SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-12-477058
DATE: 20151208

RE: Albert Solomon, plaintiff

-and-

Read Mohamed Ali Abughaduma, The Scarborough Hospital, General Site, John Doe and Jane Doe, defendants

BEFORE: F.L. Myers J.

COUNSEL:
Lee Lenkinski, counsel, for the Scarborough Hospital
Anu Koshal, counsel, for the Dr. Abughaduma
Albert Solomon in person

HEARD: December 3, 2015

ENDORSEMENT

[1] Mr. Solomon is a self-represented plaintiff. He fears that he will not receive a full measure of justice because of his checkered past and his lack of financial resources. He sues the defendants for medical malpractice. There is no denying, at this stage at least, that the wrist surgery performed on Mr. Solomon did not have a happy outcome for him. He says that prior to his surgery, his principal source of income was from hustling golf. The surgery that he intended to keep him golfing has hastened his exit from meaningful pursuit of his calling.

[2] The surgeon and hospital defendants move for summary judgment on the basis that Mr. Solomon is required to deliver independent expert medical evidence to establish his claim that the defendants’ treatment of Mr. Solomon did not meet the standard of care prevailing in the medical profession, i.e. that they were negligent. Master Short established a timetable for this action by order dated March 18, 2014. The timetable required Mr. Solomon to deliver his expert reports by October 31, 2014. He has not done so.

[3] The law is not in dispute in this area. Unless it is obvious to a layman that a doctor’s conduct could not have met the applicable standard of care, the plaintiff is required to produce expert evidence to prove medical malpractice. The plaintiff says that it is obvious that the surgery conducted upon him was negligently performed because it had a bad outcome and another surgeon greatly improved Mr. Solomon’s condition by removing a metal plate that Dr. Abughaduma had installed in Mr. Solomon’s wrist. The fact that surgery has an unfortunate outcome is not in any way conclusive of a finding that it was negligently performed. Similarly, the removal of the metal plate does not mean that the decision and surgery to implant it fell below the standard of care in the profession. The case law is clear that for a plaintiff to prove medical malpractice where negligence is not obvious to a layman, the plaintiff requires independent expert evidence. See McNeil v Easterbrook, 2004 CarswellOnt 3926 and the cases cited at para 16 of that case.

[4] I will comment further below on the manner in which this motion proceeded. At this point, it is sufficient to note that at the hearing, Mr. Solomon volunteered an unsworn story. He said that he was initially represented by legal counsel in this matter. The lawyer retained the services of an apparently highly qualified doctor to seek the required evidence of an independent expert. The doctor consulted by his lawyer opined that Dr. Abughaduma had not been negligent. Mr. Solomon determined that since the expert’s view was inconsistent with his understanding that his subsequent surgery removing the metal plate was conclusive proof of Dr. Abughaduma’s negligence, he determined that his lawyer and the proposed expert witness were in cahoots with the defendants or the CMPA. He reported the doctor to the College of Physicians and Surgeons of Ontario. He fired his lawyer and reported him to the Law Society of Upper Canada. Both regulatory bodies have declined to pursue ethics charges against the professionals. Mr. Solomon views this is a clear indication that the deck is stacked against him and he cannot expect to obtain a fair shake under the law of Ontario. He dismisses the possibility that a more innocent explanation is possible.

[5] Regardless of the prior paragraph, it is apparent that Mr. Solomon has understood throughout this proceeding that he requires independent expert testimony to proceed with his malpractice case. His lawyer told him so. Master Short told him so. I am advised by counsel for the defendants that Mr. Justice McEwen told him so when this motion was scheduled. Mr. Solomon has not obtained expert evidence as required. The note from his second surgeon, even if sworn, says nothing concerning the quality of care provided by Dr. Abughaduma. If Mr. Solomon had legal counsel arguing the motion before me, the outcome would be no different. The issue is binary; has the plaintiff presented independent, expert evidence to establish the defendant’s negligence? Yes or no? The answer here is no. Accordingly, Mr. Solomon’s negligence claims for malpractice are dismissed.

