In Canadian tort law, psychological injury is compensable without proof of an accompanying physical injury. The Supreme Court of Canada confirmed this in Saadati v Moorhead, 2017 SCC 28, holding that a plaintiff need not establish a recognized psychiatric diagnosis or call expert evidence in every case. What the plaintiff must show, however, is harm that is serious and prolonged and that rises above ordinary annoyances and disturbances of life.
The line between a compensable mental injury and ordinary psychological upset is not always easy to draw. Bothwell v London Health Sciences Centre, 2023 ONCA 323 is a recent Ontario Court of Appeal decision that gives the line some texture, particularly in the medication error context. The case involved a serious and disturbing event: a hospital nurse mistakenly administered Heparin (an anticoagulant) instead of Voluven (a volume expander) to a post-operative patient who was already at risk of bleeding. The patient had an understandable reaction, including persistent anger and frustration that continued for years. The Court of Appeal held that those feelings, on the evidence in the case, did not meet the Saadati threshold. The claim was dismissed.
The facts
Craig Bothwell, a paramedic, had a long history of Crohn’s disease and had undergone several previous bowel resection surgeries. On September 22, 2011, he attended at London Health Sciences Centre, Victoria Hospital for a reverse ileostomy.
While Mr. Bothwell was recovering in the post-anaesthesia care unit, his blood pressure began to drop. The treating physician ordered Voluven, a colloid solution used to expand intravascular volume. The nurse administered Heparin instead. Mr. Bothwell, partly conscious, heard a voice in the room ask whether the Voluven had been hung, followed by the realization that the medication actually given was Heparin.
Mr. Bothwell required further surgery to address bleeding into the abdominal cavity. He was understandably shaken by what had happened. His feelings of anger and frustration persisted long after his recovery, particularly when his work as a paramedic took him back to the hospital. His wife, also a paramedic, had at one point thought she would lose her husband.
The Bothwells sued the hospital in negligence.
The trial
The trial was bifurcated. The first phase addressed liability and causation; damages were left for a later phase.
The defence theory at trial was that the bleeding requiring further surgery was caused by an intraoperative injury, not by the Heparin. The trial judge accepted that theory. He found that Mr. Bothwell had been hemorrhaging before the medication error and that the further surgery would have been required even if Heparin had not been administered. The plaintiffs had therefore not established that the medication error caused any additional physical injury.
The trial judge then turned to the question of mental injury. The evidence on this issue was modest: it consisted of Mr. Bothwell’s own testimony, which the trial judge accepted as sincere and reliable. There was no expert evidence. There was no evidence that Mr. Bothwell had sought or received treatment for emotional symptoms, and Mr. Bothwell acknowledged that the experience had not interfered with his ability to do his job.
Applying Saadati, the trial judge concluded that Mr. Bothwell’s persistent anger and frustration about the medication error were objectively and subjectively serious and went beyond ordinary annoyances. He found that the medication error had caused a compensable mental injury.
The hospital appealed.
The Court of Appeal
The Court of Appeal allowed the appeal and dismissed the claim.
The court accepted that the medication error was a clear breach of the standard of care and that it had been a deeply disturbing event for Mr. Bothwell and his family. It accepted that his feelings of anger and frustration were genuine and persistent. The question was whether those feelings, without more, amounted to a mental injury under Saadati.
The court held they did not. Saadati permits a finding of mental injury without expert evidence and without a formal psychiatric diagnosis, but it does not abolish the threshold. The plaintiff must still demonstrate something more than emotional upset. The kinds of evidence that typically meet the threshold include impairment of cognitive functioning, interference with activities of daily living, and treatment for emotional symptoms. None of those was present in Bothwell. Mr. Bothwell continued to work as a paramedic. He had not sought treatment. There was no evidence of impaired functioning.
What he had was psychological upset, which is not, in itself, a compensable injury in tort. The claim was dismissed.
The doctrinal context
Saadati v Moorhead is the controlling Canadian authority on mental injury. The Supreme Court held that:
- A plaintiff need not establish a recognized psychiatric illness
- Expert evidence is not strictly required, though it remains important in many cases
- The trier of fact may find a mental injury based on lay evidence where the harm is sufficiently serious
- The threshold remains meaningful: the harm must be serious and prolonged, and must rise above ordinary annoyances and disturbances of life
Bothwell is a useful application of those principles. It illustrates that Saadati is not a licence for every difficult experience to support a claim in tort. The threshold protects defendants from liability for ordinary upset, however genuine, and ensures the system can assess claims with at least some measure of objectivity. Where a plaintiff’s psychological response, however understandable, has not impaired their functioning, has not led them to seek treatment, and has not interfered with their work or daily activities, the Saadati line will likely fall on the side of non-compensable upset.
The case is also a reminder that medication errors, even serious ones, do not automatically produce a successful claim. Where the error has caused no physical injury and no compensable mental injury, the plaintiff has no recoverable loss, and the action will not succeed regardless of how clear the breach of the standard of care is.
Why this case matters
For plaintiffs and their counsel. Bothwell is a reminder that mental injury claims, including those arising from medication errors and other adverse events, require evidence that crosses the Saadati threshold. In practice, this typically means evidence of impaired functioning, interference with daily activities, or treatment sought from a mental health professional. A claim that depends entirely on the plaintiff’s testimony that they have remained angry or upset, without expert evidence and without functional consequences, will not usually succeed. Counsel screening these cases should consider, at the intake stage, whether the available evidence will reach the threshold and whether a clinical assessment is needed to develop the case properly.
For defence counsel. Bothwell confirms that the Saadati threshold remains real. Where a plaintiff’s evidence consists of subjective accounts of distress without objective indicators of impairment, the threshold provides a robust basis to challenge mental injury claims even where breach is admitted. The case also illustrates that the appellate courts will engage with the threshold analysis and will set aside trial findings of mental injury where the underlying evidence does not support them.
For patients and families. A medication error in hospital is a serious event, and the emotional response to it is real. But the law of tort compensates for harm rather than for indignation, and the harm that supports a mental injury claim must be more than the persistent anger or frustration that follows a frightening medical experience. If you are concerned that an adverse event has caused you serious psychological harm, the first step is usually a careful clinical assessment by a mental health professional, both for treatment and for the legal record. The clinical picture that emerges from that assessment will largely determine whether a viable claim exists.
For more on medication error claims, see the Medication Errors practice page. For an overview of the legal process for medical malpractice claims in Ontario, see Suing for Medical Malpractice in Ontario: What You Need to Know.
Decision Date: May 1, 2023
Jurisdiction: Court of Appeal for Ontario
Citation: Bothwell v London Health Sciences Centre, 2023 ONCA 323 (CanLII)
