Court File and Parties

COURT FILE NO.: CV-13-113654 DATE: 2022-02-28 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Zara Corner, Rico Ourique, Oliver Ourique, a minor by his litigation guardian, Rico Ourique and Owen Ourique, a minor by his litigation guardian, Rico Ourique Plaintiffs

– and –

Mount Sinai Hospital Joseph and Wolf Lebovic Health Complex, Dr. Michael Sved, Dr. Shirin Ravani, Dr. Aliya Salman, Dr. Lindsay Shirreff, Dr. Maria Lindsay Sobel, Dr. Melanie Elizabeth Campbell, Dr. Eliane Shore, Dr. Gracian Arzola Villalobos, Dr. Yayoi Ohashi, Dr. Isabella Devito, Dr. Jodi Shapiro, Dr. Ekta Khemani, Dr. Allison McGeer, Dr. Jason Blaichman, Dr. Zeev Friedman, Dr. Anna Maria Piekos, Heidi Presley, Filisha Mariapen, Roma Holyk, Nastaran Ostad, Caitlin Morrison, Natalie Patterson, Jennifer Coleman, Sarah Jayne Hanlon, Christina Kadri and Aisha Yam Defendants

Counsel:

Zara Comer, Self-Represented Plaintiff Ms. Elizabeth Bratton, for Mount Sinai Hospital Mr. J. Hartery for the Defendant Doctors Sved, Sobel, Piekos, and Blaichman

HEARD: February 8, 2022, Virtually

Reasons for Decision

M.L. EDWARDS, RSJ:

Overview

[1] This is a medical malpractice claim brought by the Plaintiff, in which she seeks damages arising out of allegations of medical malpractice relating to a cesarian section which occurred at Mount Sinai Hospital on March 23, 2011. The Defendants move for summary judgment on the basis of a complete lack of any expert evidence from the Plaintiff relating to issues of negligence, standard of care and causation.

The Facts

[2] The Defendant Sved is an obstetrician and gynecologist, and as of March 2011 was a staff physician at Mount Sinai Hospital (“the Hospital Defendants”). Doctor Sobel was a fourth-year resident; Doctor Piekos was a first-year resident; Doctor Blaichman was a first-year resident (“the Defendant Physicians”).

[3] The Plaintiff was admitted to the Hospital on March 23, 2011, for a scheduled cesarian section and tubal ligation. Subsequent to the cesarean section, the Plaintiff experienced complications and was ultimately discharged from the Hospital on March 29, 2011.

[4] The Plaintiff commenced her action by way of a statement of claim issued on March 18, 2013, which was subsequently amended on April 15, 2016. Examinations for discovery took place in February 2017, March 2017 and January 2018.

[5] The Defendant Physicians have served an expert report which addresses the issue of whether or not the Defendant Physicians fell below the standard of care. The Hospital Defendants served an expert report on June 18, 2019.

[6] The Plaintiff was represented by counsel until March 2019. On May 3, 2019, the Plaintiff served a notice of intention to act in person.

[7] On March 6, 2019, the Defendant Physicians served a notice of motion seeking an order pursuant to Rule 20 of the Rules of Civil Procedure dismissing the action against the Defendant doctors Physicians. A similar motion was served by the Hospital Defendants.

[8] This matter originally came before me on January 6, 2022, at which time the Plaintiff sought an adjournment so that she could obtain the expert reports that she said were in the possession of her former counsel. On the representation of the Plaintiff that there were in fact expert reports that were in the possession of her former counsel that were not being produced to her, I made an order that any expert reports that addressed issues of the standard of care and causation in the possession of counsel that had previously represented the Plaintiff were to be produced to the Plaintiff forthwith. I further ordered that the Plaintiff was to serve and file any expert reports that addressed the standard of care and causation within 30 days.

[9] The Defendants’ motions for summary judgment came back before me on February 8, 2022, and the Plaintiff repeated her request for an adjournment given that she did not have any expert reports.

