Polera v. Wade, 2015 ONSC 821
COURT FILE NO.: CV-09-387199
DATE: 20150220
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Felicity (Felicia) Polera and Brian Pittana / Plaintiffs
AND:
Dr. Philip Wade, The Canadian Hearing Society, Kelly Duffin, Stephanie Ozorio and Jane and John Doe / Defendants
BEFORE: Justice Edward P. Belobaba
COUNSEL: Amani Oakley and Neil Oakley for the Plaintiffs / Moving Parties
Anne Spafford and Zohar Levy for the Defendant Philip Wade / Responding Party
Gary Srebrolow for the Defendant Canadian Hearing Society / Observing
HEARD: February 3, 2015
motion for Partial summary judgment
[1] This is a medical malpractice action commenced by Felicia Polera and her husband Brian Pittana. The action arises out of a three-year delay in the diagnosis and treatment of an acoustic neuroma, a type of brain tumour, whose unchecked growth and eventual removal left Ms. Polera with a range of serious and debilitating injuries.
Background
[2] Felicia Polera, who was 36 at the time, attended at the Canadian Hearing Society (“CHS”) in October, 2004 because she was experiencing some hearing loss in her right ear. She was tested and fitted with a hearing aid. As part of the testing procedure, the defendant Dr. Philip Wade, who is an ear, nose and throat specialist and had an office in the same building, ordered an MRI. Unfortunately, when the MRI results came back, Dr. Wade failed to detect the growing brain tumour.
[3] The plaintiff was content with her hearing aid until January, 2007 when she discovered that she had lost all hearing in her right ear. She saw Dr. Wade again in June, 2007 and he ordered another MRI. The second MRI was completed in September, 2007. This time the defendant spotted the growing tumour and arranged the necessary medical follow-up. The (now quite large) tumour was removed over two days of surgery in November, 2007 leaving the plaintiff with extensive and serious injuries.
[4] The defendant physician has admitted that he breached the requisite standard of care in failing to detect the growing tumour in the 2004 MRI and in failing to follow-up as required; and further that the breaches of the standard of care caused Ms. Polera to sustain significant injuries and damages.
[5] Ms. Polera brought a motion for partial summary judgment on the issue of liability, asking for a listing of the breaches of the standard of care (more than Dr. Wade would agree to) and the specific injuries that were sustained. Ms. Polera also argued under Rule 20.04(2) that there was no genuine issue requiring trial with respect to the contributory negligence defence and asked for a summary dismissal of the latter.
Breaches of the standard of care
[6] In a decision dated November 14, 2014 I dealt with the first part of the motion, the breaches of the standard of care, and I found that:
[D]r. Wade breached the standard of care expected of an Ear, Nose and Throat Surgeon by failing to identify the growing acoustic neuroma, a type of brain tumour (“the tumour”) in the 2004 MRI, advise Ms. Polera accordingly, and immediately follow up with the medical steps that were urgently required – the negligent delay and diagnosis causing Ms. Polera to sustain significant injuries, losses and disabilities.[^1]
[7] I also listed the standard of care breaches based on the uncontroverted evidence that was before me.^2
[8] The second part of the motion about the specific injuries sustained and the defence of contributory negligence was adjourned and is now before me for adjudication. I am satisfied that both matters, specific injuries and contributory negligence, can be summarily adjudicated. Given the quality of the evidence before me, I conclude that neither of these matters requires a trial. I will deal with each of the categories in turn.
Specific injuries
[9] In order to establish the existence of liability in a medical malpractice action, the plaintiff must show a breach of a standard of care and a resulting injury –more particularly “a causal connection between breach and injury.”[^3] The consequences or extent of the liability – that is, the actual loss sustained – is the focus of the damages phase of the trial.^4
[10] The plaintiff submits that the defendant physician’s breaches of care, which have already been established, caused a range of serious injuries, all of which have been identified by medical experts and can be summarily identified and established without the need for a trial. It goes without saying that if these injuries can be identified and listed summarily, then a time-consuming component of the damages trial would be eliminated. There would still be some medical testimony at the damages trial about the consequences of the injuries (i.e. the extent of liability) but the fact or existence of liability would already have been established.