[6] That does not end the matter however. During his submissions, Mr. Solomon stated that he was not told by Dr. Abughaduma that the doctor intended to implant a metal plate in his wrist. He said that he had seen a wrist operation on television that did not use a metal plate and he had mentioned it to Dr. Abughaduma. Mr. Solomon says that he was surprised to learn after the operation that Dr. Abughaduma had installed a plate in his wrist. Mr. Solomon says that he spoke to professional golfer Luke Donald who also had wrist surgery and confirmed that Mr. Donald’s surgery did not involve a metal plate.

[7] Para. 19 of Mr. Solomon’s statement of claim expressly alleges that he did not provide informed consent to the surgery performed by Dr. Abughaduma. This is another head of negligence that Mr. Solomon raises against Dr. Abughaduma.

[8] The defendants’ notices of motion seek the dismissal of the entire action. However the only ground that they mentioned in their notices of motion and the only ground argued in their respective factums, was that proof of malpractice requires an expert report. The defendants did not mention informed consent prior to the hearing.

[9] It perhaps takes a lawyer’s eye to see that the notices of motion sought the dismissal of the action in its entirety but mention only one of the two elements of negligence alleged by the plaintiff. The defendants say that the burden is on the plaintiff to lead trump – to establish that he has a claim – before they have any positive burden to respond. That is true. Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200 at para. 26.

[10] They also note that among the plaintiff’s medical records is an informed consent document that both Dr. Abughaduma and the plaintiff signed. The standard terms of that form include a recital that the doctor discussed alternatives with Mr. Solomon. Moreover, appended to the affidavit from a law clerk is an unsworn expert report obtained on behalf of Dr. Abughaduma. It is a very brief and conclusory report in which the proposed expert opines that Dr. Abughaduma provided appropriate informed consent. But there is not a single particularized fact recited in either the consent form or in the expert’s report from which this conclusion can be drawn.

[11] The plaintiff has also submitted a letter from his treating surgeon that names two other possible types of wrist surgery that the surgeon says were not discussed with Mr. Solomon. The letter is not an expert report; is not sworn; and it simply recited unsworn information received from Mr. Solomon in any event.

[12] None of the information on informed consent provided by any of the parties has been properly adduced in evidence before the court. Mr. Solomon did not deliver an affidavit as required by Rule 20.02(b) of the Rules of Civil Procedure. His “evidence” was told and shown to me during oral submissions. The defendants’ evidence comes through law clerks’ affidavits. They are perfectly adequate for the purpose of putting the litigation history before the court and stating that the plaintiff failed to deliver an expert’s report. But they are wholly inadequate to discuss the merits of informed consent or to put forward an expert opinion for the truth of its contents.

[13] Finally, the defendants argue that the plaintiff needs an expert report on the issue of informed consent. They submit that the question of which of the alternative surgeries (if any) was properly available and ought to have been discussed with Mr. Solomon (if they were not) is not a question for a lay trier of fact.

[14] I do not agree with counsel for Dr. Abughaduma that Mr. Solomon necessarily requires an expert report to prove lack of informed consent. In Tomeh v. Cheah, 2013 ONSC 6074 my colleague Matheson J. set out the current state of the law on proof informed consent as follows:

[78] A physician has a duty to obtain the informed consent of the patient before treatment is provided. The physician must disclose the nature of the proposed operation, its gravity, any material risks and any special or unusual risks attendant upon the performance of an operation: Hopp v. Lepp, 1980 14 (SCC), [1980] 2 S.C.R. 192 at p. 210.

[79] The Ontario Court of Appeal has summarized the principles that apply to the determination of which risks are material, in Videto et al. v. Kennedy (1981), 1981 1948 (ON CA), 33 O.R. (2d) 497 (C.A.) at pp. 502-503, as follows:

1. The question of whether a risk is material and whether there has been a breach of the duty of disclosure are not to be determined solely by the professional standards of the medical profession at the time. The professional standards are a factor to be considered.

