Claudia and Louis Sytsma v. Dr. Keleshian and others, 2015 ONSC 138

COURT FILE NO.: CV-08-00363067

DATE: 20150219

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CLAUDIA SYTSMA and LOUIS SYTSMA, Plaintiffs (Responding Parties)

AND:

DR. ARSEN KELESHIAN and DR. FRANCOIS BESSAY carrying on business as THE QUAKER DENTAL CLINIC, Defendants (Moving Parties)

BEFORE: STEWART J.

COUNSEL: Robert Zigler, for the Plaintiffs

Mario E. Delgado, for the Defendants

HEARD: September 30, 2014

ENDORSEMENT

Nature of the Motion

[1] The Defendants Dr. Francois Bessay and Dr. Arsden Keleshian move for summary judgment dismissing this action as against them.

[2] The Statement of Claim alleges that Dr. Keleshian and Dr. Bessay, both dentists, were negligent in their treatment of Claudia Sytsma (“Sytsma”) and that the Plaintiffs have suffered damages as a result. In addition, the Plaintiffs claim that Dr. Bessay is vicariously liable for any negligence of Dr. Keleshian which occurred at The Quaker Dental Clinic (the “Clinic”).

[3] The Plaintiffs assert that they have raised issues in the proceeding that will require a trial to determine.

Background Facts

[4] On January 11, 2006, Sytsma saw Dr. Keleshian at the Clinic for a clinical examination. Dr. Keleshian developed a treatment plan to restore ten of Sytsma’s teeth by replacing deteriorating old fillings. Dr. Keleshian’s plan was first to restore Sytsma’s four teeth on the right side of her mouth and to replace the others at a subsequent appointment.

[5] On February 8, 2006, the restoration of the four teeth was carried out by Dr. Keleshian.

[6] On February 18, 2006, Sytsma attended at the Clinic and was seen by Dr. Bessay.

[7] Sytsma complained of sensitivity in the four teeth that had been restored by Dr. Keleshian. Following an examination, Dr. Bessay advised Sytsma that if there was no improvement of her symptoms in two weeks, she should reconsider replacing some of the restorations that had been done by Dr. Keleshian.

[8] On June 29, 2006, Sytsma returned to the Clinic and saw Dr. Bessay. Sytsma’s chief complaint on that day was continued discomfort with the teeth that had been restored by Dr. Keleshian. Following an examination, Dr. Bessay recommended that the restorations previously done to the four teeth be replaced.

[9] An appointment was scheduled for July 28, 2006 to proceed with replacement of the restorations. Because Sytsma failed to attend for the scheduled appointment, her appointment was rescheduled to August 22, 2006.

[10] On August 22, 2006, Dr. Bessay attempted to replace the restorations as planned but was unable to achieve adequate freezing of the area. The procedure was therefore aborted. Sytsma was referred by Dr. Bessay to another dentist for further assessment of her complaints of pain and for consideration of performance of the procedure under anaesthetic.

[11] Sytsma’s complaints of pain as well as other symptoms continued. She alleges these are due to the negligence of the Defendants.

Is there a genuine issue raised which requires a trial?

Negligence

[12] The claims against Dr. Keleshian and Dr. Bessay essentially allege professional negligence in their treatment of Sytsma, however they may be framed by the Plaintiffs. This characterization applies likewise to any claim of lack of informed consent to the procedure, as Sytsma consented to the treatment and the alleged tort is not a battery. To the extent there is a claim of lack of informed consent, this is a matter of standard of care and causation, subjects requiring expert opinion to determine.

[13] In the case of medical or dental professionals, the appropriate standard of care without reliance on expert opinion. This technical area is considered to be not within the ordinary knowledge and experience of the trier of fact (see: Kurdina v. Gratzer, [2010] ONCA 288; Lozowy v. Trillium Health Centre, [2007] O.J. No. 1332 9 S.C.J.).

[14] In this case, in order to have any chance of success in the claim, the Plaintiffs must tender expert evidence from a dentist in similar circumstances to Dr. Keleshian and Dr. Bessay to support their allegations of negligence against them. Without such expert opinion, the Plaintiffs will be unable to prove at trial that either Dr. Keleshian or Dr. Bessay was negligent.

[15] In connection with that obligation, the Plaintiffs have filed the affidavit and report of Dr. Marisa Pavone, a qualified dentist associated with Sunnybrook and St. Michael’s Hospitals in Toronto. Dr. Pavone expresses the opinion that Dr. Keleshian’s treatment of Sytsma fell below the standard of a reasonable dental practitioner in that he replaced all four of Sytsma’s existing restorations and did so on one single appointment. Dr. Pavone states this approach resulted in possible discomfort to Sytsma, incomplete bonding, leakage and post-operative sensitivity.

