment that the report he prepared
following his first examination of the Plaintiff was based on incomplete
information and that the information he relied on that the Plaintiff had not
taken any d4T after January 3, 1997 was erroneous.
[78] The
Plaintiff also points out that there is no objective scientific evidence upon
which it can be concluded that an individual would recover from a peripheral
neuropathy caused by d4T administered above the recommended dosage and
restarted at the maximum recommended dosage after a one mouth gap.
[79] For
the following reasons, I find that the Plaintiff has failed to establish on a
balance of probabilities a causal link between the over prescription of the d4T
and the peripheral neuropathy.
[80] Regarding
the time period that the Plaintiff took the d4T at the incorrect dosage, I find
as
a fact that he took the incorrect
dosage between November 18, 1996 and January 3, 1997 and at the latest January
17, 1997. I make this finding on the basis of the Plaintiff’s evidence at
trial and the statements he made at various times to physicians and others as
set out earlier in these reasons. I also find that there is no evidence to
support the Plaintiff having taken the d4T at the recommended dose between the
middle of February 1997 and October 1997. Counsel for the Plaintiff argues
that the Plaintiff started taking the d4T again in February. He bases this
assertion on the entry in the Progress Notes that the Plaintiff was given the
correct dose of the d4T in February and the fact that his viral loads did not
drop until March 1997. First, although the Progress Notes indicate that he was
given the d4T, the Plaintiff himself stated that he did not take the medication
at that time. As well, this was specifically addressed in Dr. Keyes’ expert
report at page 30. He states:
… It is clear that the patient
was not taking his antiretrovirals medications after January 1997 as his viral
loads began to climb again in March 1997 and remained elevated up to and
including the times of the October 1997 and March 1998 clinical neurological
assessments.
[81] There
is no dispute between the parties that d4T type drugs and HIV can be the cause
of peripheral neuropathy. There is also no dispute that drug-induced
neuropathy is dose dependant.
[82] Dr.
Ford grounds his opinion on the temporal association between the onset of
symptoms and the administration of the d4T and the nature of the symptoms. Dr.
Keyes does not disagree with Dr. Ford on these two points, however, he points
out that while the onset of HIV neuropathy is generally slower, in some cases
there may be a more rapid onset and the same symptoms may be evident.
[83] I
find Dr. Keyes’ evidence concerning the basis upon which drug-induced
neuropathy and HIV related neuropathy may be differentiated to be persuasive.
Although the onset and symptoms of the two types may be similar, the damage
that each type causes and the recovery rates differ. The damage caused by d4T
type drugs is to the mitochondria. This damage will be repaired in a
relatively short period of time once the medication is stopped. In contrast,
the HIV virus causes damage to the cell structure itself. While suppression of
the virus will permit the cell to repair the damage, this is a much longer
process.
[84] Although
drug-related neuropathy is dose dependent, there is no evidence to suggest that
the damage to the mitochondria will be more lasting or incapable of repair.
Given that there appears to have been no significant change in the Plaintiff’s
neuropathy after he discontinued the medication in January 1997, I conclude
that it is more likely that the Plaintiff’s peripheral neuropathy was and
continues to be HIV related.
[85] The
Plaintiff also argued that since his viral loads increased and his CD4 count
went down after discontinuing the d4T, some progression in the neuropathy would
be expected if it was HIV related, however, there was no significant change.
The underlying assumption of the argument is that the neuropathy would become
worse in these circumstances, however, there is no evidence before the Court as
to how HIV neuropathy progresses as viral loads increase nor is there any
evidence with regard to the length of time such progression would take.
[86] 2.
Given the decision in Oswald, is the Plaintiff precluded from
suing Correctional Service Canada?
[87] In
Oswald, an action in negligence brought by an inmate against the Crown,
a dental surgeon was found to have been negligent in the performance of surgery
on an inmate who was incarcerated in a correctional facility operated by CSC.
The Court held that the Crown was not liable in damages for the harm caused by
the negligence of an independent contracting dentist.
[88] The
Plaintiff does not dispute that this is the law today, however, the Plaintiff
maintains that the decision in Oswald is distinguishable on its facts.
In summary, the Plaintiff submits that in the present case CSC acted correctly
in referring the case to Dr. Montaner, Dr. Montaner’s recommendation regarding
the d4T was correct, however, Dr. Dick committed a clerical error in recording
the dosage incorrectly. The Plaintiff takes the position that pursuant to
section 86 of the Corrections and Conditional Release Act, S.C. 1992, c.
20, there should have been checks in place to catch such an error. As a result
of the clerical error, CSC administered an incorrect dosage of the d4T and, as
such, committed a tort. Accordingly, this is not a case about the negligence
of a health care professional in the performance of a health care function,
instead, it was a clerical error.
[89] This
argument is premised on the Plaintiff’s characterization that the November 18,
1996 entry in the Progress Notes was a clerical recording error. In my opinion,
the evidence does not support this assertion. It is clear from Dr. Montaner’s
November 15, 1996 letter that he was making a recommendation regarding a
treatment option for Dr. Dick’s consideration. It is equally clear from the
November 18, 1996 entry in the Progress Notes that Dr. Dick considered the
contents of Dr. Montaner’s letter as a recommendation. Of greater
significance, is the fact that the entry indicates that Dr. Dick was the
prescribing physician. I take from this evidence that although Dr. Montaner
made certain recommendations, the decision with respect to the treatment that
would be given to the Plaintiff was Dr. Dick’s responsibility and was made by
him in his professional capacity.
