Sutherland v. Canada, 2003 FC 1516

Date: 20031222

Docket: T-2368-00

Citation: 2003 FC 1516

Halifax, Nova Scotia, this 22nd day of December, 2003

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE          

BETWEEN:

                                               GEORGE RAYMOND SUTHERLAND

                                                                                                                                                          Plaintiff

- and -

                                                        HER MAJESTY THE QUEEN

                                                                                                                                                      Defendant

                                               REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 In this action, George Raymond Sutherland (the "plaintiff") claims damages for alleged negligent medical treatment of a venous ulcer which developed on his lower right leg in 1999. The plaintiff was, at all material times, an inmate of Kingston Penitentiary in Kingston, Ontario.

[2]                 Her Majesty the Queen (the "defendant") and her servants operate the federal Kingston Penitentiary as part of the Correctional Service of Canada.

[3]                 Although the plaintiff's statement of claim, dated December 14, 2000, makes allegations in relation to a number of events at the Kingston Penitentiary, many of these issues were resolved prior to trial. The parties agree that the sole issue before this Court is the liability of the defendant for alleged medical mismanagement of the plaintiff's leg injury.

[4]                 The plaintiff claims the defendant breached the standard of medical care it owed him by (i) failing to provide timely medical attention, despite numerous requests; (ii) failing to arrange a timely appointment with a specialist; (iii) failing to provide him with proper medication and medical supplies; and (iv) failing to adequately monitor his medical condition.   

[5]                 As a result of the negligence of the defendant, the plaintiff claims he has suffered damages, including: (i) pain and suffering associated with the open sore; (ii) periodic swelling of the leg, which made walking difficult; (iii) general weakness and a constant feeling of being tired; (iv) loss of weight; (v) an unpleasant odour which emanates from his leg; and (vi) increased stress and mental anxiety.

[6]                 The defendant denies any negligence on its part, taking the position that the plaintiff was tended to on an ongoing basis and has received all reasonable and necessary treatment for a condition of this kind. Furthermore, the defendant states that the plaintiff contributed to any observed worsening of the wound by failing to keep it clean, failing to follow medical instructions to wear a compression stocking, and refusing treatment. The defendant also argues that the plaintiff has not proven that any other approach to treatment would have resulted in faster healing.

[7]                 At trial, the parties entered a two volume Joint Book of Exhibits and a ten page document prepared by Dr. Alan McBride, an institutional physician, that summarizes chronologically the treatment of the plaintiff's leg injury from June 1999 until December 2002. The Joint Book of Exhibits contains the plaintiff's medical records as maintained by the penitentiary, including progress notes, consultation referrals and reports, doctor's orders, medication administration records, treatment records, requests for medical attention forms and various correspondence regarding the plaintiff's treatment.

Factual Background

[8]                 The plaintiff was transferred to the Kingston Penitentiary in the fall of 1998. He was initially placed in the open population, but within months was moved to segregation, where he spent the remainder of his time at the facility, until being transferred to the Kent Institution in British Columbia in January 2002.

Health Services at the Kingston Penitentiary

[9]                 Health care services are made available to inmates of the Kingston Penitentiary in a clinic-type environment, where the inmate is the primary person responsible for the initiation of health service delivery. Inmates who submit a form requesting medical services, internally known as a "KITE", are listed to be seen by the appropriate medical professional, from a nurse to dietician, duty doctor, psychiatrist, dentist and so on. In addition, nurses visit the segregation units on a daily "seg walk" to ensure inmates can withstand the physical and emotional rigours of segregation.

[10]            Medication and supplies are delivered to inmates on the "seg walk" or during a separate visit known as a "medication issue". Inmates can purchase over-the-counter items such as regular tylenol through the penitentiary's canteen. "Nurse's parade" and "doctor's parade" are clinic times held in the penitentiary's health care centre for inmates to obtain health services.

[11]            A multi-level grievance process is in place if inmates are not satisfied with the medical treatment they receive.

