Court File and Parties

Court File No.: CV-17-00581496-0000 Date: 2024-06-07 Ontario Superior Court of Justice

Between: Songfu Liu, Applicant And: Jonathan Chan, Defendant

Counsel: Self-Represented, for the Applicant Stuart Zacharias, for the Defendant

Heard: May 14, 2024

Reasons for Decision C. Stevenson, J.

Introduction

[1] The plaintiff, Mr. Liu, had prostate surgery (a radical prostatectomy) on August 7, 2015 at Scarborough Hospital. His surgeon was the defendant Dr. Chan. The plaintiff is suing Dr. Chan on the basis that he did not need the surgery because he did not have prostate cancer. Mr. Liu says Dr. Chan fraudulently induced him to have the surgery by manipulating his blood test results to falsely show unduly elevated PSA levels which were the basis on which three biopsies were recommended. He claims that Dr. Chan then manipulated the biopsy results which were the basis on which surgery was fraudulently recommended.

[2] Mr Liu says this fraud by Dr. Chan vitiates the consent he gave for the surgery and that he has suffered damages for which Dr. Chan should be found liable. In oral argument he made it clear that his claim is based on fraud rather than negligence, although negligence and other causes of action have been pleaded.

[3] The plaintiff brings a motion for summary judgment while the defendant brings his own motion for summary judgment to dismiss the claim.

[4] The evidence, which will be discussed below, that Mr Liu had prostate cancer in the relevant time frame is indisputable. There is no evidence of fraud other than Mr. Liu’s unsubstantiated speculation that Dr. Chan manipulated the biopsy and lied to him when he recommended treatment. Before the surgery Mr. Liu underwent three biopsies the third of which, dated July 20, 2015, identified intermediate-risk prostate cancer which was reported by the pathologist to be Gleason level 7. The expert evidence establishes that prostate surgery or its alternative, radiation therapy, was the appropriate standard of care for a man of Mr. Liu’s age and health based on a Gleason 7 biopsy result. Mr. Liu elected surgery rather than radiation treatment and provided his written consent after receiving appropriate medical advice about the risks. The surgery was successful, subject to some complications which have since resolved, and Mr. Liu remains cancer free at this time.

[5] For the reasons that follow the plaintiff’s motion is dismissed and the defendant’s motion for summary dismissal is granted.

Medical History

[6] Mr. Liu was referred to Dr. Chan in March 2013 after a blood test identified a PSA level of 4.31 ug/l. By July 5, 2013 Mr. Liu’s PSA was down to 3.91. By February 1, 2014, however, his PSA level was 4.77 with what is called a “free to total” ratio of 0.14. Although Mr. Liu says that Dr. Chan changed some of these numbers to make Mr. Liu appear at greater risk, this is not a triable issue because the expert evidence and the actual events show that the subsequent decision to have surgery was based on the biopsy results, rather than the PSA levels. The latter are considered primarily to determine if a biopsy is warranted.

[7] The first biopsy of Mr. Liu’s prostate on March 24, 2014 showed 3 of the 12 samples contained a cancer known as adenocarcinoma at Gleason level 6. Level 6 means the patient should be monitored (this is called active surveillance) and does not require immediate treatment. A second biopsy on July 15, 2014 also showed Gleason level 6 cancer, but this time in 5 of the 12 samples. Dr. Chan recommended that Mr. Liu continue with active surveillance. As part of that active surveillance further PSA tests on November 26, 2014 reported Mr. Liu’s PSA level to be 4.24.

[8] A third biopsy on July 13, 2015 resulted in a report that 2 of the 12 samples showed Gleason 7 (3 + 4) cancer. This biopsy report was signed by Dr. John Srigley, the pathologist who reviewed the samples. Dr. Chan had no role in interpreting the biopsy and nothing suggests that he could have interfered with the report or the samples. It is this biopsy and pathology report that Mr. Liu says was fraudulently manipulated by Dr. Chan. When asked at the hearing how Dr. Chan might have done this, he said it was Dr. Chan’s secret.

[9] Mr. Liu argues that Dr. Chan mis-reported at least one of the prior PSA results and that this is evidence of fraud. I find there is no evidence of fraud or fraudulent misrepresentation in this regard. Dr. Chan relied on the PSA levels to requisition further biopsies to determine if Mr. Liu required treatment beyond active surveillance. Even if he had misstated one PSA number (which is not my finding) it would have had no connection to his subsequent recommendation to have treatment. That recommendation was based on the biopsies, not the PSA numbers.

