ONTARIO
SUPERIOR COURT OF JUSTICE
OTTAWA COURT FILE NO.: 11-50435
DATE: June 25, 2014
B E T W E E N:
ELIZABETH GUERRERO L.L.L.
Richard A. Marks, for the Plaintiff
Plaintiff
- and -
TRILLIUM DENTAL CENTRE, DR. DAVID BARTOS, DR. MARK NORTHCOTT and TERESA MCLEOD
Susanne M. Sviergula, for the Defendants Trillium Dental Centre, Dr. David Bartos and Dr. Mark Northcott
Defendants
Roberto Ghignone, for the Defendant Teresa McLeod
HEARD: January 29 and 30, 2014
REASONS FOR DECISION
James J.
Introduction
[1] There are two motions for summary judgment before the court in which the defendants seek to have the plaintiff’s claim dismissed.
[2] The plaintiff’s action is for damages for personal injuries alleged to have been sustained during the course of a teeth whitening procedure administered by the defendant Teresa McLeod, dental hygienist employed by the defendants Dr. David Bartos and Dr. Mark Northcott who operated Trillium Dental Centre.
[3] The procedure consisted of three, fifteen minute treatments involving a hydrogen peroxide gel and the application of ultra-violet rays. Extensive precautions were taken to prevent the whitening gel from coming into contact with the plaintiff’s skin, mouth tissues and lips. A retractor and gauze were used to expose the teeth and protect the plaintiff’s mouth from the whitening gel.
[4] On the day in question the plaintiff was experiencing frequent coughing from a cold or bronchitis and coughed at times during the procedure.
Does the plaintiff need an expert’s opinion?
[5] The defendants say that this is a medical malpractice case which requires the plaintiff to support her claims with an expert’s opinion establishing that the defendant Teresa McLeod failed to meet the required standard of care. While this is obviously the case for medical doctors, the same principles apply to various other health care workers including physiotherapists, nurses, massage therapists and chiropodists: Kim v. Choi, 2012 ONSC 6627.
[6] The plaintiff says an expert is not required because the procedure in question is not a “controlled act” within the meaning of the Regulated Health Disciplines Act. This means that the procedure can be administered by anyone without specialized training. The procedure is not restricted to dental hygienists, dentists, dental offices or clinics. The whitening procedure involved in this case can be lawfully performed by anyone, anywhere. The plaintiff says this is not a medical malpractice case but rather a commercial transaction. The standard of care is that of a reasonable person. The trier of fact is competent to determine whether the defendant McLeod performed the work carelessly, or if a breach of contract occurred based on everyday experience and common sense.
[7] I do not agree. The use of chemicals and U.V. rays to bleach teeth and the use of appropriate safeguards to avoid burns or chemical reactions are all matters beyond the everyday experience and knowledge of a lay person. Without evidence establishing what the appropriate standard of care is, and how the dental hygienist may have failed to meet the standard of care, the trier of fact has insufficient information to make a finding that the duty of care was breached. It is not enough for the plaintiff to say she was injured and therefore liability follows. This approach does not allow for accidents, unusual sensitivities or rare reactions. Health care providers are not guarantors of their work in the absence of specific contractual terms that say so. Instead, they are expected to provide their services in a reasonably competent manner.
[8] The plaintiff has tendered a report by Dr. Patrick Roy, a duly qualified dentist and member of the Ontario Dentist’s Association since 1978. The defendants are correct in their contention that Dr. Roy’s letter does not qualify as an expert’s report and does not meet the requirements of Rule 53.03(2.1). In particular, Dr. Roy does not provide an opinion. Instead, his letter contains a number of statements and assumptions. In addition, Dr. Roy’s letter is not contained in an affidavit sworn by him. In order for Dr. Roy’s evidence to be properly before the court, it ought to be in affidavit form. The failure to present Dr. Roy’s evidence in a manner that permits cross-examination by the defendants reduces whatever modest utility it may have offered. I note that the plaintiff has provided authority for the proposition that medical reports can be filed as evidence under section 52 of the Evidence Act. Assuming, without deciding, that Dr. Roy’s letter qualifies as a medical report, leave of the court is required before the report is admissible.
