Court of Appeal for Ontario

Date: 2017-01-25 Docket: C62626

Judges: Cronk, van Rensburg and Pardu JJ.A.

Between

Terry Hirchberg Self-Represented Plaintiff (Appellant)

and

The Branson Drug Store/North York General Hospital and Odette Cancer Centre Pharmacy/Sunnybrook Health Sciences Centre and MD Mary Doherty - Odette Cancer Centre and MD Todd Mainprize - Sunnybrook Hospital and MD Ken Peckham - Sunnybrook Hospital and MD Michelle Hart - Baycrest Hospital Defendants (Respondents)

Counsel

Terry Hirchberg, acting in person

Chris Hubbard and Alexandre Blanchard, for the respondents Dr. Mary Doherty, Dr. Todd Mainprize, Dr. Ken Peckham and Dr. Michelle Hart

Logan Crowell, for the respondents North York General Hospital and Sunnybrook Health Sciences Centre

Heard: January 20, 2017

On appeal from: the judgment of Justice Wendy M. Matheson of the Superior Court of Justice, dated August 2, 2016.

Endorsement

[1] The appellant appeals the summary dismissal of a medical malpractice action. The action was brought as a result of the death of the appellant's common law spouse, Ms. Dubins, who passed away after she was diagnosed with terminal brain cancer. At the core of the appellant's claim is a concern about Ms. Dubins' treatment with the drug dexamethasone, commonly used to reduce cerebral swelling associated with brain tumours. In particular, the appellant alleges that the drug was terminated without tapering off, and that, having regard to the various risks associated with the drug, informed consent to its use was not obtained.

[2] Summary judgment motions were brought after a significant amount of documentary and oral discovery had taken place. The moving parties relied on affidavits of some of the defendant treating physicians as well as three expert reports to the effect that the defendant physicians met the requisite standard of care and that Ms. Dubins's death was not caused by any of the alleged breaches of the standard of care, but was the result of her brain cancer. In response to the summary judgment motions the appellant delivered two "expert witness declarations" of Dr. Mark Levin, answering certain questions about the drug dexamethasone.

[3] The action was dismissed after the motion judge concluded that there was no genuine issue requiring a trial as against the respondent physicians or institutions.

[4] The appellant raises a number of issues that can be grouped into three main grounds of appeal.

[5] First, the appellant contends that the motion judge erred in her treatment of his expert evidence. The appellant says that the motion judge "struck out" Dr. Levin's declarations, without a motion to strike, and that he was therefore deprived of due process. He asserts that the motion judge ought to have permitted him to have obtained a further expert opinion, as the time for delivery of expert reports under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, had not expired. Further, he says that the motion judge erred in failing to consider evidence in the form of a declaration with respect to what occurred in another case.

[6] We do not give effect to this ground of appeal. In this complex medical malpractice case, it was incumbent on the plaintiff to provide expert opinions on standard of care and causation. Contrary to the appellant's assertions, the motion judge did not "strike" Dr. Levin's declarations. Rather, she considered whether Dr. Levin was qualified to provide an expert opinion on standard of care and causation, and she considered the content of his opinions. The motion judge did not err in her conclusion that Dr. Levin was not qualified to provide such opinions, and further that his two declarations (that consisted of answers to questions about the drug in question), did not address the particular circumstances of the case and did not speak to the issues of standard of care or causation. Similarly, the other declaration, about what happened in another case, was clearly not an expert opinion and could have no bearing on the issues of standard of care and causation in the appellant's action.

[7] As for the contention that the time had not expired for the delivery of expert reports, the obligation on the appellant, in responding to a summary judgment motion, was to put forward all the necessary evidence to establish that there was a genuine issue requiring a trial. This means that the motion judge was entitled to assume that all the evidence he was relying on to oppose the motion was before the court. The appellant did not seek an adjournment or additional time to obtain a further expert opinion; consequently, there was no basis for the motion judge to dismiss or adjourn the motions so that the appellant could obtain another medical report.

[8] Second, the appellant contends that the motion judge erred in her conclusions about informed consent. He asserts that she ignored the evidence he put forward as to the risks of the subject drug, and contends that there was no evidence that all such risks had been communicated in Ms. Dubins's case.

[9] Again, there was no error of law or principle in the motion judge's findings on this issue. The evidence was that Ms. Dubins and her four powers of attorney for personal care were advised of and understood the material risks of treatment, including the risks of the subject drug, and provided their fully informed consent. Contrary to the appellant's submissions during oral argument, the transcript of the cross-examination of Ms. Dubins's son, who was one of her powers of attorney, does not undercut this conclusion, nor was his evidence on this point hearsay. Accordingly, there was no conflict on the evidence on this issue that would require a trial.

[10] Third, the appellant says that other issues and causes of action raised by his statement of claim (described at para. 26 of his factum) were not considered by the motion judge, and ought not to have been dismissed summarily. We disagree. The function of the motion judge in dealing with a summary judgment motion is to consider the evidence, and not simply the pleadings. What was relied on as expert evidence by the appellant was limited to concerns about the risks and use of the drug dexamethasone, and although other matters may have been pleaded, there was no expert evidence to address such issues.

[11] In the end, the appellant led no expert opinion evidence on the respondents' summary judgment motions to establish a breach of the standard of care by any of the respondents or causation. By contrast, the respondents led expert evidence to establish that the respective standards of care were met, and to negate causation. Further, we see no procedural unfairness in the conduct of the hearing, nor any breach of the appellant's constitutional rights. In these circumstances the motion judge was entirely justified in granting a summary dismissal of the action.

[12] The appeal is therefore dismissed. The appellant shall pay costs to the physician respondents in the sum of $5,000 and to the hospital respondents in the sum of $4,000, both amounts inclusive of disbursements and applicable taxes.

E.A. Cronk J.A. K. van Rensburg J.A. G. Pardu J.A.