Discussing Your Dental Malpractice Claim with a Lawyer

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Here are 15 reasons why you should discuss a Dental Malpractice Claim with a Personal Injury Lawyer that specializes in Dental Malpractice Cases in Ontario:

 

1. To determine if you have a case: A dental malpractice lawyer can evaluate your case and determine if you have grounds for a claim.

2. To understand your legal options: A lawyer can explain your legal options and the process for pursuing a dental malpractice claim.

3. To gather evidence: A lawyer can help gather evidence to support your claim, such as dental records, medical bills, and witness statements.

4. To navigate complex legal procedures: Dental malpractice claims can be complex, and a lawyer can help navigate the legal procedures and deadlines.

5. To negotiate with insurance companies: A lawyer can negotiate with insurance companies on your behalf to ensure that you receive fair compensation.

6. To represent you in court: If necessary, a lawyer can represent you in court and advocate for your rights.

7. To provide legal advice and guidance: A lawyer can provide legal advice and guidance throughout the claims process.

8. To ensure your rights are protected: A lawyer can ensure that your legal rights are protected and that you are treated fairly.

9. To calculate damages: A lawyer can help calculate the damages you are entitled to, including medical expenses, lost income, and pain and suffering.

10. To maximize compensation: A lawyer can work to maximize your compensation and ensure that you receive the full amount you are entitled to.

11. To handle communication with the dentist: A lawyer can handle communication with the dentist and their insurance company on your behalf.

12. To minimize stress: Pursuing a dental malpractice claim can be stressful, and a lawyer can help minimize that stress by handling the legal aspects of the case.

13. To increase the likelihood of success: A dental malpractice lawyer can increase the likelihood of success by using their expertise and experience to build a strong case.

14. To help you understand the legal process: A lawyer can help you understand the legal process and what to expect throughout the claims process.

15. To ensure that justice is served: Pursuing a dental malpractice claim with the help of a lawyer can ensure that justice is served and that the dentist is held accountable for their actions.

​

Muralla v Qazi, 2017 ONSC 2339 (CanLII)

 

The plaintiff, Guillerma Muralla, has brought a claim against the defendant, Dr. Mujeeb Qazi, alleging dental malpractice relating to an examination and treatment that took place on March 25, 2012. The defendant moves for summary judgment to dismiss the plaintiff’s claim against him. The plaintiff asks that the defendant’s motion be dismissed on the basis that there are genuine issues for trial.

 

For the reasons that follow, the defendant’s motion for summary judgment is dismissed.

 

Summary Judgment Principles

 

On a summary judgment motion, the court will find no genuine issue requiring a trial when it is able to reach a fair and just determination on the merits. The motions judge should determine if there is a genuine issue requiring a trial based only on the evidence before her, without using the fact-finding powers in Rule 20.04(2.1)of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194: see Hyrniak v. Mauldin, 2014 SCC 7, 366 D.L.R. (4th) 641, at paras. 49 and 66.

 

The standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute. The evidence need not be equivalent to that at trial but must be such that the judge is confident that she can fairly resolve the dispute: see Hyrniak, at paras. 50 and 57.

 

On a summary judgment motion, the court is entitled to assume that the parties have advanced their best case and the record contains all of the evidence the parties would present at trial: see Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 33.

 

The parties agree that, for a medical malpractice case, a plaintiff must deliver expert reports to establish the standard of care, the breach of the standard of care, and that the negligent treatment was connected to the injury in question: see McNeil v. Easterbrook, [2004] O.J. No. 3976, at para. 16. Otherwise, there would be no genuine issue for trial and summary judgment should be granted in favour of the defendant.

 

Facts

 

1. On March 23, 2012, the plaintiff saw her regular dentist, Dr. Kirupkaran, complaining of headaches, dizziness, nausea, and jaw pain.

2. Dr. Kirupkaran prescribed antibiotics and the plaintiff filled the prescription that day.

3. On March 25, 2012, the plaintiff attended Dr. Kirupkaran’s office complaining of jaw pain. She was seen by the defendant.

4. The defendant removed an upper right wisdom tooth, tooth 18.

5. On March 26, 2012, the plaintiff went to North York General Hospital complaining of right jaw pain. She was diagnosed, treated, and discharged.

6. On March 28, 2012, the plaintiff went to Toronto East General complaining of jaw pain. She was diagnosed, treated, and discharged.

7. On March 29, 2012, the plaintiff was admitted to Toronto East General with a dental infection. She was treated and operated on by Dr. El Masri. Over the next few months she was in and out of the hospital all the while being treated by Dr. El Masri. She was ultimately discharged May 11, 2012.

8. The plaintiff issued her claim on March 24, 2014, alleging that the defendant was negligent in his treatment of her on March 25, 2012.

 

In support of his motion, the defendant relies upon an expert report from a Dr. Speers dated April 10, 2015, which speaks to standard of care and causation. The defendant also relies upon expert reports from a Dr. Zoutman dated July 22, 2016 and March 7, 2017, which speak to causation. In opposition to the defendant’s motion, the plaintiff relies upon two expert reports from a Dr. Gryfe, one dated November 26, 2015, which speaks to standard of care and causation, and one dated February 13, 2017, which speaks to causation.

