Drougov v. Apotex Inc., 2015 ONSC 2896
COURT FILE NO.: CV-14-513327
DATE: 20150504
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANATOLY DROUGOV
Plaintiff
– and –
APOTEX INC., HEALTH CANADA, DENTIST E. GRIFFITH, ENDODONTIST G. PARTNOY, and DRUG STORE PHARMACY.CA
Defendants
Anatoly Drougov, self-represented
Esther Nwator for the Defendants, Dr. Griffith and Dr. Partnoy
Nicola Brankley for the Defendant Central Medical Pharmacy Inc., o/a Pharmacy.ca, incorrectly named as Drug Store Pharamacy.ca
Jon Bricker for the Attorney General of Canada incorrectly named as Health Canada
HEARD: May 1, 2015
PERELL, J.
REASONS FOR DECISION
[1] The plaintiff, Mr. Anatoly Drougov, who had an infected tooth, sues two dentists, Dr. Partnoy, the endodontist who recommended that the tooth be extracted, and Dr. Griffith, the referring dentist, who prescribed the antibiotic Clindamycin to Mr. Drougov for the infected tooth. Mr. Drougov says that the Clindamycin caused him bone damage and other injuries. He also sues Apotex Inc., the manufacturer of the drug, Central Medical Pharmacy Inc., incorrectly named as drug store Pharmacy.ca, the pharmacy that dispensed the drug to him, and Health Canada, which correctly should be an action against the Attorney General of Canada, which regulated the introduction of Clindamycin into the Canadian healthcare system.
[2] Mr. Drougov’s claim is for $500 million for personal injuries. He alleges that he has or will suffer from the side effects from his consumption of Clindamycin, including the destruction of teeth and bones and the shortening of his lifespan.
[3] Drs. Griffith and Partnoy and Central Medical Pharmacy bring summary judgment motions (Rule 20) to have Mr. Drougov’s action dismissed, and Health Canada brings a Rule 21 motion to have Mr. Drougov’s Statement of Claim struck and his action dismissed for failing to show a reasonable cause of action.
[4] Mr. Drougov, who is a self-represented litigant, submits that as a rule of law, he is absolutely entitled to a trial and that he will present evidence at that trial proving the allegations in his Statement of Claim, which establish that all of Defendants were criminally negligent.
[5] As I explained to Mr. Drougov during the hearing, Rule 20 and Rule 21 motions are alternatives to trial in appropriate cases. A litigant does not, as a rule of law, have an absolute right to a trial.
[6] At the hearing of the Rule 20 and Rule 21 motions, I heard the submissions of the parties, and I reserved judgment. For the reasons set out below, I dismiss Mr. Drougov’s action against: (a) Drs. Griffith and Partnoy; (b) Central Medical Pharmacy Inc.; and (c) the Attorney General of Canada. The moving parties may take out the Order without Mr. Drougov’s approval as to form and content.
[7] The background facts are as follows.
[8] On September 16, 2014, Mr. Drougov had a dental appointment with Dr. Griffith. Mr. Drougov completed a registration form for new patients and disclosed allergies to Penicillin and Sulpha. After a periodontal examination, Dr. Griffith examined Mr. Drougov, who presented with an infected upper right tooth. Dr. Griffith found that Mr. Drougov’s second molar in the upper right jaw was sensitive to palpation and visibly infected. Dr. Griffith also noted evidence of periodontal disease and heavy plaque throughout the dentition.
[9] Mr. Drougov agreed to have radiographs taken and a full series of dental images of his mouth were obtained. Dr. Griffith examined the radiographs and decided that a referral for a specialist endodontic assessment of the infected area was needed. He explained this to Mr. Drougov and an endodontic referral appointment was booked for him with Dr. Partnoy. In the interim, Dr. Griffith prescribed the antibiotic Clindamycin for the tooth infection. More precisely Dr. Griffith prescribed Dalacin C 300mg, for which Apo-Clindamycin 300mg is an interchangeable product and a much cheaper drug.
[10] On September 17, 2014, Mr. Drougov had the prescription filled at Central Medical Pharmacy. The pharmacist advised Mr. Drougov about the common side effects of Apo-Clindamycin and provided him with literature that lists further possible side effects. The side effects alleged by Mr. Drougov do not appear in the Compendium of Pharmaceuticals and Specialties, which is the Canadian standard for drug monographs developed by manufacturers and approved by Health Canada.
[11] On September 18, 2014, Mr. Drougov had his appointment with Dr. Partnoy, who had received a referral form and radiograph from Dr. Griffith’s office. At the appointment, Dr. Partnoy recommended that the infected tooth be extracted. Mr. Drougov declined to proceed with this treatment. He left, and Dr. Partnoy did not see him again.
[12] Mr. Drougov returned to see Dr. Griffith on September 20, 2014 for a second referral. This was the last time that Dr. Griffith saw Mr. Drougov.
[13] Mr. Drougov did obtain a second endodontic assessment. The tooth was saved by root canal dental surgery.
[14] On October 20, 2014, Mr. Drougov issued a Statement of Claim. He alleges dental negligence against Drs. Griffith and Partnoy, negligence by Central Medical Pharmacy in dispensing the drug Clindamycin, and negligence by Health Canada in allowing this allegedly dangerous drug to be dispensed.
