CITATION: Owen v. Bains, 2021 ONSC 6666

DIVISIONAL COURT FILE NO.: CV-16-0577-00SR DATE: 20211006

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

DALEY, PENNY, CULLIN JJ.

BETWEEN:

DAVID GEORGE OWEN

Appellant

• and -

Vlad Popescu, for the Appellant

SUKHJEEVAN BAINS

Respondent

Sean Miller, for the Respondent

HEARD at Thunder Bay: June 21, 2021 via video conference

REASONS FOR JUDGMENT

DALEY J.

Introduction:

[1] This is an appeal from a decision of B. Fitzpatrick J. on June 25, 2020 following a judge alone trial involving alleged dental malpractice.

[2] The trial judge dismissed the action but assessed general and special damages at approximately $41,000. Thus, the appeal from this decision lies to this court in accordance with section 19 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[3] The applicable standard of review to be applied by this court was articulated by the Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, namely questions of law are subject to a standard of correctness and questions of fact and mixed fact and law, where there is no readily inextricable question of law, are subject to a standard of palpable and overriding error.

[4] The Supreme Court made further statements with respect to the scope of appellate review in Solomon v. Matte-Thompson, 2019 SCC 14, at para. 108, where the court stated: "on questions of fact or of mixed fact and law, an appellate court cannot make its own findings and draw its own inferences unless the trial judge is shown to have committed a palpable and overriding error."

[5] Furthermore, on appeal the court must consider whether the purported error falls on "a spectrum of particularity". Cases that raise "a general principle that might qualify as a principle of law" fall on the correctness standard, but cases which consider "a very particular set of circumstances" without an issue of general principle are subject to the higher standard of palpable and overriding error: Wawanesa Mutual Insurance Company v. Unica Insurance Inc., 2021 ONSC 4266, at paras. 59 – 64.

[6] As discussed below, starting at para. [30] and following, the appellant's position involves three issues, all of which, in my view, involve alleged errors in factual findings or errors of mixed fact and law and as such the applicable standard of review is one of whether or not the trial judge has committed a palpable and overriding error.

[7] The plaintiff’s damages were assessed solely for mental distress as no physical injury was alleged. At trial, the respondent acknowledged that the appellant suffered mental distress, however he disputed that it was in any way caused or connected with his conduct.

[8] As counsel on the appeal were advised at the conclusion of their submissions, the appeal was dismissed with the court’s reasons to follow. These are those reasons.

[9] The appellant asserts six grounds of appeal in his amended notice of appeal, arguing that the trial judge erred as follows:

(a) he erred in law by incorrectly stating the standard of care applicable to the administration of nitroglycerin to a dental patient by stating that the standard of care did not require first establishing the patient’s blood pressure;

(b) he erred by accepting a causation opinion from an expert not qualified to offer such an opinion;

(c) he erred in law by incorrectly applying a test of causation;

(d) he erred in law by incorrectly applying his own understanding of medical causation;

(e) he made a palpable and overriding error in assessing the medical evidence whereby he found a break in the chain of causation;

(f) he erred in requiring the plaintiff to prove his case on a “sufficiently clear” basis rather than on a balance of probabilities.

[10] In addition to asserting the grounds of appeal in the amended notice of appeal, as outlined above, the appellant also filed a supplementary notice of appeal reframing or restating the grounds of appeal already asserted in the original and amended notice of appeal, all of which are captured in the grounds of appeal as outlined above.

[11] The trial was conducted as a summary trial under the Simplified Rules with the introduction of the witness’ evidence in chief by way of affidavit, followed by cross-examination.

Material Facts & Evidentiary Record:

[12] Most of the relevant facts and the timeline were agreed to by the parties and they were incorporated into an agreed statement of facts which is referred to at paragraph 4 of the trial judge’s reasons for decision and where he makes specific findings of fact based on those agreed upon facts.

[13] The appellant’s claim arises from alleged dental malpractice related to the respondent’s use of nitroglycerin (“NTG”) during a dental procedure carried out on him.

[14] The appellant attended at the respondent’s dental clinic in Marathon for the treatment of a broken tooth. He attended upon the respondent as his regular dentist was not available.

[15] Following a preliminary consultation with the respondent, the appellant returned to the respondent’s clinic on April 13, 2016 for the extraction of the tooth.