 

I am faced with two competing sets of medical opinions on the issues of standard of care and causation which are based upon different facts. Each party says the other’s assumed facts are wrong. I am not confident that I can fairly resolve the issues on a paper record. These are genuine issues that require a trial to resolve. While every case is different, a similar conclusion was reached in Maracle v. Mascarin, 2016 ONSC 537, at para. 32, leave to appeal refused 2016 ONSC 271, and in Paul v. Oliver Fuels Ltd., 2012 ONSC 978, at para. 44. While the latter decision was pre-Hyrniak, I find the reasoning in it to be apt and in line with the reasoning in Maracle.

 

Several issues raised are best left to trial, including: whether Dr. Gryfe is qualified to give an expert opinion on the standard of care of a dentist as a specialist rather than a dentist, whether Dr. Gryfe’s reliance on the defendant’s discovery evidence was improper, and whether the non-review of the defendant’s discovery evidence by the defendant’s experts was improper. At trial, the trial judge can determine these issues following voir dires to determine qualifications, the admissibility of the various expert opinions, and ultimately the weight of the opinions given, if admitted.

 

At a trial, the reports do not go in as evidence. The experts, once qualified, give their opinions through testimony. While their testimony is not to stray from their reports, ultimately their opinion, because they lack personal knowledge of the matters in issue, is based upon hypothetical questions incorporating assumed facts. These medical expert witnesses give their evidence at trial in the witness box where different hypotheticals can be put to them and where the trial judge will be the one to ultimately determine whether a fact has been proven and is no longer a hypothetical. If the trial judge rejects the factual premises on which the opinion is based, then the expert’s opinion must be rejected as well.

 

As part of this fact-finding process, it is more appropriate for the trial judge to see and hear the fact witnesses, such as the plaintiff and defendant and perhaps some of the treating doctors, so as to determine the facts upon which the expert opinions will be based. Equally, issues relating to the defendant’s discovery evidence and the rehabilitation evidence is best left to trial and the trial judge, where the defendant will presumably give evidence and where the discovery evidence may be used in a variety of ways by the plaintiff.

 

Costs

Being successful on the motion, the plaintiff is presumptively entitled to costs. The parties have provided me with their cost outlines for the motion. They have advised me that there are no offers that might impact upon a costs award. 

 

While the hourly rates of the plaintiff’s counsel are appropriate, the amount of time spent is excessive. I fix costs, inclusive of disbursements and HST, at $17,000. The costs are to be paid by the defendant to the plaintiff within 30 days of today’s date.

​

Johnson v. Rajanna, 2021 ONCA 453 (CanLII)

 

On appeal from the order of Justice Michael T. Doi of the Superior Court of Justice, dated April 22, 2020, with reasons reported at 2020 ONSC 2489.

 

The appellant, Phyllis Johnson, appeals the motion judge’s order, granting summary judgment in favour of the respondents, dismissing her action against them. She also seeks leave to adduce fresh evidence on appeal, consisting of the affidavit and report of Dr. Ronald M. Kellen, a retired dentist. 

 

The appellant raises several arguments on appeal. With the benefit of the fresh evidence, the motion judge would have adjourned the summary judgment motion. Accordingly, we set aside the dismissal of the appellant’s action.

 

Background

 

In March 2015, the appellant commenced an action against the respondents for dental malpractice arising out of Dr. Rajanna’s extraction of a molar in April 2013. She alleged that she suffered nerve damage from the procedure, which resulted in lost sensation and feeling in the lower left side of her tongue and mouth.

 

In February 2016, the respondents gave the appellant notice of their intention to seek a summary dismissal of the action because she had not obtained expert evidence to establish that the respondents had failed to meet the standard of care.

 

After an adjournment to allow the appellant more time to obtain her expert reports, the summary judgement hearing was heard March 11, 2020. The motion judge, after making some inquiries of the appellant, concluded that she was unable to obtain an expert report to support her claim against the respondents and that, given the complexity surrounding the application of clinical dental skills in determining liability, this was not a case where liability could be determined without expert admissible evidence addressing the standard of care and causation. Because the appellant had not delivered expert evidence to support her dental malpractice claim, and the respondents had adduced their own expert evidence which states that the dental treatment at issue met the expected standard of care, he found there was no genuine issue to be tried.

 

The Fresh Evidence:

 

Dr. Kellen, a retired dentist prepared a report for the appellant, May 15, 2020. He expressed the opinion that the paraesthesia (numbness) almost certainly developed from additional injections with a damaged or a too large gauge needle. The fact that the paraesthesia happened to both the lingual nerve and the inferior alveolar nerve raises the probability that more than one block injection was used and that one or more of the further injections had a bur-damaged needle tip, which would have torn nerve tissue.

 

The x-ray showed that the appellant’s bone is dense, with narrow periodontal ligament space around the tooth being extracted. This definitely increased extraction difficulty. There is no indication in the chart that there was any pre-planning or consideration of the potential problems with the extraction that developed. This indicates negligence.  

 

When Dr. Rajanna realized the difficulties with the extraction, there is no indication that she stopped, re-assessed, or considered aborting and referring the appellant to a nearby oral surgeon. That is negligence.

 

Application of the test for fresh evidence

 

R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775, established the test for the admission of fresh evidence on appeal:

1.   The evidence should not be admitted if, by due diligence, it could have been adduced at trial, but this general principal will not be applied as strictly in criminal cases as in civil cases;

2.   The evidence must be relevant in the sense that it bears on a decisive or potentially decisive issue;

3.   The evidence must be credible in the sense that it is reasonably capable of belief; and

4.   The evidence must be such that if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. 

 

As to the first factor, the respondents say that the time to adduce expert evidence was before the hearing of the summary judgment motion. They point out that the appellant had several years to obtain a supportive expert report and, according to her, had approached at least ten dentists, trying to do so. That is evidence that she had been trying to obtain an expert report. Once she found Dr. Kellen she followed up with his report promptly, within two months of the hearing date. 

