CITATION: Hinsley v. Lin, 2016 ONSC 5947

DIVISIONAL COURT FILE NO.: 607/15 DATE: 20161006

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

MEGAN HINSLEY Appellant

– and –

DR. MARK LIN o/a DR. MARK LIN DENTISTRY PROFESSIONAL CORPORATION, o/a DR. MARK LIN PROSTHODONTIC CENTRE, o/a DR. MARK LIN AND ASSOCIATES, and DR. MARK LIN Respondent

Harry Sarros, for the Appellant A.J. Billes, for the Respondent

HEARD at Toronto: June 22, 2016

Stewart J.

Nature of the Appeal

1Megan Hinsley appeals from the Judgment of Deputy Judge Bocci of the Small Claims Court dated October 16, 2015 which dismissed her action.

2The Respondents take the position that the appeal is without merit and should be dismissed.

Jurisdiction

3An appeal lies to the Divisional Court from a final order of the Small Claims Court. Such appeal is to be heard by a single judge (see: s.31 and s.21(2)(b) of the Courts of Justice Act, R.S.O. 1990, c.C.43).

Standard of Review

4The standard of review in an appeal of an order of a judge is set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. On questions of law, the standard of correctness. On questions of fact, the standard is palpable and overriding error. On questions of mixed fact and law, there is a spectrum. However, with respect to the application of the correct legal principles to the evidence, the standard is palpable and overriding error.

Background

5Dr. Lin is a prosthodontist, a sub-specialty of dentistry.

6On February 20, 2014, Hinsley attended Dr. Lin’s office. She complained that she was not satisfied with a crown on a tooth that had been placed by another dentist.

7Dr. Lin examined the tooth and recommended the removal and replacement of the crown. Hinsley agreed to have this done.

8On March 24, 2014, Hinsley returned to Dr. Lin’s office. Dr. Lin removed the temporary crown that had been provided and inserted a permanent crown. After Hinsley told Dr. Lin that she was satisfied with the permanent crown and approved its fit, Dr. Lin proceeded to carry out the final cementation of the crown. Dr. Lin then checked the occlusion and contacts, and advised Hinsley to return to the clinic if required.

9On April 15, 2014, Hinsley returned to Dr. Lin’s office with a complaint that she found the contours of the crown to be uncomfortable. Dr. Lin adjusted the distal and buccal contours on the crown and smoothed the area.

10Dr. Lin also advised Hinsley that the soft tissue would regenerate, and that she should re-evaluate the area in two weeks and return to the clinic if she had further questions or concerns.

11On July 24, 2014, Hinsley returned to Dr. Lin’s office with a complaint that she could feel a gap between the crown and another tooth. Dr. Lin performed a clinical examination which revealed that the palatal contours were within normal limits and the soft tissue was healing well. Because Hinsley was not satisfied with this crown, Dr. Lin offered to remake the crown for her free of charge, but she declined his offer.

12On September 10, 2014, Hinsley commenced an action for damages against both Respondents, alleging dental malpractice.

13By way of Defence dated October 1, 2014, the Respondents denied all liability and damages.

14The trial of this matter was heard over the course of two days on April 2 and June 10, 2015.

15The Appellant did not plead lack of informed consent as an element in her original Plaintiff’s Claim or in her Amended Plaintiff’s Claim. The Appellant first raised this cause of action at trial.

16Over the objection of counsel for Dr. Lin, the trial judge allowed Hinsley (who was self-represented at trial) to lead evidence regarding the issue of lack of informed consent and to argue the issue.

17In an effort to support her case, Hinsley tendered the expert evidence of Dr. Harold Bernstein, a prosthodontist. Dr. Lin called Dr. Ester Canton to provide expert evidence on behalf of the defence.

18On October 16, 2015, the trial judge dismissed Hinsley’s action.

19In her carefully-considered reasons for judgment, the trial judge found as follows (at paras. 16-21):

Dr. Bernstein testified that while the plaintiff may not be satisfied with the crown and may be experiencing some discomfort, the work performed by Dr. Lin did not fall below the standard of care of a reasonable and prudent prosthodontist practicing in the Province of Ontario. In fact, upon my review of Dr. Berenstein’s clinical notes and his two letters, as hereinbefore described, nowhere does he opine that the defendant’s work fell below the standard of care, nor does he set out the standard of care in his report.

The defendant tendered the expert report of Dr. Ester Canton, dated February 9, 2014. Dr. Canton’s testimony is consistent with her report that concluded that in her opinion, Dr. Lin’s treatment of the subject tooth was performed within the standard of care of a reasonable and prudent prosthodontist practicing in the Province of Ontario.

It is well established case law that in order for the plaintiff to be successful in a dental malpractice action she must establish on a balance of probabilities, that the defendant fell below the required standard of care, in the case at bar, the standard of care expected of a reasonable and prudent prosthodontist practicing in the Province of Ontario. The onus of proof, on a balance of probabilities, rests upon the plaintiff.

It is insufficient for the plaintiff to testify that the defendant did not perform the procedure correctly thereby resulting in pain, injury or discomfort to her. The case law is clear that where the issue to be decided is not within the ordinary knowledge and experience of the trier of fact the standard of care is to be established by a reasonable professional of comparable qualifications: see Cacciacarro v. Makhan [1992] O.J. No. 2779, McNeil v. Easterbrook [2004] O.J. No. 3976 (Ont. S.C.J.) and Lozowy v. Trillium Health Centre [2007] O.J. No. 1332. Expert evidence is required to establish the standard of care, the breach of that standard of care and that the negligence resulted in the plaintiff’s injury.

It is insufficient for the plaintiff to attempt to attack the credibility of the defendant and that of the defendant’s expert, Dr. Canton, without adducing evidence from an expert in support of her position. Dr. Berenstein does not support the plaintiff’s position and the plaintiff has not called any other witnesses.

Based on the totality of the evidence before me the plaintiff has failed to provide expert evidence to establish that on a balance of probabilities the defendant fell below the standard of care expected of a reasonable and prudent prosthodontist practicing in the Province of Ontario and as such her claim must fail. Accordingly, the plaintiff’s claim is hereby dismissed.

20Hinsley appeals from the dismissal of her action.

Analysis

21The statement of the applicable law as articulated by the trial judge was correct.

22A review of the proceedings and the reasons for the trial judge reveals no palpable and overriding error of fact. The evidence fully supports the conclusion that Hinsley failed to prove that Dr. Lin fell below the accepted standard of care in his treatment of her.

23Further, the evidence falls short of supporting a conclusion that Dr. Lin failed to obtain Hinsley’s informed consent to the procedure or that it would be standard practice to provide a patent with cementing options mid-procedure. What is required by way of information to obtain informed consent in any particular circumstance is generally a matter requiring expert opinion. Similarly, expert evidence is required to establish any alleged failure to maintain the standard of practice in such regard.

24Further, there was no expert evidence or basis in the other available evidence to permit the trial judge to conclude that a reasonable person in Hinsley’s circumstances would have declined to proceed with cementing of the crown or that Dr. Lin’s conduct, including cementing the crown, fell below the acceptable standard of practice.

25In my view, the trial judge carefully considered all of the evidence and applied the law to it without any discernible error. There is no reason that would justify disturbing the trial decision on appeal.

Conclusion

26For these reasons, this appeal is dismissed.

Costs

27If the parties cannot agree on costs, brief written submissions on that subject may be delivered for consideration within 30 days of the date of release of this decision.

___________________________ Stewart J.