[10] As noted above the third biopsy report which is dated July 20, 2015 and prepared by a pathologist, showed cancer (adenocarcinoma) at Gleason level 7. The expert evidence confirms that the progression in the prostate cancer from Gleason 6 to Gleason 7 constituted a change from “low risk” to “intermediate risk.” Dr. Chan concluded reasonably and based on the appropriate standard of care that the cancer had progressed over the 18 months Mr. Liu had been under his care, and recommended treatment rather than active surveillance.

July 30, 2015 Recommendation of Surgery

[11] Dr. Chan met with Mr. Liu on July 30, 2015 and informed him that the standard treatment options in the circumstances were surgery (radical prostatectomy) or radiation therapy. Dr. Chan gave evidence that he discussed with Mr. Liu the nature of both options including the material risks. Dr. Chan says that Mr. Liu declined a referral to a radiation oncologist and opted to proceed with surgery. Dr Chan says that Mr. Liu did not ask for a second opinion but that if he had done so, Dr. Chan would have “gladly” arranged one.

[12] This narrative is confirmed by Dr. Chan’s clinical note on July 30, 2015.

[13] Mr. Liu testified that Dr. Chan did not discuss the proposed treatment or the side effects. He also says he did not receive a second opinion. Nonetheless, Mr. Liu acknowledges Dr. Chan discussed surgery with him in light of the third biopsy report. Mr. Liu also agrees that Dr. Chan used an anatomical model to explain the surgical procedure.

[14] Mr. Liu says he was surprised at the July 30, 2015 consultation to be confronted with Dr. Liu’s advice to have surgery and his own need to make such a momentous decision. This surprise is understandable in the sense that he had just been diagnosed with intermediate risk cancer and given the difficult choice between surgery and radiation therapy. He says he “felt as if someone hit me with a hammer on my head…” It's understandable therefore that he does not recall all the conversation with Dr. Chan.

[15] Mr. Liu says he was perturbed by Dr. Chan’s offer of an early surgical date which had become available due to the cancellation of another patient's surgery. He alleges that Dr. Chan pressured him by telling Mr. Liu that he had another patient whose cancer went from Gleason level 6 to Gleason level 8 while he was waiting for surgery with the result that the other patient no longer qualified for surgery and had to have radiation treatment instead. Mr. Liu says that this information, together with the offer of the early surgical date is evidence of fraud on the part of Dr. Chan.

[16] He also suggests that Dr. Chan threatened and coerced him into giving his consent by saying that if Mr. Liu rejected the surgery he would not receive any further follow-up appointments.

[17] Dr. Chan denies these allegations which are inconsistent with Dr. Chan’s contemporaneous notes. Dr. Chan does acknowledge that on July 30, 2015 there was some urgency because Cancer Care Ontario guidelines provide that men under 75 years of age with localized grade 7 Gleason cancer (like Mr. Liu) should be offered and receive treatment, meaning radical prostatectomy (surgery) or radiation treatment within 3 months of diagnosis. He also acknowledges that a surgery appointment had become available for one week hence on August 7, 2015 and he offered this to Mr. Liu.

[18] I find that Mr. Liu’s claims of fraud or fraudulent misrepresentation do not raise a triable issue. The biopsy could not have been altered by Dr. Chan and he had no reason to do so in any event. Mr. Liu’s allegations about the July 30, 2015 consultation are inconsistent with the contemporaneous medical notes of Dr. Chan and have no air of reality. They represent at best Mr. Liu’s misremembered description of a traumatic meeting which, when combined with the subsequent post surgical issues, have resulted in Mr. Liu’s distorted memory of events. Mr. Liu’s story is not only inconsistent with the only contemporaneous notes (those of Dr. Chan) but is also undermined by the lack of any other witnesses who might have confirmed that Mr. Liu felt threatened at the time or had reported such threats in the week between Dr. Chan’s recommendation and the date of surgery.

[19] Mr. Liu as a lay person with no medical training may not have had a full and complete understanding of the implications of the choices he was being offered but I can and do find on the evidence in the record that he was aware of the issues in sufficient detail to make an informed decision. There is no triable issue in this regard. Mr. Liu understood the cancer diagnosis and the need for the cancer to be treated having regard to the results of the third biopsy. He was aware of the risks and the most likely side effects. The fact that surgery was immediately available would have been a positive fact to many people in Mr. Liu’s situation because they would be concerned about the cancer spreading while awaiting surgery. It is certainly not a badge of fraud.