[12]            The penitentiary maintains health care records for each inmate in its ordinary course of business. Commissioner's Directive 835, dated May 1, 1995, mandates that

[e]very significant interaction between an inmate and any member of the health services team shall be noted on the offender's health care record, including a summary of the nature of the interaction, the time of the interaction and a description of the action taken by health services staff.

I am satisfied that based on this policy and the testimony of Ian Irving, Chief of Health Services at Kingston Penitentiary, the plaintiff's medical records are admissible not only for their authenticity but also for the truth of their contents, pursuant to section 26 of the Canada Evidence Act, R.S.C. 1985, c. C-5.

Medical Evidence Regarding the Plaintiff's Leg Injury

[13]            While at Kingston Penitentiary, from October 1999 to December 2001, records show more than eighty medical visits relating to his leg ulcer. Below, I have provided an overview of the plaintiff's treatment.

[14]            The plaintiff's leg injury first came to the attention of medical staff on October 20, 1999, when he was assessed in the penitentiary's health care centre for an open scabbed area on his right calf. The plaintiff was prescribed a week's worth of antibiotics and reassessed on October 27, 1999. At that time, nursing staff noted that the wound was scabbed. The plaintiff was directed to cleanse the area with savodil, use a topical antibiotic cream, cover with a bandage if he noticed any drainage and contact a nurse if the leg became swollen or red.

[15]            On October 27, 1999, the plaintiff's leg was reassessed in the health care centre. The wound had a scab over it. The plaintiff was instructed to cleanse the area and cover it with a bandage if he noticed any fluid drainage. A topical antibiotic was prescribed and he was instructed to contact a nurse if his right leg became swollen or red.

[16]            On October 30, 1999 nursing staff noted that the wound was weeping, crusted and red. The plaintiff was encouraged to soak the area three times a day for twenty minutes per time. He was listed to be seen by nursing staff in a few days.

[17]            On November 3, 1999, the wound was still scabbed with a pinpoint-sized open area. The plaintiff was directed to continue the antibiotic, cleanse, and if there was no improvement by the next week he would be listed to see a doctor.

[18]            Three weeks later, on November 24, 1999, the plaintiff was assessed by Dr. Standly, who ordered an x-ray to rule out a bone infection, diabetes testing, a swab culture to determine the nature of the infection, and re-ordered antibiotics. Dr. Standly noted that the plaintiff was to be reassessed in one week.

[19]            In the coming months, the plaintiff's medical records show that his leg ulcer remained problematic. He was prescribed a regimen of antibiotics, topical creams, dressing changes and pain medication. A plastic surgeon, Dr. Shoemaker, was consulted in December 1999.

[20]            In early 2000, the plaintiff failed to appear for a number of dressing changes. In April, Dr. Standly noted some improvement since the earlier course of antibiotics and requested that nurses dress his wound daily until it was healed. A number of April entries state the plaintiff failed to appear for dressing changes.

[21]            Over the next few months, the lesion becomes infected, compression stockings were ordered to encourage blood flow but were delayed in arriving, the lesion became infected again and an appointment was booked to consult with Dr. Henson, a surgeon. By October 2000, Dr. McBride, who took over treatment from St. Standly, noted some improvement. The records state that the plaintiff was instructed on how to change his own dressing and supplies were issued to him for that purpose. In November 2000, the ulcer appeared to be healing well but then became reinfected. The plaintiff continued to refuse to wear the compression stockings because they were uncomfortable. Dr. McBride emphatically requested that the plaintiff be booked in to see a surgeon.

[22]            In January 2001, the plaintiff's leg was very painful and he told medical staff if something was not done, he would slash open the wound. Antibiotics and pain medication was ordered. In February, the plaintiff requested a cane to assist in his walking and requested more pain medication. Dr. John Blakeman, a dermatologist, was consulted and agreed with Dr. McBride's treatment course. The plaintiff was prescribed morphine and given a crutch. He continued to have difficulties with his mobility. Dr. Henson's office cancelled the plaintiff's appointment, which had to be re-booked. The plaintiff refused to go for an x-ray that Dr. McBride had ordered. He was seen by Dr. MacSween, a dermatologist, in mid-February, who endorsed the current treatment and recommended that nurses apply a tensor bandage daily to compress the affected leg.