 

There is no dispute that the second factor is satisfied. The expert evidence is clearly relevant to the issue that was before the motion judge.

 

As to the third factor, the respondents say that the fresh evidence is not credible because Dr. Kellen’s report is not accompanied by an assurance of his objectivity, in the form of an acknowledgment of the expert’s duty (Form 53), signed by Dr. Kellen, as required by r. 53.03(2.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Further, they say that Dr. Kellen makes groundless assumptions and assertions about Dr. Rajanna, which should lead this court to conclude he cannot meet his obligation to provide the court with a fair, objective and non-partisan opinion.

 

To the extent there are deficiencies in Dr. Kellen’s report, they may speak to a lack of experience as an expert witness or the preparation of the report without input by counsel. Nonetheless, in our view, Dr. Kellen’s evidence is reasonably capable of belief.

 

The fourth Palmer factor, the respondents argue that Dr. Kellen’s report suffers from a further, fundamental deficiency: it fails to definitively opine on both standard of care and causation. Dr. Kellen could have expressed his opinions with greater clarity. But, contrary to the respondents’ assertion, his opinions, summarized above, address both standard of care and causation.

 

If the motion judge had the benefit of Dr. Kellen’s affidavit and report he would not have granted summary judgment in favour of the respondents.

 

The respondents were seeking a summary dismissal of the appellant’s action and had the onus of establishing there was no genuine issue requiring a trial. There appears to be no dispute that the appellant suffers from a real injury. Unfortunately, the appellant did not specifically request an adjournment or clearly advise that she had retained an expert to the summary motion judge.

 

We are persuaded that, faced with a 77 year-old self-represented party, seemingly of limited means, who suffered injury as a result of a dental procedure, who had struggled to secure an expert, who had retained an expert at the time she appeared before him, and who then secured a supportive expert report, the motion judge would have concluded that it was in the interests of justice to adjourn the motion to provide the appellant with an opportunity to cure the deficiencies in the expert report.

 

Conclusion:

Accordingly, we allow the appeal and set aside the dismissal of the appellant’s action and the costs below, without prejudice to the respondents’ right to bring a further summary judgment motion. Should the respondents elect to bring a further summary judgment motion, the privileged materials included in the motion record below and in the responding materials on this appeal should not form part of the motion record.

​

Withers v. Patel, 2021 ONSC 5220

 

The Defendant provided dental treatment to the Plaintiff out of the Manitouwadge Dental Clinic (“the clinic”) between July 3, 2013 and November 27, 2013

 

The Plaintiff seeks damages from the Defendant for dental malpractice, battery and breach of fiduciary duty. The Plaintiff claims damages under four heads: general damages for loss of a tooth and battery, pecuniary damages for future expenses, punitive damages and aggravated damages.  The Plaintiff did not set out a monetary amount in his statement of claim. 

 

The Defendant states that the Plaintiff has failed to establish negligence or causation and is therefore entitled to no damages. The Defendant gave no range for damages for battery asserting instead that the Plaintiff consented to the treatment, leaving no room for a damages award.

 

In addition, the Defendant advances a limitations defence.  The statement of claim was issued on November 18, 2015.  The Plaintiff agreed that any information relative to consent was given on or before the date of the root canal treatment (“RCT”) on November 14, 2013.  Thus, the Plaintiff possessed knowledge to ground a claim for negligence and breach of the standard of care with respect to the RTC by November 14, 2013.  The claim had to be issued on or before November 14, 2015.  It is therefore statue barred.

 

The Plaintiff’s evidence

 

The Plaintiff offered no evidence that any act or omission on the part of Dr. Patel was sub-standard, improper or inappropriate. There is nothing to base a finding of negligence and in the absence of something more serious or expert evidence that Dr. Patel’s performance of the extraction was improper, unprofessional or that it fell below the standard of care, I cannot find it amounted to battery.

 

Dr. Patel’s clinical charts over many days shows the Plaintiff was well informed of the doctor’s findings, recommendations, and his options. That evidence is contrary to the Plaintiff’s claims he was left out of decision making. Furthermore the Plaintiff argues that his depression and PTSD contributed or were caused by the loss of the tooth. The Plaintiff had lost 6 and 8 adult teeth before seeing Dr. Patel. There is no medical evidence to support the Plaintiff’s assertion. Also why did his mental health issues decline with tooth #37 and not when he lost the other teeth. There was no credible explanation offered.

 

The Plaintiff’s assertions that eating and talking exacerbate his discomfort and that he has chronic jaw and muscle pain are completely undocumented.  If these problems were significant, troubling and permanent, one would have expected to see some history of treatment, therapy or complaint.  This evidence is irreconcilable with the complete absence of medical records documenting any concerns or complaints for over seven years. 

 

Defendant’s Evidence

 

Dr. Patel impressed me as a competent professional and made for a sound, credible witness.

