Perri v. Toronto Western Hospital, 2015 ONSC 3367
COURT FILE NO.: CV-13-492390
DATE: 20150526
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
AMANDA ADA PERRI
Plaintiff
– and –
TORONTO WESTERN HOSPITAL, TORONTO GENERAL HOSPITAL, UNIVERSITY HEALTH NETWORK and PETER SWITAKOWSKI
Defendants
Albert S., Frank for the Plaintiff
Byron Shaw, for the Defendant, Peter Switakowski
HEARD: May 21, 2015
FAIETA, J
REASONS FOR DECISION
[1] The defendant Dr. Switakowski (the “defendant”) brings this motion for summary judgment to dismiss the action against him for medical malpractice pursuant to Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The defendant submits that there is no genuine issue for trial on the basis that the plaintiff has “…failed to deliver expert evidence from a qualified emergency physician establishing that the defendant breached the applicable standard of care.”
[2] On December 21, 2012 the plaintiff fell on a glass vase. The glass vase broke and the plaintiff suffered a laceration on her left buttock. The plaintiff went to the emergency department of the Toronto Western Hospital where she was examined by the defendant. The defendant was the emergency physician on duty.
[3] The plaintiff states:
I alerted [Dr.] Switakowski while he was first looking at the wound and before he did the stitching, that I had fallen on a glass vase that then shattered and that it felt like there was still glass inside me. He stated firmly that there was no glass.[1]
[4] The defendant admits that the plaintiff told him that she felt that there was glass inside her wound.[2]
[5] The defendant visually inspected the wound, explored the area with a sterile probe, palpated and irrigated the area with saline. The defendant did not detect any glass or any other foreign bodies in the wound on examination. The defendant did not order an ultrasound or any other form of imaging of the wound.
[6] The defendant closed the wound with six stitches and advised the plaintiff to have the sutures removed in 10-14 days. On January 9, 2013 the plaintiff attended a walk-in clinic for the removal of the stitches. She had pain in the area of the wound and a pinching sensation. The plaintiff was seen by a general practitioner who ordered an ultrasound. An ultrasound, performed on January 10, 2013 revealed the presence of glass in the area of the closed wound. The plaintiff was seen by a general practitioner on January 11, 2013 and was then referred to general surgeons who refused to perform surgery to remove the glass. On January 24, 2013 the plaintiff was examined by a medical doctor at St. Michael’s Hospital’s emergency department. The doctor referred the plaintiff to a plastic surgeon, Dr. Melinda Musgrave. The plaintiff was examined by Dr. Musgrave on January 30, 2013. The plaintiff chose to have elective surgery to remove the glass from her buttock.
[7] The surgery was performed on February 7, 2013 under a general anesthetic. A palpable abnormality was found very close to the skin surface of the wound area. The abnormality was a fairly large piece of glass that measured 3.5 by 4 cm. Two additional pieces measuring 7 cm by 2 cm and 3 cm by 1 cm were found and removed. These pieces of glass had penetrated the gluteal muscle and the muscle had been cut to the bone. The surgery was successfully completed and there were no post-operative issues.
[8] The plaintiff brings this claim for $100,000 in damages on account of the pain and suffering that she suffered as a result of the failure of the defendant to detect and remove pieces of glass from her buttock.
Motions for Summary Judgment
[9] A defendant may, after delivering statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.[3]
[10] Rule 20.04 states, in part, that:
(2) The court shall grant summary judgment if,
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.
(2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of just for such powers to be exercised only at a trial.
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation. [emphasis added]
[11] In Hyrniak v. Maudlin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada stated:
… In my view, a trial is not required if a summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is proportionate, more expeditious and less expensive means to achieve a just result than going to trial.
To that end, I conclude that summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.
As the Court of Appeal observed, the inappropriate use of summary judgment motions creates its own costs and delays. However, judges can mitigate such risks by making use of their powers to manage and focus the process and, where possible, remain seized of the proceedings. [emphasis added]
[12] The following two-step analysis must be applied on a summary judgment motion.
