Rill v. Adams, 2017 ONSC 5297

CITATION: Rill v. Adams, 2017 ONSC 5297

COURT FILE NO.: DC-17-129756

DATE: 20170911

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Warren Rill

Appellant

– and –

Dr. John Adams, Dr. Mark Guttman and the Centre for Movement Disorders

Respondents

Warren Rill, In-Person

Lars Brusven, for the Respondents

HEARD: July 21, 2017

REASONS FOR DECISION

DE SA J.:

1The Appellant appeals the decision of Deputy Judge Pikkov of the Small Claims Court dismissing his claim of medical negligence. For the reasons outlined below, the appeal is dismissed.

The Facts

Background

2Between 2006 and 2010, the Appellant (Mr. Rill) was in the care of the Defendant, Dr. Adams. When Mr. Rill was initially referred to Dr. Adams in October of 2006, he had been diagnosed with essential tremor and was treated accordingly. As time passed, the tremors worsened. By March of 2007, the tremor was fluctuating from day to day. He sometimes was requiring two hands to drink. He had also lost his balance and had fallen on three or four occasions.

3By June of 2007, Mr. Rill began exhibiting various different types of tremors suggesting the possibility of underlying tremor-dominant parkinsonism. In light of Mr. Rill’s developing symptoms, Dr. Adams prescribed levodopa therapy, a common treatment prescribed for Parkinson’s disease. For a number of months, the Appellant was responding favourably to the levodopa therapy which appeared to confirm the diagnosis. As time passed, however, the tremors again began to worsen.

4In 2010, the Appellant’s care was transferred from Dr. Adams to the Movement Disorder Clinic of Toronto Western Hospital, where he was treated by Dr. Connie Marras. In July of 2012, Dr. Robert Chen, a doctor assisting Dr. Marras in the course of Mr. Rill’s treatment, prepared a neurophysiology report indicating that the overall electrophysiological findings were suggestive of a functional etiology as cause of the Appellant’s tremors rather than Parkinson’s disease.

5Given this report, and other features of his tremor which were not consistent with Parkinson’s disease, Dr. Marras withdrew his Parkinson’s medication. After the withdrawal, the Appellant’s tremor improved and other signs of Parkinson’s disease which would normally appear after withdrawal of the medication did not emerge. On the basis of his reaction, together with the report provided by Dr. Chen, Dr. Marras began to question whether the Appellant had Parkinson’s disease. In a letter dated May 2, 2014, she explained:

I should add that on all of my examinations since withdrawal from Prolopa (medication for Parkinson’s disease) he has a rest tremor of his left hand which is parkinsonian in nature, in addition to his postural and action tremor that are consistent with essential tremor. He has no other signs of parkinsonism and the lack thereof and lack of worsening of his rest tremor over time makes me unwilling to make a diagnosis of Parkinson’s disease on the basis of the mild rest tremor alone. Nonetheless, Prolopa is a very reasonable medication to use to alleviate rest tremor.

6A subsequent letter prepared by Dr. Marras and filed by Mr. Rill on the hearing dated November 8, 2016 states: “With the benefit of six years of observation I do not believe that Mr. Rill currently has Parkinson’s disease.”

Proceedings

7On July 14, 2014, Mr. Rill commenced an action in the Small Claims Court against the Respondent Physicians. Mr. Rill alleges that Dr. Adams was negligent in diagnosing him with Parkinson's disease, and in prescribing and dosing medication that allegedly had adverse effects. Mr. Rill also claims that Dr. Guttman is vicariously liable for the actions of Dr. Adams. Dr. Guttman never treated or saw Mr. Rill.

8The Respondent Physicians delivered an expert report from Dr. John Paulseth dated November 20, 2014. Dr. Paulseth, a neurologist, opined that Dr. Adams met the standard of care in his treatment and care of Mr. Rill. Dr. Paulseth also opined that:

(a) Making a clinical diagnosis of Parkinson's disease can be challenging;

(b) A diagnosis does not hinge on a particular test or bloodwork, but on findings of two or more clinical signs;

(c) In cases where patients display several different types of tremors, it can be difficult to reach a definitive diagnosis; and

(d) It was Dr. Paulseth’s impression that Mr. Rill has Parkinson's disease.

9The matter was set down for trial on June 10, 2016, a date which was marked peremptory on the Plaintiff. The Plaintiff had not served an expert report.

10At the outset of the trial, the Respondent Physicians sought an order to strike out the claim pursuant to Rule 12.02(1) of the Rules of the Small Claims Court on the basis that the Plaintiff could not succeed in the absence of opinion evidence to establish whether the Respondent Physicians breached the standard of care.

