1994 No. 94-I05822 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: Wanda MacPhail -and- Dr. Jacques Desrosiers, Janet Chernin, Jean Palmer and Louise Brodeur AND: 1995 S.H. No. 115I85 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: Carol M. Newbury and William Edward Newbury -and-­ Wanda MacPhail, Craig MacPhail, Susan Arsenault, Oscar Arsenault, Dr. Jacques Desrosiers, Janet Chernin, Jean Palmer and Louise Brodeur DECISION Heard Before: The Honourable Justice Douglas L. MacLellan Place Heard: Halifax, Nova Scotia Dates Heard: June 2, 3, 4, 5, 6, 9,10,11, 1997 Counsel: Robert L. Barnes, Q.C., and Kandace Terris, Solicitors for the Plaintiff, Wanda MacPhail Daniel M. Campbell, Q.C., and Colin J. Clarke, Esq., Solicitors for the Defendants, Dr. Jacques Desrosiers, Janet Chernin and Jean Palmer Ronald Pizzo, Esq., and Ned Kelleher, Esq., Solicitors for the Plaintiffs, Carol M. Newbury and William Edward Newbury Ross Haynes, Esq., and Suzanne Fougere, Solicitors for the Defendant, Wanda MacPhail MacLellan, J. This action by the plaintiff Wanda MacPhail against the defendants arises as result of motor vehicle accident on March 24th, 1993. The accident occurred when Mrs. MacPhail's vehicle crossed the center line of the highway and was struck by vehicle driven by Susan Arsenault. As result of that accident, Carol and William Newbury started separate action against Wanda MacPhail, Craig MacPhail, Susan Arsenault, Oscar Arsenault, Dr. Jacques Desrosiers, Janet Chernin, Jean Palmer and Louise Brodeur. The parties consented to an Order dated April 30th, 1997, which provided that the two actions would be heard together because of the common issues involved, but that the assessment of damages, if any, for Carol Newbury and William Edward Newbury would be held at later date. It was agreed that one defendant Louise Brodeur does not exist and was simply listed as defendant by mistake. would therefore direct that any Order of Judgment herein not mention Louise Brodeur as party. The parties hereto have also agreed to certain facts which were admitted to be correct as follows: "1. Definitions: (a) "Arsenault Vehicle" means the Ford Bronco motor vehicle operated by Susan Arsenault on March 24, 1993. (b) "MacPhail Vehicle" means the white Toyota Tercel owned by the defendants, Wanda MacPhail and Craig MacPhail and operated by Wanda MacPhail on March 24, 1993. (c) "Motor Vehicle Collision" means the collision that occurred between the "MacPhail Vehicle" and the "Arsenault Vehicle, on Highway #103, west of exit 4, on March 24, 1993, between the hours of 1:00 to 2:00 p.m. 2. The Defendant Susan Arsenault, operated the "Arsenault Vehicle, in an Easterly direction on Highway #103, (in the direction of Halifax) towards exit 4. At all material times, Susan Arsenault operated the "Arsenault Vehicle" in careful and prudent manner. Furthermore, Susan Arsenault did not cause or contribute, in any way, to the loss, injury and damage sustained by Carol Newbury in the "Motor Vehicle Collision". 3. At all material times to this action, the Plaintiff, Carol Newbury was passenger in the "Arsenault Vehicle." Mrs. Newbury was wearing her seat belt at the time of the "Motor Vehicle Collision". 4. The Defendant Wanda MacPhail operated the “MacPhail Vehicle” in an Westerly direction on Highway #103 near exit number (in the direction of Bridgewater). 5. The "Motor Vehicle Collision" occurred when the "MacPhail Vehicle", without warning, crossed the centerline into the path of the "Arsenault Vehicle", of Highway #103 and collided head-on with the Arsenault vehicle." The issues before the Court in this trial are as follows: 1. Are the defendants or any of them in action 94-105822, liable to the plaintiff because of negligence on their part? 2. If the defendants, or any of them are liable, what are the plaintiffs damages? 3. Are the defendants, or any of them in action No.115185, liable to the plaintiffs in that action? Throughout this decision when refer to the plaintiff and defendants, mean the parties to the first action, otherwise, will indicate am referring to the second plaintiffs and defendants. Plaintiff's evidence on liability issue: The plaintiff testified that she is now 37 years old. She has four children ranging in age from five to twelve. She is nurse by profession, graduating from the V.G. Hospital School of Nursing in 1980. Her last job prior to her accident was as nurse at the V.G. Hospital in the Intensive Care Unit. In early March, 1993, she found out that she was pregnant. She was upset by this because she and her husband, Craig, had decided not to have any more children. Her husband had vasectomy in February of that year and according to her he was devastated by the fact that she was pregnant. They discussed the issue of the pregnancy and had some discussion about the possibility of an abortion. She didn't talk to anyone else because she felt it was private family matter. Following the discussion with her husband, she called the Morgantaler Abortion Clinic in Halifax and talked to lady on the phone. She was asked to confirm the pregnancy which she later did and the abortion was scheduled for March 24th, 1993 at 9:30 a.m. When she made the appointment she was asked if she would be accompanied when she came to the clinic, and she indicated that her husband Craig would be with her. During that phone conversation she asked the lady on the line whether she would be able to take the baby home for burial. She was told she could not do that. On the night before the scheduled abortion, the plaintiff discovered that she did not have babysitter for the next day and it was decided that her husband would stay at home with the children and that she would go alone. She arrived at the Morgentaler Clinic around a.m. and she met the defendant Janet Chernin, the receptionist at the clinic. She paid Ms. Chernin the required fee for the abortion and confirmed with her the lab results confirming that she was pregnant. She was asked by Mr. Chernin if she was accompanied and she told her why she was alone by explaining about the babysitter problem. She testified that this information did not seem to be big problem for Ms. Chernin. The plaintiff then met the defendant Jean Palmer. She had known Mrs. Palmer from working under her supervision at the V.G. Hospital. She said she didn't expect to run into Mrs. Palmer and was somewhat uncomfortable about having to deal with her. She said she was not proud about being at the clinic and found the meeting disturbing because of her previous relationship with Mrs. Palmer. During the course of the counselling session with Mrs. Palmer the plaintiff was offered sedative (Ativan), but initially she refused it saying that she was driving and that she shouldn't take anything. She said that Mrs. Palmer little later offered it to her again, and again she refused. However, when offered it third time, some minutes later, she agreed to take it. She said that Mrs. Palmer said that it wouldn't hurt her anyway. She said that when she took the sedative Mrs. Palmer did not discuss the issue of her driving home. The plaintiff was asked by counsel how she felt at that point. She said she was not easy with her decision to have an abortion and that spiritually and morally she was upset. She said she was like robot and tried not to think about what had to be done. Following her session with Mrs. Palmer, the plaintiff went upstairs in the clinic to see the defendant Dr. Desrosiers. She said that it was brief meeting in which he discussed follow-up appointment scheduled after the abortion. She said he explained the abortion procedure to her and what she could expect would happen. He discussed with her her request noted on the chart to see the product of conception. The plaintiff then went to the room where the abortion was to take place. She met nurse, Deidrea Calder who took her blood pressure and explained to her the procedure. She said the procedure took 15 to 20 minutes and that she was given local anesthetic in her cervix. After the abortion was over, she said she was physically okay but emotionally very shaky. She said she was holding the nurse's hand. She said she was uncomfortable in her pelvic area similar to menstrual cramps. She was then taken to the recovery room where she met the recovery room nurse Lynn Broderick. She was offered tea and biscuit. She said she knew Lynn Broderick because she was married to man from St. Margaret's Bay where she also lived. She said she was in the recovery room 30 to 45 minutes sitting in chair. The plaintiff said she had conversation with Lynn Broderick about driving back and forth from St. Margaret's Bay, but no discussion about the fact that she was going to be driving home that day. She said she was told that when she was okay she could leave. She said she was having difficulty comprehending the information from the nurse because she was in what she described as robot like state. She said that after the abortion she did not see Dr. Desrosiers and no one did pelvic exam on her while she was in the recovery room. The last medical procedure was the taking of her blood pressure while in the recovery room. She said she then went downstairs and saw Janet Chernin again before she left the clinic. When she went to her car, she noticed some pro­life people in the area of the clinic. She got in her car and drove off butdecided that before going home she would go the Burger King for something to eat. She said she wanted to get collected before going home. She knew that her husband was due to go to work at p.m. and that she should be home before he left. At the Burger King she had chicken sandwich and fries. While she was there she said she started getting tearful. She said she was feeling sad about the situation. She left the restaurant and started out Joseph Howe Avenue to Bayer's Road and took the Peggy's Cover turnoff heading home. She said that at the C.J.C.H. building she noted on her car radio clock that it was 1:20 p.m. Knowing that she had to be home by o'clock she felt she had plenty of time. She said at that point she was tearful and wiping away her tears as she drove. She says she remembers passing Exit No. on the highway. The next thing she remembers is seeing blue truck in her windshield directly in front of her. She said to herself, "Oh, my God, I'm on the other side of the highway". She next remembers waking up in the hospital. She said she thought that she had blacked out just prior to the collision. She didn't remember getting sleepy. She said she has no history of fainting. The plaintiff said she has travelled that particular stretch of highway many times, particularly, while she worked at the V.G. She said the speed limit there is 100 kilometers per hour and that she would normally travel at that speed. Dr. Julius Piver testified as an expert. He works in Bethesda, Maryland and has performed between 600 to 700 abortions all of which were done in hospital setting on Outpatient basis as opposed to clinic similar to the Morgentaler Clinic. He said his patients normally are given general anesthetic and they are asleep while the abortion is done. He said he was familiar with the clinic setup for abortions where local anesthetic is used. Dr. Piver said that his rule of practice was that patient would not be allowed to drive after having an abortion whether it was done