SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-12-288 (Kingston)
DATE: 2013/08/09

RE: KEVIN GALALAE, Plaintiff

AND:

KINGSTON POLICE SERVICES BOARD, PAULO GEMIGNANO, JOHN DOE, HOTEL DIEU HOSPITAL, DR. CHRISTINA ORR and DR. DAVID MURRAY, Defendants

BEFORE: Justice Rick Leroy

COUNSEL:
Plaintiff is self-represented

Andrew McKenna and Laura Kraft, Counsel for Christina Orr and David Murray

Katherine L. Byrick and Meghan E. Payne, Counsel for Hotel Dieu Hospital

HEARD: July 18, 2013 at Kingston, Ontario

summary judgment motion reasons – rule 20

Introduction

[1] Mr. Galalae was detained involuntarily as the result of Mental Health Act (MHA) considerations at the Hotel Dieu Hospital for approximately seventy hours, beginning at approximately 3:10 p.m. on May 15, 2011. The Form 1 Application by Physician for Psychiatric Assessment was issued by Dr. Orr and the Emergency Psychiatric Assessment was completed by Dr. Murray.

[2] Mr. Galalae issued a statement of claim against these doctors, the hospital and police claiming damages arising from this detention. The claims against the hospital and physicians are based in negligence, intentional tort and Charter infringement. The defendants, Christina Orr, David Murray and the Hotel Dieu Hospital move under Rule 20 for summary judgment dismissing the plaintiff’s claims against them on the basis that the plaintiff has not established a genuine issue requiring a trial, or in the alternative that the statement of claim does not disclose a reasonable cause of action.

[3] The plaintiff’s statement of claim could be characterized as a claim for malpractice, physician’s negligence or intentional tort and therefore shows a reasonable cause of action. The gist of the defendants’ motions is that the plaintiff has not produced an expert opinion critical of their medical care, without which he has not raised an issue requiring trial.

[4] The task for the court is to determine whether a full appreciation of the evidence and issues that is required to make dispositive findings can be achieved by way of summary judgment or can this full appreciation only be achieved by way of trial? I distinguish being knowledgeable about the entire content of the motion record and fully appreciating the evidence and issues in a way that permits a fair and just adjudication of the dispute.

Factual Background

[5] Mr. Galalae is an ardent political activist. He is an articulate and prolific writer. In May 2011, he was married with two children. Mr. Galalae believes that he uncovered a covert program of surveillance and censorship at government levels and filed a claim for injunctive relief with the European Court in March 2011. He considered the need for timely redress urgent so he determined to conduct a hunger protest on the steps of the courthouse in France in April 2011 to expedite his case. The hunger protest failed. He ended the protest on May 12, 2011 because he realized that his absence from his six-year-old child was exacting too great a toll on the boy.

[6] The return to Canada did not play out as Mr. Galalae expected. His home was empty and he learned that his marriage had broken down. The mutual recriminations are many. Citing mental health and safety concerns, the spouse denied Mr. Galalae access to the children. Emotions escalated and the police intervened. Mr. Galalae was, not surprisingly, devastated by the marriage breakdown and separation from the children.

[7] During the last police intervention before detention at the hospital, the officer suggested that it might be a good idea for Mr. Galalae to submit to a mental health assessment at hospital emergency. Mr. Galalae went to the hospital with the police at approximately 3:10 p.m. on May 15, 2011.

[8] Dr. Orr met and interviewed Mr. Galalae at 4:00 p.m. in the Emergency Department. At the time Dr. Orr was a first-year medical resident in internal medicine doing a rotation in emergency. She concluded that Mr. Galalae showed a lack of competence for self-care that would likely result in serious physical impairment (MHA subparagraphs. 15(1)(c)(d)). She followed the process stipulated in Subsections 15(2) and (3) of the MHA. Dr. Orr signed the Form 1 Application by Physician for Psychiatric Assessment at 4:57 p.m. Concurrently, she delivered a completed form 42 which is the notice under section 38.1(1)(2) of the MHA to the patient of the application for assessment, the concerns observed, notice that the application is authority for detention up to 72 hours and that he has the right to retain and instruct counsel without delay.