[16] The extraction procedure was scheduled to commence at approximately 3:30 p.m. Before commencing the procedure the respondent inquired of the appellant’s medication use prior to attending for the procedure.

[17] After having applied freezing to the appellant’s mouth, the extraction procedure commenced. Approximately 10 to 20 minutes into the procedure the appellant stated that he was feeling nauseous and was visibly perspiring. He requested a glass of water and was provided one.

[18] The appellant’s condition continued to worsen and he appeared to be in acute distress. He also began losing consciousness.

[19] The respondent noted that the appellant was incoherent, unresponsive, and suffered from partial loss of consciousness.

[20] The respondent testified that given the appellant’s signs of acute distress and profuse sweating along with his morbid obesity, hypertension, and partial loss of consciousness while undergoing the procedure, he believed that the appellant might be having a heart attack. He further concluded that the appellant’s signs and symptoms did not appear to be indicative of a fainting spell primarily because he was sweating so profusely. The respondent directed his assistant to call 911 for paramedic assistance.

[21] The respondent stated in his evidence: “I determined that his life was in danger and that he could die if I did nothing. The emergency medical services personnel had still not arrived. I decided to administer nitroglycerin spray to the plaintiff’s tongue in order to treat a heart attack, as I had been taught at NYU. I did not take this decision lightly.”

[22] The application of NTG was carried out by the respondent and shortly following that treatment, the paramedics arrived at the clinic at approximately 4:00 p.m.

[23] On examination the paramedics found the appellant to be hypotensive and noted in the ambulance call report that he did not complain of any chest pain or shortness of breath. He was taken by ambulance to the Wilson Memorial Hospital. At approximately 5:30 p.m., during the appellant’s admission to the hospital, it was noted that his heart rate dropped to 30 bpm, at which point he lost consciousness. Emergency medical personnel administered the drug atropine and saline intravenously. At 5:40 p.m. the appellant’s heart rate had increased to 57 bpm and by 5:45 p.m. the heart rate increased to 60 bpm.

[24] On April 15, 2016, following discharge from the hospital, the appellant’s tooth was extracted by another dentist. On May 30, 2017, the appellant underwent a left heart catheterization, coronary angiogram, left ventriculogram and percutaneous coronary intervention.

[25] As to whether the respondent met the applicable standard of care, it was urged on behalf of the appellant that the respondent mistook the signs of fainting he observed as indicative of a heart attack and further that he erred in failing to confirm the appellant's blood pressure and pulse before administering NTG.

[26] As to the applicable standard of care in the circumstances of this case, the respondent asserted that the trial judge correctly identified the standard of care, namely that of a reasonable and prudent medical practitioner of the same experience and standing. The respondent further submitted that the trial judge was entitled to prefer the evidence of the respondent’s expert on standard of care, who testified that the respondent acted reasonably in assuming that the appellant was having a heart attack and subsequently administering the NTG spray, especially given the exigencies of the situation he faced.

[27] Although the trial judge concluded that the respondent had met the standard of care in the circumstances, which would have been dispositive of the appellant’s claim, he nevertheless went on to consider the issue of causation.

[28] On the issue of causation, it was urged on behalf of the appellant that the trial judge erred in characterizing what transpired as a series of events as opposed to one continuous event from the time the treatment began at the dental clinic until the appellant's arrival at the hospital where he suffered a significant drop in blood pressure and lapsed into unconsciousness requiring treatment and medication.

[29] The respondent submitted that the application of NTG in the respondent’s clinic was not causally connected with the events which occurred when the appellant was admitted to the hospital approximately 1 ½ hours after the administration of NTG. This was supported by the opinion of the respondent’s expert witness, who stated that, given the passage of time between the two events, it was not pharmacologically possible for the events to be linked.

ISSUES & Analysis:

[30] The various specific grounds of appeal outlined above, boil down to three issues advanced by the appellant on this appeal:

(A) did the trial judge err in finding that the respondent met the standard of care in administering NTG to the appellant on April 13, 2016?

(B) did the trial judge err in relying on an opinion in evidence from an expert not qualified at trial to opine on causation; and

(C) did the trial judge err in determining there was no factual causation between the respondent’s conduct and the psychological injuries claimed?