under general or local anesthetic. He said that if he was aware that patient intended to drive, he would not do the procedure because he felt that it would put the patient's life in jeopardy. He said that most women who have abortions are unhappy having the procedure. He said this is particularly true of women who have had child or other children. He said the procedure is already emotionally charged and that the decision to drive or not to drive should not be left with the patient. Dr. Piver was asked about the plaintiff's situation and indicated that he would be concerned when it was noted that she wanted to see the product of conception. He said he has never had patient request that of him. He was asked about the effects of Ativan on patient. He said it would produce drowsiness. In his report filed with the Court Dr. Piver states: “It is breach of the standard of care to allow patient to drive who has had any anesthetic agent, local or general, so soon thereafter. When it was known that she had no one to drive her home the procedure should have been postponed to another date. Patients have been known to have delayed reaction to surgery causing them to faint,due to the stress of the procedure. It is prudent to advise patients not to drive for minimum of 24 hours following sedating medication.” Dr. Reginald Yabsley testified on behalf of the plaintiff. He is an Orthopaedic Surgeon and saw the plaintiff in reference to her injuries sustained in the accident. He also testified about driving after surgery based on the fact that many of the orthopaedic procedures he does are done on an Outpatient basis. Generally, he said, patient who has any type of invasive procedure done on an Outpatient basis should not drive afterwards. In reference to the plaintiff specifically, and the abortion procedure, he stated in his report as follows: "I would have felt that it was not advisable for patient to drive home on their own, not only after such procedure but especially after such procedure and having taken Ativan. For information, am enclosing copy of pre­-operative and post-operative form which used for day-patient surgery. You will see that in each instance it is emphasized, for general reasons, that patient not drive following surgery. There are general reasons as well as specific ones for not doing so. Surgery of any type is stressful and traumatic event, both psychologically and physically, and combined with the fact that sedation and anesthesia in various forms may often be used, such use cannot be predicted in advance, nor can their effects following their deployment be always clearly defined." On cross-examination Dr. Yabsley conceded that he has experience only in his specialized field and that he was not qualified in the field of gynecology. Gregory Johnstone testified about the effects of the drug Ativan. He has Masters degree in Pharmacology and gave expert evidence on the effects of drugs on person. In his report filed with the Court, Mr. Johnstone indicated that given the plaintiff took one milligram dose of Ativan at II a.m., she would still have 87.5% of the dose present in her body at the time of the accident which was estimated to be between 1:30 and p.m. He indicated that therefore there would be large portion of the pharmacological effects normally associated with that drug still in her body. He indicated that the effects would be as follows: THE NATURE AND EXTENT OF THE EFFECTS OF ATIVAN (LORAZEPAM) The effects of all benzodiazepines (including Ativan) would be described generally as falling into the descriptions below (all are considered central nervous system depressant actions): 1. Anti-anxiety Their primary role for these drugs in our society is to relieve anxiety, and related symptoms, by blunting the brain's response to stimuli and sensory imput(sic) to the brain. In panic attacks and acute overwhelming emotional states, these drugs have demonstrated effectiveness in blunting such intense symptoms. 2. Sedation Sleep induction These drugs are very effective at relaxing person to such level that falling asleep is much easier. Some benzodiazepines actually cause one to fall asleep. Use in treating insomnia is large part of their application. 3. Muscle Relaxation/Anti-convulsant These drugs are very effective muscle relaxants. Relaxing muscles which are tense and overstimulated due to emotional or psychological responses is an important part of the anti-anxiety treatment. 4. Memory-Amnesia On of the common "side" effects of acute (one time) and chronic high dose use of these drugs is the anterograde amnesia (memory of events occurring for some time after administration of the drug are lost.) This effect is considered to be desirable effect in persons undergoing medical procedures they may fear." He also testified about the issue of operating motor vehicle while on the this type of medication. In his report he stated: “It is precisely because of the nature and persistence of these Ativan effects that the drug manufacturers include cautions about operating motor vehicles or regrading occupation hazards, following administration of the drug. Research shows that in addition to the general effects listed above, that an extension of those actions accounts for the range of common adverse effects, or unwanted effects experienced by patients taking these drugs. For example the following are the most commonly recorded adverse effects. -drowsiness lethargy -amnesia disorientation -dizziness mental confusion Mr. Johnstone said that one milligram dose of Ativan would not produce obvious effects because it was low dose, however, it could produce subtle effects not obvious to the person. Therefore, he suggested that the person may feel fine, but is unconsciously being affected by the drug in her motor abilities. He said that the more complex the task being performed the more obvious the effects of the drug. He indicated that the manufacturer of the drug Ativan advises against driving after taking the drug. Dr. David P. Petrie treated the plaintiff. He is an Orthopaedic Surgeon practicing in Halifax and his report in regard to his treatment of the plaintiff was introduced into evidence by consent without his attendance in Court. Also, transcript of his Discovery Evidence was introduced into evidence as Exhibit 17. In letter dated January 24th, 1994, Dr. Petrie commented on the issue of whether the plaintiff should have been allowed to drive. He said: “I am concerned about the fact that this lady was permitted to drive home distance of approximately 20 miles after therapeutic abortion. shall enclose some information given to my patients as well as the discharge protocol used at CFB Stadacona where also work on consultant basis. think it states quite clearly that the patient, in spite of having only local anesthetic or very brief general anesthetic, should not be permitted to drive home. Indeed, have cancelled number of patients in the past ten years when they arrived at the Victoria General Hospital without driver or attendant. It is well recognized that patients will have delayed or secondary reaction to their surgery causing them to faint. This is often referred to as vagovagal response, but in many cases we are just not sure as to the exact pathophysiology. It is not necessarily related to an excessive amount of bleeding which may or may not have occurred in Mrs. MacPhail's situation.” On Discovery Dr. Petrie was asked about his policy and the reasons for his rule about not driving. He said: (Exhibit 17 page 17) "Because think it's impossible for me to predict the patient's response to surgery. There is wide gamut in human emotions. There is wide gamut in physiological response to surgery. Most people who see are have some degree of concern, anguish, worry when they are having any invasive surgical procedure done. And that's normal. mean, that's normal physiological human being. mean, we were taught, as medical students, the fight and flight response to the adrenergic stimulation of the sympathetic nervous system. And that's what happens. And the adrenaline pumps out of your adrenal glands, you know, your hair stands on end, your heart speeds up, you get peripheral clamping down of your circulation so your hands feel cold and clammy. And that's what happens when you surgically incise people, or do outpatient surgery to them. They can't predict ­they can't help it. mean, that's natural physiological response. And on top of that, of course, is the emotional response which, once again, as suggested in my reference to the football player who collapsed with needle stick, is totally unpredictable too, because of the vasovagal attack. We know that people's heart rate slows down significantly through vagal nerve, and these people just don't get enough blood into their brain, so they pass out and fall to the ground or fall on top of you or whatever." Later he continued: (p. 27) "No. think most vasovagal attacks occur within reasonable period of time of the inciting event. But am not saying that two hours later this is not vasovagal attack, because let's appreciate the fact that there has been surgical procedure here, very emotionally charged situation, there has been small amount of benzodiazepine used, there has been an anesthetic applied to the cervix. The combination of those four events could certainly culminate in passing out, fainting, loss of control of the vehicle and the subsequent motor vehicle accident." Q. Okay. But am trying to separate them. And let's consider them one by one. was asking you about delayed vasovagal reaction which is delayed some period of time after the stimulus, the surgery. Q. Is that recognized risk? A. think it's combination of factors. You know, don't think you can say you know, is it normal to have sudden slowing of your pulse two hours after you have had surgical procedure in normal patient sitting quietly in room? That is uncommon. If he or she is driving her car, home, has lot of emotional concerns about what she has just gone through, has had some Ativan to which she has had an inappropriate but normal pharmacological response of drowsiness, then the vasovagal attack at that time is not out of the question, not at all" Defendants' evidence on liability: Janet Chernin is one of the defendants and testified that she worked as receptionist at the Morgentaler Clinic in Halifax. She took the telephone call from the plaintiff requesting an appointment and filled out the forms documenting her case. She completed the appointment sheet (Tab 26 Exhibit Book) for the plaintiff and noted that the plaintiff expected to be accompanied by her husband Craig. She also noted on that form that the plaintiff "wanted to take the baby home to bury". She said she told the plaintiff that this was not possible. On March 24th, 1993, the plaintiff arrived at the clinic and was met by Ms. Chernin. She received from the plaintiff the fee for the abortion and arranged for her to see Mrs. Palmer for counselling session. She was aware that the plaintiff was not accompanied, as originally intended, and that she wanted to drive home alone. She said the general policy at the Halifax Clinic and also at the Morgentaler Clinic in Toronto, where she had previously worked, was that patients should not drive after an abortion. Ms. Chernin said that she overheard conversation between nurses Calder and Broderick