[11] The plaintiff has filed three medical expert reports: from Dr. Michel Rathbone, a neurologist and neuro-oncologist; Dr. Mark Mandelcorn, an ophthalmologist; and Dr. Mark Bernstein, a neurosurgeon. All three are distinguished practitioners and medical school professors. The plaintiff’s experts were not cross-examined. The bulk of the evidence of Drs. Rathbone, Mandelcorn and Bernstein remains uncontroverted.
[12] The defendant filed only one expert report, that of Dr. David Rowed, also a distinguished neurosurgeon who is now retired. However, Dr. Rowed ventured only two insights: one, that Ms. Polera would have lost her hearing in the right ear, no matter when the surgery was performed; and two, that he could find no evidence of “cognitive deficits” and if they did exist, that they were caused by the three-year delay or resulting injuries. The plaintiff, however, has been clear from the outset that she was content to leave these two areas - right-side hearing loss and cognitive impairment – to trial.
[13] To repeat, apart from his opinion on these two points, Dr. Rowed did not take issue with any of the following: the injuries and impairments identified by Dr. Rathbone and Dr. Bernstein; Dr. Rathbone’s and Dr. Bernstein’s opinion that had the tumour been removed prior to the development of neurological symptoms, then most if not all of the injuries/impairments would not have developed; and Dr. Rathbone’s and Dr. Bernstein’s opinion that Ms. Polera’s injuries and impairments were causally related to the negligence of Dr. Wade.
[14] Turning more specifically to the uncontroverted evidence of the plaintiff’s three medical experts. Both Dr. Bernstein and Dr. Rathbone concluded that the removal of the brain tumour before the neurological symptoms manifested, would, more likely than not, have avoided most if not all of the injuries suffered by Ms. Polera as a result of the delayed removal of the tumour.
[15] Here is how Dr. Bernstein put it:
Removing the tumour when it was 2.5 cm in size and prior to the development of any neurological sequelae (other than the hearing loss), versus when it grew to 3.6 x 3.2 cm and Ms. Polera had begun to experience some symptoms including right-sided facial weakness, obvious left beating nystagmus and gait ataxia, would have more likely than not avoided all of the disabilities which she is now suffering.
From a surgical point of view, there is no question that removing the tumour before it causes such significant distortion of the brain and brain structures means that there is a much greater likelihood of minimizing any permanent disabilities or avoiding them altogether. This did not happen here. Had Ms. Polera’s tumour been removed when it was smaller with no compression/shifting of brain structures and brain stem, and hadn’t already resulted in observable neurological symptoms, it would be my expectation and my experience that she would likely have had very little in the way of permanent disability. My expectation would be that the disability would likely have been limited to partial hearing loss in the right ear.
It is my opinion that most if not all of these impairments and related treatments and surgeries would not have been necessary if the vestibular schwannoma had been appropriately removed shortly after it was diagnosed on MRI in 2004.
[16] And Dr. Rathbone:
Therefore, it is my expert opinion that it is more likely than not that had the acoustic neuroma been operated on in 2004, virtually all of Mrs. Pittana’s current problems (including complete right ear hearing loss, seventh nerve paralysis, eighth nerve paralysis, cerebellum dysfunction, pulmonary embolism, exposure keratitis and visual loss/scarring in the right eye) would have been avoided … The absence of significant neurological symptoms until just prior to the 2007 surgery (with the exception of one-sided partial hearing impairment) would have predicted an excellent outcome with earlier surgery, with little or any permanent impairments from either the enlarged tumour itself, or from the more difficult surgery needed to remove the larger tumour.