[9] The defendants have gone an additional step and have tendered affidavits containing their own expert’s reports. The reports of Dr. Richard Speers and Dr. Bruce Glazer state that the product was safe when used properly, that defendant McLeod met the standard of care to be expected of a reasonably competent dental hygienist and that the dentists did not err in permitting McLeod to perform the procedure.
[10] In Ayana v. Skin Klinic, (2009) 68 C.C.L.T (3d) (Ont. S.C.J.) the court considered whether burns alleged to have been caused by a negligently-performed laser hair removal treatment constituted medical malpractice. The procedure was administered by a technician working in a dermatologist’s office. The procedure was not a controlled act and the technician was not a regulated health care professional. The court concluded the impugned conduct was not medical malpractice and instead ought to be determined according to ordinary principles of negligence. This determination did not relieve the plaintiff from the obligation of tendering expert evidence respecting liability. In place of requiring evidence from a medical specialist, the court accepted opinion evidence from an experienced hair removal technician as to the appropriate standard of care.
[11] The issue in the present case of whether the whitening procedure constituted medical malpractice does not eliminate the need for the plaintiff to tender expert evidence. It is a question of whether a lay expert may be qualified to provide the necessary opinion evidence, which is required in any event.
[12] A respondent faced with a motion for summary judgment must lead trump or risk losing. The plaintiff has known for months that the defendants contended that expert evidence was required. Its absence dooms the plaintiff’s claim that the procedure was incompetently performed, as well as the allegations of breach of contract, to failure. (See Claus v. Wolfman, 1999 14824 (ON SC), [1999] O.J. No. 5023 (Ont. S.C.J.) at paras. 4, 12 and 23; aff’d 2000 22728 (ON CA), [2000] O.J. No. 4818 (Ont. C.A.).)
Did the plaintiff provide informed consent to the procedure?
[13] In an affidavit sworn by the plaintiff in response to this motion she stated that she was not advised that there was a risk of burns occurring from either the whitening gel or the U.V. rays. In addition she swore that although she coughed several times in the presence of the defendant McLeod before the procedure commenced, she was not warned of any risks associated with coughing or that any particular precautions ought to be taken. She says she was not told to avoid touching her lips.
[14] The defendant McLeod says she does not recall what she told the plaintiff about the process but believes she followed her standard procedure in explaining what she was going to do and in reviewing the material risks, including the risk of burns. The defendants agree that the possibility of burns was a material risk. Her notes refer to having discussed the process with the plaintiff and specifically refer to the possibility of tooth sensitivity. The notes do not contain any reference to the possibility of burns being discussed prior to beginning treatment. There is an entry that says, “Patient had a cough prior to treatment and was coughing throughout treatment and pressed on lips a few times when coughing. I explained for patient not to press on lips as bleach would burn tissues. Patient had “shooting” pains in maxillary anteriors and declined to continue whitening.”
[15] The issue of whether the plaintiff gave an informed consent involves differing versions of what was explained to the plaintiff before the treatment began. Credibility issues become engaged. In my view it is not dispositive for the defendants to say that no reasonable person would have refused to undergo the procedure after having the risks explained. This was an elective procedure. It could easily have been postponed if the plaintiff was told that coughing or touching her lips could increase the risk of burns by disturbing the protective barrier.
[16] The comment by Dr. Speers that “based on chart entries, it appears that the material risks were clearly defined as part of the informed consent protocol in this office” and Dr. Glazer’s observation that “the notes also state that the whitening process was reviewed and the material risks were discussed” are of no assistance to the defendants in resolving the factual issues surrounding what was or was not discussed with the plaintiff prior to commencing the procedure.
[17] The defendants submit that the plaintiff cannot succeed on the consent issue without evidence “as to the standard to be observed…with respect to the provision of information to a patient necessary to obtain truly informed consent” (Bollard v. Eller, 2013 ONSC 5112 at para.20) but here the materiality of the risk of burns is acknowledged. The issue is not a question of what material risks needed to be discussed; it is a question of whether the burn risk, which is acknowledged to be material, was discussed and whether the plaintiff would have proceeded anyway.
