Chelli-Greco v. Rizk

Ontario Reports

Ontario Superior Court of Justice,

Hackland J.

November 13, 2015

128 O.R. (3d) 136 | 2015 ONSC 6963

Case Summary

Limitations — Discoverability — Plaintiff treated by defendant dentist from September 2005 to October 2012 — Defendant installing bridge and then attempting to repair it when it failed — Plaintiff suing defendant for damages for negligence in June 2014 — Plaintiff expressing disappointment with defendant's work in September 2011 but defendant not acknowledging at that time that failed bridge was his fault and continuing repair efforts — Defendant's repair efforts not meeting applicable standard of care and defendant failing to obtain plaintiff's informed consent — Plaintiff's claim not discoverable in September 2011 — Claim discoverable only when dentist-patient relationship ended — Action not statute-barred.

The plaintiff was treated by the defendant dentist from September 2005 to October 2012. He installed a bridge and then attempted to repair it when it failed. The plaintiff expressed dissatisfaction with her bridge in September 2011 and threatened to go to a lawyer, but the defendant told her that her problems resulted from the fact that she had a very heavy bite and had traumatized her teeth. The plaintiff commenced an action against the defendant for damages for negligence in June 2014. The defendant moved for summary judgment dismissing the action as statute-barred.

Held, the motion should be dismissed. [page137]

The limitation period did not start to run in September 2011, as the plaintiff may well have believed the defendant when he told her that her failed bridge was not his fault and that he would try to remediate the problems. According to the plaintiff's expert, the ongoing treatments were not in compliance with the applicable standard of care and the defendant failed to obtain the plaintiff's informed consent. The plaintiff could not have discovered her claim before the period of negligent treatment had begun or the ongoing damages had occurred. The claim was not discovered until the dentist-patient relationship had ended. It could not fairly be said that the plaintiff should have considered it appropriate to commence proceedings against the defendant while he was trying to remediate her dental problems. The action was not statute-barred.

Brown v. Baum, [2015] O.J. No. 1150, 2015 ONSC 849 (S.C.J.), consd

Other cases referred to

Federation Insurance Co. of Canada v. Kingsway General Insurance Co. (2012), 109 O.R. (3d) 652, [2012] O.J. No. 1505, 2012 ONCA 218, 290 O.A.C. 75, [2012] I.L.R. I-5264, 348 D.L.R. (4th) 744, 8 C.C.L.I. (5th) 210, 214 A.C.W.S. (3d) 249

Statutes referred to

Limitations Act, 2002, S.O. 2002, c. 24, Sch. B [as am.], ss. 4, 5 [as am.], (1), (a)(iv), (2)

MOTION for summary judgment dismissing an action.

John Cardill, for plaintiff.

Susanne Sviergula, for defendant.

HACKLAND J.: —

Overview

[1] This is a motion for summary judgment in a dental negligence action. The moving party, Dr. Rizk, argues that at the time the plaintiff, his former patient, commenced this action by statement of claim on June 16, 2014, it was statute-barred because the two-year limitation period in the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B had already expired.

[2] The parties agree that the limitations issue herein is properly decided on this motion and I respectfully agree.

[3] The plaintiff was treated by the defendant, as her dentist, for a seven-year period from September 2005 to October 23, 2012, which is the date of her last visit. If the limitation period began to run on or about the last visit, which is the plaintiff's position, then the action was commenced in time, i.e., about 20 months after the last visit and treatment rendered by the defendant. For reasons explained below, the defendant argues that the limitation period commenced at the time of the patient visit on September 21, 2011, some 11 months before the dentist-patient relationship ended. [page138]

The Facts

[4] For the purposes of this motion, it is unnecessary to outline all of the details of the plaintiff's dental problems and the treatment provided by the defendant. In essence, the plaintiff presented with complex pre-existing problems, i.e., a very compromised periodontal status of her teeth, and in the face of this, the defendant embarked on what an expert witness referred to as "complex major restorative treatment". A principal aspect of the treatment was the installation of a bridge in the lower right jaw and an upper implant supported bridge in the plaintiff's upper right jaw.

[5] These bridges chipped and became loose and unstable and ultimately failed. Over at least the last year of treatment, the defendant was attempting to treat and mitigate these problems and to get further use out of the bridges in order to satisfy the plaintiff's wishes and to respond to her complaints.