2. The duty of disclosure also embraces what the surgeon knows or should know that the patient deems relevant to the patient’s decision whether or not to undergo the operation. If the patient asks specific questions about the operation, then the patient is entitled to be given reasonable answers to such questions. In addition to expert medial evidence, other evidence, including evidence from the patient or from members of the patient’s family is to be considered.

3. The patient may have expressed certain concerns to the doctor and the latter is obliged to meet them in a reasonable way. What the doctor knows or should know that the patient deems relevant to a decision whether to undergo prescribed treatment goes equally to his duty of disclosure as do the material risks recognized as a matter of required medical knowledge. A risk which is a mere possibility ordinarily does not have to be disclosed, but if its occurrence may result in serious consequences, such as paralysis or even death, then it should be treated as a material risk and should be disclosed.

4. The patient is entitled to be given an explanation as to the nature of the operation and its gravity.

5. Subject to the above requirements, the dangers inherent in any operation such as the dangers of anaesthetic, or the risks of infection, do not have to be disclosed.

6. The scope of the duty of disclosure and whether it has been breached must be decided in relation to the circumstances of each case.

7. The emotional condition of the patient and the patient’s apprehension and reluctance to undergo the operation may in certain cases justify the surgeon in withholding or generalizing information as to which he would otherwise be required to be more specific.

8. The question of whether a particular risk is a material risk is a matter for the trier of fact. It is also for the trier of fact to determine whether there has been a breach of the duty of disclosure.

[15] As discussed by the Court of Appeal in para. 1 of Videto above, expert evidence of prevailing standards is but a factor in the analysis. The essence of the analysis is fact-based and much turns on what the patient may have asked the doctor. If, for example, Mr. Solomon says that he told Dr. Abughaduma that he saw a particular operation on television and he wanted to know about that surgery, might the burden to adduce expert evidence not fall to the doctor to establish that the surgery that Mr. Solomon saw was not available to him or that putting a plate in Mr. Solomon’s wrist was the only available surgery to treat Mr. Solomon’s concerns? Perhaps all of these issues were discussed as between surgeon and patient and a decision was made on full disclosure. Mr. Solomon said in his submissions that he had no idea that he was to have a metal plate implanted in his wrist. Whether that assertion survives an evidentiary hearing remains to be seen.

[16] In Davids v. Davids, 1999 9289 (ON CA), at para. 17, the Court of Appeal discussed this issue as follows:

The fairness of this trial is not measured by comparing the appellant’s conduct of his own case with the conduct of that case by a competent lawyer. If that were the measure of fairness, trial judges could only require persons to proceed to trial without counsel in those rare cases where an unrepresented person could present his or her case as effectively as counsel. Fairness does not demand that the unrepresented litigant be able to present his case as effectively as a competent lawyer. Rather, it demands that he have a fair opportunity to present his case to the best of his ability. Nor does fairness dictate that the unrepresented litigant have a lawyer’s familiarity with procedures and forensic tactics. It does require that the trial judge treat the litigant fairly and attempt to accommodate unrepresented litigants’ unfamiliarity with the process so as to permit them to present their case. In doing so, the trial judge must, of course, respect the rights of the other party.

[17] I noted above that it would have taken a lawyer’s eye to recognize that the notices of motion sought relief dismissing the proceedings completely without mentioning one of the two elements of the cause of action pleaded in the statement of claim. I do not say this with any criticism. The motions were about the requirement for a plaintiff to deliver an expert report to prove medical malpractice. Informed consent, while technically pleaded, has not been at the forefront of this proceeding to this point. One would have to understand the differences between medical malpractice and informed consent as aspects of the tort of negligence and then understand the “best foot forward” doctrine to know that in response to a motion about expert reports, Mr. Solomon was required to put forward evidence about informed consent or risk losing.