[23]            The plaintiff was transferred to the Regional Treatment Centre for stabilization of another medical condition in February 2001. While there, Dr. Standly continued to assess the leg ulcer, an occupational therapy assessment was completed, and plastic surgeon Dr. Shoemaker was consulted. Staff noted that the plaintiff was aggressive, manipulating, unco-operative and refused to wear the compression stocking recommended by Dr. Shoemaker.

[24]            Upon his return to the main Kingston Penitentiary facility, treatment of the leg ulcer with antibiotics and pain medication continued. By August 2001, the lesion was observed to be remarkably improved.

[25]            Subsequently, the plaintiff was transferred from the Kingston Penitentiary to the Kent Institution in British Columbia where treatment of his leg ulcer, along with other medical issues, continued. Since the plaintiff has restricted his claim to events at the Kingston facility, it is not crucial to review these subsequent events in any great detail. A concise summary will suffice.

[26]            In late May of 2002, the plaintiff's leg ulcer opened up again. For a few weeks he was seen almost daily by medical staff for dressing changes and application of a topical antibiotic. By mid-June 2002, the ulcer was again visibly improving. The plaintiff was given supplies to maintain self care. At the end of June, when the plaintiff complained of pain and his dressing was changed, scratch marks were noticed around the wound. In early July 2002 the plaintiff refused to attend at the health care centre for his weekly wound assessment.

[27]            After being transferred to the Mission Institution in August 2002, the ulcer was observed to be slowly resolving. In December 2002, the last entry in the parties' agreed summary of treatment indicates some increased swelling of the plaintiff's leg and that antibiotics were prescribed.

[28]            At the time of trial, the plaintiff stated that the ulcer had not yet completely healed.

The Plaintiff's Position

[29]            The plaintiff testified that his leg wound first arose in June 1999 when he was temporarily placed in a dirty cell and not permitted to wash afterwards. He recalls that his right leg became itchy, a rash appeared and eventually an open sore developed. He stated that despite numerous requests for medical attention, the sore was not assessed until a month after it appeared.

[30]            At first the plaintiff was told the wound was an infection, then an ulcer, and then medical staff suggested to him that it was a self-inflicted injury. The plaintiff denies causing the wound and states that he took the best care of it that was possible in the circumstances.

[31]            The plaintiff admits that he does not have a good memory for names of doctors who treated him, dates of when different events happened, or what medication he was prescribed at different points in time. He recalls being given some gauze and gel, pain medication at different times and antibiotics, but insists he was not given an adequate supply of gauze or any instruction on how to use it. He testified that during a couple of periods of time he was forced to use toilet paper to cover the wound even though he regularly asked nurses on their "seg walk" for additional gauze and bandages.

[32]            Eventually, according to the plaintiff, his leg became so painful that he was unable to walk and he became confined to his cell. The plaintiff also testified that he was not given a cane when he asked for one, the wheelchair that was eventually made available to him was stored down a set of stairs from his cell, staff did not assist his mobility, his doctor-ordered medical stocking was delayed for months, and he did not see a specialist soon enough.

[33]            The plaintiff also claims that doctor-ordered dressing changes of his leg were often not done due to staff shortages, security shut-downs, doctors failing to arrive, or when the health care centre was just too busy for him to be seen.

[34]            The plaintiff objects to any suggestion that he often refused treatment. While he admits missing some appointments towards the end of his time at the Kingston Penitentiary, he states that was only because his leg was so painful he was not able to easily leave his cell. He denies refusing treatment at other times and states that penitentiary staff told the health care centre he was refusing treatment when that was not true.

[35]            According to the plaintiff, his leg started to heal when staff attended to him regularly but it became worse again when he was ignored. The plaintiff testified that his leg would have healed long ago if he had been treated properly like he feels he should have been.

[36]            The plaintiff also acknowledges that he was not always a co-operative patient. He testified that he reacted violently when he felt he was being ignored by medical staff, set fires in front of his cell, threw things at the guards to get them to call a nurse for him, and was verbally abusive to nursing staff when he was in pain and frustrated.