in which they were discussing the fact that the plaintiff intended to drive home. She said she understood from that conversation that Lynn Broderick had offered to give the plaintiff drive home, but that she had refused. She said that her normal practice was to advise patients that they shouldn't drive but that she couldn't say whether she said that to the plaintiff or not. She said the reason for this rule is the fact that normally woman takes medication during the abortion and also because of the stress of the procedure itself. Ms. Chemin said that she felt it was the responsibility of the doctor and nurses to deal with the issue of whether the plaintiff drove or not. She said she was only aware of one other case at the clinic where patient drove after an abortion. In that case, the plaintiff was accompanied by her mother and Ms. Chernin assumed the mother would be driving home. However, when they left the clinic, she saw the patient get in the car and drive away. She said she was concerned about that at the time. Ms. Chemin said it was common to see women tearful and emotional after an abortion. She also said that some seem faint and weak. She said that one young patient came downstairs to leave, but because of her emotional condition was told to go back upstairs to the recovery room for some more time before leaving. She said the average stay in the recovery room would be 30 to 45 minutes, but that some woman stay there for an hour. Sandra Lanz was the head nurse at the clinic on March 24th, 1993. She was responsible to supervise all nursing functions of the clinic. She spoke with the plaintiff shortly after she came to the clinic and said that they had discussed the issue of whether the plaintiff would be driving home. She said that she didn't tell her not to drive, but said to her that it was not good idea to do so. She said the plaintiff at that time appeared steady and not emotional. She said she later saw the plaintiff in the recovery room after the abortion and that once again she appeared fine and alert. Jean Palmer was the counselling nurse at the clinic. She saw the plaintiff on the morning of March 24th, 1993. Her job was to provide counselling on the emotional issues involved with an abortion and to assess the patient's emotional and mental state. She was familiar with the plaintiff because she had worked with her as nurse at the V.G. Hospital but they were not close friends. In the discussions between the plaintiff and Mrs. Palmer they discussed medication during the procedure. From that she understood that the plaintiff would be driving home after the abortion. She said she couldn't remember anyone ever coming to the clinic for an abortion and driving home alone. She filled out the counselling assessment (Tab 24 Exhibit Book) and noted in capital letters that the plaintiff "wants to drive home alone today". She said she did that to alert the other health care professionals of this fact. She said she felt she didn't have the final say in whether that should happen or not. Towards the end of the counselling session Mrs. Palmer discussed the issue of taking the sedative Ativan. She said she encouraged her to take it which she eventually did. Mrs. Palmer said on cross-examination that she would not advise anyone to drive after an abortion. She said here she made an exception because the plaintiff was nurse and that she felt that nurses drive home many times after having emotional shifts at hospitals. She said that in two years of counselling patients at the clinic, she only heard of one patient who drove home after an abortion. She agreed that she didn't discourage the plaintiff from driving home and said that was because the plaintiff had made up her mind to do that. She said she encouraged the plaintiff to take the Ativan because it would relax her and that was important in the procedure itself. Dr. Jacques Desrosiers testified that he was the doctor who performed the abortion on the plaintiff. He said he met the plaintiff at the clinic on March 24th. He said at that time he was working there one day per week doing abortions. When he met her she had finished the counselling session with Jane Palmer and he had copy of the counselling assessment (Tab 24 Exhibit Book) and was therefore aware that she would be driving home. He said he was aware that the driving issue became important normally where person is given narcotic for pain rather than when patient took sedative like Ativan. With narcotic, the patient would normally be told not to drive, but with the sedative the decision would be made after the procedure and if there were no complications the patient would simply stay longer at the clinic and then be allowed to leave. In other words, it was judgment call on the part of the nursing staff to determine if the the patient was well enough to leave on her own. If there were obvious symptoms that the sedative was effecting the patient, or she was suffering excessive pain, then she would be told to stay around until the symptoms passed. He said he understood the general policy of the clinic was for women not to come for an abortion unaccompanied. He said that patients rarely came without someone with them. He said that most patients have little difficulty with the abortion procedure but that if there were complications they were dealt with at that time. He said the risk of fainting is normally just after the abortion and not delayed reaction taking place at later time. He said he has never heard of patient faint two or three hours after an abortion. He said that from his personal experience in dealing with many patients who come back for follow-up checkup that he has never had patient report that she fainted some hours after an abortion. Dr. Desrosiers said the risk of hemorrhaging from an abortion is usually during the procedure itself and not later, but that it could occur from infection. He felt if that happened it would normally be about 24 hours after the procedure, not shortly thereafter. He indicated that he discussed with the plaintiff the decision to have an abortion because of her request to take the baby home to bury. He said he was satisfied with her response. He said the procedure had no complications and was routine from his point of view. After the abortion he went to the recovery room and observed the plaintiff. She was showing no signs of distress and he then left her with Lynn Broderick the recovery room nurse. He did not see her again before she left the clinic. Dr. Desrosiers said the policy of the clinic changed in 1995 and that it now requires that all patients be accompanied when having abortions, not because of the risk, but because of this particular law suit against the clinic members. On cross-examination Dr. Desrosiers said that he made no attempt to dissuade the plaintiff from driving when he first saw her because at that point he didn't feel she was at risk. He said if there had been complications during the procedure he would have discussed the issue with her again. Since there were no complications he did not do so. He did not know if any staff discouraged her from driving. He felt that the sedative Ativan would reach its peak effect within one hour and that he was aware that common symptom of taking Ativan is drowsiness. He said that he left the final, decision of whether the plaintiff should drive or not to the recovery room staff. He said he didn't know how long she remained in the recovery room or what her condition was when she left. Dr. Desrosiers agreed with plaintiffs counsel that the plaintiffs request to take the baby home to bury would probably indicate moral dilemma on her part and that most patients do not want to see the product of conception. He also agreed that an abortion is an emotionally charged procedure for woman. Lynn Broderick was the recovery room nurse at the Morgentaler Clinic. She saw the plaintiff after the abortion had been performed. She noted from the chart that the plaintiff was from St. Margaret's Bay, the same place where she lived. She said the plaintiff sat in chair and she gave her hot drink. She offered her Tylenol, but she refused because the plaintiff said she was driving and didn't want any more medication. Ms. Broderick also noted that the plaintiff’s husband was supposed to accompany her. She asked the plaintiff about that. She said the plaintiff explained to her about the babysitting problem. Because of that, Ms. Broderick suggested to the plaintiff that she could ride with her and that she would be finishing early that day. She said that the plaintiff said she would be fine to drive herself. Ms. Broderick said that she understood the policy of the clinic to be that patients be told they should be driven home and should be discouraged from driving themselves. She said she had never been involved with patient who was driving alone but that she had heard that it had happened in the past. She said the plaintiff was talkative and that she appeared alert when she saw her. She was steady on her feet and said that she felt fine. She said the plaintiff stayed in the recovery room for an hour or an hour and half. She remembered that because she was the last patient to leave and there had been other patients there at one point. She said she has never seen patient faint in the recovery room. When the plaintiff left Ms. Broderick said she had no concerns about her condition. She acknowledged on cross-examination that she had not warned the plaintiff not to drive because she felt the driving issues had already been addressed by other staff. She also indicated that in fact she had seen one patient faint in the recovery room and that she saw others who appeared faint. Deidrea Calder saw the plaintiff at the Morgentaler Clinic. She was working as nurse who was in the operating room called the head of the bed nurse being that she was beside the patient while the abortion was being done. She said she discussed with the plaintiff whether she wanted Nitrous oxide which would put her to sleep. She said that the plaintiff refused because she was driving home that day. She said the abortion took about 10 minutes and that the plaintiff was in the O.R. for about 20 minutes. She escorted the plaintiff to the recovery room where she met Lynn Broderick. Later she said she saw the plaintiff when she was leaving the clinic. She asked her if she was okay to drive and that the plaintiff said she was. She saw her go out the door. She said she understood the policy of the clinic was for patient not to drive home alone. She said that if person showed up alone that decision would be made after the procedure to see if the patient was able to drive alone. She said she never saw patient faint after 30 minutes in the recovery room. She agreed on cross-examination that an abortion is emotionally charged and that some woman show more emotions than others. She said the plaintiff was not tearful during the procedure. She said that the assessment on the ability to drive is based on the responses by patient and how well they perform in going to the washroom and getting their street clothes out of the locker. She said that normally person would only stay 30 minutes in the recovery room. Dr. Edward Sellers testified on behalf of the defendants. He is Pharmacologist involved in research and clinic work with drugs similar in type to Ativan. He said that one