Mukankubana v. Toronto East General Hospital, 2024 ONSC 2818

Court File and Parties

COURT FILE NO.: CV-15-533549 DATE: 2024-05-17 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LANGUIDA MUKANKUBANA and JEAN PAUL NIYOMBAZA, Plaintifs – and – DR. YOAV BRILL, DR. BRIAN FERGUSON, DR. PETER VLAOVIC and TORONTO EAST GENERAL HOSPITAL, Defendants

BEFORE: Justice E.M. Morgan

COUNSEL: Languida Mukankubana and Jean Paul Niyombaza, on their own behalf Zachary Rosen, for the Defendants, Dr. Yoav Brill, Dr. Brian Ferguson, and Dr. Peter Vlaovic Matt Umbrio, for the Defendant, Toronto East General Hospital

HEARD: May 16, 2024

Summary Judgment Motion

[1] This is a medical malpractice claim with respect to obstetric and gynecological care that the Plaintiff, Languida Mukankubana, received at the Defendant, Toronto East General Hospital (the “Hospital”), under the care of the Defendants, Drs. Brill, Ferguson, and Vlaovic (the “Doctors”). The Doctors and the Hospital both move under Rule 20.01 of the Rules of Civil Procedure to dismiss the action.

[2] Both sets of Defendants state that the Plaintiffs have, after 9 years of litigation, failed to provide an expert report supporting their claim. As a consequence, the Defendants submit that the claim has no prospect of success.

[3] On August 15, 2013, Ms. Mukankubana presented to the Hospital in active labour. Dr. Brill attended to Ms. Mukankubana and was assisted by Dr. Ferguson. In the early morning of August 16, 2013, Ms. Mukankubana progressed to full cervical dilation, but was experiencing significant pain and difficulties giving birth.

[4] Dr. Brill determined that the best course was to perform a vacuum assisted delivery in order to shorten labour. Although the Plaintiffs do not recall having consented to this procedure – Mr. Niyombaza vigorously questioned Dr. Brill about this in his cross-examination – Dr. Brill deposed that he explained the procedure and the vacuum to them before using it, and that they provided him with their informed consent. Under Dr. Brill’s supervision, Dr. Ferguson applied the vacuum. Ms. Mukankubana gave birth to a baby weighing 4495 grams, a relatively large size.

[5] Following the delivery, Dr. Brill noticed a vaginal tear extending above Ms. Mukankubana’s urethra. Dr. Vlaovic, a urologist, was consulted to check for any damage to or other issues with Ms. Mukankubana’s bladder, but found none. That was the extent of Dr. Vlaovic’s role; he had no further participation in any treatment or care rendered to Ms. Mukankubana.

[6] Under general anesthetic, Dr. Brill repaired the vaginal tear. In cross-examining Dr. Brill, Mr. Niyombaza conceded that Dr. Brill obtained consent in writing for this procedure. Although the Plaintiffs plead that there were complications to this surgery, and Mr. Niyombaza states that two sponges were left in Ms. Mukankubana, the record does not establish that. The evidence is that no additional surgery was necessary and that all sponges were removed from Ms. Mukankubana during the first and only surgery.

[7] The Plaintiffs issued their Statement of Claim on July 31, 2015. In their pleading, they claim that all three of the Doctors were negligent in their treatment of Ms. Mukankubana, causing her physical injury and ongoing pain and suffering. This alleged negligence includes both the vacuum assisted delivery and the post-delivery surgical repair.

[8] Pleadings closed in April 2016, and by July 2016 all parties had exchanged their initial affidavits of documents. The Plaintiffs’ affidavit of documents listed the following two reports:

a) Expert Medical Opinion from advance Medical by Ingrid Nygaard, MD, Professor, Department of Obstetrics and Gynecology, University of Utah School of Medicine, Salt Lake City, UT; and

b) Expert Medical Opinion from advance Medical by Ayesha Abdeen MD, Instructor of Orthopedic Surgery Harvard Medical School, Director of Quality Assurance, Department of Orthopedic Surgery, Beth Israel Deaconess Medical Center, Boston MA

[9] Despite the Defendants’ requests and being required to do so, the Plaintiffs did not produce the reports of Dr. Nygaard and Dr. Abdeen until this past year. That was some 7 years after the Plaintiffs’ initial affidavit of documents during the process of scheduling this summary judgment motion.

[10] Examinations for discovery of all parties were completed in May 2017. On June 3, 2019, the Doctors delivered an expert report from Dr. William Mundle, an obstetrician/gynecologist with over 20 years of experience. In his report, Dr. Mundle opines that both Dr. Brill and Dr. Ferguson met the standard of care in their treatment of Ms. Mukankubana, and that the complications following her delivery did not result from their actions and were in any event managed appropriately.

[11] It is Dr. Mundle’s view that the vaginal tearing was properly repaired. He opines that it was likely a result of the large size of the baby, not of any negligence on the part of the Doctors.

[12] On June 18, 2019, the Hospital delivered a report authored by Shannon Maier, a highly experienced expert in nursing care. In her report, Ms. Maier opines that the Hospital’s nurses met the standard of care in relation to the assessment and care of Ms. Mukankubana. Her opinion covers Ms. Mukankubana’s labour and delivery, as well as the postpartum period.