I accept his evidence that he detected the diseased #37 tooth early on in his treatment of the Plaintiff.  By July 3, he noted that bacteria had penetrated and infected outside the apex of the tooth. I accept that he then discussed the Plaintiff’s options and the risks associated with RCT.  This was consistent with his clinical chart and with his normal practice.  He recounted in detail their discussion of November 11: both the size of the lesion and the fact that the tooth contained a filling increased the risks of RCT which included loss of the tooth. 

 

Dr. Patel provided a detailed explanation of the RCT and how the x-ray taken following the procedure revealed a perforation. Dr. Patel recommended a referral to an endodontist but that the nearest one was many hours away.  Because it was not feasible to repair the damaged tooth in a short period of time, Dr. Patel recommended its removal. He obtained the written consent of the Plaintiff and proceeded with the extraction on November 19.

 

Dr. Speers

 

Dr. Speers was qualified as an expert in general dentistry, restorative dentistry and comprehensive restorative dental care. He read and reviewed the clinical chart and the radiographs.He opined that it was appropriate for Dr. Patel to recommend RCT.  There was clear evidence of infection at the end of the two roots of tooth #37.  There was evidence of dissolution of the bone caused by the infection.   RCT was the only option available to save the tooth; the tooth could no longer be saved after the perforation.  

Dr. Speers was an entirely credible witness.  I found his expert opinion helpful and reliable.  There being no competing expert opinion, his evidence was effectively uncontradicted.  

 

Rules:

Standard of Care

 

The Plaintiff tendered no expert opinion that Dr. Patel’s treatment of him fell below the standard of care.  In Kurdina v. Gratzer, 2010 ONCA 288, at para. 2, the Ontario Court of Appeal made clear the need for expert evidence to establish a breach of the standard of care in medical malpractice case. It is no different for dental malpractice cases.  As stated by Justice Doi in Johnson v. Rajanna, 2020 ONSC 2489. Not only did the Plaintiff not provide the court with any expert evidence on the issue of standard of care, but he conceded that no doctor or dentist has advised him that Dr. Patel’s treatment fell below that standard. In any event, the evidence that I did receive, including the expert opinion of Dr. Speers, satisfies me that Dr. Patel’s treatment of the Plaintiff was at all times appropriate.

 

Battery and Informed Consent

 

There is no basis for a finding of battery. I find that the Plaintiff was provided with all the necessary information to allow him to make an informed decision regarding both the RCT and the extraction.. The Plaintiff provided written consent to the extraction on a detailed form. I accept that extraction was the only option once the perforation was detected. I find that a reasonable person in the same situation as the Plaintiff would have undertaken those same procedures. There was no expert evidence led of what other variety of information could have or should have been offered to the Plaintiff. There was no evidence that the procedures inflicted any kind of unnecessary or unusual pain or discomfort on the Plaintiff’s person.

 

Breach of Fiduciary Duty

 

There is no basis for a finding that Dr. Patel breached his fiduciary duty to the Plaintiff.  I accept none of the Plaintiff’s evidence that the Defendant exploited or mistreated him, or acted in a manner contrary to the best interests of his patient.  The evidence satisfies me that Dr. Patel’s treatment and handling of the Plaintiff’s situation was entirely appropriate, professional and fair. 

 

Limitations Defence

 

The Plaintiff’s claim is partly statute-barred.  This action needed to be commenced within two years of the discovery of the claim.  The statement of claim was issued on November 18, 2015. Any potential claims discovered by the Plaintiff prior to November 18, 2013 are statute barred.   

 

Any claims related specifically to the tooth extraction on November 19, 2013 are not statute barred since the facts relevant to the claims under informed consent and battery for that procedure could not have been known until that date.

 

Damages

 

Since there was no battery, there can be no damages for battery.

Since there was no breach of fiduciary duty, there is no basis upon which to assess damages under that heading.

I am unable to find that the loss of tooth #37 has materially contributed to his PTSD or depression. There was no medical evidence upon which to arrive at that conclusion; those afflictions were present in the Plaintiff’s life long before the tooth extraction.  If indeed the RCT or extraction had been proved to be unnecessary or if the extraction had been proved to be the result of some negligent act on the part of the Defendant, then the pain and discomfort accompanying those procedures would have been compensable as well. 

I would have assessed general damages at $5,000.00.

The Plaintiff did not pursue his claim for aggravated or punitive damages.  There is no basis upon which to award damages under either of those headings. 

Conclusions:

The Plaintiff has failed to prove negligence or breach of the standard of care on the part of the Defendant.

There is no basis for a finding of battery or breach of fiduciary duty.

The Plaintiff’s claims relative to the RCT are statute barred. 

 

There is no basis for the recovery of any damages. 

 

For the foregoing reasons, the claim is dismissed.

​

Maracle v Mascarin, 2016 ONSC 537

 

This is a summary judgment motion by the defendant, Dr. Mascarin, a dentist, to dismiss the plaintiffs’, Amos Maracle and Patricia Brant, action against him for damages based on his alleged negligent dental malpractice.  

 

The defendant, Dr. Mascarin, states that there are no genuine issues requiring a trial. The defendant dentist claims the plaintiffs have failed to acquire a Rule 53.03 compliant expert to challenge the opinions of the experts retained by the defendant that it is unlikely that the dental treatment in question caused the plaintiffs’ injuries and damages.