A. Did the Trial Judge Err in Finding That the Respondent Met the Standard of Care in Administering NTG?

[31] In general terms, the standard of care required of a health care practitioner is to exercise a reasonable degree of skill and knowledge and the degree of care that could reasonably be expected of a normal, prudent practitioner of the same experience and standing. The standard of reasonableness is not a standard of excellence that amounts to perfection. To adopt such an approach would amount to a guarantee: Armstrong v. Royal Victoria Hospital, 2019 ONCA 963, 452 D.L.R. (4th) 555, at para 86, van Rensburg J.A., in dissenting, aff’d Armstrong v. Ward, 2021 SCC 1, 452 D.L.R. (4th) 553.

[32] Where standard of care is at issue, the court must determine what is reasonably required to be done (or avoided) by the defendant in order to meet the standard of care. In a dental malpractice case, the court must determine what a reasonable dentist would have done (or not done) in order to meet the standard of care. The degree of foreseeable risk affects the determination of the standard of care: Armstrong at para 87; McArdle Estate v. Cox, 2003 ABCA 106, 327 A.R. 129.

[33] The appellant concedes that the errors alleged all involve the trial judge’s assessment of the evidence. Accordingly, the alleged errors are errors of mixed fact and law attracting the palpable and overriding standard. A palpable error is one that is clearly wrong, unreasonable, or not reasonably supported on the evidence. An overriding error is one that would have a material impact on the outcome. Where the deferential standard of palpable and overriding error applies, therefore, an appellate court can intervene only if there is an obvious error in the trial decision that is determinative of the outcome of the case: Farsi v. Da Rocha, 2020 ONCA 92, 444 D.L.R. (4th) 197, at para 35.

[34] At trial, the respondent acknowledged that he knew that it was not appropriate to administer NTG to a patient prior to obtaining a blood pressure reading. However, he proceeded to do so in what he perceived to be the emergent circumstances at the time, given the appellant’s appearance, signs and complaints.

[35] Having concluded that the appellant’s expert witness on cardiology, Dr. Melvin, could not offer an opinion on the standard of care of a dentist in the circumstances, the trial judge stated in paragraph 18 of his decision:

[18] In hindsight, all the experts called by Mr. Owen criticize Dr. Bains' administration of NTG. This is because it turns out that Mr. Owen was not having a heart attack while in the care of Dr. Bains. However, in the moment, given Mr. Owen’s obesity and the fact that he was profusely sweating, mumbling and apparently losing consciousness, I agree with the evidence presented by Dr. Bains' expert, Dr. Peter Nkansah, that it was a (sic) reasonable for Dr. Bains to administer the NTG to Mr. Owen: it was reasonable to assume that Mr. Owen was having a heart attack at the time.

[36] The appellant’s expert on standard of care, Dr. Mason, testified that by failing to take the appellant’s blood pressure and heart rate prior to administering NTG, the respondent failed to meet the appropriate standard of care.

[37] Dr. Nkansah was called as an expert by the respondent. His evidence was that the standard of care, as defined by the Royal College of Dental Surgeons of Ontario, was “the degree of care that a reasonable and prudent dentist would exercise under the same or similar circumstances.” Using that definition, he opined that the respondent’s conclusion that the appellant, as a 49-year-old hypertensive, obese man undergoing a (presumably) stressful procedure, who became diaphoretic and agitated, could be presenting signs of a myocardial infarction is was reasonable. While he agreed chest pain is a cardinal sign, it is not a necessary one. Working from a presumed diagnosis of myocardial infarction, the subsequent handling of the scenario was also reasonable. He further stated that the respondent met the standard of care for a licensed dentist practising in Ontario.

[38] In cross-examination, Dr. Mason admitted that the appellant demonstrated other signs consistent with a heart attack including sweating, dizziness, light headedness, pale skin, and semi- loss of consciousness. He further acknowledged that the appellant had other heart attack risk factors including stress, weight, sleep apnea and hypertension.

[39] The trial judge, in reaching his conclusion that the respondent met the required standard of care in the circumstances, carefully weighed the expert medical and dental evidence. It was open to him to prefer the evidence of Dr. Nkansah over that of Dr. Mason. He gave reasons for doing so which were founded in the evidence., Accordingly, the trial judge did not make any palpable and overriding error that would warrant appellate intervention.