Consent form was signed a week prior to Surgery

[20] Mr. Liu acknowledges that he signed a “statement of informed consent” in respect of the prostatectomy surgery on July 30, 2015, a week prior to the surgery. It was a reasonable and understandable decision in the circumstances. There is no evidence suggesting that Mr. Liu was tricked into making a poorly informed decision. He made his own decision to proceed based on appropriate medical advice which, as will be discussed below, was given in accordance with the relevant standard of care.

[21] This consent expressly provided that Mr. Liu understood the nature, benefit, risks and side effects of the surgery and any alternative courses of action, which in this case, for all practical purposes, was radiation therapy. Dr. Chan acknowledges that he did not discuss the possible continuation of active surveillance because that option is only considered for a highly selective subset of older patients (life expectancy of 10-15 years). This advice is supported by the expert evidence. I note parenthetically that even if Dr. Chan hadn’t discussed the radiation alternative (I find that he did) no damages resulted from Mr. Liu having had surgery as opposed to radiation therapy. This is because the expert evidence shows that the long-term side effects of radiation made it less appropriate for Mr. Liu i.e., there is no reason to believe he was worse off having had surgery rather than radiation therapy.

[22] In signing this consent Mr. Liu expressly indicated he wished to proceed with the surgery. Although Mr. Liu is self represented, in this proceeding he has shown himself quite capable of dealing with legal documents and legal issues. It is obvious that he understood the document he signed on July 30, 2015, when he gave his express consent to the surgery. Although he says he did not read the consent form, there is no evidence to support Mr. Liu’s theory that his consent was not properly informed and is vitiated by some fraud or fraudulent misrepresentation on the part of Dr. Chan. Any reasonable person in his circumstances would have consented to treatment, whether by surgery or radiation therapy. As for his decision to have surgery, the expert evidence establishes that surgery is the preferred alternative for a man of Mr. Liu’s relatively young age at the time (60 years old) and in otherwise good health.

August 7, 2015 Surgery

[23] Mr. Liu’s prostatectomy took place on August 7, 2015 at Scarborough hospital with no intra-operative complications. In the days and weeks after the recovery Mr. Liu experienced some debilitating side effects including bladder issues, catheter problems and eventually an inguinal hernia. These were known risks associated with the surgery, although the hernia might have arisen for other reasons. These side effects no doubt caused Mr. Liu considerable distress at the time, but they have since resolved, apparently without long term effects.

[24] One detail that understandably raised issues in Mr. Liu’s mind is that the post operative pathology on his surgically removed prostate reported cancer at Gleason level 6 in the samples which were analyzed. This is discussed below.

[25] Dr. Chan has not been involved in caring for Mr. Liu since December 7, 2015 because Mr. Liu did not request another appointment.

Expert Evidence on these Motions

[26] In this litigation Mr. Liu has delivered a medical report dated February 21, 2023 from a Dr. Chin who is a professor of Urology and Oncology and former Chair of the Urology Division at Western University and former Chair of the division of Surgical Oncology. I would have had no hesitation in recognizing Dr. Chin's expertise in urology and surgical oncology but this report was not properly tendered in evidence and is not, strictly speaking, admissible. Dr. Chin did not swear an affidavit. Nonetheless, giving Mr. Liu leeway having regard to both his status as a self represented plaintiff and Dr. Chin’s undoubted expertise I will refer to his report which was attached as an exhibit to one of Mr. Liu’s affidavits.

[27] The fact is that Dr. Chin’s evidence is almost universally consistent with the defence’s position and supports the claim being dismissed rather than aiding the plaintiff’s claim.

[28] On the question of whether Mr. Liu’s gave “informed consent” on July 30, 2015 Dr. Chin suggested that Dr. Chan might have been unduly laconic in his advice to Mr. Liu but he never opined that Dr. Chan breached the applicable standard for obtaining informed consent or that a reasonable person in Mr. Liu’s circumstances would not have consented to surgery. While Dr. Chin suggested that Dr. Chan might have improved his communications with Mr. Liu, he expressly agreed with Dr. Chan’s recommendation of surgery. Dr. Chin also noted that while active surveillance was a further alternative, nonetheless he agreed that the usual recommendation for most patients under 75 years of age and in good general health (such as Mr. Liu) is a radical prostatectomy or radiation therapy. “Dr. Chan was not wrong in recommending surgery”.