[37]            On cross-examination, the plaintiff was challenged on his claim that from June to October 1999 his requests for medical attention were ignored. He defended the lack of request forms in the Joint Book of Exhibits dating from that period by saying that none of the relevant forms were returned to him. He explained that he never filled out a request form complaining of lack of bandages because he relied on his oral requests to nursing staff to be sufficient. The plaintiff testified that he never lodged a grievance because it takes time, doesn't have anything to do with the medical department and would have gone through the hands of guards who disliked him and were ganging up on him.

Plaintiff's Legal Argument

[38]            Plaintiff's counsel phrased the key issue in this case as whether the defendant acted in accordance with section 86 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 which requires inmates to be provided essential and non-essential health care that conforms to professionally-accepted standards.

[39]            The plaintiff accepts that the course of treatment recommended by the penitentiary's doctors was reasonable and would have met the required standard of care, but submits that the medical progress notes reveal significant delays in treatment that led to his suffering and prolonged pain.

[40]            The plaintiff relies heavily on the jointly-entered medical records to make out his negligence claim. The plaintiff emphasizes the following events as critical delays in his treatment:

1.          On November 3, 1999 the plaintiff was to see a doctor in one week if there was no improvement. His leg did not improve but he did not see a doctor until three weeks later.

2.          On November 24, 1999 the notes state he is to be reassessed in one week but he was not seen for a month.

3.          On December 29, 1999 Dr. Shoemaker stated if there is no improvement in a month, he wanted to assess the plaintiff himself but this did not happen for a year.

4.          On March 1, 2000 the plaintiff was to be seen in one week by a doctor, but the next doctor's assessment was April 6, 2000, more than a month later.

5.          On April 6, 2000, a doctor ordered that nurses were to change the dressings daily

until the sore was 100% healed, but dressing changes are noted to only have happened sporadically.

6.          On April 17, 2000 even after a doctor ordered that he was to be reassessed weekly, the plaintiff was not seen again about his leg until June 30, 2000, more than a month and a half later.

7.          On August 4, 2000 compression stockings were ordered, never arrived and were noted twice more to be ordered over the next two months.

8.          On September 25, 2000, Dr. McBride stated that the plaintiff would not heal without surgical intervention, but a surgical consultation was not booked until Dr. McBride requested it again in December 2000.

9.          On October 18, 2000 a venous doppler test to assess blood drainage was booked but never followed up on or performed.

[41]            Even if one or two delays would not show negligence by the defendant, the plaintiff argues that when viewed cumulatively, the systematic delays in executing doctors' orders in this case were significant and constitute a breach of the required standard of care.

[42]            To prove that his condition would have improved had the defendant met the required standard of care, the plaintiff points to periods of treatment such as October of 2000 when regular dressing changes were being done. During those periods, the plaintiff's condition improved and the ulcer responded to treatment. Had the defendant provided attentive care on an on-going basis according to the doctors' orders, the plaintiff submits, he would have suffered much less and healed sooner.

[43]            Relying on Lavoie v. Canada, [2002] F.C.J. No. 310 (T.D.) (QL), 2002 FCT 220, the plaintiff argues that inadequate medical care is not an administrative matter that must be grieved internally before pursued in court.

[44]            As a remedy, the plaintiff seeks general, special, punitive, and aggravated damages as well as pre- and post-judgement interest. The plaintiff also claims costs on a solicitor and client scale.

The Defendant's Position

[45]            The defendant's sole witness was Ian Irving, a registered nurse who is the Chief of Health Services at Kingston Penitentiary. Since Mr. Irving began working at the Kingston Penitentiary only after the plaintiff was transferred to another facility, he never treated the plaintiff.

[46]            Mr. Irving was not offered as a medical expert, but instead provided an overview of health care delivery at the Kingston Penitentiary and assisted the Court in interpreting many of the medical records contained in the Joint Book of Exhibits.

