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When a patient has experienced a medication error, or other medical negligence by a health care provider, it can cause stress, anxiety, and feelings of frustration and anger. Whether those feelings, or psychological upset, will amount to a compensable mental injury in law will depend on a number of factors, known as the Saadati factors[1].

Generally, a compensable mental injury is not proven “by the existence of mere psychological upset”. Patients must show that it is serious, prolonged, and rises above the ordinary annoyances, anxieties and fears that come with living in a civil society. This can be done through expert evidence or a psychiatric diagnosis, but that is not always required. The plaintiff may adduce other evidence to establish, on the balance of probabilities, the occurrence of mental injury.

In order to distinguish between psychological upset and a compensable mental injury it will be important to consider whether and to what extent there is evidence of:

  • impairment of cognitive functioning;
  • interference with participation in daily activities;
  • any treatment sought and taken in relation to the psychological upset (and the nature and effect of the treatment).

The Ontario Court of Appeal has held that feelings of frustration and anger, without more, are not compensable.

These principles were re-affirmed in the recent Ontario Court of Appeal case Bothwell v London Health Science Centre, 2023 ONCA 323[2]. In this case the trial judge found that the Defendants had breached the standard of care in administering Heparin, a blood thinner, instead of Voluven, a blood volumizer, during the plaintiff’s surgery. The trial judge found that the medication error had not resulted in any physical injuries to the plaintiff. The trial judge also found that the plaintiff had experienced feelings of frustration and anger because of the medication error and held that this constituted a compensable mental injury.

The defendants appealed on the basis that the plaintiff had not shown that his feelings of frustration and anger were a compensable mental injury.

The Court of Appeal held that the trial judge had erred in law by failing to take into account the Saadati factors and found that the plaintiff’s feeling of frustration and anger did not lead to an impairment in his cognitive functions or his participation in daily life. At trial, the plaintiff had acknowledged that it had not interfered with his ability to do his job and there was no evidence that the plaintiff had pursued any form of treatment. The Court of Appeal held that “feelings of anger and frustration, without more, is evidence of psychological upset, not injury”. Accordingly, the appeal was granted, and the action was dismissed.

Siskinds’ medical negligence and health law team.

At Siskinds LLP, we have a team of lawyers and staff with expertise in medical negligence cases and health law, with extensive experience in assessing and litigating complex medical negligence cases.

If you have any questions or would like more information on this topic, please contact me at [email protected] or call 877-672-2121.

[1] 2017 SCC 28 (CanLII) | Saadati v. Moorhead | CanLII

[2] 2023 ONCA 323 (CanLII) | Bothwell v. London Health Sciences Centre | CanLII

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