[9] This notice is distinct from the obligation to facilitate access to a patient advocate required when the attending physician issues a certificate of involuntary admission under s. 20.

[10] While awaiting the psychiatry assessment, Mr. Galalae requested a stretcher. Hospital staff offered a mattress, which was declined. Staff offered a pillow and blanket, which were accepted.

[11] Dr. Murray was a second-year medical resident in psychiatry at Queen’s University in May 2011. He conducted an emergency psychiatric assessment on Mr. Galalae at 8:45 p.m. on May 15, 2011. He conducted a history of the presenting illness, the patient’s social/personal history, past psychiatric history and mental status exam. After consulting with the staff psychiatrist, it was their opinion that the plaintiff’s diagnosis included delusional disorder, bipolar hypomania together, with long standing narcissistic and paranoid personality traits. Collateral sources of information included the investigating officer and Mr. Galalae’s spouse. Based on all the information at hand, Dr. Murray confirmed Dr. Orr’s concerns for self-harm and added that the plaintiff had also caused another person, namely Mr. Galalae’s spouse, to fear bodily harm from him.

[12] Dr. Murray confirmed the Form 1 detention and did not issue a certificate of involuntary admission. He offered medications that included a sedative and an antipsychotic with sedative properties, which were declined. Dr. Murray followed up with Mr. Galalae at 1:00 a.m.

[13] The only medication that Mr. Galalae received throughout the detention was vitamin B12, administered orally and accepted voluntarily.

[14] Mr. Galalae was discharged on May 18, 2011 at 3:23 p.m., 63 hours after admission and 70 hours after Dr. Orr signed the Form 1, with a diagnosis of delusional disorder.

[15] Mr. Galalae was arrested and taken into police custody on discharge from the hospital.

[16] Dr. Tarek Sardana is a medical practitioner with extensive emergency department experience. Dr. Sardana completed a review and analysis of the pleadings and medical records relating to Dr. Orr’s emergency engagement and treatment conclusions relative to Mr. Galalae and concluded that Dr. Orr’s assessment and decision to issue the impugned Form 1 were completely appropriate and valid.

[17] Dr. Dominique Nadon is a psychiatrist at the University of Ottawa Health Services. After her review of the pleadings and medical records relative to Dr. Murray’s treatment, Dr. Nadon concluded that Dr. Murray met the standard of care expected of him with respect to the psychiatric care and treatment he provided to the plaintiff.

Procedural History

[18] The statement of claim was issued in Toronto on October 21, 2011. Pleadings were completed by all parties by May 30, 2012. Delivery of all parties’ affidavits of documents was completed on December 4, 2012. The reports of Dr. Sardana and Dr. Nadon were served on plaintiff’s counsel on November 12, 2012.

[19] The examination for discovery of the plaintiff was scheduled to proceed in Toronto on January 3, 2013. The examination for discovery of the defendants was scheduled to proceed in Kingston on January 4, 2013.

[20] Counsel for the plaintiff advised defence counsel on December 4, 2012 that the plaintiff would not be available for examination for discovery on January 3, 2013. The examinations scheduled for January 3 and 4, 2013 were postponed and have not been rescheduled.

[21] Counsel for Drs. Orr and Murray scheduled the motion for summary judgment to be heard in Kingston on December 7, 2012. On November 28, 2012 plaintiff’s counsel said that he was unavailable that day. The motion was adjourned to February 14, 2013.

[22] Plaintiff’s counsel obtained an order removing him as lawyer of record for the plaintiff on December 20, 2012. That order was received by defence on January 24, 2013. When defence counsel could not reach Mr. Galalae, former counsel revealed that Mr. Galalae was in custody at the Quinte Detention Centre.

[23] The motion for summary judgment was adjourned to July 18, 2013 at Mr. Galalae’s request.