milligram dose of Ativan was on the lower end of the usual dose and would be administered to deal with anxiety in patient. He said the higher the dose the more likely the patient would have symptoms of drowsiness. He said that typically the effect of Ativan would be obvious within one hour after taking it, thereafter, the effect would remain the same. In his report filed with the Court, Dr. Sellers said: "The best indicator of whether lorazepam has had an effect such as sedation or impairment of motor performance is obtainable from observing the patient after administration of the drug and by asking the patient about the drug effects." Dr. Harry Hugh Allen is an Obstetrician and Gynecologist and professor at the University of Western Ontario. He also practices in London, Ontario. He, at one time, performed about 300 abortions per year. In recent years that has decreased to 25 to 30 per year. He said that 90% of these were done under local or no anesthetic in clinic setting. He said his practice was to allow patients to drive after an abortion if that patient has not received an intravenous sedative like Valium. If the patient has only received local anesthetic or drug like Ativan, they are permitted to drive alone. He said that it was not appropriate to compare other Outpatient type procedures to an abortion because of the pain factor in the other procedures because procedure involving an incision might cause pain based on the patient's movement. That is not the case with an abortion. He said he would only refuse to allow patient to drive home if there was solid medical reason to do so. Dr. Allen then described the process involved when person faints. The medical term for fainting is syncope and involves loss of blood to the brain and pooling of the blood in the lower extremities of the body. Because of that people fall over and this causes the blood to flow back to the brain. He described the vasovagal syncope in his report filed with the Court (Tab Defendant's Expert Report). He stated: "The physiology of Vasovagal syncopy is not completely understood. The vagal nerve response in pelvic surgery occurs at the time or very near the procedure from stimulation of the parasympathetic nerves to the pelvis. These impulses travel cenral(sic) to the vasomotor centre in the medulla. This stimulation causes reflex decrease in heart rate via the vagal nerve to the heart. There is slight decrease in cardiac contractility also. The muscle vasdilator(sic) system becomes activated at the same time further causing decrease in blood pressure resulting in syncopy." He was of the opinion that any such vasovagal syncope would occur either during the abortion or immediately following, that is, within 10 or 15 minutes following the abortion. He did not feel that it could happen two hours after the procedure. Dr. Allen indicated on cross-examination that when he worked in an abortion clinic they asked patients to have drive home because the patient might be taking narcotic for pain or sedative like Valium intravenously. He agreed with plaintiff's counsel that strong emotional reaction can cause person to faint. However, he stated that the faint would normally occur at the time of the troubling event, not some hours later. Dr. Robert Fraser is the head of the the Department of Gynecologist at the V.G. Hospital in Halifax. He worked at the abortion clinic at the hospital for number of years. He said that since the early 1990's the vast majority of abortions are done there under local anesthetic. He said the policy at his clinic was to generally encourage patient to have someone with them when undergoing an abortion. He said that any vasovagal reaction would occur either during or shortly after the abortion procedure. He said it would appear appropriate that patient be permitted to drive after an abortion provided the patient was not exhibiting symptoms which would cause the nursing staff to have concern about the woman's ability to drive. During the course of the trial, number of witnesses were asked about text book called "Abortions and Contraception", by Dr. Henry Morgentaler, specifically, the witnesses were referred to page 81 of that text wherein the author said: "A syncope can also take place after the operation. Some patients will experience severe cramps as result of the contractions of the uterine muscles. Mild cramps are normal and desirable response, because this is an indication of good contraction of the uterine muscle, the mechanism that halts the bleeding. However, when intense, some women might overreact to the cramps to the point of syncope. Anxiety over imagined complications may trigger fainting spell, especially if the woman interprets any symptom as an indication of imminent disaster. Paradoxically, the release of tension after becoming aware that the much-dreaded abortion is over may have the same effect." (Emphasis Added) The Law The law on this case is clear. The defendants as health care professionals were obligated to treat the plaintiff in manner consistent with generally accepted medical practice. The standard of care required of them is set out in number of cases including Crits and Crits v. Sylvester, et al., [1956] D.L.R. (2nd), 508 where Schroeder, J.A. speaking for the Ontario Court of Appeal said: “Every medical practitioner must bring to his task reasonable degree of skill and knowledge and must exercise that degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of normal, prudent practitioner of the same experience and standing, and if he holds himself out as specialist, higher degree of skill is required of him than one who does not profess to be qualified by special training and ability.” This definition of the standard of care has been applied in number of cases in this province including: Anderson v. Grace Maternity Hospital et al, (1989), 93 N. S. R. (2d) 141 (T. D.); Robichaud v. Bruce and Sayat (1988), 86 N. S. R. (2d) 421 (T.D.); Goguen v. Crowe (1987), 80 N.S.R. (2d) 36 (T.D.); Young et al v. St. Rita Hospital and Critchley (1986), 75 N.S.R. (2d) 239 (T.D.); Nancy E. Locke v. Dr. Robert H. Lea et al, (S.H. No. 93-5171)(April 23rd, 1997). In Crits, supra, the Court also dealt with arguments made by the defendants that they were complying with the standard practice within the medical community at the time. Schroeder, J.A. said: "Even if it had been established that what was done by the anaesthetist was in accordance with "standard practice", such evidence is not necessarily to be taken as conclusive on an issue of negligence, particularly where the so-called standard practice related to something which was not essentially conduct requiring special medical skill and training either for its performance or proper understanding of it. This was the view of the Court of Appeal of Manitoba in Anderson v. Chasney, 1949 CanLII 236 (MB CA), [1949] D.L.R. 71, and reference may also be made on this point in its broader and more general aspects to Bank of Montreal v. Dom. Gresham Guar. Cas. Co., 1930 CanLII 318 (UK JCPC), [1930], D. L. R. 689, A.C. 659, 50 Quc. K.B. 57, and Lloyds Bank v. E.B. Savory Co., [1933] A.C. 201 at p. 232. If it was standard practice, it was not safe practice and should not have been followed." In Anderson v. Chasney, 1949 CanLII 236 (MB CA), [1949] D.L.R. 71, the Manitoba Court of Appeal dealt with the issue of whether Judge is bound by expert evidence in regard to the standard practice of doctor. MacPherson, C.J.M. said: (p. 73) "The question left for consideration is: Was the doctor negligent in the care of the child after the operation had been completed? It was submitted that the expert testimony given, clearly relieved him of all negligence and that the expert testimony had to be accepted on that point. cannot agree with that argument. Where there is other evidence in contradiction of the opinion of the expert testimony, which can be understood by layman, those facts can be taken into consideration. In 48 Corp. Jur., p. 1151, it is stated: "Expert evidence is not required, however, where the results of the treatment are of such character as to warrant the inference of want of care from the testimony of laymen or in the light of the knowledge and experience of the jurors themselves." On Appeal to the Supreme Court of Canada this statement of the law was approved. ([1950) 1950 CanLII 336 (SCC), D.L.R. 223). In ter Neuzen v. Kom (1995) 1995 CanLII 72 (SCC), 127 D.L.R. (4th) 577, the Supreme Court of Canada dealt with the issue of whether Judge could instruct jury to find that despite conformity with standard practice doctor could be found negligent because the standard of practice itself was found to be negligent. Sopinka, J. speaking for the Court said: (p. 590) "It is generally accepted that when doctor acts in accordance with 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. In sense, the medical profession as whole is assumed to have adopted procedures which are in the best interests of patients and are not inherently negligent." He did however recognize that there can be cases where standard practice will not protect professional. After quoting from Professor John G. Flemmings The Law of Torts, Justice Sopinka continued: (p. 591) "It is evident from the foregoing passage that while conformity with common practice will generally exonerate physicians of any complaint of negligence, there are certain situations where the standard practice itself may be found to be negligent. However, this will only be where the standard practice is "fraught with obvious risks" such that anyone is capable of finding it negligent, without the necessity of judging matters requiring diagnostic or clinical expertise. In Roberge v. Bolduc (1991), 1991 CanLII 83 (SCC), 78 D.L.R. (4th) 666, [1991] S.C.R. 374, 39 Q.A.C. 81, this court had the opportunity to address this issue in the context of the civil responsibility of notary under the Quebec Civil Code. In that case, it was recognized that where custom of profession ignores the elementary dictates of caution, it is open to court to find the professional person negligent. Thus, even if doctor practices in accordance with common professional practice, he will be liable if that practice is wanting. As L'Heureux-Dube J. stated at pp 710-II:" "This brief overview of both doctrine and jurisprudence indicates that courts have discretion to assess liability despite uncontradicted evidence of common professional practice at the relevant time. The standard, in regard to the particular facts of each case, must still be that of reasonable professional in such circumstances. It may very well be that professional practice reflects prudent and diligent conduct. One would hope that if certain practice has developed amongst professionals in regard to particular professional act, such practice is in accordance with prudent course of action. The fact that professional has followed the practice of his or her peers may be strong evidence of reasonable and diligent conduct, but it is not determinative. If the practice is not in accordance with the general standards of liability, i.e., that one must act in reasonable manner, then the professional who adheres to such practice can be found liable, depending on the facts of each case." (Emphasis in original). The foregoing principles were also endorsed by this court in Waldick v. Malcolm (1991), 1991 CanLII 