[47]            Having reviewed the plaintiff's medical records, Mr. Irving explained the general approach that penitentiary medical staff took in treating the injury. Initially it appeared to be a wound, but when the lesion did not respond to standard treatment within six months, medical staff diagnosed it to be a stasis ulcer and treated it as such for the next two years. Diabetes and a bone infection were ruled out as causes for the lesion not healing. Consultations with dermatology and vascular surgery were obtained, and attempts made to encourage the plaintiff to wear a compression stocking and co-operate with treatment.

[48]            Mr. Irving explained that when appointments were not followed up on, it could have been because the wound improved, the plaintiff refused to attend or there were no available appointments within the specified time period.

[49]            On cross-examination, Mr. Irving agreed that all significant interactions between the plaintiff and medical staff should be noted in the penitentiary's records. Some routine encounters may not have been noted if staff followed a "charting by exception" policy, but assessments and any visit to the health care centre would appear in the plaintiff's medical progress notes.

[50]            When questioned regarding the difficulties in getting the plaintiff to be seen by Dr. Henson, the surgeon, Mr. Irving testified that the Correctional Service has no control over the schedule of outside community practitioners with busy schedules. Inmates have no priority over a specialist's other patients and may have to wait for a considerable period of time for consultation appointments.

Defendant's Legal Arguments

[51]            The defendant submits that the documentary record shows it provided the plaintiff with reasonable medical care on an on-going basis for a condition that is notoriously difficult to treat.

[52]            The defendant states that it has no knowledge of how the lesion first arose, but notes that it was first brought to the medical staff's attention on October 20, 1999.

[53]            The defendant submits it discharged any and all duty of care that may have been owed to the plaintiff with respect to his leg wound by regularly addressing the plaintiff's medical complaints, monitoring the plaintiff on a routine basis, prescribing appropriate medication, instructing the plaintiff on proper self-treatment and referring the plaintiff to a medical specialist when necessary.

[54]            More specifically, since the lesion was initially suspected to be an infected superficial wound, it was treated with topical cleaning gel, bandages and an antibiotic. Blood tests and x-rays were performed to rule out potential causes for the failure to heal. Medical showers were ordered on an extended basis and various types of pain medication were ordered to ease the plaintiff's symptoms. Over the course of treatment the ulcer almost healed and then became reinfected more than once. The defendant argues that the periodic improvements in the plaintiff's condition, in fact, vindicate its course of treatment as effective and non-negligent.

[55]            Furthermore, the defendant emphasizes that the penitentiary's records show that the plaintiff refused treatment at least nineteen times during the period in question. He frequently refused to allow nurses to bandage his leg, failed to appear for appointments or was unco-operative with medical staff when he did appear.

[56]            The defendant characterizes the plaintiff's testimony as vague, not very credible and contradictory regarding his contact with medical staff while in segregation. The defendant argues the plaintiff's claim of being ignored by medical staff is contradicted by a lack of grievances, no record of fires or guard harassment in order to get the attention of nurses, and no medical request forms expressing frustration that he was not receiving bandages.

[57]            Relying on Oswald v. Canada, [1997] F.C.J. No. 203 (T.D.) (QL), the defendant argues that the duty it owed to the plaintiff was to take reasonable care for his health and safety while he was in custody. The defendant states that it fulfilled its duty to the plaintiff in this case, as is evidenced by the extensive medical records put before this Court.

[58]            Alternatively, the defendant states that the plaintiff has not proven that its breach of duty has caused him any loss. According to the defendant, the plaintiff has failed to provide any evidence that links treatment delays to the continuing presence of his leg ulcer. Furthermore, there is no suggestion on the evidence that a speedier consultation or referral would have changed the plaintiff's circumstances today. Whether the defendant ordered the compression stocking earlier is irrelevant, since the plaintiff generally refused to wear it.

[59]            The defendant states that the medical evidence suggests many reasons why the plaintiff still has his leg ulcer, none of which are that the defendant failed to provide him with reasonable medical care.

[60]            The defendant requests that this action be dismissed with costs.

Issue

[61]            The issue in this case is whether the defendant is liable to the plaintiff for negligent care of his leg ulcer.

