Court File and Parties

COURT FILE NO.: CV-11-5083 DATE: 2016 04 26

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

MICHELLE DOROTHY MICALLEF, as Estate Trustee for the ESTATE OF PAUL DELICATA, deceased, MICHELLE DOROTHY MICALLEF, personally, CHRISTIAN MICALLEF and MATTHEW MICALLEF-DELICATA, by his Litigation Guardian, Michelle Dorothy Micallef

Plaintiffs

Counsel: Sergio Grillone, for the Plaintiffs

• and -

THE CREDIT VALLEY HOSPITAL, DR. HANS DIETRICH STRAUSS, JANE DOE 1, JANE DOE 2, DR. TONG PING CHEE, DR. JAGDEEP SINGH, DR. M. NEELAPPA and YUMA REGIONAL MEDICAL CENTER

Defendants

Counsel: Andrew Kalamut, for the Defendant, Dr. Hans Dietrich Strauss Lee Lenkinski for the Defendant, The Credit Valley Hospital

HEARD: April 18, 2016

REASONS FOR JUDGMENT

Justice Thomas A. Bielby

INTRODUCTION

[1] The defendants, Dr. Hans Dietrich Strauss (Strauss) and The Credit Valley Hospital (the Hospital) have before the court motions for summary judgment. They submit, on the evidence before me, there is no genuine issue requiring a trial.

[2] This case can be described as a medical malpractice case relating to the death of Paul Delicata (the deceased). The plaintiffs allege that Strauss and the Hospital were negligent in their care of the deceased.

[3] The motions were originally returnable on October 28, 2015 and were brought on the basis that the plaintiffs had not filed any expert evidence which opined there was a breach of any standard of care that caused or contributed to the death of Mr. Delicata.

[4] I understand the motions were adjourned to allow counsel for the plaintiffs to file expert evidence. On April 12, 2016, the plaintiffs served the defendants with two reports authored by Dr. Sharma which are dated November 16, 2014 and April 11, 2016.

[5] Notwithstanding the filing of these reports the defendants proceeded with their motions arguing that the evidence of Dr. Sharma is inadmissible. Alternatively, they argue the reports are so deficient that the summary judgment motions ought to be granted.

BACKGROUND FACTS

[6] On December 17, 2009 the deceased was admitted to the Yuma Regional Medical Center (Yuma) in Arizona complaining of shortness of breath, chest pain, and the swelling of his leg.

[7] The deceased had a previous history of heart failure and was diagnosed with suffering from severe heart failure and with fluid on his lungs. Testing showed that only 15-20 percent of the blood in his heart was being pumped.

[8] On December 22, 2009, in Yuma, the deceased underwent a thoracentesis procedure of having a large syringe inserted into his chest to draw fluid from his lung. In layman’s terms, it is alleged by the plaintiffs that as a result of this procedure damage was done and the deceased bled internally, the blood collecting in his lung.

[9] On December 23, 2009, at the request of the deceased’s health insurer, Dr. Strauss agreed to accept the deceased into his care at the Hospital, conditional upon him first talking to the treating physician in Yuma and being satisfied that the deceased was stable enough to be air transported back to Ontario.

[10] Dr. Strauss spoke by telephone with Dr. Singh who provided the deceased’s medical history and a summary of his medical treatment. Dr. Singh advised that the deceased was stable enough for transport and relying on that opinion, Dr. Strauss agreed to accept the deceased into his care.

[11] On December 25, 2009, the deceased was transferred, arriving at the Hospital at 9:15 am.

[12] Upon his arrival Strauss performed an assessment of the deceased and as a result ordered a respiratory consult with a respirologist, Dr. Grossman, and a chest x-ray.

[13] At approximately 10:50 am the deceased fell out of bed and as a result, the Rapid Assessment of Critical Events Team (Race) lead by Dr. Kumar was called in for an assessment.

[14] The deceased was transferred to the ICU and from that point forward the deceased was under the care of Dr. Kumar and Strauss had no further involvement in the care or treatment of the deceased.

[15] At 2:15 pm the deceased suffered cardiac arrest and could not be resuscitated. He was pronounced dead at 2:31 pm.

[16] An autopsy was performed and the coroner’s report indicated that the cause of death was a massive right-sided hemothorax as a result of a thoracentesis needle into the diaphragm of the deceased who also suffered from severe coronary artery disease.

[17] Initially the class of defendants in this lawsuit included the Yuma Regional Medical Center and the doctors in Yuma who treated the deceased, including Dr. Singh. On consent the action was dismissed against them leaving only Strauss and the Hospital as defendants.

