ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 10-49814
DATE: 2013 07 08
B E T W E E N:
Diane Lalonde-Paquette, Gerard Paquette, Caroline Paquette and Serge Paquette
Allan O’Brian and Ashley Deathe, for the Plaintiffs
Plaintiffs
- and -
Dr. Mark Steven Freedman
Sally Gomery, for the Defendant
Defendant
HEARD: April 18, 2013
REASONS FOR JUDGMENT
Scott, J.
[1] This is a summary judgment motion by the defendant, Dr. Freedman, on the grounds that the claim is statute-barred by the expiry of the two year limitation period pursuant to the Limitations Act, 2002, S.O. 2002, c.24, Schedule B.
[2] The moving party, the defendant, submits that the plaintiffs commenced their action approximately sixty-two months after the triggering event took place and over two years after the plaintiffs knew or could have discovered through reasonable diligence, the facts necessary to commence their claim against the defendant.
[3] The plaintiffs’ position is that either the Court can not fully appreciate the evidence of discoverability on the motion record because a number of facts are in dispute or, the plaintiffs did not know or could not have been able to know that the defendant was responsible for omissions in the plaintiff, Diane Lalonde-Paquette’s medical care.
THE FACTS
[4] On September 16, 2005, the plaintiff, Diane Lalonde-Paquette, a forty-six year old female, suffered an incapacitating stroke. She was treated and attended at the emergency room and admitted to an Ottawa area hospital. The following day she transferred to a hospital in Hull, Quebec, close to her home. Earlier, she had attended the same hospital Emergency Room on September 2, 2005 and September 6, 2005 for treatment for what she believed to be a stroke. On these two earlier occasions, she was examined and released.
[5] On the first occasion, September 2, 2005 the plaintiff was treated by Dr. Deaton, a medical resident, (who was supervised by an emergency room physician), and diagnosed with a complex “migraine”, told to return if symptoms worsened and was then discharged.
[6] On the second occasion, September 6, 2005, the plaintiff attended the same emergency room and was again seen by Dr. Deaton who was on that occasion being supervised initially by Dr. Worthington and later by Dr. Pozgay, following a work shift change. Prior to her discharge home this time, the plaintiff was diagnosed with “headache, expressive aphasia” and told to follow up with a visit to the neurology clinic.
[7] The “emergency report” of the plaintiff’s attendance on September 6, 2003 lists Drs. Worthington and Pozgay as the “Emergency Physicians” and Dr. Deaton as the “Resident”. No other physicians’ names are referred to in the said report.
[8] The report indicates a recent history by the plaintiff of “blurred vision, headache and difficulty speaking”.
[9] The words “spoke to neurology” are contained in the report which was followed by various tests to be performed on the plaintiff which were also completed.
[10] The plaintiff’s follow-up appointment with a neurologist which was scheduled for September 15, 2005 was cancelled due to the unexpected illness by the neurologist on duty.
[11] On September 16, 2005 the plaintiff awoke partially paralyzed having suffered a stroke during the night and was rushed to the hospital.
[12] The parties agree that no consequences arose from the first and third hospital visit; however the second visit of September 6, 2005 is at the core of this matter..
[13] During the spring of 2006, the plaintiffs retained Charles Gibson and Julie Gravelle of the Vincent Dagenais Gibson LLP law firm. Ms Gravelle was an associate in the firm and had been called to the bar in 2005, and, at all times, was being supervised by Mr. Gibson, a senior partner experienced in medical malpractice law.
[14] Upon examining the medical records for the plaintiff in July of 2006, given the complexity of the medical issues involved and in order to determine if there was a medical error involved, as a matter of course, Mr. Gibson retained a consulting neurologist to assist. As part of the retainer, the plaintiffs requested that the neurologist be French speaking.
[15] Mr. Gibson and Ms Gravelle were referred by other lawyers to Dr. Denis Hallé who was retained to prepare an expert opinion. Dr. Hallé is a neurologist licensed since 1987, was practicing full time at a Hull area hospital, was the head of medical specialists at the hospital and had been the chief of neurology at the hospital.
[16] Dr. Hallé requested that Ms Gravelle provide him with the names of the physicians involved. Ms Gravelle forwarded the names of the three physicians whose names were set out on the “emergency report” namely, Drs. Worthington, Pozgay and Deaton.
[17] Dr. Hallé also requested any and all medical reports and the same were forwarded to him including the “emergency report” of September 6, 2005 which included the reference to “spoke to neurology”.