[18] The informed consent issue is a genuine issue for trial that cannot be fairly determined on the basis of the documentary record alone, even with the assistance of the new fact-finding powers contained in rule 20.04. The interests of justice require that the forensic machinery of the trial process be engaged to resolve conflicts in the evidence and to make the necessary findings of fact.
[19] The failure of the duty to disclose in the context of obtaining informed consent was addressed in Reibl v. Hughes, 1980 23 (SCC), [1980] 2 S.C.R. 880 where Laskin J. sought to explain the implications of the term in relation to the tort of battery and the law of negligence. He concluded that it was generally preferable to treat the duty to disclose as an aspect of negligence. For the purposes of this case I would differentiate the duty to disclose from the obligation to perform the procedure with reasonable competence. While both may belong in the realm of negligence, it is my view that on these facts the former does not require expert evidence while the latter does.
Are the dentists vicariously liable?
[20] The plaintiff says that the defendant dentists are vicariously liable for the errors of their employee. The evidence established that the defendant McLeod had her own professional liability insurance which is a requirement of the College of Dental Hygienists of Ontario. The dentists say that there is an exception in the law of vicarious liability for employees who have their own liability insurance under the authority of Douglas v. Kinger, 2008 ONCA 452. This case involved a claim by a property owner against his thirteen year old chore boy who negligently destroyed the plaintiff’s boathouse. It focused on the circumstances in which an employee may be called upon to indemnify his employer, particularly in the absence of a third party claimant. It does not stand as conclusive authority for the proposition put forward by these defendants. On the record before me, I am not persuaded that the mere fact that the employee has insurance, the scope of which is unknown, should nullify the usual principle that employers may be liable to third parties for the wrongdoing of their employees occurring within the scope of their employment.
Disposition
[21] Both motions are allowed in part. The claim that the treatment was negligently performed and for breach of contract (which is informed by the same consideration of reasonable competence) is dismissed. The only issues for trial are whether the defendant McLeod provided sufficient disclosure of material risks and the associated question of whether a fully-informed patient (assuming imperfect disclosure) would have consented. The materiality of the risk of burns in the context of obtaining informed consent shall be deemed to be an admitted fact. A subsidiary issue is whether the defendant dentists ought to be vicariously liable if their employee is found to have breached the duty of disclosure. For greater clarity, the only portion of paragraph 12 that shall remain operative is subparagraph 12(a). Any claim for liability arising from the remaining allegations in paragraph 12 is dismissed and the same goes for all of paragraph 14.
[22] In Hryniak v. Maudlin, 2014 SCC 7, the Supreme Court of Canada commented that in the absence of compelling reasons to the contrary, the motion judge should seize himself of the matter as the trial judge. In this case, I am not going to do so for two reasons. Firstly, the consent issue is not intertwined with the standard of care/breach of contract issues and may be dealt with on a stand-alone basis. Secondly, I am not chambered in Ottawa and as a visiting judge, remaining seized of a matter can present serious scheduling challenges, thereby potentially defeating the goal of trial efficiency and timeliness.
[23] On the issue of costs, the plaintiff has presented a costs outline for the motion in the amount of $65,000. The defendant dentists have presented a request for costs of the motion in the amount of $18,000 and for the action, $44,000. The defendant McLeod requests payment of $14,000 for the motion (partial indemnity) and $19,000 for the action (partial indemnity). The hearing took about 1.5 days. The defendants have been partially successful but the plaintiff still has a cause of action, albeit on a stripped down basis. It is premature to speculate at this stage how the action will eventually turn out. I do not think it would be just to award some or all of the motion costs to the plaintiff because the defendants have made substantial progress in downsizing the scope of the action. At the same time, the plaintiff still has a case to advance. In the circumstances, there shall be no order as to costs.
Mr. Justice Martin James
DATE RELEASED: June 25, 2014
OTTAWA COURT FILE NO.: 11-50435
DATE: June 25, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ELIZABETH GUERRERO L.L.L.
Plaintiff
--and—
TRILLIUM DENTAL CENTRE, DR. DAVID BARTOS, DR. MARK NORTHCOTT and TERESA MCLEOD
Defendants
REASONS FOR JUDGMENT
Mr. Justice Martin James
DATE RELEASED: June 25, 2014