COURT FILE AND PARTIES

COURT FILE NO.: CV-06-304359
DATE: 20120222
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Alexander Ferroni / Responding Party / Plaintiff

AND:
St. Joseph’s Health Centre and Dr. Kelly Driver / Moving Parties / Defendants

AND:
The Queen in Right of Ontario, as the Ministry of Transportation / Defendant

BEFORE: Justice E. P. Belobaba

COUNSEL:
Ewa Krajewska for St. Joseph’s Health Centre
Nina Bombier and Brendan Gray for Dr. Kelly Driver
Alexander Ferroni, in person

HEARD: February 21, 2012

ENDORSEMENT

[ 1 ] The plaintiff, Alexander Ferroni, alleges that he was wrongfully incarcerated as a psychiatric patient by the defendant hospital and doctor for almost two weeks in January, 2004. He further alleges that as a result of the doctor’s actions, his driver’s license was revoked and he has sustained significant financial losses. He sues for damages.

[ 2 ] These are summary judgment motions brought by the St. Joseph’s Health Centre and Dr. Kelly Driver asking that the action as against them be dismissed. [1] The Hospital and Doctor defendants submit that there is no genuine issue requiring a trial. The plaintiff has not filed any responding affidavit material on point [2] and has not served an expert report critical of the care that he received from the Hospital or the Doctor. Both defendants have filed expert reports that the Hospital and Doctor satisfied the standard of care in their treatment of the plaintiff.

[ 3 ] For the reasons that follow, the motions for summary judgment are granted and the action as against the Hospital and the Doctor is dismissed.

[ 4 ] I will summarize the evidence, first as it relates to the Doctor and then as it relates to the Hospital. [3]

Dr. Driver

[ 5 ] Dr. Kelly Driver is a psychiatrist practicing at St Joseph’s Health Centre. Dr. Driver provided care to Mr. Ferroni from January 12 to 21, 2004. During that time, Mr. Ferroni was found to be suffering from bipolar disorder with psychotic features.

[ 6 ] Mr. Ferroni commenced this action alleging that Dr. Driver was negligent in extending his admission as an involuntary patient pursuant to the Mental Health Act . Mr. Ferroni also alleges that Dr. Driver was negligent in sending a mandatory report to the Ministry of Transportation relating to Mr. Ferroni’s mental illness.

[ 7 ] Mr. Ferroni arrived at the Hospital for assessment on January 9, 2004 under a “Form 2” under the Mental Health Act . [4] A Justice of the Peace issued the Form 2 at the request of Mr. Ferroni’s mother and on the basis that Mr. Ferroni had a history of mental disorder which, given his current mental or physical condition, was likely to cause serious bodily harm to himself or others. According to the Form, Mr. Ferroni’s mother reported he was “violent,” “totally irrational,” “delusional,” “thinks he’s God,” “won’t take medication” and was “going after police.”

[ 8 ] At the Hospital, Mr. Ferroni was assessed and admitted pursuant to a “Form 1” dated January 9, 2004. This form was completed by Dr. Falcioni, who noted that Mr Ferroni was manic, delusional, had poor insight and judgment, and that there were reasonable grounds to believe that he had behaved, or was behaving, violently towards another person.

[ 9 ] Mr. Ferroni was also assessed by Dr. Sivasubramanian on January 9, 2004. Dr. Sivasubramanian reported that Mr. Ferroni admitted daily cocaine use for a period of four months, with his last use two weeks prior. Dr. Sivasubramanian observed Mr. Ferroni to be physically intimidating, irritable, and making covert threats. He noted that Mr. Ferroni reported having experienced auditory hallucinations and that he claimed to be instilled with the power to heal others. Dr. Sivasubramanian diagnosed Mr. Ferroni with Bipolar Affective Disorder, noted that he was at risk for violence, and found him to be lacking in judgment and insight.

[ 10 ] The Hospital records showed that Mr. Ferroni had been admitted on two prior occasions. Most recently, Mr. Ferroni was admitted in August 2000 with auditory hallucinations attributed to God, and was noted to be aggressive with grandiose delusions. At that time, it was reported that he had been threatening his neighbours. Mr. Ferroni was found to be incapable of consenting to treatment.