[18] As part of his retainer, Dr. Hallé was requested by letter on August 9, 2006 to, among other matters, identify any medical errors committed by any or all of the doctors who had treated the plaintiff from September 2, 2005 to and including September 16, 2005, the time period covering her visits to the Ottawa Hospital.
[19] In his expert report of August 30, 2007, Dr. Hallé opined that Dr. Worthington, the emergency room physician made a medical error that resulted in the plaintiff’s medical problem not being identified and treated, namely, he should have “prescribed aspirin, arranged for a “Carotid Doppler” test and consulted neurology on an urgent and priority basis”. In other words, had this path of action been taken, the plaintiff would not have suffered the stroke and, Dr. Worthington was at fault. Dr. Hallé did not mention the role that neurology had to play on September 6, 2005 or the meaning of the words “spoke to neurology”.
[20] Dr. Hallé concluded that on the other visits to the hospital, no medical errors had occurred.
[21] The plaintiffs commenced their action by Statement of Claim on September 12, 2007. As a matter of abundant precaution, Mr. Gibson included both Drs. Worthington and Pozgay as defendants.
[22] The Statements of Defence were filed on behalf of the doctors on April 4, 2008. At paragraphs 5, 10 and 15 of the Statement of Defence of Drs. Worthington and Pozgay refer to a neurologist being consulted which provides some explanation to the meaning of the words; “spoke to neurology”. As with the original emergency report, Mr. Gibson and Ms Gravelle indicated that they gave no particular meaning at that time to these paragraphs as they relied on the opinion of Dr. Hallé in that regard.
[23] In February of 2009, the Doctors’ Statement of Defence was forwarded to Dr. Hallé to determine if his opinion had changed. This was in advance of the Examinations for Discovery of the defendant doctors in March of 2009 and although Ms. Gravelle attempted to speak with Dr. Hallé, she was unable to do so until after the relevant discoveries.
[24] During the questioning of Dr. Pozgay in March of 2009, it became known to Mr. Gibson and Ms Gravelle that the neurologist referred to in the words “spoke to neurology” was Dr. Mark Freedman, the defendant in the action which is the subject matter of this motion.
[25] Following the Examination of Dr. Pozgay, Mr. Gibson and Ms. Gravelle spoke with Dr. Hallé who advised them that he had received the Statement of Defence and that his opinion had not changed, meaning Dr. Worthington was solely at fault.
[26] Given the consistent opinion of Dr. Hallé, Mr. Martin and Ms. Gravelle were not of the opinion that the neurologist, Dr. Freedman had committed any medical error.
[27] In June of 2010 the emergency room physicians, defendants in the original action, served Dr. Jeffrey Tyberg’s expert report on the plaintiffs. That expert asserted there was a relationship of decision-making between a consulting neurologist and an ER Physician such that an ER Physician would not be responsible for any omissions in the medical care if found to have been following the advice of a consulting specialist. A part of Dr. Tyberg’s report included the following:
It is generally accepted practice by emergency physicians to follow the advice of specialty consultants regarding the care plan for patient presentations that are within the scope of expertise of the specialty consultant. Assuming the details of the case presentation as documented in the medical record were accurately presented to the consultant and the plan for outpatient follow-up jointly agreed upon then the standard of care would have been met.[^1]
[28] The plaintiffs forwarded this on to Dr. Hallé as it was now apparent to them that Dr. Tyberg’s opinion was contradictory to Dr. Hallé’s opinion as to the significance of the neurologist, Dr. Freedman, in this matter.
[29] After receipt of Dr. Tyberg’s report and prior to the middle of July 2010, the defendants sought a telephone conference with Dr. Hallé without success.
[30] The defendants, without the benefit of Dr. Hallé’s further opinion, then decided to commence an action against the neurologist, Dr. Freedman, such action resulted in a Statement of Claim being issued on November 2, 2012.
[31] Shortly thereafter, Dr. Hallé wrote to Mr. Gibson advising that he was unaware that a neurologist was involved until he had reviewed Dr. Tyberg’s report which had been forwarded to him in June 2010.
[32] Dr. Hallé went further and indicated that he would have refused the original retainer had he known that a neurologist was involved. Thereafter, Dr. Hallé ceased to offer his expertise to the plaintiff.