71 (SCC), 83 D.L.R. (4th) 114, [1991] S. C. R. 456, C. C. L.T. (2d) I. Thus, it is apparent that conformity with standard practice in profession does not necessarily insulate doctor from negligence where the standard practice itself is negligent. The question that remains is under what circumstances will professional standard practice be judged negligent? It seems that it is only where the practice does not conform with basic care which is easily understood by the ordinary person who has no particular expertise in the practices of the profession. That is, as Professor Fleming suggests, where the common practice is fraught with danger; judge or jury may find that the practice is itself negligent." He also reviewed the Court's decision in Anderson v. Chasney, supra, and quoted with approval from the Manitoba Court of Appeal decision in that case. (p. 594) "Coyne J.A. then adds the following at pp. 85-6: "Whether or not it is negligence to omit to use sponges with ties or to have count kept is not matter which requires an expert to decide; it is not special surgical skill that is in question. Such skill is not necessary to answer the question. The point involved is negligence or no negligence. It is not matter here which requires an expert to decide. General practice of the defendant and some others does not constitute complete defence. It is some evidence to be taken into consideration on the question of negligence but it is not conclusive on Court or jury. If it were defence conclusive on jury or Court, group of operators by adopting some practice could legislate themselves out of liability for negligence to the public by adopting or continuing what was an obviously negligent practice, even though simple precaution, plainly capable of obviating danger which sometimes might result in death, was well known If practitioner refuses to take an obvious precaution, he cannot exonerate himself by showing that others also neglect to take it. (Emphasis added.) "As well, Coyne J.A. emphasized that the case involved no difficult or uncertain questions of medical or surgical treatment nor any matters of scientific or highly technical character. It was simply matter of whether obvious and simple precautions, easily understood by ordinary individuals, were required to be taken. Coyne J.A. remarked (at pp 86-7):" "Ordinary common sense dictates that when simple methods to avoid danger have been devised, are known, and are available, non-use, with fatal results, cannot be justified by saying that others also have been following the same old, less-careful practice; and that when such methods are readily comprehensible by the ordinary person, by whom, also, the need to use them or not is easily apprehended, it is quite within the competence of Court or jury, quite as much as of experts to deal with the issues; and that the existence of practice which neglects them, even if the practice were general, cannot protect the defendant surgeon." Justice Sopinka then concluded: (p. 595) "I conclude from the foregoing that, as general rule, where procedure involves difficult or uncertain questions of medical treatment or complex, scientific or highly technical matters that are beyond the ordinary experience and understanding of judge or jury, it will not be open to find standard medical practice negligent. On the other hand, as an exception to the general rule, if standard practice fails to adopt obvious and reasonable precautions which are readily apparent to the ordinary finder of fact, then it is no excuse for practitioner to claim that he or she was merely conforming to such negligent common practice." Cause of the accident I. find here that there is no obvious reason why the plaintiff's vehicle crossed the center line of the highway and struck the vehicle being driven by Susan Arsenault. It is clear that this happened and therefore must look for probable causes. It has been argued by the plaintiff that she fainted briefly and strayed across the center line. Counsel for the plaintiff suggests that the faint was caused by the emotional reaction to the abortion or was vasovagal attack brought on either by emotional stress or pain from the abortion procedure. In the alternative, it is suggested that the patient got drowsy as result of the effects of the sedative Ativan and briefly nodded off causing her vehicle to cross the center line. The defendants suggest that there is no evidence that the Ativan would have such significant affect on the plaintiff as to cause her to nod off especially some hours after taking it. They also suggested vasovagal attack normally is triggered by sudden pain and there would be no reason for that pain some two hours after the abortion. find that the plaintiff was normally very competent driver and used to the highway where the accident occurred. She drove this highway many times after working long shifts at the hospital. The accident occurred in the middle of the afternoon and the weather and road conditions were good. find it unreasonable to conclude that the accident happened because of inattention on her part. believe, therefore, that she was temporarily affected in such way as to cause her to let her vehicle cross the center line of the highway. Of the three scenarios suggested by the plaintiff, believe the most likely are either simple fainting spell or vasovagal attack. find that am not convinced that the sedative Ativan caused her to lose control of her vehicle. The evidence before me from all of the medical professionals is that fainting, and the causes thereof, are not clearly understood. However, they all agree that fainting can be caused by emotional stress. That is true also for vasovagal faint. The plaintiff in this case had severe emotional reaction to the fact of the abortion. Consistent with the medical evidence, find that she was more affected by the procedure because she had number of children at home. believe she agreed to have the abortion only because she felt forced into it because of her family situation. She did not discuss the matter with anyone except her husband. He was obviously upset with the pregnancy, and believe his reaction was significant to the choice she made. Her evidence is that she had severe moral and ethical concerns about terminating her pregnancy. That was exhibited when she asked to take the baby home to bury. Obviously, by that comment, she felt she was aborting baby and not "product of conception". believe she put on brave face while at the clinic particularly because she knew some of the personnel there. also believe that the fact that she ran into people she knew affected her even more. Now people with whom she had worked with were aware of her personal situation. believe that after leaving the clinic and having something to eat the reality of what had happened hit her. She was going home to face her children and husband and as she got closer to home the reality of facing them became more intense. She first started to cry at the Burger King. Later as she drove home, believe the intense emotional turmoil of aborting, what she described as baby, caused her to faint. This resulted in her losing control of her vehicle and letting it cross the center line of the highway and being struck by the other vehicle. Standard of Care There is no issue here but that the abortion was performed in manner that met the standard of care for that procedure. The central issue is whether the health care professionals should have been aware that the plaintiff could be affected in her ability to drive motor vehicle by either the sedative given to her prior to the abortion, the local anesthetic administered during the procedure, or by the possibility that she would faint after leaving the client as result of the emotional impact of having had an abortion. In order to impose liability on the defendants, must find that the defendants should have been aware of these dangers to the plaintiff and that they did not act to ensure that she was not at risk. must also find that the negligence on the part of the defendants was the determining cause of her accident which resulted in her injuries. Dealing with the standard of care upon which should judge the defendants care of the plaintiff, find that the evidence before me does not establish clear standard of care on the issue of driving vehicle after an abortion. have conflicting evidence from respected experts on both sides of the issue. Dr. Piver, Dr. Petrie and Dr. Yabsley took clear cut position and advised that there should be no driving after any significant surgical procedure. Their position is basically that doctor cannot predict what will happen to patient after such procedure and the simple and safe course is simply to prohibit driving to protect against all causes of delayed reaction. On the other hand, Dr. Desrosiers, Dr. Allen, and Dr. Fraser suggested that driving after procedure is permitted provided the patient has not experienced problems during the procedure requiring pain medication, has not been given general anesthetic, and the patient is given an opportunity to remain in the recovery area for sufficient time for staff to assess the patient's ability to drive. Because of the conflicting evidence, am not able to say that there is in fact clear cut standard being applied in the medical community in Halifax. However, that does not mean that this would absolve the defendants because must go on to determine despite the lack of generally accepted practice on this issue, whether in this case, the defendants met the standard which should be imposed. In ter Neuzen, supra, the Supreme Court of Canada held that if the evidence does not establish standard practice the trier of fact is entitled to fix the standard if that can be done without expert evidence. In this case, find that have enough undisputed medical evidence to fix standard of care in regard to driving after an abortion and propose to do so. find that it is not disputed that fainting is often caused by emotional stress and that an abortion always causes emotional stress, therefore, find it is reasonable to expect that woman might faint after undergoing an abortion. further believe that faint might occur up to 12 hours after an abortion, and therefore, woman should not drive during that time period. believe that the staff at the Morgentaler Clinic should have been aware of the possibility of faint especially in the case of the plaintiff in light of the fact that she had children and her comments about taking the baby home to bury. believe that her particular situation should have raised more red flags to stop her from driving. Instead, believe that Jean Palmer deferred to the plaintiff because she was nurse. She let her decide herself if she was okay to drive. believe that Jean Palmer would have told non­-nurse acquaintance that she should not drive. believe the clinic staff did not specifically address their minds to the issue of fainting because if woman was not driving as mandated by the clinic policy faint would not be significant event. also find that the duty of care could easily have been discharged by having any staff member advise the plaintiff against driving. That simple precaution would, find, have averted this terrible accident with such severe consequences. further find that the plaintiff would not have driven if she had been told not to do so. believe