[24] Mr. Galalae did not file material in response to this motion. He concedes that he does not have a medical opinion in support of the allegations of malpractice. His submissions are contained in the motion record for the defendant, Hotel Dieu Hospital at tab B. He will be in custody on other matters until the fall of this year. He was not in custody for at least one year after May 18, 2011. He had legal representation between October 21, 2011 and December 21, 2012.

Law

[25] On a summary judgment motion, the judge first applies the “full appreciation test”. The question is whether a full appreciation of the evidence and issues that is required to make dispositive findings can be achieved by way of summary judgment, or may only be achieved by way of trial – Combined Air Mechanical Services v. Flesch, 2011 INCA 764 para 50.

[26] The plaintiff is required to provide evidence and facts through affidavit or other means to show there is a genuine issue for trial. In considering this test, the court is entitled to assume that the record contains all the evidence the parties would present if there were a trial. The consequence to that assumption is that the responding party to a summary judgment motion may not rest on allegations contained in the statement of claim. Parties to the motion are required to put their best foot forward. It is not sufficient for a party to say that more and better evidence will (or may) be available for trial – Combined Air.

[27] In cases where liability issues are technical, such as in a medical malpractice case, a finding of negligence is necessarily based on supporting expert opinion. Questions of medical negligence are technical questions, not falling within the ordinary knowledge or day to day experience of unqualified persons. The court is not in a position to make a finding that experts (the defendants) failed to meet the standards required of them by their professional peers and that their malpractice was the cause or a significant causative factor in the plaintiff's injury, in the absence of evidence of what the standard is, and without the expression of even a guarded professional opinion that the Defendants’ conduct may have been a causal factor. A finding of negligence cannot be made without an expert opinion to support that finding – Claus v. Wolfman, 1999 14824 (ON SC), [1999] 52 O.R. (3d) 673, aff’d 2000 22728 (ON CA), 52 O.R. (3d) 680 (CA).

[28] Where there is no such evidence the plaintiff has no hope of success. 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 defendants’ failure to meet the standard of care required in such circumstances. These expectations apply equally in actions dealing with allegations against psychiatrists – Ferroni v. St. Joseph’s Health Centre, 2012 ONSC 1208, [2012] O.J. No. 793.

[29] Just as negative inferences may be drawn in other cases from a party’s failure to advance evidence in support of their position, so too the failure of the plaintiff in a medical malpractice case to obtain an expert report permits and invites the court to infer that the plaintiff was unable to obtain an expert report to support allegations of negligence – Richmond v. Balakrishnan, [2010] O.J. No. 4532; Suserski v. Nurse, [2006] O.J. No. 4839.

[30] If the plaintiff in a medical malpractice case does not deliver an expert opinion in support of the allegations he or she makes that the requisite standard of care was not followed and that this failure caused his or her injuries, then a genuine issue has not been raised with respect to a material fact and summary judgment must be granted - Richmond.

[31] Expert reports on behalf of defendants are not necessary for success on a summary judgment. The burden of establishing a genuine issue requiring a trial rests with the plaintiff.

[32] A hospital is not liable for the actions and decisions of a physician with privileges at the hospital. Risk assessment and the decision to place a patient on any form under the MHA are the responsibility of the physician - Ferroni

[33] When the court is satisfied that there is no genuine issue requiring a trial, with respect to a claim or defence, the court shall grant summary judgment – Rule 20.04.

Canadian Charter of Rights and Freedoms (Charter)

[34] Charter protection applies to a private entity when he/she/it performs an inherently government policy or program. The MHA falls under the rubric of providing public health care and fulfills a governmental public purpose – C.C. v. Sawadsky, [2005] O.J. No. 3682.

[35] The MHA procedures have been examined and held to not infringe the Charter rights of those whose freedom may be affected by its application. In the field of mental health, if the same criteria applicable to the Charter’s impact in criminal proceedings were applied, it would defeat the purpose of the legislation, which is to help seriously mentally ill people – Sadwasky para 53, 61.

[36] Accordingly, as long as those charged with administering the system do so in accordance with the statutory provisions and in good faith, then any actions taken pursuant to that authority are valid – Sadwasky – para 61, 62.