 

The plaintiffs state that they served an expert opinion more than two years ago.  This opinion is from Dr. Campbell, the then treating physician of the plaintiff, Amos Maracle.  The plaintiffs state that Dr. Campbell as a “participant expert” or “fact witness” does not require compliance with Rule 53.03 of the Rules of Civil Procedure for his opinion to be admissible. The plaintiffs state that a summary judgment motion is not the forum to resolve competing expert reports.

 

Facts: 

On December 2, 2009, the plaintiff Amos Maracle, attended at the defendant’s dental clinic to inquire about tooth implants. The defendant dentist Dr. Mascarin examined Mr. Maracle and suggested 3 to 4 dental implants that they would start implanting that day.  

 

Mr. Maracle had undergone heart surgery in 2007 and had a heart infection in 2008. Mr. Maracle had been told by his treating physicians, family physician Dr. Lisowski and his heart specialist Dr. Campbell, that he would need antibiotics before any medical or dental procedure. Mr. Maracle had not taken any antibiotics that day because he was only expecting to attend a consultation with Dr. Mascarin but Dr. Mascarin told Mr. Maracle that he had the medication and would provide it to him so they could start the dental procedure.  

 

Dr. Mascarin provided Mr. Maracle with pills and a cup of water and then asked Mr. Maracle to wait in the waiting room. Less than 20 minutes later Mr. Maracle was called back into the office to start the implant procedure. Dr. Mascarin asserts he had waited more than 60 minutes before beginning the procedure to allow the prophylactic antibiotics to take effect. However, Patricia Brant, Mr. Maracle’s wife recalls the dental visit from the time of consultation till they left the office at the end of the procedure to be 45 minutes.

 

There were no immediate or apparent post-operative difficulties for Mr. Maracle. However on January 21, 2010, 50 days later, Amos Maracle suffered sudden loss of vision in his right eye. February 2, 2010, Mr. Maracle saw his treating cardiologist Dr. Campbell for complaints of chest discomfort. Dr. Campbell diagnosed Mr. Maracle with inflammation of the lining of one of the heart valves, Streptococcal mitis/oralis aortic valve endocarditis. 

 

On March 5, 2010, Dr. Campbell sent a report to Dr. Lisowski, Mr. Maracle’s family physician, which included the comments and opinions regarding the heart condition of Amos Maracle: 

 

f)         Unfortunately, he had dental work done a couple of week[s] prior to his presentation.  He did receive Penicillin but only waited in the waiting room for about 20 minutes before his dental work was performed.  He would not have reached therapeutic blood levels of antibiotics by that time and this was the likely source of his infective endocarditis.

 

The statement of claim in this action issued December 2, 2011, followed by the statement of defence on May 3, 2012.

 

The defendant served Rule 53.03 compliant reports from Dr. Nicolucci on November 2, 2012 and from Dr. Zoutman on March 6, 2013 that contested the causation of Mr. Maracle’s health issue being from the dental implant procedure. The reports by Dr.

Nicolucci and Dr. Zoutman were based on their respective reviews of a copy of the defendant dentist’s clinical notes and records.  

In December of 2015, the Royal College of Dental Surgeons of Ontario advised counsel for the plaintiffs that: 

 a)      The College requested the original clinical chart from the defendant dentist to assist with its investigation of the complaint which the plaintiff Amos Maracle had made to the College; and

b)      The defendant advised the College that his original chart seemed to have gone astray and could not be located.

The plaintiffs state that this information provided by the College is important for a number of reasons:

a)        The amount and type of antibiotic given to Amos Maracle and the length of time the dentist waited before starting the procedure are critical pieces for the causation opinions.  That is particularly so, the plaintiffs state, as the defendant asserts that he waited one hour while the plaintiffs’ evidence is that it was but 20 minutes between the time the antibiotics were administered and the procedure started.

The plaintiffs also note that the discipline record of the defendant dentist with the Royal College of Dental Surgeons of Ontario indicates that in 2005 he had been found guilty for failing to keep records as required by the Regulations of the College and that he was found guilty of falsifying a record.

Issue:

The issue on this motion is whether there is a genuine issue requiring a trial with respect to the claim the plaintiffs advance.  The defendant seeks Summary Judgment on the grounds that there is no genuine issue requiring a trial as the plaintiffs are unable to establish that the defendant caused the alleged injuries pleaded in the statement of claim.

 

Rules and Analysis: 

The court shall grant Summary Judgment if it is satisfied that there is no genuine issue requiring a trial with respect to a claim. 

                        Rules of Civil Procedure, Rule 20.04(2)(a)

Rule 20.04(2.1) and (2.2) grant enhanced powers for Judges hearing Summary Judgment motions.  These include:

                        a)               The ability to weigh evidence;

                        b)               The ability to determine credibility;

                        c)               The ability to draw reasonable inferences; and

                        d)               The ability to hear oral evidence – the “mini trial”.