[40] The trial judge concluded that the respondent’s decision to administer NTG was an exercise of his clinical judgment when facing an emergency situation. This conclusion was reasonably available to him supported by the whole of the evidence and, in particular, the expert opinion evidence provided by Dr. Nkansah.

B. Did the Trial Judge Err in Relying upon an Opinion not in Evidence from an Expert Not Qualified at Trial to Opine on Causation?

[41] Typically, the question of causation is considered by the trier of fact once it is established that a defendant has breached a duty of care.

[42] The “but for” test with respect to causation was set out in the decision in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181 at para 8:

The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury ― in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails.

[43] In considering the question of causation and applying the “but for” test, the trial judge weighed the expert opinion evidence on causation as provided by Dr. Melvin and Dr. Nkansah.

[44] While the trial judge concluded that Dr. Melvin was qualified to offer opinion evidence on causation as a cardiologist, he ultimately rejected his evidence on causation.

[45] In answer to a question posed to Dr. Melvin by counsel for the appellant, he responded as follows:

Question – “At the same time, kindly clarify from a cardiology perspective whether the administration of the nitro spray in the office could reasonably be linked to the second vaso-vagal episode in the hospital that occurred some 1.5 hours later.”

Answer – “It is common for vaso-vagal events to recur in the presence of continuing stressors, which were likely present in the context of the initial dental stress, the EMT transfer to the hospital and events surrounding that. The hypotension induced by the event and the additional hypotensive effect of NTG did eventually resolve but not until atropine and IV fluids were administered.”

[46] In his supplementary report of December 23, 2019, Dr. Nkansah explained that NTG does not affect heart rate and he further stated: “In my opinion, the administration of nitroglycerin in this case cannot be reasonably pharmacologically linked to the bradycardic event that occurred in Wilson Memorial General Hospital.”

[47] In accepting the opinion of Dr. Nkansah over that of Dr. Melvin on the question of causation of the later bradycardia event at the hospital, the trial judge concluded that Dr. Melvin’s evidence, and in particular his answer to the written question posed to him above, was equivocal in connecting the administration of the NTG and the events at the hospital and, absent an opinion from Dr. Melvin in keeping with the “but for” test for causation, it was open to the trial judge to reject Dr. Melvin’s opinion.

C. Did the Trial Judge Err in Determining Factual Causation for the Psychological Injuries Claimed:

[48] The appellant’s psychologist Dr. Chomycz authored a report dated October 31, 2018 with respect to the appellant’s psychological condition following the events in question.

[49] The psychologist readily acknowledged that she assumed that the bradycardic event at the hospital was caused by the respondent's administration of NTG.

[50] It is also notable that in her medical legal report of October 31, 2018, she stated in part that the appellant, “reported experiencing multiple trauma symptoms including intrusive memories and flashbacks of the event (i.e. waking up at the hospital with medical professional surrounding him).”

[51] Although the trial judge accepted the opinions of the appellant’s psychologist as to his emotional and psychological condition, he rejected her evidence that his psychological condition was caused or connected with the actions of the defendant. In rejecting the psychologist’s evidence as to causation, the trial judge rejected the so-called “one event” theory as presented by the appellant at trial. The trial judge concluded that the chain of causation was not established, or was at least broken, on the whole of the evidence. This conclusion is supported by the section of the psychologist's report as quoted above where she refers to "the event" – namely waking up with the doctors surrounding him.

[52] In reaching the conclusions he did, the trial judge made no palpable and overriding factual error or error of law that would warrant appellate intervention.

Conclusion:

[53] For the reasons outlined above, the appeal was dismissed.

[54] As agreed by counsel, the appellant shall pay to the respondent costs of this appeal fixed in the all-inclusive sum of $5,000.

Daley J.

I agree _______________________________

Penny J.

I agree _______________________________

Cullin, J.

Date of Release: October 6, 2021

CITATION: Owen v. Bains, 2021 ONSC 6666

DIVISIONAL COURT FILE NO.: CV-16-0577-00SR DATE: 20211006

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

DALEY, PENNY, CULLIN JJ.

BETWEEN:

DAVID GEORGE OWEN

Appellant

AND

SUKHJEEVAN BAINS

Respondent

REASONS FOR JUDGMENT

DALEY J.

Date of Release: October 6, 2021