[15] Mr. Drougov alleges that Health Canada knew about the toxic effect of Clindamycin, but nevertheless approved it for use in Canada so that Apotex Inc., dentists, and pharmacists could become richer and profit from the tragedy and misfortune of unsuspecting immigrants. He also alleges that the Canadian government benefited from the approval of Clindamycin, because the drug contributes to premature death, thereby limiting Canada’s liability to Canada Pension Plan recipients.
[16] After the pleadings were completed, Drs. Griffith and Partnoy and Central Medical Pharmacy moved for summary judgment, and Health Canada moved to have the Statement of Claim struck for failing to show a reasonable cause of action.
[17] In support of their motion for summary judgment, Drs. Griffith and Partnoy relied on the expert evidence of Dr. Richard Speers, who is a member of the Royal College of Dental Surgeons of Ontario and who has operated a full time general practice since 1975.
[18] It was Dr. Speers’ opinion that there was no breach in the standard of care involving the prescribing of Clindamycin. It was Dr. Speers’ opinion that: (a) Clindamycin would be the antibiotic of choice for a patient, like Mr. Drougov, with a reported Penicillin allergy; (b) it was reasonable and necessary for Drs. Griffith and Partnoy to obtain good diagnostic images during their consultations; (c) the periodontal examination performed at Dr. Griffith’s practice was necessary and reasonable; (d) the treatment recommendations provided by Drs. Griffith and Partnoy were reasonable; and (e) there was no evidence that Dr. Griffith or Dr. Partnoy caused the plaintiff any injury or loss.
[19] In support of its motion for summary judgment, Central Medical Pharmacy relied on the expert evidence of Spiridon Goussios, a licenced pharmacist in Ontario since 1993 with more than 18 years’ experience as a manager of an independent pharmacy.
[20] It was Mr. Goussios’ opinion that: (a) Central Medical Pharmacy fulfilled the requirements of the Ontario College of Pharmacists and the Model Standards of Practice; (b) it properly counselled Mr. Drougov on the common side effects of Apo-Clindamycin 300mg and properly provided him with written information about the medication and its possible side effects; (c) it met the standard of care of a pharmacy filling the prescription presented by Mr. Drougov; (d) there is no evidence in the medical literature that Apo-Clindamycin can cause osteoporosis; (e) there is no evidence in the medical literature that Apo-Clindamycin can shorten life-expectancy; and (f) given the lack of any medical evidence to suggest that Apo-Clindamycin can cause osteoporosis or shorten life-expectancy, no pharmacist would be expected to warn of such possible side effects when dispensing Apo-Clindamycin.
[21] For a plaintiff to succeed in a medical professional negligence action, a plaintiff requires evidence, typically expert evidence, to establish: (1) the standard of care; (2) whether there was a breach of the standard of care; and, (3) causation and on a summary judgment motion, if this evidence is not presented, there is no genuine issue for trial and summary judgment may be granted dismissing the plaintiff’s action.
[22] See: Claus v. Wolfman (1999), 1999 14824 (ON SC), 52 O.R. (3d) 673 (S.C.J.), aff’d (2000), 2000 22728 (ON CA), 52 O.R. (3d) 680 (C.A); McNeil v. Easterbrook, [2004] O.J. No. 3976 (S.C.J.); Cassibo v. Bacso, 2010 ONSC 6435; Ryabikhina v. St. Michael’s Hospital, 2011 ONSC 1884; Lozowy v. Trillium Health Centre, [2007] O.J. No. 1332 (S.C.J.); Kim v. Choi, 2012 ONSC 6627.
[23] Based on the evidence presented on the motions for summary judgment, there is no genuine issue for trial. Mr. Drougov has not shown a viable claim for professional negligence against the Defendants Dr. Griffith, Dr. Partnoy, and Central Medical Pharmacy.
[24] Turning to the Rule 21 motion, Mr. Drougov’s claim is a claim for negligence. To be found liable in negligence, a defendant must owe the plaintiff a private law duty of care. Canadian courts have consistently held that Health Canada does not owe a private law duty of care to individual users of drugs and medical devices approved by it, save in narrow circumstances that do not arise here.
[25] See: Wuttunee v. Merck Frosst Canada Ltd., 2007 SKQB 29; Attis v. Canada (Minister of Health), 2008 ONCA 660, leave to appeal refused [2008] SCCA No. 491; Williams v. The Attorney General of Canada (2005), 2005 29502 (ON SC), 76 O.R. (3d) 763, varied 2009 ONCA 378, leave to appeal refused [2009] SCCA No. 298; R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45; Taylor v. Canada, 2012 ONCA 479; Adam v. Ledesma-Cadhit, 2014 ONSC 5726.
[26] It is plain and obvious that Mr. Drougov has not pleaded and would not be able to plead a claim of regulatory negligence against Health Canada.
[27] Accordingly, the moving parties’ motions should be granted, and Mr. Drougov’s actions against Dr. Griffith, Dr. Partnoy, Central Medical Pharmacy, and the Attorney General of Canada should be dismissed.
[28] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the moving parties’ submissions within 20 days of the release of these Reasons for Decision followed by Mr. Drougov’s submissions within a further 20 days.
Perell, J.
Released: May 4, 2015
CITATION: Drougov v. Apotex Inc., 2015 ONSC 2896
COURT FILE NO.: CV-14-513327
DATE: 20150504
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANATOLY DROUGOV
Plaintiff
– and –
APOTEX INC., HEALTH CANADA, DENTIST E. GRIFFITH, ENDODONTIST G. PARTNOV, and DRUG STORE PHARMACY.CA
Defendants
REASONS FOR DECISION
PERELL J.
Released: May 4, 2015