[18] The Statement of Claim was issued on December 23, 2011 and amended in January, 2012. All the parties with the exception of the plaintiff Christian Micallef were discovered in February, 2014.

[19] On February 10, 2015 counsel for Strauss served upon the plaintiffs the medical report of Dr. Beth Abramson, a cardiologist, who practices at St. Michael’s Hospital in Toronto. Dr. Abramson reviewed the medical and clinical records and discovery transcripts and opined that Strauss met the required standard of care in accepting the transfer of the deceased and in regards to his treatment of the deceased after transfer.

[20] As noted, on April 12, 2016, the plaintiffs served on the defendants what purports to be the expert reports of Dr. Sharma, dated November 16, 2014 and April 11, 2016. The two reports are attached as exhibits to the affidavit of a law clerk, Kelly Millard, sworn April 12, 2016.

THE LAW OF SUMMARY JUDGMENT IN RELATION TO MEDICAL MALPRACTICE CASES

[21] Both defendants filed a book of authorities and factums. Counsel for the plaintiffs filed neither and acknowledges the law in regards to summary judgment motions as set out in the factums of the defendants.

[22] The motions are brought pursuant to Rule 20. Rule 20.02 states that the evidence on a summary judgement motion is by affidavit and that the court may draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of the contested facts.

[23] Rule 20.03 states that all parties to such a motion shall file factums.

[24] Rule 20.04 dictates that a court can grant summary judgment if it is satisfied there is no genuine issue requiring a trial. Further, unless it is in the interests of justice otherwise, I can exercise the powers of weighing the evidence, evaluate the credibility of a deponent and/or draw a reasonable inference from the evidence.

[25] The leading authority on summary judgement motions is the Supreme Court of Canada decision in Hryniak v. Mauldin, 2014 SCC 7. The Court noted that the summary judgement process is a significant alternative model of adjudication (para. 45) and the purpose is to eliminate claims that have no chance of success at trial and provides the court with expanded fact-finding powers (paras. 44-45).

[26] There is no genuine issue requiring a trial when a judge hearing a summary judgment motion “is able to reach a fair and just determination on the merits” (para. 49).

[27] In a medical negligence action the plaintiff is required to file expert evidence with respect to both the standard of care and causation. Further, in regards to a summary judgment motion each of the parties are to put their best foot forward or, as noted in Claus v. Wolfman, [1999] O. J. No. 5023, para. 7, “lead trump or risk losing”.

[28] One of the authorities cited is McNeil v. Easterbrook, 2004 CarswellOnt 3926, a decision of Himel J. Commencing at paragraph 16, I quote,

“In numerous cases, the courts have held that without an expert’s report supportive of the plaintiff’s position, medical negligence cannot be established… Expert evidence if required 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. Where liability issues are technical such as in medical malpractice cases, a finding of negligence must be based on a supporting expert report….Where the plaintiffs do not deliver an expert report to support all elements of the cause of action in negligence, a genuine issue has not been raised with respect to a material fact. Without such evidence, the defendant is entitled to summary judgment.

The purpose of Rule 20 is to remove from the trial system those cases where there is no genuine issue for trial. The burden of demonstrating that there is no genuine issue for trial rests on the moving party. However, the plaintiff is required to respond to a motion with affidavit material or other evidence and specific facts showing that there is a genuine issue for trial. The court is entitled to assume that all parties have put their best foot forward and that if the case was to proceed to trial, they would present no additional evidence. The party opposing the summary judgment must show a “real chance of success”: see Guarantee Company of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423.”

[29] Himel J. noted that in the case before her, the plaintiff had filed no expert report whereas the defendants had provided a medical opinion. It was determined that the plaintiff had not provided any evidence to establish the standard of care, a breach of the standard of care and causation. It was held there was no genuine issue requiring a trial and the claim was dismissed.

ARGUMENT AND ANALYSIS

[30] The defendants submit that the medical evidence filed by the plaintiffs in response to these motions is inadmissible on two grounds. Firstly, the reports of Dr. Sharma are attached to a clerk’s affidavit and not to an affidavit of Dr. Sharma. Secondly, the reports do not comply with Rule 53.03 and the criteria set out therein for the filing of expert reports.

[31] In regards to the first ground, counsel for the moving parties rely on Sanzone v. Schecter, 2015 ONSC 4130, a decision of Akhtar J. of the Ontario Superior Court of Justice. In this case there were allegations of professional malpractice in regards to a dentist. The plaintiff’s expert report was attached to the affidavit of the plaintiff.