11The Deputy Judge ruled that it would be a "waste of time", as that term is used in Rule 12.02(1)(c), to proceed in the absence of expert evidence from Mr. Rill. He granted a 60-day stay of the proceedings in order to allow Mr. Rill to obtain and file an expert report opining on the standard of care owed by the Respondent Physicians.

12On September 14, 2016, 95 days after the extension was granted, the parties re-attended before Deputy Judge Pikkov on a motion brought by Mr. Rill seeking reconsideration of the Order of June 10, 2016. Counsel for Mr. Rill stated that they had canvassed 56 neurologists across Canada, and none had been willing to accept the retainer. The Deputy Judge ruled he had no jurisdiction to reconsider his earlier order. However, he extended the stay to December 31, 2016, to allow Mr. Rill a further opportunity to meet the requirement for opinion evidence to support his claim.

13In granting the extension, the Deputy Judge made particular note of the decision of the Ontario Court of Appeal in Hervieux v. Huronia Optical, 2016 ONCA 294, which held that the formal requirements of expert opinions pursuant to Rule 53.03 of the Rules of Civil Procedure were not mandatory in the Small Claims Court. The Deputy Judge accepted that Mr. Rill could potentially satisfy the requirement for expert evidence by way of witness statements made by his treating physicians. The additional stay was granted to allow him the opportunity to obtain such statements from his treating physicians.

14The parties attended for a third time before Deputy Judge Pikkov on January 11, 2017. On this date, counsel for Mr. Rill filed two letters from Dr. Marras and sought to rely on them to lift the stay of proceedings and allow the trial to proceed.

15The body of the letter from October 12, 2016, addressed to counsel for Mr. Rill and dated October 12, 2016, reads as follows:

Dear Mr. Stribopolous

I am responding to your request for information regarding my care of Mr. Warren Rill.

I have been caring for Mr. Rill since October 13, 2010 and have been caring for him continuously to the present.

With the benefit of six years of observation I do not believe that Mr. Rill had Parkinson's disease when he first came to see me in 2010.

16The second letter from Dr. Marras, dated November 8, 2016, read as follows:

To Whom it May Concern:

I am responding to Mr. Rill's request to provide an additional letter indicating my current impression regarding his diagnosis.

With the benefit of six years of observation I do not believe that Mr. Rill currently has Parkinson's disease.

17The Court concluded that the letters of Dr. Marras did not satisfy the requirement for expert evidence since they did not address the standard of care owed by the Respondent Physicians to Mr. Rill. As the Deputy Judge explained, “the standard of care is the issue that the Court needs guidance upon and the authorities are clear that a plaintiff in a case such as this must introduce expert evidence establishing their cause of action in a medical malpractice case.” The Deputy Judge dismissed the claim pursuant to Rule 12.02(2) of the Rules of the Small Claims Court.

Position of the Parties

18The Appellant seeks to have the decision of the Deputy Judge set aside. He takes the position that the Deputy Judge erred in requiring an expert report and failed to consider that his treating physicians provided the necessary evidence to ground his claim of medical negligence. He takes the position that a party can use the medical reports of treating physicians as expert evidence in an appropriate case. He relies on Westerhof v. Gee Estate, 2015 ONCA 206 in support of his position.

19The Respondent submits that the Deputy Judge acted within his jurisdiction in dismissing the action. There is nothing in the recent case law regarding "participant experts" that displaces the need for an opinion on the standard of care in medical negligence actions. The Plaintiff produced no opinion evidence, either from an expert or a treating physician that could ground his claim; and this is not one of the "clearest of cases" in which an expert opinion is not warranted.

Issues

20The issues to be decided on this appeal are the following:

1. Was the evidence furnished by the Appellant’s treating physician sufficient to meet the requirement for opinion evidence in a medical negligence action; and

2. Did the Deputy Judge act within his jurisdiction in relying on Rule 12.02 to dismiss the claim.

Analysis

Was the Evidence Filed by the Plaintiff Sufficient to Establish a Breach of the Standard of Care?

21Expert evidence is an essential ingredient for a plaintiff to succeed in a medical negligence claim. In Ryabikhina et al v. St. Michael’s Hospital, 2011 ONSC 1884, Belobaba J. granted summary judgment against the plaintiff in a medical malpractice case because the plaintiff was unable to obtain an expert report to support her allegations of negligence. In his ruling, he explained (at paras. 27-31, footnotes omitted):

In cases where liability issues are technical such as determining the standard of care in medical malpractice cases, a finding of negligence must be based on a supporting expert opinion.