[18] In all, I am not satisfied that the issue of informed consent was raised with sufficient clarity to give notice to Mr. Solomon, as a self-represented party, that the issue would be before the court on these motions. Therefore, while I am granting the relief sought to dismiss the action for malpractice, I adjourn the remainder of the motion seeking to dismiss the action for lack of informed consent. Even had I dismissed the remainder of the motion, under Hryniak v. Mauldin, 2014 SCC 7, I would have been required to seize myself and then design a process to bring the remaining issue forward. By adjourning, I am likely just saving the parties the cost of new notices of motion and I am deferring an inquiry concerning costs.

[19] If the defendants prefer to withdraw the remainder of their motions, they may contact Mr. Solomon and my Assistant to book a time for a telephone Case Conference in the next two weeks to set a process to argue costs. Otherwise, Mr. Solomon shall have until January 8, 2016 to serve on the defendants’ counsel and file with the court admissible evidence concerning his allegations concerning informed consent. The respondents may deliver responding evidence by January 29, 2016. Cross-examinations may be held by both sides on a single day on which all affiants are available in February, 2016. New written submissions, factums, may be exchanged and filed with the court before March 11, 2016. Counsel are to communicate with Mr. Solomon and my Assistant to book one hour before me before the end of March, 2016 to hear the remainder of this motion.

[20] The court expects the defendants’ counsel to positively assist Mr. Solomon with scheduling required to (1) schedule all hearings before the court, and (2) so that he gets to cross-examine any witnesses whom he wishes to cross-examine (under Rule 39.02 or 39.03) on the same day the defendants cross-examine him. Mr. Solomon’s right to cross-examine is to be positively facilitated whether the defendants, or either of them, choose to cross-examine Mr. Solomon or not.

[21] Commentary 1 under Rule 5.1-1 of the Rules of Professional Conduct of the Law Society of Upper Canada provides:

Role in Adversarial Proceedings – In adversarial proceedings, the lawyer has a duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client’s case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law. The lawyer must discharge this duty by fair and honourable means, without illegality and in a manner that is consistent with the lawyer’s duty to treat the tribunal with candour, fairness, courtesy and respect and in a way that promotes the parties’ right to a fair hearing in which justice can be done. Maintaining dignity, decorum and courtesy in the courtroom is not an empty formality because, unless order is maintained, rights cannot be protected. [Emphasis added]

[22] It is not just the duty of judges to ensure that all parties receive a fair hearing. Lawyers are required to do so as well. Counsel are not required to assist parties opposite on matters of substance. Nor do they need to make or even to ensure that the parties opposite understand the strategic choices that might be available to them. But, they are required to assist on scheduling and similar matters to ensure that the other side has an opportunity to present his or her evidence fairly. It is the fairness of the process that differentiates the justice system from a street fight or trial by battle. Lawyers are not just hired guns. They are professionals who advance our system of civil justice that is premised upon fairness, efficiency, affordability, and proportionality. To ensure a just outcome, all parties are entitled to a fair opportunity to present their cases in a fair hearing. It is the responsibility of all of the participants in the legal system, lawyers, judges, and court administration to strive to ensure a fair outcome. I have no doubt that the defendants’ counsel will fulfill their roles as advocates in accordance with the best traditions of the bar.

[23] I encourage Mr. Solomon to get legal help to submit evidence for the remainder of this motion. The Law Society Referral Service can be accessed at https://lsrs.lsuc.on.ca/lsrs/. Law Help Ontario provides free legal assistance at 393 University Ave Suite 110, Toronto, ON, M5G 1E6 (416) 628-3552. In addition, Downtown Legal Services at the Faculty of Law of the University of Toronto can be reached at law.dls@utoronto.ca or 416 934-4535. Osgoode Hall Law School at York University also provides free legal services through Community & Legal Aid Services Programme (CLASP) that can be reached at (416) 736-5029.

F.L. Myers J.

Date: December 8, 2015