[90] As
the evidence also clearly establishes that Dr. Dick was an independent
contractor, the present case is not distinguishable on its facts from the
decision in Oswald. Accordingly, I find that no action lies against the
Crown for the negligence of its independent contractor, Dr. Dick.
[91] 3.
Does Correctional Service Canada owe a higher standard of care to the
inmates in its charge because of its position of absolute control?
[92] In
final argument, Counsel for the Plaintiff advanced a novel argument to the
effect that under section 86 of the Corrections and Conditional Release Act,
CSC has a legislated duty to provide health care to the inmates in accordance
with recognized community standards. Since CSC is in a fiduciary relationship
with the inmates and owes a fiduciary duty to the inmates, this imposes a
higher standard of care on CSC. Generally speaking, medical practitioners are
in a fiduciary relationship with their patients. Since the choice of physician
is entirely within the discretion of CSC, there is a “melding” of the acts of the
physician with CSC. Counsel framed the question for consideration as follows:
“When a physician, even though he is under contract, has a duty to a patient
regardless of the contract and the responsibility of the CSC is to provide
health care, does that lead to a melding of the obligation?”
[93] In
subsequent written submissions, counsel reaffirmed the position he had stated
at the trial management conference that a claim for breach of fiduciary duty
was not being pursued as a separate head of damages, instead, the Court was
being asked to hold CSC to a higher standard of care when assessing the duty of
care and to award increased damages over that which may have otherwise been
awarded due to the relative vulnerability of the inmate. In other words, the
Plaintiff is arguing that there is an “enhanced standard of care.”
[94] In
effect, the Plaintiff is submitting that CSC should be held liable for torts
about which it knows or should have been aware. While this is an interesting
argument, there is insufficient evidence in the present case to support the
argument.
[95] Although
Mr. Giroux testified about checks that are in place to avoid administering
conflicting medications or an incorrect dose of the medication, all of his
evidence was in relation to current day practices. No evidence was tendered
with respect to matters such as whether there were staff pharmacists at the
relevant time who may have detected the error, the checks in place at the time
to avoid recording errors, the level of knowledge of the medical staff or the
expected level of knowledge of the medical staff having regard to what was
known about drugs in the d4T category.
[96] As
I have opted to determine the outcome of this action on the basis of the first
two issues, it is unnecessary to consider the Crown’s Limitations Act
argument. Nor, in my view, having regard to the circumstances of this case is
it necessary to consider the issue of damages.
[97] At
the trial, counsel for the Plaintiff advanced a new argument that was not disclosed
to opposing counsel at the trial management conference when this was
canvassed. In the interests of giving the Plaintiff an opportunity to advance
all of his arguments, I gave the parties an opportunity to file written
submissions after the conclusion of the trial.
[98] The
new argument raised by the Plaintiff centres on section 74 of the Corrections
and Conditional Release Act. Section 74 reads:
|
The Service shall provide inmates with the opportunity to
contribute to decisions of the Service affecting the inmate population as a
whole, or affecting a group within the inmate population, except decisions
relating to security matters.
|
Le Service doit permettre aux détenus de
participer à ses décisions concernant tout ou partie de la population
carcérale, sauf pour les questions de sécurité
|
[99] Counsel
submits that by enacting this provision, Parliament expressly stated that CSC
must provide inmates with the opportunity to contribute to decisions of the CSC
affecting the inmate population other than in those decisions relating to
security matters. There is no dispute that the hiring of institutional
physicians on contract is not a security matter. As a result, counsel submits
that the inmates must be consulted on decisions concerning the hiring of
physicians on contract. The consequence of the failure to consult is that as
between the inmate and CSC, Dr. Dick is to be considered a CSC servant, agent
or employee.
[100] Counsel
submits that the difficult questions associated with ascertaining the content
of the duty to consult can be “obviated” by realizing that all contracts have
benefits and burdens. If the burden does not affect the inmate population, the
contract can be otherwise fully enforced.
[101] Counsel
further argues that the burden the CSC wishes to attach to this contract is
that the inmate population cannot sue CSC because CSC has shielded itself from
tort by ensuring that the individuals on contract are not servants, agents or
employees. Counsel submits that the contract can be upheld by the Court
deciding that the provisions of section 74 are met if the burden “does not hold
against the inmates”.
[102] I
accept the argument of counsel for the Defendant that the Plaintiff, in the
context of an action for damages, is contesting the right of CSC to contract
with physicians without first engaging in consultation. Although I gave the
Plaintiff an opportunity to advance an argument not disclosed at the trial
management conference, any argument must nonetheless arise from the pleadings.
The argument advanced does not arise from the negligence claim nor does it
arise elsewhere in the Plaintiff’s pleadings.
[103] I
also agree with the Crown’s submission that a challenge of this nature ought to
be advanced by way of judicial review. Accordingly, the argument will not be
considered further.
[104] Finally,
the Crown has asked for costs. Although the Crown would be entitled to costs
as the successful party, given the particular circumstances of this case and in
the exercise of my discretion, no costs are awarded.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that: the within action is dismissed
without costs.
“Dolores
M. Hansen”
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