[13] First, a judge is to determine, based solely on the evidence before her, whether there is a genuine issue requiring a trial. If not, then summary judgment should be granted. There will be no genuine issue requiring a trial when the written record:
(1) allows the judge to make the necessary findings of fact,
(2) allows the judge to apply the law to the facts, and
(3) is proportionate, more expeditious and less expensive means to achieve a just result.[4]
[14] Second, a judge may consider whether a trial can be avoided by using the powers granted under rules 20.04(2.1) and (2.2) to weigh the evidence, evaluate credibility, draw reasonable inferences and call oral evidence. These discretionary powers are presumptively available unless it is in the interest of justice to exercise them only at trial.[5]
Is There A Genuine Issue Requiring a Trial?
[15] In Kurdina v. Gratzer,[6] the Ontario Court of Appeal stated at para. 2:
It is well established that to establish a breach of the standard of care to support a claim for medical negligence, a plaintiff is required to lead expert evidence of a physician practising in the same field as the defendant attesting to the defendants’ negligence. [emphasis added]
[16] The plaintiff relies upon the affidavit evidence of Dr. Melinda Musgrave. She is a plastic surgeon. Her view is that the defendant did not meet the appropriate standard of care in treating the plaintiff because based on the circumstances, including the plaintiff’s complaint of a foreign body sensation, “…a minimum diagnostic test of an x-ray would be indicated.” Dr. Musgrave also noted that there was a delay in the management of the foreign body sensation that the plaintiff felt in her buttock and she opined that “[b]etter written instructions and encouragement for follow up with her family physician for further diagnostic imaging for persistent pain may have prevented this delay.”[7]
[17] The defendant submits that Dr. Musgrave does not “practise in the same field” as the defendant. Dr. Musgrave is a medical doctor who, following a five-year residency program in plastic surgery, became a member of the Royal College of Physicians and Surgeons of Canada with a sub-specialty in plastic surgery.
[18] The defendant submits that Dr. Musgrave is eminently qualified in the surgical removal of foreign bodies once a diagnosis is made that a foreign body is present and in giving advice to patients about the options regarding the removal of a foreign body, however, she is not qualified to provide expert evidence in emergency medicine because she has never worked in an emergency department nor has she received training to do so. Dr. Musgrave admits that emergency medicine is not her area of expertise.[8]
[19] The plaintiff submits that the phrase “practising in the same field” means the “practice of medicine generally and knowledge of the uses of medical imaging in detecting whether there are foreign bodies in people.” The plaintiff submits that the examination of a laceration for a foreign body is an activity that any physician has the necessary training and ability to perform and accordingly, Dr. Musgrave may opine on the standard of care that should have been followed by the defendant in this case.
[20] I was not provided with any case law that would support such a broad interpretation of the aforementioned phrase. In my view, such a broad interpretation of that phrase would render it meaningless. In my view, Dr. Musgrave does not practise in the area of emergency medicine, and as a result, given Kurdina, her evidence is not a basis for establishing the defendant’s negligence.
[21] However, that finding is not determinative of this motion for summary judgment because under Rule 20.04(2.1) I have to consider all of the evidence submitted by the parties.
[22] The defendant submitted a medical report from Dr. Ronald McMillan dated December 18, 2014. Dr. McMillan is a physician in Ontario who holds a Fellowship in Emergency Medicine from the Royal College of Physicians and Surgeons of Canada.
[23] It is Dr. McMillan’s view that the defendant:
…exercised reasonable, care, competence and skill in attending upon Ms. Perri and met the standard of care. Furthermore, it is my opinion that Dr. Switakowski acted in a manner consistent with the way in which a reasonable emergency physician would act given similar circumstances.[9]
[24] Dr. McMillan provided the following context for the opinion shown above. He stated:
Lacerations are a common presentation to the Emergency Department and emergency physicians are trained and experienced in the assessment, valuation and treatment of traumatic wounds. …
It is the standard practice for emergency physicians to thoroughly examine and explore any laceration to rule out retained foreign bodies. In my opinion Dr. Switakowski undertook a thorough and focused examination of the patient’s laceration, one that consisted of visual inspection and exploration with a sterile probe in order to detect a retained foreign body and as such his care met the expected standard for an emergency physician.