[33] Upon receipt of Dr. Hallé’s final letter, the plaintiffs were “astounded” by the Doctor’s explanation for removing himself from the case once he knew that another neurologist was involved. This did not make much sense to the plaintiffs as Dr. Hallé had led them to understand from the outset of his retainer and at critical times up to his removal as a consulting physician that the neurologist, as of March, 2009, kniwn to be Dr. Freedman, was not involved in any medical errors or omissions in the plaintiff’s treatment.
THE ISSUES AND THE LAW
[34] The issues are:
Is this an appropriate case for summary judgment?
Did the limitation period expire for an action against Dr. Freedman, the neurologist?
SUMMARY JUDGMENT
[35] The amendment to Rule 20 has been interpreted by our courts for over three years. Specifically in Rule 20.04 the court has a wider power in weighing the evidence, evaluating the credibility of the deponent and drawing any reasonable inference from the evidence in order to determine “that there is no genuine issue requiring a trial”. In this case “discoverability” is the focus and, it is necessary for the plaintiffs to provide facts which demonstrate a genuine issue for trial specifically as to the commencement of the limitation period for the action against Dr. Freedman, the neurologist consulted by the Emergency Room physician on September 6, 2005.
[36] Both counsel agree that the plaintiff is required to put their “best foot forward”[^2] on the matter of the evidence to be presented on this issue to establish that a trial is necessary.
[37] In dealing with allegations of medical malpractice, it is often that “discoverability” is complicated and confusing to even the most experienced counsel given the highly technical nature relating to the event.
[38] In this case, the particular event and the medical treatment administered by the various physicians is further complicated by the meaning of the words; “spoke with neurology” as found in the September 6, 2005 “Emergency Room Report,” and with the consistent findings by Dr. Hallé who was retained by the plaintiffs in order to provide the expertise to determine whether medical errors had occurred and by which doctor or doctors.
[39] Certainly in this particular situation it would have been necessary for the plaintiffs to retain a neurologist familiar with the procedures in the emergency room of a hospital to provide, at least initially, expert advice, which they did.
[40] It is of note that the plaintiffs requested of Dr. Hallé that he revisit his earlier opinion following their receipt of the Statement of Defence of Drs. Worthington and Pozgay in April of 2008, following the discoveries in April of 2008 and again following receipt of Dr. Tyberg’s expert report for the defendants, Drs. Worthington and Pozgay in June of 2010.
[41] It is also of note that following the receipt of Dr. Tyberg’s report and following the forwarding of this report onto Dr. Hallé for the purpose of determining if his ongoing opinion had changed in any way, the plaintiffs finding that Dr. Hallé was delaying in his response, believed it necessary to commence an action against Dr. Freedman on November 2, 2010.
[42] It was submitted by the defendants that as the Statement of Claim against Dr. Freedman alleges virtually the same grounds for negligence as advanced in the earlier Statement of Claim against Drs. Worthington and Pozgay, the plaintiffs ought to have discovered their claim against Dr. Freedman no later than during the discovery of Dr. Pozgay in March of 2009 and possibly on the earlier date of April 2008 upon receipt by the plaintiffs of the Statement of Defences of Drs. Worthington and Pozgay wherein a treating neurologist was indentified.
[43] This may very well be an accurate determination, however, in my opinion, given the confusion surrounding Dr. Hallé’s medical opinion concerning fault, and his subsequent removal from the file, this is something that is best left to the trial judge. The motion is premature.
[44] This motion is dismissed.
LIMITATION PERIOD
[45] Having decided that this is not an appropriate case for summary judgment, I need not proceed with the issue of the limitation period and the application of sections 4 and 5 of The Limitations Act, 2002, S.O., c.24.
COSTS
[46] As to costs, should the parties be unable to agree on costs, I would ask that counsel speak with my assistant to determine the appropriate timelines for filing their materials on costs.
Justice R. F. Scott
Released: July 8, 2013
COURT FILE NO.: 10-49814
DATE: 2013 07 08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Diane Lalonde-Paquette, Gerard Paquette, Caroline Paquette and Serge Paquette
Plaintiffs
- and –
Dr. Mark Steven Freedman
Defendant
REASONS FOR JUDGMENT
The Honourable Mr. Justice Robert F. Scott
Released: July 8, 2013
[^1]: Dr. Tyberg report (June 9, 2010), Exhibit 10 to Gravelle Affidavit, Supplementary Record, Tab A10, pp.85-104.
[^2]: Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, at para 57.