[29] As for question of Mr. Liu’s diagnosis Dr. Chin agreed that the three preoperative biopsy reports in 2014 and 2015 confirmed that Mr. Liu had cancer. Indeed Dr. Chin, Mr. Liu’s own expert, stated:

• “it would not be physically possible for Dr. Chan to alter any samples”
• “[Dr. Chan] did not and could not have made a false claim on the diagnosis.”
• “it should be emphasized that the various biopsies and the final prostatectomy specimen all showed prostate cancer and there was progression in the percentage of samples that were malignant” (emphasis in the original).
• “Mr. Liu’s prostate cancer was appropriately diagnosed and successfully treated and he has remained free of cancer”.

[30] As for the question of why the post operative final pathology (both the local pathology report and a subsequent Johns Hopkins’ report) showed Gleason 6 rather than Gleason 7, Dr. Chin did not agree this established any misdiagnosis or malfeasance. Dr. Chin stated that a small percentage of patients are found to have had a lower grade of cancer post surgery. In part this is because of variability amongst reviewing pathologists and in part because it is impractical to send the entire specimen to Johns Hopkins to obtain the second opinion and it could also have been that the amount of Gleason 7 cancer was small.

[31] Mr. Liu also attempts to rely on “medical” opinions from the internet. This category includes items such as a webinar by a Dr. Scott Eggerson to the effect that Gleason level 6 is not cancer. This type of information is inadmissible hearsay and is misleading “advice” which has likely contributed to Mr. Liu’s distorted perception of the medical reality. The medical reality is authoritatively set out in the expert opinion evidence filed by the defendant which I will now review.

[32] The only admissible expert evidence was in the form of two reports and an affidavit (with a duly executed Form 53) from Dr. Blew who is an attending urologist at the Ottawa Hospital and Assistant Professor at the University of Ottawa whose current practice includes treating prostate cancer and prostatic surgery. I have no hesitation in qualifying him as an expert on the medical questions before the court.

[33] Dr. Blew gave evidence that Dr. Chan provided the appropriate standard of care in his care and treatment of Dr. Liu. He opined that: a. Dr. Chan met the standard of care in the diagnosis, treatment and follow up of Mr. Liu’s prostate cancer and subsequent complications including a bladder neck contracture; b. The indication for surgery was valid because the third biopsy had upstaged Mr. Liu’s cancer to Gleason score 7. After this biopsy Mr. Liu elected to proceed with surgery and Dr. Chan offered the standard treatment options. c. Dr. Chan initiated timely investigations into Mr. Liu’s post surgery issues. A bladder neck contracture is a well recognized complication for the surgery which occurs despite appropriate surgical technique. The placement and removal of the catheter was appropriate. An inguinal hernia is common in patients without a history of prostatectomy and it is difficult to determine if the hernia was related to the surgery although there was a slightly higher incidence in years following a prostatectomy. d. the post surgery pathology showing Gleason level 6 cancer is not relevant to the preoperative decision to proceed with surgery. The preoperative biopsy would be the primary metric informing a treatment decision. e. In any event another review of the same surgical pathology by Dr. Kaszas dated November 13, 2018 detected Gleason 7 prostate cancer; f. The contemporaneous medical records confirm the appropriate mention of treatment alternatives, risks and benefits. The standard treatment options were reviewed with Mr. Liu who signed a consent form and chose surgery; g. Urologists tend to favour surgery for younger men such as Mr. Liu because of the long-term side effects of radiation therapy.

[34] This expert evidence establishes conclusively that, just as Mr. Liu’s claims of fraud or fraudulent misrepresentation raise no genuine issue for trial, nor do his other pleaded claims which include battery, infliction of mental suffering, breach of fiduciary duty, negligence, and breach of contract.

Legal test for summary judgment

[35] On these duelling motions for summary judgment I have applied the analytical approach of the Court of Appeal in Royal Bank of Canada v. 1643937 Ontario Inc, 2021 ONCA 98, where the court states at para.24: a. First, the motion judge should determine if there is a genuine issue requiring a trial based only on the evidence before her, without using the enhanced fact-finding powers under rule 20.04(2.1); and b. Second, if there appears to be a genuine issue requiring a trial, the motion judge should determine if the need for a trial could be avoided by using the enhanced powers under Rule 20.04(2.1) – which allow one to weigh evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence – and under Rule 20.04(2.2) to order that oral evidence be presented by one or more parties.