It is not the expected standard of care for an emergency physician to extend and enlarge the laceration undertaking a deep exploration of the wound in search of foreign bodies that are not visually seen or felt by sterile probe exploration and palpation, as so doing would cause further tissue injury and increase the risk of injury to the muscles, nerves and blood vessels. Furthermore, it is common medical knowledge that it is not always necessary to remove a foreign body, as plastic surgeon Dr. Musgrave advised the patient in this case. It is also common medical knowledge that if a wound becomes infected the foreign body can often be removed more easily as a small abscess forms.
In addition, it is not the expected standard of care for an emergency physician to order x-rays or ultrasounds on all patients with lacerations to rule out retained foreign bodies when there is no clinical evidence to suggest a foreign body exists.[10] [emphasis added]
[25] Counsel for the defendant confirmed that Dr. McMillan’s opinion was based on the assumption that the plaintiff had not told the defendant that she felt that there was glass in her wound.
[26] As noted earlier, the defendant admits that the plaintiff told him at the time of her examination that she felt that there was glass inside her wound. Accordingly, it would appear that Dr. McMillan’s opinion, as applied to the admitted facts, would support the view that ultrasound or some other form of imaging should have been ordered by the defendant.
[27] However, the defendant submits that the plaintiff’s sensation of a foreign body in the area of her wound is not clinical evidence, as that term is used within the meaning of Dr. McMillan’s opinion, to suggest that a foreign body exists. It is his position that such “clinical evidence” is only evidence which is gathered from visual and manual inspection of the wound and does not include statements made by a patient. In my view it would remarkable to suggest that a doctor would disregard what a patient tells him about how she is feeling when trying to diagnose a patient’s condition.
[28] In my view the defendant has not demonstrated that there is no genuine issue requiring trial regarding whether the defendant breached the applicable standard of care.
[29] In accordance with Hryniak,[11] I remain seized of this action.
[30] I order that the counsel for the plaintiff and the defendant attend a case conference by telephone, pursuant to Rules 1.08 and 50.13, on Monday, June 22, 2015 at 9 a.m. for the purpose of addressing the matters described under Rule 50.13(5). Their clients need not participate in this case conference. My assistant will contact counsel with the details for the conference call.
[31] If the parties cannot come to an agreement on costs of this motion, then the plaintiff may deliver written submissions, no longer than two pages, plus an outline of costs within 20 days. The defendant may deliver his written responding submissions, no longer than two pages, within seven days.
Mr. Justice M. Faieta
Released: May 26, 2015
COURT FILE NO.: CV-13-492390
DATE: 20150526
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
AMANDA ADA PERRI
Plaintiff
– and –
TORONTO WESTERN HOSPITAL, TORONTO GENERAL HOSPITAL, UNIVERSITY HEALTH NETWORK and PETER SWITAKOWSKI
Defendants
REASONS FOR JUDGMENT
Mr. Justice M. Faieta
Released: May 26, 2015
[1] Affidavit of Amanda Ada Perri, sworn March 11, 2015, at paragraph 8.
[2] Examination for Discovery of Dr. Switakowski, Questions 168 and 185.
[3] Rule 20.01(3).
[4] Trotter v. Trotter 2014 ONCA 841, 122 O.R. (3d) 625, at paras. 72-75.
[5] Trotter v. Trotter, at paras. 72-75.
[6] [2009] O.J. No. 4626; aff’d 2010 ONCA 288; leave to appeal dismissed [2010] S.C.C.A No. 199.
[7] Affidavit of Melinda A. Musgrave, sworn March 25, 2015, page 5.
[8] Transcript, Cross-Examination of Dr. Melinda Musgrave, April 10, 2015, Questions 119—133.
[9] Affidavit of Dr. Ronald V. McMillan, sworn December 22, 2014, exhibit 2, page 3.
[10] Affidavit of Dr. Ronald V. McMillan, sworn December 22, 2014, exhibit 2, pages 2 and 3.
[11] Paragraph 78.