[ 11 ] Dr. Driver first assessed Mr. Ferroni on January 12, 2004, at which time she concluded that he suffered from a bipolar affective disorder, met the criteria for a manic episode with psychotic features, and was at risk of harm to others. Mr. Ferroni reported to Dr. Driver that God was putting thoughts in his head and that he had the gift of healing. Dr. Driver noted that Mr. Ferroni’s insight was negligible and his judgment poor.

[ 12 ] Also on January 12, 2004, Dr. Driver met with Mr. Ferroni’s mother, who reported that Mr. Ferroni had been driving erratically and had made multiple covert threats. Mr. Ferroni was reported as stating that he would kill himself if his mother put him in the Hospital. Mr. Ferroni’s mother reported, among other things, an event in which Mr. Ferroni had dropped her off and had then driven away in a reckless fashion with the door of the car open.

[ 13 ] After assessing Mr. Ferroni, Dr. Driver determined that he was incapable of consenting to treatment, and completed a Form 33 advising Mr. Ferroni of this fact. Mr. Ferroni’s mother agreed to act as substitute decision maker. Dr. Driver discussed her clinical findings with Mr. Ferroni’s mother, and her opinion that Mr. Ferroni required psychiatric treatment, including hospitalization, mood stabilizers, and anti-psychotic medications. Mr. Ferroni’s mother consented to her son remaining in the Hospital as an involuntary patient, and Dr. Driver believed that this consent was sufficient.

[ 14 ] After discussing Mr. Ferroni’s care with his mother, Dr. Driver completed a “Form 3, Box B” pursuant to the Mental Health Act . The criteria under the Mental Health Act for issuing this form are:

Conditions for involuntary admission

20… (1.1)The attending physician shall complete a certificate of involuntary admission or a certificate of renewal if, after examining the patient, he or she is of the opinion that the patient,

(a) has previously received treatment for mental disorder of an ongoing or recurring nature that, when not treated, is of a nature or quality that likely will result in serious bodily harm to the person or to another person or substantial mental or physical deterioration of the person or serious physical impairment of the person;

(b) has shown clinical improvement as a result of the treatment;

(c) is suffering from the same mental disorder as the one for which he or she previously received treatment or from a mental disorder that is similar to the previous one;

(d) given the person’s history of mental disorder and current mental or physical condition, is likely to cause serious bodily harm to himself or herself or to another person or is likely to suffer substantial mental or physical deterioration or serious physical impairment;

(e) has been found incapable, within the meaning of the Health Care Consent Act, 1996, of consenting to his or her treatment in a psychiatric facility and the consent of his or her substitute decision-maker has been obtained; and

(f) is not suitable for admission or continuation as an informal or voluntary patient.

[ 15 ] Dr. Driver was of the opinion that these criteria were satisfied. At the time Dr. Driver completed this form, she also felt that the requirements for Box A had been met, namely that Mr. Ferroni was suffering from a mental disorder that was likely to result in serious bodily harm to another person if he did not remain in the custody of a psychiatric institution. [5]

[ 16 ] Mr. Ferroni was provided access to a rights advisor and elected to challenge his status as an involuntary patient. A hearing of the Consent and Capacity Board was held on January 20, 2004. In its decision, the Board upheld Dr. Driver’s conclusion that Mr. Ferroni suffered from a mental disorder and was incapable with respect to consenting to treatment. However, the Board found that the consent of Mr. Ferroni’s substitute decision maker (his mother) was not sufficient to satisfy the criteria for Box B.

[ 17 ] Thereafter, Mr. Ferroni refused to remain in the Hospital as a voluntary patient, and Dr. Driver arranged for his discharge. Prior to his discharge, Dr. Driver completed a mandatory report to the Ministry of Transportation stating that Mr. Ferroni was suffering from a mental illness that appeared to affect his ability to drive. This report was made in good faith on the basis that Mr. Ferroni was experiencing psychotic symptoms, and it had been reported to Dr. Driver that Mr. Ferroni had been driving erratically. Dr. Driver advised Mr. Ferroni of her obligation to make this report.