[17] Drs. Rathbone, Bernstein and Mandelcorn, in combination, also identified the specific injuries that were causally connected to the defendant’s negligence, and which would have been avoided but for that negligence. I have no difficulty finding on this uncontroverted evidence that the defendant breached the standard of care expected of an ear, nose and throat surgeon by causing or materially contributing to the following specific injuries suffered by Ms. Polera and identified by the medical experts:
▪ Right eye pain, irritation and corneal vascularization and damage and ocular scarring, resulting in significantly reduced vision;
▪ Anticipated complete loss of vision in right eye;
▪ Impaired right eye closure;
▪ Irreversible damage to the 5th (trigeminal) cranial nerve;
▪ No sensation in the right cornea;
▪ Elimination of the blink reflex in the right eye;
▪ Exposure keratitis of the right eye;
▪ Several surgeries and procedures required as a result of the eye injuries, including multiple temporary tarsophies, epithelial decompensation tarsophy, graft of hard palate to lower eyelid, multiple corneal injections with Avastin, temporary and permanent plugs to ducts collecting tears (punctum);
▪ Headaches;
▪ Loss/impairment of balance/permanent impairment of balance;
▪ Gait/walking disturbance;
▪ Ataxia (loss of coordination - neurological symptom reflecting dysfunction of the parts of the nervous system that coordinate muscle movements);
▪ Hypotonia (decreased muscle tone/muscle strength);
▪ Lack of tongue coordination;
▪ Mouth deviation, tongue asymmetry, tongue deviation to the right;
▪ Difficulty with writing;
▪ Weakness in the right side of the body;
▪ Numbness of the right side of the body;
▪ Dysdiadochokinesia (impaired ability to perform rapid, alternating movements) on the right;
▪ Increased fatigue;
▪ Significant cranial nerve palsy and damage of the 6th, 7th and 8th cranial nerves;
▪ Lower cranial nerve weakness;
▪ Bilateral dysmetria (inability to judge distance or scale);
▪ Multiple bilateral emboli;
▪ Dysphagia (problems swallowing);
▪ Problems with chewing including pain with mastication;
▪ Drooling;
▪ Difficulty with speech;
▪ Loss of tone of pharynx because of nerve damage;
▪ Weight gain likely due to steroids taken to address physical issues, and reduced physical activity due to post-surgical disabilities;
▪ Post-surgical infarctions of the right middle cerebellar peduncle;
▪ Right facial droop;
▪ Facial paralysis;
▪ Vestibular damage;
▪ Crossed syndrome;
▪ Complete right-sided hearing loss;
▪ Surgery for swallowing problems;
▪ Anastomosis surgery to try to repair the seventh nerve; and,
▪ Botox injections to the non-paralyzed side of the face, to try to even up muscle tone and improve muscle usage on the paralyzed side.
[18] Thus, the second part of the plaintiff’s motion for summary judgment on “liability” (i.e. listing the injuries sustained) is granted.
Contributory negligence
[19] It has been the defendant’s long-standing position that any order granting summary judgment on the issue of liability should be made without prejudice to the defendant’s right to argue contributory negligence at trial. The defendant submits that the plaintiff herself may have contributed to her injuries by missing a number of CHS appointments and cancelling an “emergency appointment” with Dr. Wade’s office that added six months to the overall delay in the tumour’s removal. And because the plaintiff’s position is that she was never told there was any “emergency” or urgency in seeing Dr. Wade, the defendant says there is a major credibility issue that requires a trial.
[20] The plaintiff submits that the allegation of contributory negligence can be adjudicated summarily. She says that the evidence on this point is clear and there are no credibility issues. She asks that an order be granted dismissing the defence of contributory negligence.
[21] I agree with the plaintiff. The law is clear that on the motion before me I can assume that no further or additional evidence will be led at trial, i.e. the defendant has put his best foot forward. Having reviewed the evidence, including the parties’ discoveries, I am confident that the necessary findings of fact can be made, even without using the court’s enhanced powers, and that there is no need for the issue of contributory negligence to go to trial. In my view, the issue of contributory negligent be decided summarily.
The applicable law
[22] The applicable law is not in dispute. Contributory negligence is “unreasonable conduct on the part of a victim which, along with the negligence of others, has in law contributed to the victim’s own injuries.”[^5]
[23] Medical patients have certain duties and responsibilities when seeking medical treatment, including: (a) a duty to provide information to the doctor; (b) to follow instructions; and (3) generally to act in their own best interests. In carrying out these duties, they are expected to meet a reasonable patient standard. If they do not, and the breach of this standard is the factual and proximate cause of their injuries, they may be found to be contributorily negligent.[^6] A reasonable patient standard is measured objectively, but the circumstances faced by the patient are also taken into account when determining how a reasonable patient would react in the circumstances.[^7]
[24] For the reasons set out below, I am satisfied on the evidence before me that Ms. Polera behaved reasonably and did nothing to contribute to her injuries. The serious injuries sustained herein all flowed from the breaches of the standard of care on the part of the defendant physician and the resulting delay in the diagnosis and removal of the brain tumour.