[6] The plaintiffs have filed the report of a qualified expert who is highly critical of the defendant's treatments. This expert opines that the defendant did not meet the standard of care in his treatment of the plaintiff in several ways. In particular, his record keeping was grossly deficient; he never obtained an informed consent from the patient and the treatment rendered in the clinical circumstances was improper. No responding experts report was put before the court. Significantly, the defendant was cross-examined on his affidavit filed on this motion and he candidly accepted the expert's criticisms and admitted his failure to meet the standard of care of a dentist practising in Ontario in many aspects of his treatment of the plaintiff.

[7] Of particular significance to this motion, in my view, is that the defendant's treatment right up to and including the final office visit on October 23, 2012 was negligent. That is to say, on the evidence, certain of his treatments, such as his efforts to repair and salvage the upper implant bridge were doomed to failure and this treatment was carried out without having obtained the informed consent of his patient. Rather than attempting to deal with the complications, the plaintiff should have referred his patient to a specialist, in the opinion of the expert.

[8] The defendant's position is that the limitation period began to run at the time of the plaintiff's September 21, 2011 patient visit. At this time, the plaintiff knew and was complaining that her bridge was failing and she demanded "reimbursement" of [page139] $23,000 and threatened to go to a lawyer. I set out the defendant's entry in the patient's dental chart for that date:

Sept 21, 11

Pt presented for consult expressed dissapoitment [sic] on how her bridgework in Q4 and Q2 was failing. Tried to explain to her that she has a very heavy bite. She expressed that she is under alot of stress and how she wanted $23,000 reimbursement for her failed bridgework also was adiment [sic] that she was not leaving until she got it. Tried to reason with her and showed her how she has traumatized her teeth to the point that she split her roots and 27 implant has failed. Decided to step away from the situation and I told her I would review her chart and set up a consult in a few days. She expressed seeking legal council [sic] told her this was her prerogative. Rebooked for consult.

[9] As to why she continued to see the defendant, the plaintiff states in her affidavit filed on this motion:

[27] Dr. Rizk continued to treat me and repair any damage to my dental work up to October 23, 2012.

[28] At all times, up until October 23, 2012 I did verily believe that Dr. Rizk would repair any damage to my dental work and continue to treat me.

The plaintiff was not cross-examined on her affidavit.

Analysis

[10] Section 4 of the Limitations Act provides that no proceeding shall be commenced after the second anniversary of the day on which the claim was discovered.

[11] Section 5(1) of the Limitations Act states that a claim is discovered on the earlier of:

5(1)(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

[12] I am of the opinion that the defendant has not established on the balance of probabilities that the plaintiff's claim was discovered on September 21, 2011, for the following reasons. [page140]

[13] I accept that the plaintiff understood that her complaints were about the failed bridgework that the defendant had installed and that she had paid a substantial sum of money for this, which she wanted back. However, the question is: Did she appreciate that the failure of her dental bridge "was caused by or contributed to by an act or omission" of the defendant? A review of the defendants clinical notes indicates that he was explaining to the plaintiff on an ongoing basis that her problems were resulting from the fact that she had a very heavy bite, that she had traumatized her teeth to the point she had split her roots and her implants (put in by another dentist) had failed, that she had poor dental hygiene and had failed to use her night guard and so on. I see no acknowledgement by the defendant that his shortcomings had caused any of the problems. As noted, the plaintiff's belief was that the defendant "would repair any damage to my dental work and continue to treat me". I conclude from this that the plaintiff may well have believed what she was being told by the defendant, i.e., that her failed bridge was not his fault and he would endeavour to repair or remediate the problems.

[14] Second, and as noted above, the last year of this dentist-patient relationship consisting of treatments occurring at nine office visits, ending October 23, 2012, was an exercise in continuing negligence, in some respects, on the defendant's part. According to the plaintiff's expert, the ongoing treatments were not in compliance with the standard of care and not the product of any informed consent obtained from the plaintiff. The plaintiff should have been referred out to a specialist for appropriate treatment. The defendant accepted these criticisms in his cross-examination. Therefore, in these circumstances, I cannot accept that the plaintiff had discovered her claim on September 21, 2011, i.e., before this period of negligent treatment had begun or the ongoing damages had occurred. In short, for the purposes of s. 5 of the Limitations Act, negligence cannot be discovered before it occurs. This is confirmed by s. 5(2) of the Limitations Act, which creates a presumption that a claim is discovered by the plaintiff at the time the act or omission complained of occurred unless the contrary is proven. The defendant has failed to rebut this presumption in the ongoing negligence scenario which pertained in this case, which continued until the termination of the dentist-patient relationship.