[ 18 ] Mr. Ferroni’s claim against Dr. Driver, in essence, is that because of Dr. Driver’s negligence he was wrongfully incarcerated at the Hospital for approximately two weeks in January, 2004 contrary to his will and, because of Dr. Driver’s report, had his driver’s licence wrongfully revoked by the the Ministry of Transportation. Without his licence, Mr. Ferroni was unable to work as a truck driver and lost a significant amount of income.

The Hospital

[ 19 ] Mr. Ferroni alleges that the Hospital is vicariously liable for the wrongful action and professional negligence of Dr. Driver and further alleges negligence on the part of the Hospital’s staff, including its nursing staff.

[ 20 ] It is a well-established principle that a hospital is not liable for the actions and decisions of a physician with privileges at the hospital. Risk assessments and the decision to place a patient on any form under the Mental Health Act are the responsibility of the physician. Nursing staff may complete impendent assessments and document their findings, but he final risk assessment and decision to certify a patient, is solely a medical staff decision. [6]

[ 21 ] The Hospital retained a medical expert, Sandra Emmons R.N., to review the allegations of negligence relating to the nursing staff.

Expert Reports

[ 22 ] On November 5, 2009, counsel for Dr. Driver delivered the expert report of Dr. John H. Mount dated October 31, 2009. The report concludes that the Dr. Driver met the appropriate standard of care for the care in extending the plaintiff’s involuntary patient status and appropriately notified the Ministry of Transportation of the plaintiff’s status:

Pertaining to the Form 3 on January 12 th , it is the opinion of this reviewer that given the circumstances, it was entirely appropriate that Dr. Driver extend the involuntary admission…

Further, regarding the Ministry of Transportation notification, this again was reasonable, given the information available to Dr. Driver at that time of the decision. That included the information from his mother about driving off without the door being closed, and also his sister had described him sitting inappropriately for a lengthy time at a green light. While these events happened pre-admission, given that there had been no change in his psychological status while in the hospital, this reviewer agrees with Dr. Driver that a notification to the Ministry of Transportation was appropriate…

In conclusion, having carefully reviewed the documentation, the reviewer is of the opinion that it was justified that Dr. Driver extend the involuntary status on January 12, 2004, and further notified the Ministry of Transportation on January 21, 2004.

[22] On October 5, 2011, the Hospital delivered an expert report authored by Sandra Emmons, R.N., dated October 4, 2011. Ms. Emmons affirmed an affidavit in this proceeding in which she gave her opinion that “the nursing staff at the Hospital during [Mr. Ferroni’s] January 9 to January 21, 2004 admission met the expected standards of care and was in accordance with the professional standards of the College of Nurses of Ontario.”

[ 23 ] In her report, Ms. Emmons concludes that the Hospital met the appropriate standard of nursing care for the care of the plaintiff:

Nursing staff communicated clearly using the Mr. Ferroni’s clinical note, they provided information to him as he requested, and they were respectful of his choice to accept only minimal doses of medication during his stay in hospital. It is clear through their documentation that Dr. Driver was kept well informed of Mr. Ferroni’s presentation during his time in hospital.

[ 24 ] To date the plaintiff has failed to provide an expert opinion in support of his claim of negligence against either the Doctor or the Hospital.

[ 25 ] Mr. Ferroni has provided a letter from Dr. Mark Pearce to the Ministry of Transportation in which Dr. Pearce gives his opinion on November 30, 2008, that Mr. Ferroni is able to drive in 2008. However, Dr. Pearce’s letter does not provide any opinion on the treatment that Mr. Ferroni received at the Hospital in 2004.