The Supreme Court of Canada in Hryniak, [Hryniak v. Mauldin, 2014 SCC 7 (CanLII), [2014] S.C.J. No 7], detailed these additional propositions on the resolution of Summary Judgment motions:

a)     There will be no genuine issue requiring a trial when the Judge is able to reach a fair and just determination on the merits on a motion for Summary Judgment:  para 49.  

b)     This will be the case when the process

                   i)   allows the Judge to make the necessary findings of fact,

                   ii)  allows the Judge to apply the law to the facts, and

                  iii) is a proportionate, most expeditious and less expensive means to achieve that result:  para 66

c)    The enhanced fact – finding powers granted in Rule 24.04(2)(1) may be employed on a motion for Summary Judgment unless it is in the “interests of Justice for them to be exercised only at trial”:  para 52

In cases allegingdental malpractice, liability may be established if the plaintiffs demonstrate on a balance of probabilities that the dentist’s conduct fell below the applicable standard of care, which is the degree of skill of a reasonably competent dentist practising in Ontario:  McNeil v. Easterbrook [2004] [O.J. No. 3976] (S.C.J) at para 14.  The plaintiffs must establish that the treatment in question was the cause of the injury.  In the face of an expert opinion obtained by the defendant on a technical causation issue such as in a medical malpractice case, a finding of negligence must be based on a supporting expert opinion:  McNeil ibid at paras 15 and 16.  If the plaintiffs in these circumstances do not deliver an expert report on the issue of causation and negligence, they will not have raised a genuine issue with respect to that material fact and the defendant would be entitled to Summary Judgment:  McNeil ibid at para 16.

Relying on the Divisional Court decision of Westerhof v. Gee Estate (2013 ONSC 2093) the defendant states that if a party seeks to introduce opinion evidence from a treating physician for its truth, that party must comply with Rule 53.03 and that failure to do so should be a barrier to the admissibility of that report. 

This Divisional Court decision of Westerhof was overturned by the Ontario Court of Appeal:  see Westerhof 2015 ONCA 206.  The Court of Appeal distinguished reports from experts “engaged by or on behalf of a party” from that of treating physicians with notes and records as tendered.  The Court of Appeal referred to the latter type of experts as “participant experts” and stated this:

“Para 60. . . I conclude that a witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with rule 53. 03 where:

a)               the opinion to be given is based on the witness’s observation of or participation in the events and issues; and

b)               the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.

Para 62. . . I conclude that rule 53.03 does not apply to the opinion evidence of a non-party expert where the non-party expert has formed a relevant opinion based on personal observations or examinations relating to the subject matter of the litigation for a purpose other than the litigation.”

 

Dr. Campbell had been the treating cardiologist for the plaintiff Maracle prior to this dental procedure on December 2, 2009.  He saw Mr. Maracle some two months later on February 2, 2010 for heart issues following the plaintiff’s development of blindness in his right eye.  He treated him over the next few weeks and provided an opinion on March 9, 2010.  The Statement of Claim was not issued until December 2, 2011.  The judge was satisfied that Dr. Campbell at all times a participant expert whose notes, records and opinions were prepared as a treating physician and not as one who was “engaged by or on behalf of a party to provide opinion evidence in relation to a proceeding”. As a result, rule 53.03 does not apply and the notes, records and opinion of Dr. Campbell are all admissible. In addition, the judge noted that the records and notes of Dr. Campbell are admissible as business records made in the usual and ordinary course of a business under s. 35 of the Evidence Act and under s. 52 of that Act as a report obtained by a party to an action signed by a physician and with leave of the Court.

The defendants have produced two Rule 53.03 compliant medical opinions that believed Mr. Maracle’s infective endocarditis was not caused by the dental procedure. 

In light of the competing medical opinions on the causation, the judge found it was a question of fact to be determined by a trial judge. “It is not for this court to weigh conflicting evidence or to reassess the relative merits of contradictory expert testimony.”

Additionally, the accuracy and reliability of Dr. Mascarin’s notes and records are in question. He was unable to produce to the Royal College of Dental Surgeons of Ontario his original notes and records which apparently have gone missing for unnamed reasons.  The plaintiffs state that these notes and records are of importance, as the opinions on causation obtained by the defendant rely and are based on those very notes and records.  The plaintiffs further state that it is not clear from these notes and records what quantity and type of antibiotics were administered.  The plaintiffs urge that discoveries are needed to ferret out answers to these issues relating to the defendant’s notes and records.

Conclusion: 

Summary Judgement is dismissed.

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Robillard et. al. v. Edwards-Turner et. al., 2022 ONSC 1668 (CanLII)

 

For the reasons that follow, the motions ought to be dismissed.

 

Issue: 

Is this a suitable case for partial summary judgment when there are competing experts’ reports?

Analysis:

 

The investigating officer with the OPS, Cst. Nigel Emaman, a trained accident reconstructionist, was examined for discovery as the representative of the OPS. He testified that based on the phone data regarding the text exchanges between Mr. Robillard and Mr. Higo leading up to the collision, his conclusion was that Mr. Robillard was texting at the time of the accident. This view is clearly at odds with the Jenish (Robillard) report that said the possibility of texting as a contributing factor was extremely remote.

 

At a minimum, I find that there is an air of reality to the contention that the actions of Michael Robillard may have been a contributing factor to the collision due to distracted driving. Fairness requires that the door to a consideration of this question not be closed. The “air of reality” test was referred with approval in Rahimi v. Hatami et al., 2015 ONSC 4266 at para. 14 and Ozimkowski. Permitting Brandi Edwards-Turner to relitigate the negligence issue following her Highway Traffic Act conviction does not amount to an abuse of process in these circumstances.

 

I find that causation is a genuine issue requiring trial. The factual findings necessary to resolve the case cannot be made by reading the experts’ reports only. I have considered whether the need for a trial can be avoided by using the additional powers in Rule 20 and conclude that a trial will be necessary to resolve the question of liability in the absence of an agreement between the parties to apportion liability.