her intention to drive was based solely on the fact that she was not taking medications which would normally affect her ability to drive. She refused the Ativan twice because she was concerned about its effect on her driving. She consented to take it only because she was assured by Nurse Palmer that she should do so. Despite the fact that she was told to be accompanied, find no fault on the part of the plaintiff as she made it very clear to all clinic staff that she intended to drive and was not once dissuaded from doing so. believe it was reasonable for her to assume that she was not putting herself in any danger by driving. The plaintiff was obviously not aware that strong emotional reaction could cause fainting. believe the strong emotional reaction by the plaintiff was not to the medical procedure itself which was relatively uneventful, but to the fact that she had just had an abortion and was now going home to her family. Once that reality set in, her body reacted as was so ironically forecasted by Dr. Morgentaler in his text book. believe the clinic staff were negligent in not recognizing that an emotional reaction can be delayed and cause fainting some hours after an abortion. The fact that the doctors testifying before me were not aware of woman fainting some hours after an abortion does not convince me that fainting spells have not occurred. If woman feels faint while sitting in car, or at home, the consequences are minor that the episode might not even be reported to doctor on follow-up visit. Unless there are consequences to fainting spell normally it is not significant and might simply be attributed to the medical procedure itself instead of the emotional reaction of having had an abortion. find no fault in how Janet Chernin handled the plaintiff at the clinic. Her job was to arrange appointments and advise patients that they should be accompanied. She did that and also ensured that Jean Palmer was aware of the fact that the plaintiff was not accompanied on March 24th, 1993 when she attended for the abortion. do not find that it would be appropriate for Janet Chernin to stop the plaintiff from proceeding with the abortion without seeing the medical staff. find it reasonable that she would expect that they would deal with the driving issue. Therefore, dismiss the action against her. find that Dr. Desrosiers and Jean Palmer breached their duty of care to the plaintiff by not ensuring that they, or some staff member, advised her not to drive. believe that Dr. Desrosiers really saw nothing wrong in letting her drive assuming that the abortion was without complications. When there were no complications, he saw no reason to discuss with her the issue of her driving. He relied on the recovery room nurse to ensure that she was not exhibiting symptoms which would cause concern. find that the recovery room staff did not observe obvious symptoms of drowsiness or excessive pain and therefore let the plaintiff drive. That was consistent with Dr. Desrosiers' evidence as to what he would have looked for before letting her leave the clinic. Once again, the recovery room staff appeared to act contrary to the clinic policy that patients having an abortion should not drive after the procedure. Based on the lengthy evidence of possible complications from surgery, such as an abortion, and considering its knowledged emotional impact on all women, I find that to permit a patient to drive after an abortion was a breach of the standard of care I would expect from health care professionals providing that medical service. The argument that imposing strict standard of no driving after an abortion is somehow unfair to woman having no one to drive pales in significant to the possible repercussions of delayed reaction resulting in fainting spell. suggest that the inconvenience of insisting on patient having driver and having strict rule about that is simple solution to the problem. find that doctors and other health care professionals owe duty to patients and to the driving public generally not to permit patient who has had an abortion to go on high speed highway driving vehicle. do not believe that doctor or nurse can predict how particular woman will react emotionally to an abortion. Dr. Petrie's Discovery evidence about how young healthy football players faint when given simple injection is telling. People react differently to medical procedures. The doctors and nurses dealing with them do not know what emotional baggage patient is carrying. Outward appearance does not tell what is happening inside and therefore relying on outward appearance can be misleading and doctors and nurses should know that. believe the plaintiff here appeared recovered from the physical aspects of the abortion. The staff all agreed she looked capable of driving. believe she felt herself that she was able to drive, however, it is obvious that this was not the case and the defendants did not see what was going on within her emotionally. agree with the submission of the defendants that simply an error in judgment should not be the basis of successful negligence claim. (See Quintal v. Datta (1988), W.W.R. 461 (Sask. C.A.) and Wilson v. Swanson (1956) 1956 CanLII (SCC), S.C.R. p. 804. reject the arguments of the defendants that the opinion of Dr. Yabsley and Dr. Petrie should carry little weight because they were not qualified as experts in gynecology. believe that the procedures done by these orthopaedic surgeons on an Outpatient basis would many times mirror the issues present with woman having an abortion. That is, they would be doing medical procedure on patients having local anesthetic and possibly sedatives. believe an abortion would obviously be much more emotionally charged than an orthopaedic procedure, and therefore, would expect more concern by the gynecologist for the emotional well-being of the woman patient. do recognize, however, that orthopaedic practice, many times, would involve procedures more painful than what is present for an abortion. Based on the breach of the standard of care, find the defendants Dr. Desrosiers and Jean Palmer liable in negligence to the plaintiff and also to the plaintiffs in the second action Carol Newbury and William Edward Newbury. find no contributory negligence on the part of the plaintiff Wanda MacPhail. Damages As result of the accident on March 24th, 1993, the plaintiff suffered serious injuries. In his report filed with the Court Dr. David Petrie who treated the plaintiff outlined her injuries: "She received number of injuries, the most major being compound fracture of her right patella and proximal right tibia, right pneumothorax, number of rib fractures, significant head injury with laceration to her forehead along with fracture of the right fourth metacarpal. After initial resuscitation in the Emergency Department, she was taken to the Surgical Intensive Care Unit for monitoring and to the operating room where patellectomy was performed because of the extensive comminution of her knee cap. The extensor mechanism was repaired. The other injuries were attended to as indicated in the discharge summary. She also had plastic surgery by Doctor W. Caines to her face and right fourth metacarpal. She has been seen and followed through the clinic, and is managing reasonably well considering the nature of her trauma. She has an extremely stiff knee unfortunately, and did manipulate it under anesthesia in an attempt to regain better range of activity. She was seen June 9, 1993 and her manipulation was carried out few days later." She spent 10 days in the hospital and then returned home where family members tended to her nursing needs. In May, 1993, she started an extensive physiotherapy program along with an exercise program at home. The plaintiff described to the Court some serious difficulty she has had since the accident in regard to her memory. She said that she misses appointments, makes mistakes in dealing with everyday activities such as when to pick up her children or where to drop them off if taking them somewhere. She said her children have learned to deal with her memory problems and she has learned to frequently make notes to herself of things she must do. This has only happened since the accident. The plaintiff also described the constant pain she has had in her right knee. She said that she is always in pain and that the more activity she does the more pain she gets. In June, 1993, she tried to go back to work. She got part-time job with Home Care Company which involved taking telephone calls. At the time she was still on crutches. She said she really was not able to do this job because of her physical limitations and her memory problems. The job also involved more after hours calls which she did not expect. She did that kind of work for about year and was then offered supervisory position with the company. She decided not to take that position because she felt she couldn't handle it because of her memory problems. In June, 1994, she decided that she couldn't meet the physical and mental requirements for the job and stopped working. She has not worked since then and indicates that she continues to have pain in her knee. She indicates that she is aware that the medical personnel indicate that eventually she will require knee replacement, but the recommendation is that this should not take place until she is at least 50 to 55 years old. Her marriage has also broken up and she now lives alone with her four children. When Dr. Petrie reviewed her situation with her in May of 1995, he wrote to her solicitor. "She sustained number of injuries including major right frontal laceration with an underlying skull fracture, fracture of her right 4th finger which was splinted by Doctor Caines, number of rib fractures on the right side with pneumothorax necessitating drainage, an L-shaped laceration over the left calf and then very severe compound fracture dislocation of her knee which necessitated patellectomy as well as open reduction internal fixation of her femur and proximal tibia. The hardware was subsequently removed from the knee area in September, 1994. She used crutches until June after the accident and at that time manipulation of her knee to 90 degrees was performed because of the amount of stiffness and scar tissue around the joint. She then used continuous passive motion machine as well as vigorous home therapy program, worked hard at her exercises and has been able to maintain almost 90 degrees of bend in her knee. She has been wearing right knee brace and carrying cane now for almost year. The brace does provide some stability and she has less of feeling that she is going to fall or slip. Around the house she tries to take the brace off so that she can keep her muscles moving and exercise with them. She does drive car, but has had the vehicle adjusted so it is primarily her left foot that uses the accelerator, brake, etc. Major difficulties getting up and down stairs, particularly going to the basement where her washer and dryer are located is described. She grades her activities and plans to spread out her day's work over longer period of time so she can have rest intervals in between." Dr. Petrie then summarized his assessment of the plaintiff as of that date: "In summary, do feel that this woman is not capable of going back to work as nurse at this point in time. concur that she is