[36] In applying this analysis, I have given Mr. Liu leeway on the legal procedure and evidentiary rules and have interpreted his materials as generously as possible with a view to determining whether a trial is warranted or whether his or the defendant’s motion for summary dismissal should be granted. I have also considered the well-known aphorism that Mr. Liu had an obligation when opposing the defendant’s motion to put his “best foot forward” in providing evidence which demonstrated a genuine issue for trial. He may have put his best foot forward, but that evidence fails to establish any need for a trial.

[37] Mr. Liu’s lack of persuasive evidence is not due to any failure to comply with technical rules of procedure or evidence. It is because the claims have no basis in fact or law. There is no prospect of any other, more compelling evidence being produced later if a trial is scheduled. I am satisfied that I can find the necessary facts and apply the relevant legal principles on the record that is before me on these motions. Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200, at paras. 14 and 32; Hryniak v. Mauldin, 2014 SCC 7, at paras. 33, 49-50, 56-57 and 60.

[38] On the possible issue of medical malpractice (whether based on negligence, breach of fiduciary duty or breach of contract) expert evidence is required. However, even if I consider the expert evidence Mr. Liu proffered from Dr. Chin, there is no genuine issue for trial, applying the first limb of the Royal Bank analysis above.

[39] The only credibility issue I must determine, and which raises the second limb of that analysis, arises in Mr. Liu’s strongly pressed claim of fraud. I must determine whether a trial is required based on Mr. Liu’s bald statements that he was threatened and misled by Dr. Chan and his belief that Dr. Chan had a secret way to modify the biopsy results.

[40] On the question of Mr. Liu’s credibility, having regard to the totality of the evidence, I can give no credence to Mr. Liu’s beliefs or his allegations about threats and coercion. The only reasonable inference from the evidence is that Dr. Chan did not threaten or coerce Mr. Liu and Dr. Chan did not make any fraudulent representations to him. I am not saying that Mr. Liu is lying. But he is not remembering accurately what was said by Dr. Chan and he is distorting reality to conform with his subsequent, irrational conclusions that he never had cancer and that Dr. Chan fraudulently induced him to have an unnecessary surgery.

[41] Mr. Liu also suggests Dr. Chan is liable based on a conflict of interest which he says arose from Dr. Chan’s alleged attempts to sell him custom-made urine bags and to charge Mr. Liu to have his urine tested out of the country. There is no evidence to support these allegations which can not give rise to liability for breach of fiduciary duty or on any other basis.

[42] The lack of probative evidence from Mr. Liu is not for his lack of trying to find some. Mr. Liu amended his claim five times from August 2017 to May 2018 and the current pleading is the seventh amended version. There were numerous production related motions. On December 5, 2023, Mr. Liu advised the court that he did not intend to bring any further motions for productions or to add any parties and that all the evidence on which he intended to reply in these motions had been produced. At the hearing of these motions Mr. Liu did not argue that he needed to examine anyone else or that any material evidence was still outstanding. Thus, I can and do determine on this record that there is no genuine issue which warrants a trial.

[43] After all his efforts over many years Mr. Liu has nothing to support his claims, other than an unrealistic belief that Dr. Chan manipulated the biopsy reports and his self-serving allegations of coercion and misrepresentation which are inconsistent with the contemporaneous documents. I also find support for my conclusion that that these allegations do not warrant a trial in the fact that Mr. Liu’s other concerns about medical malpractice are belied by the expert evidence, including the report from the expert (Dr. Chin) retained by Mr. Liu to provide an opinion based on a narrative selected by Mr. Liu. As noted, that report by itself would be a death knell to Mr. Liu’s claims, as is the only admissible expert evidence (that of Dr. Blew).

Disposition and Costs

[44] The plaintiff’s motion for summary judgment is dismissed.

[45] The defendant’s motion for summary judgment is granted and the action is dismissed.

[46] The successful defendant shall file a bill of costs and costs outline in accordance with rule 57.01(5) and (6), not exceeding 3 pages in length within 7 days of the date of these reasons. This shall deal with both these motions as well as the costs of the action. Any rule 49 offers should also be attached as additional permitted pages.

[47] The unsuccessful plaintiff shall provide his written response within 7 days of the date of the defendant’s costs submissions.

[48] There shall be no right of reply on the issue of costs.

Stevenson, J. Released: June 7, 2024