  

The difficulties in determining liability in the face of experts who disagree as they do in this case would suggest to some observers that a practical solution would be for the parties to apportion liability in some fashion or equally, if some other apportionment cannot be agreed to. This approach requires an agreement between the parties. It offers significant costs savings, it is efficient and brings the prospect of finality to an old case. I am not satisfied, however, that this ought to be done judicially using the summary judgment procedure in the face of competing expert opinions that, at a minimum, have an air of reality to them.

 

Conclusion:

 

The motion for summary judgment is dismissed.

 

McFadden v. Psutka, 2022 ONSC 6239

 

Issue:

This is a dental malpractice action in which the Plaintiff, Susan McFadden (“Susan”) sues the Defendant oral surgeon, Dr. David Psutka (“Dr. Psutka”), alleging negligence in the treatment provided and surgery undertaken. The plaintiffs bring the motion to amend the Fresh as Amended Statement of Claim; the motion is opposed by the Defendant.

 

The history of this action is relevant to the issues to be decided on this motion, so brief details are set out below.

 

History:

 

First surgery: Susan asserts that she experienced pain in her jaw for many years. She was treated by Dr. Dobrovolsky, in the 1980’s and he performed surgery in 1988. The Plaintiff’s evidence was that Dr. Dobrovolsky removed her meniscectomy (or disc) on her right temporomandibular joint (“TMJ”) and inserted an implant.  

 

Subsequent treatment: In 1991, Dr. Psutka performed surgery on Susan’s jaw to correct her bite. After that, she saw Dr. Psutka for follow ups for several years, and then not again until January 9, 2012. Dr. Psutka performed TMJ surgery on Susan on November 6, 2013. The Plaintiff alleges that after that surgery, her jaw pain worsened. Among other tests, Susan had an MRI of her temporomandibular joints done on May 8, 2014. Dr. Psutka performed arthroscopic surgery on Susan’s TMJ on August 20, 2014. He also did joint replacement surgery on January 6, 2015 using prostheses. Despite these surgeries, Susan has continued to complain of pain in her TMJ and jaw.

 

This action was commenced on January 5, 2017 by the issuance of a Statement of Claim. Numerous parties were included as defendants: two hospitals; two radiologists; and four oral surgeons including the Defendant.

 

The Plaintiffs served the expert report of Dr. Yanney dated December 8, 2021. Dr. Yanney is an oral and maxillofacial surgeon who practices in Oregon. Dr. Yanney was asked to comment on the treatment rendered by Dr. Psutka in 2012 to 2015. Dr. Yanney was of the opinion that the treatment and surgery performed by Dr. Psutka in 1991 were negligent. He also offered his opinion that the surgeries done by Dr. Psutka in 2013, 2014 and 2015 were performed negligently.

 

In his report, Dr. Yanney stated that the Plaintiff did not have an implant when she had the 1988 surgery; this was contrary to all of the other evidence, including that of the Plaintiff. In my endorsement of January 27, 2022, I wrote: 

In his review of the records, Dr. Yanney has arrived at a conclusion that is not contained in the evidentiary record thus far: that the Plaintiff did not have a silastic implant inserted in 1988 which was later removed. He offers his opinion, which is rooted in that finding, that the 2015 surgery should not have been undertaken. Ms. McFadden’s evidence at her discovery was that she had a silastic implant placed in her right temporomandibular joint and it was later removed: other doctors have noted this in their records.

 

The Plaintiffs served the motion to amend the Amended Statement of Claim. Mr. Lundy (Defence counsel) filed a responding motion record and the motion was argued before me.

 

The Case Management and Trial Judge’s involvement:

In 2019, the the Plaintiffs requested that this action be placed in the One Judge Model Pilot Project. This project provides one judge to oversee the action, except the pretrial conference, and they will also be the trial judge. The parties must agree that no motions will be launched, and the action will move expeditiously to trial within two years of it being placed in the project. In March 3, 2022 the case was removed from the One Judge Model because the Plaintiffs were not ready for trial.

 

Analysis

 

Rule 26.01 of the Rules of Civil Procedure[1] provides that the Court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result which could not be compensated for by costs or an adjournment. The proper approach on a motion to amend pleadings is for the Court to consider all of the relevant circumstances and make the order that is fair and just.

 

The issues for determination are whether the proposed amendments merely particularize the claims already advanced against Dr. Psutka or whether they constitute a different cause of action and, if so, whether granting these amendments would cause prejudice to Dr. Psutka that cannot be compensated for by an award of costs.

 

Pleadings frame the action and determine the evidence that will be called at trial. The rules of pleadings require that a concise statement of the material facts be provided but not the evidence. A Plaintiff cannot simply plead that a doctor’s treatment spanning more than 20 years was negligent. The Plaintiff must identify in the Statement of Claim how the doctor’s treatment fell below the standard of care, and how it caused damage. 

Do the proposed amendments just particularize the existing negligence action or do they create a different case?

Plaintiff is obligated to determine and articulate the nature of a professional negligence case it will advance against a Defendant. A Defendant is entitled to know the case it has to meet at trial at an early stage and to defend it appropriately.

 

The Plaintiffs have been reluctant to commit to what treatment is alleged to have been below the applicable standard of care and in what ways. It required several orders from the court as well as a motion from the Defendant for the Plaintiffs to agree that their case against Dr. Psutka arose from treatment provided from 2012 onwards 

 

The current Statement of Claim pleads that Dr. Psutka performed surgery on November 6, 2013 and that he failed to properly assess her condition and failed to order proper imaging prior to the surgery. There are no particulars of negligence about this surgery included in the Statement of Claim. Similarly, with respect to the 2014 surgery, the Plaintiffs have not provided details about any negligence. 