disabled to the point that she cannot "engage in any occupation or employment for which she is reasonably suited by education, training, or experience". also think there is an element of depression affecting her present status as she is very frustrated with the whole medical/legal progress, and the way it is dragging on, etc. think there is strong likelihood that this woman is going to end up with knee arthroplasty or artificial knee joint in the future. She is certainly far too young to consider for this procedure right now, in my estimation. Indeed, if surgery was absolutely required for pain control, would recommend fusion or knee arthrodesis. She is very reluctant to consider this as therapeutic option at this point in time and concur entirely with her in this regard. Perhaps at later date her knee function will improve to the point she could assume sedentary job although this is unlikely in my estimation. do feel she has had significant closed cerebral injury and does have significant intellectual defect primarily in the area of short term memory. would advise that she have some psychological testing in this area to establish what her intellectual cognitive disability might be at this time." He added P.S.: “Review of xrays taken May 3, 1995 of this woman's right knee confirms the presence of severe degenerative arthritis involving the femoral condyles particularly with the absence of her patella.” Dr. Reginald Yabsley examined the plaintiff in June, 1995. He saw her only once and also did report. “I have reviewed the report of Dr. Petrie of May 4, 1994, reviewing this lady's accident, her injuries and her subsequent treatment and difficulties. am in agreement with his opinion that Mrs. MacPhail is not capable of returning to work and that she remains with permanent disability in relation to that which would seem to be possible by virtue of her training and experience. do agree that there is no further treatment indicated for her knee problem at this time, but do agree that should significant degenerative change develop or take place in her knee and depending upon her pain and her requirements that an operative procedure may well be indicated. As Dr. Petrie has pointed out, because of the difficulties with this lady's knee, knee fusion may be the treatment of choice, although that decision will have to be made if and when that time ever comes and could conceivably take the form of knee arthroplasty. In the event of the former, Mrs. MacPhail would be left with stiff, immobile knee joint which would represent considerably increased degree of disability for her. Should she undergo knee replacement, that, of course, would not provide normal knee, and its longevity would be time-related. Dr. Ross Leighton saw the plaintiff in October, 1996. He is an Orthopaedic Surgeon with special training in the area of treatment of acute trauma as well as total joint arthroplasty. In his report Dr. Leighton indicates: “IMPRESSION: feel that this patient suffered severe crush fracture injury involving her right leg, along with her other associated injuries. The other injuries have settled down in large part and she is left with chronic pain syndrome with marked weakness involving the right knee. TREATMENT: The treatment for her remains that of physiotherapy to try and gradually get her knee so it will flex further without the use of the brace in locked-stop position. think she will always need the brace on daily basis but that, hopefully, she will be able to flex it more without the continued problem of giving way, if her physio can achieve this. However, with the chronic pain type of syndrome, she may or may not be able to achieve this in the future and it would just be goal that we would try to reach. PROGNOSIS: The prognosis for her in the future is dismal. don't think she will be able to obtain an employment state. Whether she would be pain-free on day-to-day activity, of course, remains to be seen. do feel that as her knee continues to get worse the chance of requiring posterior stabilized total knee may be indicated in the future. If this happened, it would require total knee replacement with, of course, the added problems of recovery which takes about six months and the possibility that this joint could wear out. She is only 36-years of age. The other option in her situation, if she didn't last long enough to fall into the total knee category, meaning in the 50+ age group would be that of knee fusion which would make the knee stiff, but relatively painless. At this point in time she doesn't fall into this category either but it would really depend on how quickly and how severely her knee degenerated in the future. Both of these procedures would keep her out of the work force and take about six months of recovery post-op. This, of course, does not mean that this patient requires any or all of the procedures noted above, but just stipulates as to what may take place in the future if further degeneration continues.” Dr. David B. King is Neurologist and did an assessment of the plaintiff in September of 1995. He was apparently asked to investigate her to determine whether her problems with memory were as result of her head injury in the accident. In his report filed with the Court Dr. King concluded as follows: “Summary: This 35 year old woman was involved in motor vehicle accident on the 24th of March, 1993, at approximately 1340 hours. This occurred after surgical procedure at 1100, prior to which she had been give Img of Ativan. The indications are that she lost control of her vehicle but there was no evidence that she fell asleep at the wheel as she remembers seeing the other vehicle prior to the collision. It will probably always remain unknown as to why she lost control of her vehicle. She sustained number of orthopaedic injuries which have been detailed. She was confused and amnesic immediately after the accident, but within less than two hours was fully oriented and remained so throughout her stay in the VGH with no evidence of significant post-traumatic amnesia. Some time later when her orthopaedic pain had settled to some extent, she began to notice memory problems in the work place and concerns were raised about the possibility of brain injury, given her facial fractures. Interpretation of her memory difficulties was complicated by on-going orthopaedic pain, the use of medication and marital difficulties at home which had pre-dated the accident. There is no indication on mental status examination or the details surrounding her head injury of any serious brain trauma. It is my clinical impression that the difficulties that she has with her memory are largely related to her ongoing orthopaedic pain, medication usage and preoccupation with finances and marital difficulties at home.” Dr. William Stanish assessed the plaintiff at the request of the defendants' counsel. He saw her on July 31st, 1995. His report indicates: "Based on my evaluation of July 31, 1995 of Wanda MacPhail, there is little question that this patient has had most significant injury to her right knee which has resulted in post traumatic osteoarthritis. This osteoarthritis may progress to the point that the patient feels compelled to undergo further surgery, which in the short term could include arthroscopic debridement or knee fusion. In the long term, she may require total knee arthroplasty. At this point it is my considered opinion that she is employable. Obviously the workplace (and work challenges) must be tailored to protect her right knee. Mrs. MacPhail appeared to me to be very well motivated and most eager to job retrain. She is not doing herself any personal injury by considering such venture.” Dr. Thomas Loane is specialist in Physical Medicine and Rehabilitation. He was asked to give an opinion based on medical materials provided to him including all the reports mentioned above. He did not actually interview the plaintiff. His report dated July 22nd, 1996 indicates: "Given this level of impairment, mild restrictions in range, mild reductions in stability but ongoing muscle weakness that should respond to strengthening and alteration in bracing, continue to feel that Ms. MacPhail would not be restricted from performing work that was of sedentary, semi-sedentary or light level of effort, particularly restricting climbing, standing, prolonged walking or any activities that stress the knee. Sedentary, semi-sedentary or light work does not usually exceed the physical demands of normal activities of daily living and even more severe knee joint dysfunction can be accommodated through rigid bracing, the use of assistive devices or mobility aids. Therefore, although agree that she does have residual knee joint impairment and does have some mobility related disability, do not believe that the degree of impairment demonstrated is incompatible with employment of restricted nature. As Dr. Leighton points out, there is risk of further deterioration in the knee joint with time. However, there is also the possibility of improvement with strengthening and reducing bracing restrictions. Even with further deterioration of the knee joint to the point where rigid bracing would be required or assistive devices needed for normal mobility, continue to feel that this would not restrict her from sedentary, semi-sedentary or light work." Findings Based on the evidence before me, find that the plaintiff has suffered some very serious injuries as result of the accident on March 24th, 1993. believe she has recovered substantially from most of the injuries except the memory problem and the injury to her knee. Clearly, she has considerable pain, and as indicated in the medical reports submitted by both parties, she will not be able to return to her work as hospital nurse. also find that it is reasonable to expect that in the future she will require knee replacement which will not take place for some time until she is over the age of 50. find that the plaintiffs mobility is severely restricted and that she continues to require the assistance of cane. also believe that the pain she experiences is as she has described and find no evidence that she is embellishing her medical problems. The plaintiff requests general damages for pain and suffering, loss of past wages and loss of future income. General Damages It is submitted on behalf of the plaintiff that based on the injuries she sustained in the accident that she should be awarded general damages for pain and suffering in the amount of $100,000.00. The defendants suggest that the range be between $25-$35,000.00. have been referred to number of cases dealing with situations similar to that of the plaintiff and while it is never easy to find case on all fours with the case before me, believe the proper award for pain and suffering considering the plaintiffs circumstances is the sum of $75,000.00. do this being aware that the plaintiffs pain is continuing and that she will have to undergo knee surgery in the future. would award pre-judgment interest of 2.5%. In making that assessment would note that have been specifically directed by counsel to the following cases: Courtney v. Neville and Losier (1995), 1995 CanLII 4486 (NS SC), 141 N.S.R. (2d) 241 (S.C.); Grant v. McSween (1990), 1990 CanLII 4212 (NS SC), 96 N.S.R. (2d) 260 (S.C.); Dauphinee v. Canada Life Assurance Company et al (1988), 86 N.S.R. (2d) 101 (S.C.); Mahon v. Nova Scotia (A.G.) et al (1986), 73 N.S.R. (2d) 137 (S.C.). Dillon v. Kelly (1996), 1996 CanLII 5605 (NS CA), 150 N. S. R. (2d) 102(C.A.); Woods v. Hubley (1995), 1995 CanLII 4280 (NS CA), 146 N.S.R.