[13] On June 26, 2019, the parties attended a mandatory mediation before mediator Jeanette Bicknell. The mediation session was not successful in resolving the case.

[14] The action did not advance until 2023, when both sets of Defendants served Notices of Motion and scheduled a summary judgment motion with the court.

[15] In September 2023, the Plaintiffs finally served the reports of Drs. Nygaard and Abdeen. At the same time, they delivered to the Defendants a letter from Ms. Mukankubana’s family physician, Dr. Abu Shamim Arif, and which is dated February 23, 2023. Dr. Arif’s note cannot be considered an expert report. It contains no opinion on the standard of care provided by the Defendants.

[16] Further, Dr. Arif is not a qualified expert on specialized type of care received by Ms. Mukankubana. Moreover, the note provided by Dr. Arif is not accompanied by a signed Form 53, nor does not conform to the requirements of Rule 53 of the Rules of Civil Procedure. It is a medical consultation report from a family doctor, not an expert report submitted by a specialist for litigation purposes.

[17] The reports by Dr. Nygaard and Dr. Abdeen likewise are not expert reports. Both physicians practice in the United States. And while they appear to have good credentials, their reports suggest that they were consulted for the purposes of giving second opinions as to ongoing care, and not for litigation purposes or for rendering an opinion on past care. Neither report is accompanied by the requisite Form 53 of the Rules of Civil Procedure.

[18] Dr Nygaard specifically says that she cannot opine on whether the Doctors conformed with the requisite standard of care since she was not present and would only be speculating. She does say, however, that the vacuum assisted delivery method utilized by Drs. Brill and Ferguson, as described in Ms. Mukankubana’s medical records, is a recognized and acceptable approach to delivery.

[19] Dr. Abdeen’s report likewise contains no opinion as to the treatment and care rendered by the Doctors. It is focused on describing recommendations for any ongoing care of Ms. Mukankubana.

[20] Neither of the two reports tendered by the Plaintiffs address in any way the issue of nursing care and the standard of care expected of nurses – the crux of the claim against the Hospital. The Court of Appeal has indicated that nursing care has its own professional standards, and must be the subject of its own expert analysis where relevant in a claim: Suwary v. Women’s College Hospital, 2009 ONSC 31985, at para. 170 (SCJ), aff’d 2011 ONCA 676.

[21] The absence of expert evidence in support of a medical malpractice claim has generally been considered fatal to the claim; the exceptions to this are only in the clearest of cases: Larman v. Mount Sinai Hospital, 2014 ONCA 923, at para. 4. Courts have granted summary judgment on the basis that the claimant has failed to produce an expert report: Richmond v. Balakrishnan, 2010 ONSC 5888, at paras. 60-61, aff’d 2011 ONCA 316, leave to appeal refused, .

[22] A plaintiff in a medical malpractice case is required to deliver expert evidence to establish the standard of care and causation. The requirement for expert evidence stems from the fact that courts do not generally have the expertise necessary to make the findings in these areas without the benefit of expert testimony: Richmond v. Balakrishnan (SCJ), supra, at para. 22.

[23] Accordingly, few, if any, medical negligence cases can proceed without the plaintiff obtaining admissible opinion evidence from a qualified expert. “[U]nless this is a case where the issues to be decided are within the ordinary knowledge and experience of the trier of fact…, the motion must succeed, as the plaintiffs will be unable to prove at a trial that the defendants were negligent”: Claus v. Wolfman (1999), 1999 ONSC 14824, 52 OR (3d) 673, at paras. 3-4, aff’d (2000), 2000 ONCA 22728, 52 OR (3d) 680 (CA).

[24] At the hearing before me, Ms. Mukankubana explained that she continues to suffer from the painful labour and childbirth that she endured in 2013. She indicated that she still feels weak, that she is on disability, and that she has been unable to return to work. Ms. Mukankubana and her spouse, Mr. Niyombaza, blame her ongoing situation on the medical care she received from the Defendants.

[25] I sympathize with Ms. Mukankubana’s condition. Ms. Mukankubana and Mr. Niyombaza both expressed themselves intelligently and passionately at the hearing, even in the face of some technological issues with their phone connection during the virtual hearing.

[26] I certainly believe that Ms. Mukankubana has suffered. But as for the medical cause, and the legal strength of her claim, I am obliged to base my assessment on the evidentiary record. The expert evidence of Dr. Mundle and Ms. Maier, together with the absence of any expert evidence on the Plaintiffs’ side, demonstrates that the Plaintiffs’ allegations are unsupportable and that their claim that the Defendants acted negligently has no prospect of success.

[27] Without a proper and cogent opinion by a qualified expert in the field, the Plaintiffs’ claim presents no issue requiring a trial. On that basis, Rule 20.04(2) of the Rules of Civil Procedure requires that it be dismissed: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87, at para. 93.

Disposition

[28] The Defendants’ motion is granted; the action is dismissed.

[29] The parties may make written submissions on costs. I would ask counsel for the Doctors and for the Hospital to email brief submissions to my assistant within two weeks of today. I would ask the Plaintiffs to email equally brief submissions on costs within two weeks of receiving the Defendants’ submissions.

Date: May 17, 2024 Morgan J.