[32] From paragraph 17, I quote,

“The defendants are correct that an expert report must provide his or her opinion in an affidavit. In Toronto Dominion Bank v. Schrage, 2009 ONSC 3636 Strathy J., as he then was, remarked upon the necessity of a sworn affidavit in the context of expert evidence at para 39: This is not a formality. On a motion for summary judgment the court is entitled to sworn evidence and, in the case experts, that the evidence be given by the expert and not filtered through the hearsay evidence of the party.”

[33] Counsel for the plaintiffs, while only addressing this authority by saying it can be distinguished on it facts, does not challenge the principle recited. He submits that the report is only akin to a “will say” statement so that the defendants are not ambushed at trial. He submits that the report is only an indication of what evidence will be presented at trial. Counsel for the plaintiffs goes on to say that if the issue is the right to cross-examine, counsel for the defendants said they had no intention of cross-examining Dr. Sharma for the purposes of these motions, so where is the prejudice?

[34] Counsel for the plaintiffs submits that counsel for the defendants are simply relying on procedural issues to have the report declared inadmissible. The fact that the report is attached to a clerk’s affidavit only goes to weight.

[35] In Hiebert v. Lennox Canada Inc., 2007 ONSC 3079, Valin J. of the Ontario Superior Court of Justice stated, at paragraph,

“If a party intends to rely on the substance of an expert’s report on a summary judgment motion, the evidence must be put before the court in a manner that will permit cross-examination of the maker of the report. This can be done in one of two ways. The expert can place the substance of his/her opinion in an affidavit sworn by him/her. Alternatively, the expert can swear an affidavit to which his/her report is attached as an exhibit and swear to the truth of the contents of the report.”

[36] The argument of plaintiffs’ counsel has no basis in law and is an attempt to create a smoke screen in an effort to have this issue deferred to a trial judge.

[37] I accept that this report, to be admissible, ought to have been attached to an affidavit of Dr. Sharma and that in the affidavit he would be required to adopt and confirm the contents of his reports as did Dr. Abramson, in her report filed on behalf of Strauss.

[38] The plaintiffs have had over five months to produce their expert evidence in the proper form and in a form admissible on this motion. They have not done so and on this ground alone the reports of Dr. Sharma are inadmissible.

[39] In regards to the second ground, Rule 53.03 is quite clear as to what must be included in an expert report to qualify as such. The reports shall contain the following information:

1. The expert’s name and address and area of expertise.
2. The expert’s qualifications and employment and educational experiences in his or her area of expertise.
3. The instructions provided to the expert in relation to the proceeding.
4. The nature of the opinion being sought and each issue in the proceeding to which the opinion relates.
5. The expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range.
6. The expert’s reasons for his or her opinion, including, (i) a description of the factual assumptions on which the opinion is based, (ii) a description of any research conducted by the expert that led him or her to form the opinion, and (iii) a list of every document, if any, relied on by the expert in forming the opinion.
7. An acknowledgement of expert’s duty (form 53) signed by the expert.

[40] Counsels for the defendants submit that the reports of Dr. Sharma miss the mark on almost all of the aforementioned criteria and requirements.

[41] Under the signature of Dr. Sharma he is noted as, Fellow, Royal College of Physicians and Surgeons of Canada, Division of Internal Medicine, Certificate of Special Competence in Respirology and Critical Care Medicine. Apart from this reference there is no statement of qualifications or experience. Nor is there a list of documents reviewed. His instructions are not set out, although there is reference to questions that were posed to him.

[42] Certainly there is no Acknowledgement of Expert’s Duty.

[43] These failings are not contested by the plaintiffs’ counsel. He relies on Rule 2.01 which states the failure to comply with the rules is an irregularity and does not render a proceeding a nullity. He further submits that there is no suggestion that on a motion for summary judgement an expert’s report must be in compliance with Rule 53.03.

[44] Plaintiffs’ counsel acknowledges that he must put his best foot forward but submits he is not required to do so to the level required at a trial. He submits that practically, there is no prejudice to the defendants.

[45] On this issue the argument of plaintiffs’ counsel lacks substance. This motion was brought because of the failure of the plaintiffs to produce any expert evidence as to standard of care and causation. It was adjourned in October, 2015, to allow the plaintiffs to file an expert’s report. When it was finally filed, six days before the return of the motion, it failed to comply with the rule relating to expert’s reports.