Disposition

Full appreciation

[37] The failure by the plaintiff to marshal an expert opinion supporting his claims allows dispositive conclusions.

[38] The gist of the claim against the applicants lies in medical malpractice. To succeed, it is incumbent on the plaintiff to support his assertions with medical opinion, of which he has none. The claims for damages for intentional tort and Charter infringement are corollary.

[39] Mr. Galalae relies entirely on the assertions advanced in the statement of claim and submissions. The only evidence on the record before me is adduced by the applicants. Mr. Galalae did not adduce material in response the motion. He did ask that I review web sites he authored, one of which is entitled WATER, SALT, MILK KILLING OUR UNBORN CHILDREN, which I did.

[40] The burden of raising a genuine issue requiring a trial rests with the plaintiff.

[41] The jurisprudence in medical malpractice claims confirms that an opinion from a qualified expert supportive of the plaintiff’s assertions of breach of the expected standard of care in the impugned medical treatment is necessary to generate a genuine issue requiring a trial.

[42] Mr. Galalae had opportunity to solicit and present the requisite opinion. He was not in custody at material times and had legal counsel for at least 14 months. In submissions, Mr. Galalae suggested he would investigate the viability of procuring such a report after he deals with other issues in his life. Expectations are otherwise. The requisite expert opinion ought to be available at the front end of the litigation.

[43] More recently, Mr. Galalea has been in custody at the Quinte Detention Centre, however, he did not explain why he doesn’t have a report. I am entitled to conclude and do conclude that he and counsel were well aware of the necessity of and would have investigated and solicited such reports and failed.

[44] That inference is supported by the opinions given by Drs. Sardena – Emergency room expert and Nadon - psychiatrist which validate the quality of care and treatment provided by Drs. Orr and Murray.

[45] Mr. Galalea had the opportunity to marshal a contrary opinion. He was assessed by a clinical psychologist, Edward Beharry, PH.D on June 3, 2011. Dr. Beharry did not venture an opinion as to the standard of care at issue, whether the doctors met it or whether the plaintiff suffered damages as the result, nor did he hold out the requisite expertise to do so.

[46] The need for the expert opinion cannot be a surprise to the plaintiff. The parties exchanged affidavits of documents in 2012. The plaintiff was the last to deliver his, on December 4, 2012. Defendant expert reports were served on plaintiff’s counsel on November 12, 2012. Examinations for discovery were scheduled for January 3, 2013 through counsel. Defence counsel persistently requested expert opinion.

[47] There is no evidence of Charter infringement. The only evidence is that Dr. Orr and Dr. Murray conducted their treatment of Mr. Galalea strictly in accordance with MHA protocol. Both acknowledged input from 3rd party sources, as well as their own observations. Information gathering is an essential component of compiling a diagnosis. Conspiracy to collude in unfair detention is not a rational inference.

[48] A Form 1 detention under the authority of the MHA based on good faith medical intervention does not ground an intentional tort. The plaintiff has not presented any evidence that is inconsistent with dispositive conclusions of appropriate care and good faith assessments by Drs. Orr and Murray.

[49] The determining issue in a summary judgment motion in a medical malpractice case of this kind is whether the plaintiff has produced admissible expert opinion evidence that shows the relevant standard of care, that the defendant fell below that standard of care and that the plaintiff’s damages were caused by that failure. In the absence of such evidence, there is no genuine issue that requires a trial and the motion for summary judgment must be granted.

[50] Rule 20 exists to avoid failures of procedural justice resulting from delays in obtaining substantive justice and incurring added expense.

[51] The plaintiff’s claims against Dr. Christina Orr, Dr. David Murray and the Hotel Dieu Hospital are dismissed.

[52] In the circumstances of this case, notwithstanding the defendants’ success on the summary judgment motion, I am not inclined to award costs against Mr. Galalea. If the defendants insist on pursuing costs against him, they may within thirty days make brief written costs submissions to me, addressed to the Cornwall trial coordinator. Mr. Galalea will have a further thirty days after service to reply in writing. Further appearance in person is dispensed with.

Justice Rick Leroy

Date: August 9, 2013