 

Dr. Yanney in his review of the records concludes that Susan never had her meniscus removed nor did she have an implant placed in her jaw in the 1988 surgery. Dr. Yanney apparently comes to this conclusion based on his review of an MRI done in March 2014. He believes the Plaintiff had her natural discs without an implant and furthermore, that the MRI did not demonstrate severe degenerative joint disease at that time.

 

Mr. Legge, Plaintiff’s counsel, seeks to amend the existing Statement of Claim to plead in accordance with the opinion of Dr. Yanney. The Plaintiffs wish to plead that Dr. Psutka should have told Susan that she did not have an implant or degenerative disc disease so she could have made informed decisions about her treatment. The Plaintiffs also wish to plead that the 2015 surgery was unnecessary because the Plaintiff did not have degenerative joint disease; that is a very different allegation of negligence from the existing pleading that the surgery was done in a negligent fashion. Now, the Plaintiffs wish to argue that Dr. Psutka’s decision to perform the surgery was in itself negligent on the basis of this new factual matrix described by Dr. Yanney. What the Plaintiffs seek to do with this motion to amend is to fundamentally change the nature of part of the case advanced against Dr. Psutka to conform with the opinion of their expert.

 

The amendments sought do not simply particularize the claims of negligence against Dr. Psutka. Rather, they describe a new theory of the case, which was first articulated by their expert Dr. Yanney. The amendments sought constitute new allegations of negligence against Dr. Psutka. 

 

Does the doctrine of discoverability apply?

 

The Plaintiff argues that this theory of liability was not known to her until she obtained the expert opinion of Dr. Yanney in December 2021, so it is subject to discoverability.  The records that Dr. Yanney relies on in arriving at his opinion were available to the Plaintiffs early on. They were her own medical records. They could have and should have been forwarded to a qualified expert for an opinion at an early date. There was no change that occurred that led to the discovery of a new claim that the Plaintiffs could not have anticipated or known about through the exercise of due diligence.

 

Would amending the pleadings at this stage cause irreparable prejudice to Dr. Psutka?

In his affidavit sworn in opposition to this motion, Dr. Psutka deposes that he no longer has his office notes for the Plaintiff arising from his treatment of her in the 1990’s. He states that she provided the history to him that an implant had been inserted in her right TMJ in the 1980’s which was removed by Dr. Psutka when he treated her in the 1990’s. He did not recall the specifics of that, which is not surprising given the passage of time, but he relied on that information. The amendments proposed essentially seek to change the history that the Plaintiff has given to Dr. Psutka and that she provided at her examination for discovery.

 

The amendments that are sought cannot be said to be contained within the four corners of the existing claim. Rather, what the amendments seek to do is to change the factual matrix underlying the negligence claims against Dr. Psutka. The amendments affect a broad range of issues: the differential diagnoses that Dr. Psutka would have contemplated; the treatment options offered to the Plaintiff; and the type of surgery undertaken, to name just a few.

 

Defence counsel submits that what the Plaintiff seeks to accomplish is no different than commencing a new claim against Dr. Psutka. He relies on Frohlick v. Pinkerton,[5] where the Court of Appeal stated that an amendment sought by a Plaintiff advancing a new claim which was statute-barred ought not to be permitted and constitutes prejudice. I agree with this submission.

 

The Plaintiffs wish to allege that Dr. Psutka was negligent in determining from the imaging that the Plaintiff had degenerative changes in her jaw. Had that case been advanced initially, Dr. Psutka may have chosen to issue Third Party Claims against other treatment providers, in particular radiologists who interpreted the imaging, including the 2014 MRI. That opportunity has been lost due to the passing of the limitation period. That constitutes non-compensable prejudice.

 

Furthermore, Dr. Psutka has consented to the dismissal of any crossclaims against radiologists and other Defendants who would have reviewed the 2014 MRI and reported on it prior to Dr. Psutka performing the surgery. The limitation period for Dr. Psutka to commence claims for contribution and indemnity has passed. Decisions were made to consent to a dismissal of the crossclaims against the other Defendants based on the claim as it has been presented. This also constitutes demonstrable prejudice to Dr. Psutka which is non-compensable. In these circumstances, it would be unfair to allow the proposed amendments.

 

Conclusion:

 

An expert in professional malpractice is necessary to address the standard of care applicable in a particular case and to identify what the breaches of the standard of care were. It may also be necessary to secure an expert opinion on the complicated issue of causation. It would be clear at the outset that the Plaintiff with her extensive medical history and multiple surgeries and treatments over many years that an expert would be required to delineate the allegations of negligence and to assist counsel with the evidence at trial.   

 

This claim was commenced more than five years ago. The Plaintiffs had to be asked several times to particularize their claims against Dr. Psutka. The Plaintiffs have been reluctant to commit to a theory of their case. Now they are seeking to amend their claims to align with the opinion of Dr. Yanney. Expert opinion could and should have been sough early in their litigation. Amending the claim now would cause severe prejudice to Dr. Psutka and the claims the Plaintiffs wish to amend do not particularize the original claim but seek to introduce entirely new claims against the defendant.

 

As a result, the Plaintiffs’ motion for leave to amend the Statement of Claim is dismissed.

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