[46] No submissions were received as to why there was no compliance with the Rule.

[47] The plaintiffs’ entire case relies presumably on the evidence of Dr. Sharma. A failure to meet the necessary evidentiary requirements is not putting your best foot forward.

[48] I disagree with the submissions of counsel for the plaintiffs that the evidence on a motion does not have to be at the level of such evidence at trial. As noted in the Sanzone decision, I am to assume that the evidence before me will be the evidence at trial and that there will be no more evidence on this point.

SUBSTANCE OF MEDICAL EVIDENCE

[49] On my findings above, the defendants’ motions for summary judgment would succeed. Without admissible evidence the plaintiffs have no evidence before me to establish a breach of a standard of care that caused or contributed to the deceased’s demise.

[50] However, assuming for the moment the plaintiffs’ expert reports are admissible, I will consider the substance of Dr. Sharma’s opinions.

[51] The first report of Dr. Sharma is dated November 16, 2014. In this report Dr. Sharma indicates that he reviewed the records of the Yuma Health Center, the Air Care Ambulance Report, the Ground ambulance report, the Credit Valley Hospital Report and the Post-Mortem Report. He then states he reviewed the case summary and the medical documentation on the deceased. He does not identify what case summary he is referring to. He does not set out the details of the case, although Rule 53.03 dictates he should have.

[52] Most of this first report deals with the deceased’s treatment in Yuma. It was there on December 22, 2009, where the thoracentesis procedure was conducted and in regard to which he states, “The cause of his death was hemorrhagic shock secondary to massive hemothorax which apparently occurred as a complication of thoracentesis.”

[53] Counsel for the plaintiffs submits that the reports are to be read together, however given the significant period of time that separates the reports, I think they can each be considered on their own. As noted, most of this first report is in relation to the care and treatment received by the deceased in Yuma. However, item 3 on page 2, is entitled, “Care at Credit Valley Hospital”. In that regard, Dr. Sharma states the patient arrived at the Hospital at 08:15 on December 25, 2014 (he arrived at 09:15 on December 25, 2009) and that he deteriorated shortly after arrival to the Hospital.

[54] Dr. Sharma then states, “There are no records available to chronicle his care at the Credit Valley Hospital.” This statement is quite odd in that the action was already two years old and hospital records would be relevant and discoverable. Without reviewing such records how can any expert provide an opinion on what occurred at the Hospital?

[55] In any event, on page 5, at point (e) Dr. Sharma provides his summary. He opines the thoracentesis procedure was not warranted and it is this procedure he opines lead to the death of Mr. Delicata.

[56] In bold print Dr. Sharma states, “Based upon the data submitted for my consideration, it is my opinion, with a reasonable degree of medical certainty that the standard of care was not met with respect to the assessment, performance and follow-up of an invasive procedure-thoracentesis. These deviations from the standard of care caused Mr. Delicata’s death.”

[57] Counsels for the defendants submit that this report is only relevant to the treatment the deceased received while in Yuma.

[58] Counsel for the plaintiffs submit that the use of the phrase “follow-up” means the opinion covers the treatment received on December 25, 2009 at the Hospital notwithstanding Dr. Sharma’s statement that he did not review the records of the Hospital.

[59] Counsels for the defendants also ask me to note that this report was produced after their clients were discovered and no transcripts of the discoveries were noted, as reviewed. In Conn v. Durcell, 2013 ONSC 5080, [2013] O.J. No. 3588, the failure to review transcripts resulted in the trial judge according more weight to the expert who did.

[60] Further, it is noted Dr. Sharma’s expertise is in internal medicine and not cardiology.

[61] In his report dated April 11, 2016, Dr. Sharma indicates he reviewed the medical records for the Hospital and the expert opinion of Beth Abramson, a cardiologist.

[62] The report states, in bold print, that the consultation report of Dr. Strauss did not record findings of the respiratory examination.

[63] At tab G of the motion record of Strauss are the hospital records. I agree with the submissions of counsels for the defendants that within those records it is clear that Strauss did note the deceased’s respiratory rate, ordered an oxygen level of 94% and ordered a chest x-ray and respiratory consult with Dr. Grossman. I accept the submissions of counsel for Strauss that the nurses also did their own assessment of those health issues.

[64] In bold print on page 3 of his April 11th report, Dr. Sharma states, again in bold print, that a respiratory physical examination was not performed. The facts as noted above, and which I accept, state otherwise.