[25] The defendant points to some missed CHS appointments and the cancellation of a supposed “emergency appointment” with Dr. Wade. However, there was nothing unreasonable in missing a hearing aid follow-up appointment when there was nothing to suggest there was any harm in doing so. Indeed, it was only in September, 2007 – three years after she first went to CHS for hearing tests and a hearing aid – that Ms. Polera first learned of the tumour. Until then, the plaintiff reasonably believed that her only problem was a hearing loss in her right ear and I find that she behaved as any reasonable hearing patient would in the circumstances. As for the “emergency appointment”, this was information that the CHS audiologist provided to the defendant, not to the plaintiff. On the evidence before me, I find that the plaintiff did not miss or cancel any “emergency” appointments. In short, there is no basis for the allegation of contributory negligence on the part of the plaintiff.
[26] Let me explain my findings by referring specifically to the evidence.
The missed CHS appointments
[27] Ms. Polera first attended at CHS on October 12, 2004 because she noticed a hearing loss in her right ear while using a new cell phone. She was referred to Dr. Wade, who had an office in the building. He examined her the same day. Dr. Wade did not detect any other abnormalities other than the right-sided hearing loss which was reflected in the CHS audiogram. Nonetheless, he ordered CHS to do an ABR test.[^8]
[28] The test was conducted on October 25, 2004. Dr. Wade saw the plaintiff again and ordered an MRI which was scheduled for November 15, 2004. There is no evidence that Ms. Polera was told why an MRI was ordered or if this was anything other than routine testing for a hearing loss. Ms. Polera returned to CHS on November 1, 2004 for a hearing aid evaluation and again on November 15 for a hearing aid fitting.
[29] The MRI, performed on November 15, revealed the presence of an acoustic neuroma, a type of brain tumour. The results were faxed to Dr. Wade the next day. Dr. Wade failed to detect the brain tumour.
[30] The plaintiff had two more appointments at CHS in December, 2004 for the fitting, testing and trial of the hearing aid. She then had no further concerns or complaints about her hearing for about two years. In January, 2007, however, the plaintiff noticed that she was unable to hear out of her right ear, and she thought the hearing aid was malfunctioning. She returned to CHS on January 30, 2007. The audiologist, Tommy Choo, made this note:
Routine Check. Feeling more difficulty hearing. Wants to check to see if hearing has changed and check to see if HA [hearing aid] still functioning well.
[31] I will shortly discuss what transpired thereafter. But up to at least January 30, 2007 it cannot be said on any objective review of the evidence that the plaintiff behaved in any way that furthered or aggravated or contributed to injuries. In early 2007, she still knew nothing about the brain tumour. She thought that her only problem was hearing loss in her right ear. Thus, if she missed any hearing aid “follow up” appointments from December, 2004 when she was fitted with the hearing aid until January 30, 2007 when she advised CHS that he had no hearing in her right ear, she was not negligent in doing so. The injuries at issue were obviously not caused by a hearing aid about which she had no complaints but by an undetected and growing brain tumour about which she knew nothing.
[32] Therefore I conclude that the allegation that the missed CHS appointments in 2005 or 2006 contributed to the plaintiff’s injuries has no basis in fact.
The cancelled “emergency appointment”
[33] When the plaintiff attended at CHS on January 30, 2007, the audiologist tested Ms. Polera’s hearing and found complete hearing loss on the right side. Much of the defence’s arguments about contributory negligence rely on the (bald) allegation that Ms. Polera may have been advised by the audiologist on January 30, 2007 that she should see Dr. Wade urgently, and she did not do so. However, the defendant has not put forward any evidence to support this allegation – even though the defence has had many months to do so.
