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