[10] There was no evidence before me to suggest that my Order of January 6, 2022 had not been complied with by the Plaintiff’s former solicitors. The harsh reality is that the Plaintiff simply does not have and never has had any expert reports that address the issue of standard of care and causation.

[11] As I indicated to the Plaintiff in refusing her request for an adjournment, this court has to balance fairness to both sides when a motion is brought to adjourn any proceeding.

[12] The genesis of the facts before this court date back to 2011. A statement of claim was issued in 2013. The motions for summary judgment have been outstanding now for nearly – if not in excess, of two years. The Defendants are as much entitled to have a resolution of this matter as is the Plaintiff. As I indicated to Ms. Comer, I had no expectation based on any of her representations that she would be able to obtain counsel or an expert report to respond to these long outstanding motions. She has been represented by a number of senior counsel experienced in the field of medical malpractice and the necessity for expert reports addressing issues of causation, standard of care and negligence, would have been well understood during the period of time when the Plaintiff was represented by one or other of her lawyers.

Analysis

[13] As previously indicated this is a medical malpractice action, and it is now beyond dispute that there can be no genuine issue that would require a trial if a Plaintiff claiming medical negligence does not obtain expert opinions to support the allegations laid out in the statement of claim. The expert evidence must establish the standard of care; whether there was a breach of the standard of care; and the breach of the standard of care caused the Plaintiff’s injuries. This is made clear by the Court of Appeal in Liu v. Wong, 2016 ONCA 366, at para. 14, as follows:

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: see Larman v. Mount Sinai Hospital, 2014 ONCA 923.

[14] In the context of a motion for summary judgment, the requirement for expert evidence is no different. If the Plaintiff does not present expert evidence to respond to a motion for summary judgment brought by a hospital or a doctor, the law is clear that the absence of such expert evidence will be fatal to the Plaintiff’s claim: see Owala Estate v. Southlake Regional Healthcare Centre, 2019 ONSC 5930 at para. 95, where Boswell J. stated:

On a summary judgment motion, the plaintiff must, at a minimum, offer evidence capable of establishing each of these essential elements, failing which there can be no genuine issue requiring a trial.

[15] The Plaintiff may see this court’s determination as one that has deprived her of her right to establish that the alleged injuries that she suffered and continues to suffer, were caused as a result of the cumulative negligence of any or all of the Defendants. The fact remains, however, that this matter relates back to events that took place in 2011. Expert evidence should have been obtained by the Plaintiff well prior to the hearing of this motion in 2022. The comments of Ryan Bell J. in Walker v. Canada, 2019 ONSC 4578 at para. 23, are entirely on all fours with how this court must dispose of this motion.

A plaintiff is not entitled to sit on his requirement to provide a supportive expert opinion. I agree with Leroy J. that such opinion evidence “ought to be available at the front end of litigation” (Galalae v. Kingston (Police Services Board), 2013 ONSC 5153, at para. 42). Certainly, such opinion evidence should be available well before the fifth anniversary of the commencement of the action (which may result in administrative dismissal of the action for delay pursuant to Rule 48.14(1) of the Rules of Civil Procedure) and in response to a motion for summary judgment.

[16] This action is now past its 10th anniversary date in terms of the date of the cause of action. The statement of claim was issued in 2013. Expert reports should have been obtained many years ago. The Plaintiff might argue that COVID has interfered with her ability to obtain expert evidence. The harsh reality, however, is that there was ample time to obtain these expert reports well prior to the onset of the COVID-19 pandemic.

[17] The Plaintiff has presented no expert evidence as required by the jurisprudence and as such, in my view there is no genuine issue requiring a trial. The motions brought by the Defendants are granted. The Plaintiff’s action is dismissed.

[18] As I indicated to counsel at the time that this motion was argued, I would invite their submissions with respect to costs if costs are being demanded. Those costs submissions should be received by March 15, 2022 and should be limited to two pages in length.

Regional Senior Justice M.L. Edwards Released: February 28, 2022