Summary Judgment in Medical Malpractice Actions

[ 26 ] In cases where liability issues are not within the ordinary knowledge and expertise of the trier of fact, such as this medical malpractice action, a finding of negligence must be based on a supporting expert opinion. The central issue in a medical malpractice action is whether or not the defendant met the appropriate standard of care. To support allegations of negligence or false imprisonment by a physician, the plaintiff must lead expert evidence of a physician practicing in that area of medicine attesting to the defendant’s failure to meet the standard of care required in such circumstances. Where there is no such evidence, the plaintiff will have “no hope of success”. [7]

[ 27 ] The case law is clear that the court should not to make a finding that a medical professional has breached the standard of care without an expert opinion to support this finding. Where the allegations in a statement of claim have not been supported by an expert report, a genuine issue for trial has not been raised and summary judgment ought to be granted to the defendant accordingly. [8]

[ 28 ] The court may infer that the plaintiff was unsuccessful in obtaining an expert medical opinion to support his allegations of negligence where the plaintiff has failed to obtain an expert report for use in defending against a motion for summary judgment. [9] These principles apply equally in actions dealing with allegations against a psychiatrist. [10]

[ 29 ] In the present case, Mr. Ferroni has provided no expert evidence to support his allegations against either Dr. Driver or the Hospital.

Statutory Protections in the Health Care Consent Act, 1996

[ 30 ] As already noted, the Mental Health Act required that Dr. Driver obtain informed consent from Mr. Ferroni’s substituted decision-maker pursuant to the Health Care Consent Act, 1996 to extend Mr. Ferroni’s stay as an involuntary patient in the Hospital. While the Consent and Capacity Board found the consent Dr. Driver obtained to be lacking, the Health Care Consent Act, 1996 provides that Dr. Driver cannot be liable for this fact as long as her reliance on this consent was reasonable and in good faith:

29. (1) If a treatment is administered to a person with a consent that a health practitioner believes, on reasonable grounds and in good faith, to be sufficient for the purpose of this Act, the health practitioner is not liable for administering the treatment without consent.

30. (1) If the person responsible for authorizing admissions to a care facility admits, or authorizes the admission of, a person to the care facility with a consent that he or she believes, on reasonable grounds and in good faith, to be sufficient for the purpose of this Act, he or she is not liable for admitting the person, or authorizing the person’s admission, without consent.

[ 31 ] Dr. Driver spoke with Mr. Ferroni’s mother, and believed that she was providing consent pursuant to the Health Care Consent Act, 1996 on behalf of her son. There has been no allegation (nor evidence) that Dr. Driver acted in bad faith. In any event, in Dr. Mount’s expert opinion, Dr. Driver met the standard of care.

[ 32 ] Mr. Ferroni has adduced no evidence that Dr. Driver breached the standard of care, acted in bad faith, or acted unreasonably. Accordingly, Dr. Driver has the benefit of the statutory protections in the Health Care Consent Act , 1996 .

Statutory Protections in the Highway Traffic Act

[ 33 ] With regard to Dr. Driver’s report to the Ministry of Transportation, s. 203 of the Highway Traffic Act [11] provides that Dr. Driver was required to make this report, and that no action may be brought against Dr. Driver for complying with this requirement:

203. (1) Every legally qualified medical practitioner shall report to the Registrar the name, address and clinical condition of every person sixteen years of age or over attending upon the medical practitioner for medical services who, in the opinion of the medical practitioner, is suffering from a condition that may make it dangerous for the person to operate a motor vehicle.

(2) No action shall be brought against a qualified medical practitioner for complying with this section.

[ 34 ] Accordingly, no action can be brought against Dr. Driver for reporting Mr. Ferroni to the Ministry of Transportation.

[ 35 ] In any event, Mr. Ferroni has produced no evidence that Dr. Driver’s mandatory report breached the standard of care. Dr. Driver, however, has obtained the supportive expert report of Dr. Mount.

Conclusion

[ 36 ] I agree with counsel for the defendant Doctor and Hospital that Mr. Ferroni must obtain a supportive expert report to have a “hope of success” in the present action. In the absence of such a report, and given the statutory protections contained in the Highway Traffic Act and the Health Care Consent Act, 1996, I conclude that there are no genuine issues requiring a trial.

[ 37 ] The plaintiff’s action as against St. Joseph’s Health Centre and Dr. Kelly Driver is dismissed.

[ 38 ] If costs are sought by the defendants, they should forward brief costs submissions within 14 days; the plaintiff to respond within 10 days thereafter.

Belobaba J.

Date: February 22, 2012