Relevant Statutory Provisions:

[62]            The governing statute for the Correctional Service of Canada is the Corrections and Conditional Release Act, S.C. 1992, c. 20, which refers to inmate medical care at section 86:

[63]            Liability of the defendant for torts, including the tort of negligence, is governed by the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, which states at sections 3 and 10:

Analysis

[64]            To succeed in his claim for damages in negligence, the plaintiff must establish on a balance of probabilities that the defendant owed him a duty of care, the defendant breached that duty by some negligent act or omission which then caused loss or injury: see G.H.L. Fridman, The Law of Torts in Canada, 2^nd ed. (Toronto: Carswell, 2002) at chapter 14).

[65]            It is well-established that the Crown is under a duty to take reasonable care for the health and safety of inmates: [1973] S.C.R. 2">MacLean v. The Queen, [1973] S.C.R. 2 at 7. In this case, the extent of the defendant's duty is reflected in subsection 86(2) of the Corrections and Conditional Release Act, supra, and the Service's own Commissioner's Directive 800 (updated March 17, 2003), which states:

POLICY OBJECTIVE

1. To ensure that inmates have access to essential medical, dental and mental health services in keeping with generally accepted community practices.

. . .

ESSENTIAL HEALTH SERVICES

2. Inmates shall have access to screening, referral and treatment services. Essential services shall include:

   a. emergency health care (i.e., delay of the service will endanger the life of the inmate);

   b. urgent health care (i.e., the condition is likely to deteriorate to an emergency or affect the inmate's ability to carry on the activities of daily living);

. . .

3. Inmates shall have reasonable access to other health services (i.e., conditions not outlined above) which may be provided in keeping with community practice. The provision of these services will be subject to considerations such as the length of time prior to release and operational requirements.

[66]            The plaintiff points to what he characterizes as a systemic delay in doctors' orders being carried out as constituting negligent management of his condition.

[67]            It is not necessary for me to decide whether the delays alleged by the plaintiff constitute a breach of the defendant's duty to provide medical care, or what role the plaintiff's own conduct played in the progress of his condition. Even assuming, without deciding, that the defendant breached its duty to provide reasonable medical care, the plaintiff has not established what injury or damage has been caused by that breach.

[68]            The plaintiff did not call any medical evidence to establish a causal link between treatment delays and the persistence of his leg ulcer. The totality of the plaintiff's evidence on what further injury the defendant's conduct caused was provided by the plaintiff himself during direct examination (trial transcript at page 42):

Q: Do you think your leg would have been improved more quickly had things been done differently?

A: If things were done properly - like, to receive proper medical treatment, like you normally would out on the street - my leg would have been fine a long time ago.

Q: Thank you, George.

[69]            While I have no doubt that the plaintiff's medical condition was extremely unpleasant, he has not established to my satisfaction that the defendant's conduct caused any exacerbation of the injury. The factual record itself indicates periods of time where even under close monitoring the lesion became reinfected or otherwise worsened. This issue is properly the subject of medical testimony, none of which was available in this case to assist the Court.

[70]            Since the plaintiff has not proven the element of causation, his action for damages in negligence must be dismissed.

                                                  ORDER

[71]            THIS COURT ORDERS that the action is dismissed with costs.

                                                                                   "John A. O'Keefe"             

J.F.C.                

Halifax, Nova Scotia

December 22, 2003

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   T-2368-00

STYLE OF CAUSE: GEORGE SUTHERLAND

- and -

HER MAJESTY THE QUEEN

PLACE OF HEARING:                                   Peterborough, Ontario

DATE OF HEARING:                                     June 23, 2003

REASONS FOR ORDER AND ORDER OF O'KEEFE J.

DATED:                      Monday, December 22, 2003

APPEARANCES:

Chad Carter

FOR PLAINTIFF

Lynn Marchildon

FOR DEFENDANT

SOLICITORS OF RECORD:

Chad Carter

Kingston, Ontario

FOR PLAINTIFF

Morris Rosenberg, Q.C.

Deputy Attorney General of Canada

FOR DEFENDANT