[16] Dr. Pavone states that the clinical indications for undertaking the treatment were lacking from the clinical record. If carried out at all, the restorations should have been done less aggressively. Essentially, she is of the view that the applicable standard of care requires a more conservative approach.

[17] Dr. Pavone expresses no criticism of Dr. Bessay in either her affidavit or report.

[18] Affidavit evidence from Dr. Stephen Abrams, a qualified dentist, expresses the opinion that Dr. Keleshian’s treatment of Sytsma met the standard of care of a general practitioner of dentistry in Ontario. In Dr. Abrams’ view, the age of the existing fillings warranted their replacement and to do so met an applicable standard of care. He describes Dr. Keleshian’s decision to restore four teeth at once to be a matter of judgment and within the range of acceptable practice.

[19] Dr. Pavone was cross-examined on her affidavit and report. Although she appears to agree that “clinical judgment” is at play in these determinations she does not actually resile from her opinion that there is no record of clinical indication for the procedure and the performance of it at one sitting was below the accepted standard of care.

[20] The experts therefore are opposed. Although the Defendants argue that Dr. Pavone’s opinion should not be admitted because she has provided treatment to Sytsma and is not sufficiently independent, I am not prepared to make that determination on this motion. If I am wrong in that regard, I would grant the Plaintiffs an adjournment, if sought, to seek the opinion of another expert for this same purpose. Further, her documented unwillingness to provide a report critical of her colleague at the initial stage does not serve to make me conclude that no weight now should be attached to her arguably reluctant, but albeit critical, report provided in support of the Plaintiffs’ claims that Dr. Keleshian fell below the standard and that this caused at least some of their damages.

[21] I am mindful of the latitude given to a motions judge to weigh evidence and make findings of credibility when it is just to the parties to do so (see: Hryniak v. Mauldin, [2014] S.C.C. No. 7, para. 66). However, when there are warring expert opinions as is evident in this case, I am of the view that justice is best served by a trial in which their evidence may be heard, tested by counsel and clarified as necessary through questions from the trial judge.

[22] Therefore, the nature of the expert opinion in this case is such that a fair and just consideration of the evidence as to both the alleged negligence of Dr. Keleshian and causation is most properly carried out following a trial.

[23] Accordingly, the Plaintiffs have raised a genuine issue for trial insofar as Dr. Keleshian is concerned.

Vicarious Liability

[24] The Plaintiffs assert that Dr. Bessay is vicariously liable for any negligence of Dr. Keleshian in the provision of dental services at the Clinic.

[25] The Defendants take the position that Dr. Keleshian stood in relationship as an independent contractor to Dr. Bessay and the Clinic and therefore there is no basis for vicarious liability.

[26] Evidence contained in the affidavits filed on the motion by both Dr. Keleshian and Dr. Bessay demonstrate that Dr. Keleshian was an independent contractor and not an employee of the Clinic. Dr. Bessay did not supervise or oversee the professional services provided by Dr. Keleshian to Sytsma or to any other patients.

[27] Dr. Keleshian was paid 40 percent of his patient billings. The balance was remitted to the Clinic strictly as contribution to overhead costs. The Clinic did not provide Dr. Keleshian with any other form of remuneration. At all material times, Dr. Keleshian was solely responsible to pay for his professional annual fees including professional liability insurance, continuing education programs/certificates, as well as other association fees and benefits.

[28] The evidence of Sytsma as to her interaction with Dr. Keleshian and her possible belief concerning him and/or the Clinic does not serve to alter his legal status as an independent contractor, and his resultant personal responsibility for any claims for negligence arising out of the performance of professional dental services by him (see: Locke v. Smith, [2003] O.J. No. 2726; Yepremian et al. v. Scarborough General Hospital et al., [1980] O.J. No. 3592)

[29] As a result, I conclude there is no possible basis for any finding of vicarious liability as against Dr. Bessay. Hence, there is no genuine issue for trial raised against Dr. Bessay.

Conclusion

[30] For these reasons, the action against Dr. Bessay is dismissed.

[31] The balance of the proceedings, the action against Dr. Keleshian, involves claims of professional negligence that will require the hearing of evidence, including that of experts who have provided conflicting opinions. In these circumstances, the fair, just and proportionate adjudication of these allegations will require a trial. The motion brought on behalf of Dr. Keleshian is therefore dismissed.

Costs

[32] If the subject of costs cannot be agreed upon, written submissions may be delivered by the Plaintiffs within 30 days of today’s date, and by the Defendants within 15 days thereafter.

STEWART J.

Date: February 19, 2015