[65] In his first report Dr. Sharma provides an opinion specific to a breach of a standard of care and that the said breach caused the demise of the deceased. In his second report he provides no such opinions. While Dr. Sharma notes deficiencies he does not opine as the standard of care of either the Hospital or Strauss nor does he speak to a breach of any standard. He does not provide an opinion as to whether the actions of the defendants or lack of actions caused or contributed to the deceased’s demise.

[66] In regards to the report of Dr. Abramson, Dr. Sharma notes that a respiratory examination was not performed suggesting, I presume, that the failure to do so invalidates her opinion. Again, the records reflect that such an examination was performed and it is noted Dr. Sharma, who is not a cardiologist, is commenting on the opinion of a cardiologist who reviewed the actions of another cardiologist.

[67] Dr. Abramson’s report complies with Rule 53.03 and was included in her affidavit in which she confirms her report and her opinions in the report.

[68] Dr. Abramson sets out, in detail, the documents she has reviewed and also notes she reviewed the transcripts.

[69] Dr. Abramson opines that Strauss meet the standard of care when he agreed to accept the transfer of the deceased to the Hospital and that Strauss met the standard of care in his treatment of the deceased. She details the steps taken by Strauss.

[70] Counsel for Strauss submits that I should accept the opinions of Dr. Abramson over those of Dr. Sharma and submits that the report of Dr. Abramson ought to be given much more weight as she reviewed more of the available evidence (the transcripts) and the report offers much more detail. It addresses specifically the issues of standard of care and causation.

[71] Counsel for the plaintiffs submits the issue of weight ought to be left to the trial judge. He submits that there are competing expert reports and seems to suggest that is all that is needed to dismiss the motions for summary judgment.

[72] I find that under Rule 20.04 I can consider the strength of the evidence, specifically the expert reports, and can weigh the evidence and assess credibility.

[73] On the expert evidence filed and in regards to Strauss, I find that there is no genuine issue requiring a trial. I accept the evidence of Dr. Abramson over that of Dr. Sharma. Further, I find that Dr. Sharma has not provided an opinion as to the standard of care to be met by Strauss and the Hospital, whether there has been a breach of those standards, and whether the breach caused or contributed to the demise of the deceased.

[74] In regards to the Hospital, Dr. Sharma’s reports have very little to say in regards to the Hospital and its staff. The Hospital is not vicariously liable for the actions or inactions of Strauss.

[75] There is no expert evidence in regards to the standard of care expected of the Hospital and whether there has been a breach.

[76] It cannot be said on the evidence as accepted by me that but for the actions of either defendant Mr. Delicata would not have died.

[77] On the evidence before me I am able to make a just determination and the issues do not require a trial.

[78] There is no genuine issue in regards to either defendant that require a trial.

RULING

[79] Accordingly, both motions of the defendants are granted and the action dismissed as against Strauss and the Hospital. Any cross-claims relating to the negligence of either defendant are also dismissed.

COSTS

[80] In regards to costs, all parties have filed bills of costs.

[81] The defendants were successful and are entitled to their costs on a partial indemnity basis, both in regards to the motion and to the action.

[82] Counsel for the Hospital submits his partial indemnity account to be as follows: Fees $14,813.17, inclusive of HST Disbursements $357.99, inclusive of HST Bill of Costs Preparation $400.00 Counsel Fee on Motion $600.00 Total $16,171.12

[83] Counsel for Strauss seeks partial indemnity costs broken down as follows: Fees $24,219.10 HST of Fees $3,148.48 Disbursements $2,559.98 HST on Disbursements $332.80 Total $30,260.36

[84] The plaintiffs’ bill of costs in relation to the motion only totals $6,623.90.

[85] Counsel for Strauss explains that his account is considerably more than that of the Hospital because of the involvement of Dr. Abramson. While I am sure that involvement would increase a bill of costs, I am not certain that her involvement should amount to such a difference in the accounts. Further, I do not see a disbursement as to what Dr. Abramson charged to prepare her report, although I have no doubt it was significant.

[86] In regards to the Hospital, I accept the account and order the plaintiffs to pay to the Hospital’s fees and disbursements, inclusive of HST in the amount of $16,171.12.

[87] In regards to Strauss, I order the plaintiffs to pay costs of $24,362.78, which is made up of fees of $19,000.00 (being the amount of fees noted by the Hospital plus $4,000.00 in regards to the involvement of Dr. Abramson), HST on the said fees and disbursements of $2892.78, inclusive of HST.

Bielby J. Released: April 26, 2016