(2d) 97 (C.A.). Loss Wages At the time of the accident the plaintiff was working part-time at the V.G. Hospital in the Intensive Care Unit. She was earning $415.29 per week or $21,595.08 per year. The actuarial evidence presented on behalf of the plaintiff from Mr. Brian L. Burnell indicates that based on that income her loss of income to June 2nd, 1997 including interest thereon at rates as set out in Exhibit 15, Schedule I, would amount to $101,014.49. The actuarial evidence presented on behalf of the defendants by John Tarrel values this past loss of earnings at $100,445.00. Therefore, there is obviously no disagreement about the value of this item. Mr. Tarrel, however, factored into his calculation set-off for Section disability benefits received by the plaintiff during that period of time. These benefits were paid to the plaintiff at the rate of $140.00 per week from the date of the accident up until August 31st, 1996, at which time she accepted lump sum settlement of $30,000.00 in respect of future Section disability income benefits. That was paid to her on September 9th, 1996. Mr. Tarrel allocated from the lump sum settlement 39 weeks of benefits at $140.00 per week for the period September 1, 1996 to June I, 1997, making the total Section disability benefits attributable to the past loss period $29,241.00. He then added interest to that amount bringing it to $33,072.00 which he then subtracted from $100,445.00 leaving the sum of $67,373.00 as past loss of earnings. accept Mr. Tarrel's approach to this issue and would therefore find that the plaintiff's past loss of earnings is $67,373.00. However, would also subtract the actual earnings of the plaintiff which Mr. Burnell valued at $2,750.00 thereby leaving past loss of earnings of $64,623.00. The defendants have also advanced the argument that it was not appropriate for the plaintiff to settle her Section disability income benefit in September of 1996 at the sum of $30,000.00. The Tarrel actuarial report pointed out that $30,000.00 payment received in September of 1996, would considering the interest factor, represent five years of weekly payment. He also points out that if it was assumed she would be totally disabled until the age 65, her settlement in September 1996, should have had capitalized value of $84,700.00. The defendants therefore suggest that by accepting the lower figure they have been prejudiced and that the higher figure should be ascribed to any settlement for loss of future earnings. Support for this approach is found in the case of Dillon v. Kelly (1996), 1996 CanLII 5605 (NS CA), 150 N.S.R. (2d) 102 (C.A.). In that case, the Court of Appeal found that the plaintiff had accepted lump sum settlement which was considerably lower than the true capitalized value of the plaintiff's future Section benefits. Because of that, the trial judge accepted the capitalized value as the proper amount to be subtracted from the final settlement. This was approved on appeal. Schedule to Part VI of the Insurance Act provides as follows: “Part II Loss of Income Subject to the provisions of this Part, weekly payment for the loss of income from employment for the period during which the insured person suffers substantial inability to perform the essential duties of his occupation or employment, provided, (a) such person was employed at the date of the accident; (b) within 30 days from the date of the accident and as result of the accident the insured person suffers substantial inability to perform the essential duties of his occupation or employment for period of not less then seven days; (c) no payments shall be made for any period in excess of 104 weeks except that if, at the end of the 104 week period, it has been established that such injury continuously prevents such person from engaging in any occupation or employment for which he is reasonably suited by education, training, or experience, the Insurer agrees to make such weekly payments for the duration of such inability to perform the essential duties.” interpret this section to mean that after the initial 104 week period, the claimant must establish that she is now in fact totally disabled whereas for the first 104 week period she must only prove substantial inability to perform the essential duties of her occupation or employment. Given the position of the defendants that the plaintiff is not totally disabled, have difficulty with the argument that she should not have settled for $30,000.00 in September, 1996. Also, in light of my finding herein that she is not totally disabled and has some ability to earn income, reject the submission of the defendants and find that the settlement arrived at with the Section Insurance Company was reasonable in her particular circumstances. In Dillon v. Kelly, supra, the Court found that the plaintiff there clearly had right to the Section benefits until her date of retirement and in effect had used bad judgment by accepting the low lump sum amount. In this case, the plaintiff was clearly beyond the 104 week initial period and would have to show that she qualified for the Section benefits. She was not questioned on cross-examination about why she did so, and am not prepared to second guess her decision to accept lump sum amount. (See Corkum v. Sawatsky, et al, (1994), 1993 CanLII 3135 (NS CA), 126 N.S.R. (2d) 317.) Loss of Future Earning The parties are far apart on what is an appropriate amount for loss of future earnings. The defendants acknowledge that the plaintiff cannot return to her former occupation, however, they maintain that she will be able to return to some type of work for which she will have income. On the general issue of whether she would in the future be able to earn some income, believe that she will in fact be able to generate some income for employment. believe that she wants to work, if she is able, and will probably find employment, especially when her family are little older. Her original plan was to return to full-time employment when her youngest child went to school. The child is now five years of age. Mr. Burnell used the year 2000 as the date she would be normally working full-time. believe her prospects for employment are very limited considering her physical disability and her memory problems. believe based on her good record of employment in the past, that the plaintiff would have found full-time employment on her original target date. make that finding because believe she is the type of person that would be valuable employee because of her willingness to adapt to changing working circumstances. therefore accept Mr. Burnell's approach that any calculation of her loss of future income should assume that she would return to full-time employment in the year 2000. also accept his assumption that she would not retire until she is 65 years of age. Mr. Tarrel suggests that her retirement date should be 60. While accept the fact that some people do retire before the normal retirement age of 65, see nothing in this case to make me find that the plaintiff would retire before the normal retirement age. person's decision to retire is affected by many factors and is constantly changing depending on person's personal situation. believe it is reasonable to accept normal retirement age unless there is some evidence which would indicate that particular plaintiff would not work until that age. Plaintiff's counsel has suggested that approach the question of residual future earning capacity by applying percentage reduction to earning capacity. accept that approach in this case and find that her residual future earning capacity should be set at 25% and that her future income will be reduced by 75%. Mr. Burnell in Exhibit 15, Schedule 2, valued the present value of the plaintiff’s future loss of income at $722,352.82 from which would deduct 25% whereby establishing her loss at $541,764.66. would subtract from that amount the remaining portion of the Section benefits received by the plaintiff and which were not ascribed to her past loss. The Tarrel report valued these Section benefits at $25,467.00 thereby leaving present value of future earnings at ($541,764.66 $25,467.00) $516,297.66. The plaintiff claims for future loss of pension. Her actuary values this at $104,376.00 from which is subtracted her past contribution savings of $5,455.00 and future contribution savings of $40,294.00 leaving total of $58,627.00. accept this approach as being the appropriate way to deal with her future loss of pension benefits and therefore set the loss at $58,627.00 for future loss of pension. The plaintiff through the actuarial report claims net investment and administration fee of $65,855.00. Considering the amounts of money involved in this case, would find that there should be some investment administration fee, but not at that rate. would set the investment administration fee at $10,000.00. I would therefore summarize my award as follows:1. General Damages - Pain and Suffering $75,000.002. Past loss of income - $64,623.003. Future loss of income $516,297.664. Future loss of pension $ 58,627.005. Net investment administration $ 10,000.00Total loss $724,547.66 award costs to the plaintiff and disbursements to be taxed. In light of my finding of liability against the defendants to the plaintiff, also find that the second action commenced by Carol M. Newbury and William Edward Newbury succeeds against the defendants Dr. Desrosiers and Jean Palmer, but not against Wanda MacPhail, Craig MacPhail, Susan Arsenault, or Janet Chernin. It was agreed by counsel that would determine only the liability issue in regard to the second action. J. 1994 No. 94-105822 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: Wanda MacPhail -and­ Dr. Jacques Desrosiers, Janet .Chernin, Jean Palmer AND: 1995 S.H. No. 115185 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: Carol M. Newbury and William Edward Newbury -and-­ Wanda MacPhail, Craig MacPhail, Susan Arsenault, Oscar Arsenault, Dr. Jacques Desrosiers, Janet Chernin, Jean Palmer and Louise Brodeur Defendants C.A. No. 144661 NOVA SCOTIA COURT OF APPEAL BETWEEN: DR. JACQUES Desrosiers and JEAN PALMER and WANDA MacPHAIL, CAROL M. NEWBURY, WILLIAM EDWARD NEWBURY, CRAIG MacPHAIL, SUSAN ARSENAULT and OSCAR ARSENAULT Respondents REASONS FOR JUDGMENTS BY: HALLETT, J.A.
The plaintiff had an abortion at a Halifax clinic. The plaintiff was in the recovery room for 30 to 45 minutes after the procedure, and then left. On the drive home, she was injured in a motor vehicle accident when she fainted and her car crossed the centre line of the highway and struck another vehicle. She sued three members of the clinic staff, including the doctor who performed the abortion, alleging negligence in letting her drive after the abortion. Awarding the plaintiff $724,000 for past and future loss of income, future loss of pension, and general damages, that based on the evidence of the possible complications from surgery such as an abortion, and considering the emotional impact of an abortion on all women, the defendants breached their standard of care as health care professionals in permitting the plaintiff to drive after the abortion.