Where the plaintiff in a medical malpractice case does not deliver an expert opinion in support of the allegations that the requisite standard of care was not followed and that this failure caused the plaintiff’s injuries, a genuine issue has not been raised with respect to a material fact and summary judgment should be granted.

Where the plaintiff has failed to obtain an expert report, the court may draw the inference that the plaintiff was unable to obtain an expert report to support the allegations of negligence.

Given the absence of an expert report from the Plaintiffs, I agree with the Hospital Defendants that there is no genuine issue requiring a trial with respect to the allegations of negligence.

22Similarly, in Drougov v Apotex Inc., 2015 ONSC 2896, Perell J. stated (at para. 21):

For a plaintiff to succeed in a medical professional negligence action, a plaintiff requires evidence, typically expert evidence, to establish: (1) standard of care; (2) whether there was a breach of the standard of care; and, (3) causation and on a summary judgment motion, if this evidence is not presented, there is no genuine issue for trial and summary judgment may be granted dismissing the plaintiff’s action.

23As a general rule, where a diagnosis involves difficult or uncertain questions of medical treatment or complex, scientific or highly technical matters that are beyond the ordinary experience and understanding of a layperson, it will not be open for a court to find negligence without an opinion from an expert or a treating physician that the practitioner has fallen below the requisite standard of care. As the Ontario Court of Appeal explained in Liu v. Wong, 2016 ONCA 366 at para.14:

Medical malpractice cases are complex — even where they may appear simple to the eye of a layperson — and judges and juries lack the expertise necessary to assess difficult questions such as causation, standard of care, and breach of the standard of care, without the assistance of expert reports. For that reason, this Court and others have stated that aside from "the clearest of cases" the absence of an expert evidence in support of the plaintiff's medical malpractice claim is fatal.

24Similarly, L'Heureux-Dubé J., explained in Lapointe v. Hôpital Le Gardeur, 1992 119 (SCC) at pp. 363-64:

Given the number of available methods of treatment from which medical professionals must at times choose, and the distinction between error and fault, a doctor will not be found liable if the diagnosis and treatment given to a patient correspond to those recognized by medical science at the time, even in the face of competing theories. As expressed more eloquently by André Nadeau in "La responsabilité médicale" (1946), 6 R. du B. 153, at p. 155:

The courts do not have jurisdiction to settle scientific disputes or to choose among divergent opinions of physicians on certain subjects. They may only make a finding of fault where a violation of universally accepted rules of medicine has occurred. The courts should not involve themselves in controversial questions of assessment having to do with diagnosis or the treatment of preference. [Emphasis added.]

25In Westerhof v. Gee Estate, 2015 ONCA 206, 124 O.R. (3d) 721, at para. 60, leave to appeal refused 2015 CarswellOnt 16501 (S.C.C.), the Ontario Court of Appeal held that a treating physician could provide expert opinion evidence without complying with the formal requirements of Rule. 53.03 of the Rules of Civil Procedure, O. Reg. 17014, in the following circumstances:

i. The opinion to be given is based on the witness’s observation of or participation in the events at issue; and

ii. 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.

See also Hervieux v. Huronia Optical, 2016 ONCA 294.

26The Appellant relies on the Westerhof case to suggest that an expert report is not required in this case. There is no doubt that Westerhof confirms that a party need not comply with the formal requirements of an expert report in order to advance a claim of medical negligence. A party is entitled to rely on the opinion and expertise of a treating physician. The ability to call opinion evidence from treating physicians, however, does not displace the need for a plaintiff to establish a breach of the standard of care in order for a court to make a finding of negligence. As evident from the authorities above, a court is not in a position to make such assessments on its own.

27As the report of Dr. Paulseth points out, a diagnosis of Parkinson's disease can be a challenging diagnosis to make when patients experience various types of tremors. Dr. Paulseth indicates in his report that he is still of the view that Dr. Adams was correct in his diagnosis. Even Dr. Marras' early impressions were in agreement with Dr. Adams that Mr. Rill had Parkinson's disease. It took close to two years and additional testing to change her view on the appropriate diagnosis. While it may be that Dr. Adams was incorrect in his diagnosis, this can hardly be described as a “clear case” where expert evidence on the standard of care is unnecessary.