[15] Third, I address the requirement in s. 5(1) of the Act that in order for the claim to be discovered, the person must know "(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to [page141] remedy it[.]" In this case, rather than seek legal remedies, the plaintiff decided to accept the dentist's proposal that he continue to treat her to remediate her dental problems as much as possible or, from her perspective, to repair the damage to her dental work. She continued to receive treatment from the defendant for another 11 months after the heated September 2011 visit referred to above. Should the limitation period run during this 11-month period while the plaintiff remained under the defendant's care?

[16] In Federation Insurance Co. of Canada v. Kingsway General Insurance Co. (2012), 109 O.R. (3d) 652, [2012] O.J. No. 1505, 2012 ONCA 218, at para. 34, the Court of Appeal considered the meaning of the term "appropriate" in the context of s. 5(1)(a)(iv). According to Sharpe J.A.,

. . . I fully accept that parties should be discouraged from rushing to litigation or arbitration and encouraged to discuss and negotiate claims. In my view, when s. 5(1) (a)(iv) states that a claim is "discovered" only when "having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it", the word "appropriate" must mean legally appropriate. To give "appropriate" an evaluative gloss, allowing a party to delay the commencement of proceedings for some tactical or other reason beyond two years from the date the claim is fully ripened . . . would, in my opinion, inject an unacceptable element of uncertainty into the law of limitation of actions.

[17] A recent and somewhat similar case to the present is Brown v. Baum, [2015] O.J. No. 1150, 2015 ONSC 849 (S.C.J.). In that case, the plaintiff sued her plastic surgeon after experiencing a poor outcome from breast reduction surgery. Her action was based on a lack of informed consent. Following the initial surgery, the defendant continued to treat the plaintiff in an attempt to improve her outcome. This involved a further 15 months of treatments that included several more surgical procedures. She commenced her action 23.5 months after her last consultation with the plaintiff. However, the defendant argued the action was statute-barred because the limitation should be deemed to have run from the date of the initial surgery.

[18] In Brown v. Baum, Mew J. held that on the facts of that case, it was not "appropriate" for the plaintiff to commence a proceeding against her doctor before the last of the procedures performed by him. The court stated, at paras. 50, 52 and 53:

This argument misses the point of subparagraph (iv), which is to delay the commencement of the litigation period until such time as initiating a proceeding is an appropriate remedy. The point can be illustrated by assuming that, instead of the series of surgeries having been conducted over 15 months, the time span between the first surgery and the last surgery was, say, 36 months. If one assumes that the date of the first surgery is the date on which the limitation period runs (which, presumptively, it would be: [page142] Limitations Act, s. 5(2)), then the plaintiff would be required to commence an action against the defendant while still receiving treatment from him. The service of a statement of claim on a treating physician by a patient would almost certainly result in a termination of the doctor-patient relationship and, hence, efforts to ameliorate -- or remedy -- the patient's condition through continued treatment of the plaintiff patient by the physician.

Each case will, of course, turn on its particular facts. It will not be every case in which the fact that a physician-patient relationship is ongoing that it would be appropriate to toll the running of the limitation period until that relationship has terminated. Nor in every case where there is a series of surgical procedures undertaken will time not run until the last of those procedures has been undertaken. It will depend on the facts and circumstances.

In the present case the defendant continued for over a year after the initial surgery to achieve a better outcome for the plaintiff. There was no doubt about what he was doing or why he was doing it. There is no indication in the evidence that the defendant was motivated by a concern to minimise his potential liability to the plaintiff. It would unreasonable and inappropriate in such circumstances to start the two year limitation clock running against Ms. Brown while the defendant's good faith efforts to achieve a medical remedy continued.

[19] In my view, the present case is an equally compelling situation to support the proposition that the plaintiff's action was not discovered until the dentist-patient relationship had ended. It could not fairly be said that the plaintiff should have considered it appropriate to commence proceedings against her dentist while he was attempting to remediate her dental problems which she was given to understand arose from the poor health of her teeth which supported her bridge. As the plaintiff's expert pointed out, a major problem for the plaintiff was the lack of an informed consent discussion surrounding the treatment she was receiving. She remained under the defendant's influence and professional guidance, without proper advice, for the duration of the dentist-patient relationship. In these circumstances, I cannot be satisfied that it was appropriate for the plaintiff to opt for legal proceedings instead of seeking remediation by continuing to seek treatment form the defendant.

[20] For these reasons, I hold that the plaintiff's action is not statute-barred and the defendant's motion for summary judgment is dismissed.

[21] I order that the plaintiff's costs submissions for this motion be provided within ten days of the release of these reasons and the defendant's submissions within ten days of being served with the plaintiff's submissions.

Motion dismissed.

End of Document