28I agree with the Respondent, the issue here is not whether the Appellant can rely on the records of treating physicians in advancing his claim of negligence. The Deputy Judge accepted that Mr. Rill was entitled to do so. The problem is that the records of the treating physicians on which Mr. Rill proposed to rely, even if accepted by the Court, could not ground a finding in negligence against the Respondent Physicians. The letters of Dr. Marras do not address whether Dr. Adams’ treatment fell below the requisite standard of care. The letters from Dr. Marras merely establish that she came to a clinical judgment different from that of Dr. Adams on the question of whether or not his symptoms met the criteria for a diagnosis of Parkinson's disease. They do not opine on the standard of care of a neurologist in the circumstances. Dr. Marras’ letters are clearly not sufficient to establish a breach of the standard of care.

Was the Deputy Judge Entitled to Dismiss the Action Pursuant to Rule 12.02?

29Rule 12.02 of the Small Claims Court Rules provides:

12.02 (1) The court may, on motion, strike out or amend all or part of any document that,

(a) discloses no reasonable cause of action or defence;

(b) may delay or make it difficult to have a fair trial; or

(c) is inflammatory, a waste of time, a nuisance or an abuse of the court’s process.

30The Court of Appeal considered Rule 12.02 of the Small Claims Court Rules in Van de Vrande v. Butkowsky, 2010 ONCA 230. In commenting on the differences between Rule 12.02 of the Small Claims Court Rules, and Rule 20 and 21 of the Rules of Civil Procedure, Rouleau J.A. stated for the Court at para. 19:

Conceptually, I view Rule 12.02 as being situated somewhere between Rules 20 and 21 of the Rules of Civil Procedure. It is not a summary judgment motion involving extensive affidavits and a requirement such as contemplated in Rule 20 of the Rules of Civil Procedure where the responding party must put his “best foot forward”. … It is a motion that is brought in the spirit of the summary nature of Small Claims Court proceedings and involves an analysis of whether reasonable cause of action has been disclosed, or whether proceedings should be ended at an early stage because its continuation would be “inflammatory”, a “waste of time”, or a “nuisance”.

31The Appellant claims that the Deputy Judge’s decision dismissing the action under Rule 12.02 runs afoul of the Ontario Court of Appeal’s decision in Hervieux v. Huronia Optical, 2016 ONCA 294. He submits that the jurisprudence recognizes that a litigant is not obliged to engage in the formalities of obtaining independent experts and/or providing formal expert reports. The fundamental objective of the Small Claims Court is to provide easier and less expensive access to justice, especially to self-represented litigants who are the most frequent users of the Small Claims Court system.

32I agree that courts are required to be sensitive to the circumstances of a self-represented litigant. A court should not be too quick to dismiss an action on the basis of rigid formalities or on a strict application of the rules when dealing with parties that may be limited in means, and/or may lacking in the necessary skills, knowledge or experience. To do so would impede access to justice for many and would only serve to undermine the administration of justice. That being said, a jurist must consider the interests of all parties in applying the rules. It cannot merely stand by and watch a litigant be forced through the trial process when there is no merit to an action, or there is no possibility for the action to succeed. There is no right to force a litigant through to the conclusion of a meritless claim. It is for this very reason that Rule 12.02 exists.

33Having regard to the circumstances here, I find that this was an appropriate case for the Deputy Judge to have dismissed the action pursuant to Rule 12.02. The Appellant attended for trial on June 10, 2016, peremptory to proceed and represented by counsel. He had no opinion evidence that could support his claim against the Respondent Physicians. The Deputy Judge granted the Appellant a further 60 days to furnish such evidence. When the matter next came before the court 95 days later, the Appellant still had no supportive expert opinion, despite having canvassed neurologists across the country. Recognizing the possibility that opinion evidence could potentially come from a treating physician, as opposed to an expert complying with Rule 53.03 of the Rules of Civil Procedure, the Deputy Judge granted a further three-month extension to allow time for the Appellant to procure such an opinion. At the third attendance, on January 11, 2017, the Appellant offered up the letters of Dr. Marras of October 12, 2016 and November 8, 2016. The letters did not address the standard of care owed by the Respondent Physicians. While the letters questioned the diagnosis, they were far from suggesting that the doctor fell below the requisite standard of care. Having reviewed the letters, it was only then that the Deputy Judge dismissed the claim under 12.02 as a “waste of time”. The Deputy Judge was entitled to do so as there was no prospect that the claim could succeed. I find no error in the Deputy Judge’s decision to dismiss the action.

34In light of the above, the appeal is dismissed. This Court orders costs in favour of the Respondents. I have reviewed the bill of costs filed by the Respondents on this matter. Costs are fixed on a partial indemnity basis in the amount of $6,394.00.