[34] Instead the defendant points to a note that was made by the audiologist that day: “Audiology – will ask ENT for emergency appt.”[^9] The defendant says this note shows that the plaintiff was specifically told to arrange an emergency appointment with Dr. Wade. In my view, this injects content that is simply not there. The most one can conclude from this note is that audiology will ask Dr. Wade’s office for the emergency appointment. Nothing more can be inferred – and certainly nothing to suggest to the plaintiff that the matter was urgent and that she should herself arrange an emergency appointment to see Dr. Wade.
[35] The two additional ‘sticky notes’ that were found in the plaintiff’s patient file (that was faxed by Dr. Wade to another doctor after the September, 2007 MRI) supports this plain and common sense reading of the audiologist’s note.
[36] The first sticky note, written by the audiologist, said this: “Possibly a sudden decrease in right hearing during past month. Emergency consult with Dr. Wade? Previous Dr. Wade client. Tommy.” It appears that the audiologist (Tommy Choo) is doing exactly what he said he would do in the earlier note, i.e. contacting Dr. Wade’s office directly to arrange an emergency appointment.
[37] The second sticky note, written by a staff member in Dr. Wade’s office said this: “Call this pt. for a consultation asap. LM. Jan. 31.” It appears that the audiologist’s message had been received and Dr. Wade’s office would call Ms. Polera to arrange a consultation “asap.” Dr. Wade confirmed on discovery that sticky notes were used by his secretary as a reminder to call a particular patient.
[38] We know that Ms. Polera was called by Dr. Wade’s office but there is no evidence, that when contacted she was told there was any urgency in scheduling an appointment with Dr. Wade. As it turned out, and in large part because she was dealing with other health issues (heavy menstrual bleeding) that culminated in surgery (a myomectomy) in May, 2007, the plaintiff did not see Dr. Wade until June 28, 2007.
[39] If the plaintiff had been told in January, 2007 that it was urgent that she arrange an appointment with Dr. Wade and she then waited six months to do so, it could well be argued that the plaintiff’s inaction was unreasonable and the resulting six-month delay contributed to the nature and extent of her injuries. But there is no such evidence in the material before me. What we do know is that Ms. Polera cancelled three scheduled appointments between February and May, 2007 and did not see Dr. Wade until June, 2007. But I cannot conclude in the circumstances that she acted unreasonably in doing so. After all, she knew nothing about the acoustic neuroma; she was not told that there was any urgency in seeing Dr. Wade; and she had to deal with other pressing health issues that ultimately required surgery in May, 2007.
[40] I am therefore satisfied on the evidence before me that there is no basis for the allegation that the plaintiff acted unreasonably in either missing some CHS follow-up appointments in 2005 or 2006, or in cancelling three appointments with Dr. Wade in early 2007 and not seeing him until June of that year. I find no evidence of contributory negligence. And I do so without having to use the enhanced summary judgment powers or make findings of credibility.
[41] The motion for partial summary judgment dismissing the defence of contributory negligence is granted.
Disposition
[42] The plaintiff’s motion for partial summary judgment is granted. Order to go listing the specific injuries sustained as set out above in paragraph 17 and dismissing the defence of contributory negligence.
[43] The plaintiff should forward her costs outline within 10 days and the defendant physician within 10 days thereafter.
[44] A word about the damages trial. I have now heard two motions for partial summary judgment. I am familiar with the material filed to date and with the issues that remain to be adjudicated. I also note that than ten years have passed since the defendant’s negligence and his failure to detect the tumour in the 2004 MRI. Some time ago I suggested to counsel that it would make sense for me to remain seized of this matter and conduct the trial in a more timely fashion than would otherwise be the case. If counsel can agree on a trial date later this year that also fits within my schedule, I would be prepared to see this action through to completion. Counsel should discuss and advise.
Belobaba J.
DATE: February 20, 2015
[^1]: Polera v. Wade (Endorsement dated November 14, 2014, unreported.)
[^3]: Cooper-Stephenson, Personal Injury Damages in Canada, (2nd edition) at 750 – 51.
[^5]: Taylor v Morrison, [2006] O.J. No. 2978, at para. 147.
[^6]: Picard, E. Legal Liability for Doctors and Hospitals in Canada, Thomson Carswell 4th ed. pp. 368-373
[^7]: Labreche Estate v Harasymiw, 1992 8629 (ON SC), [1992] O.J. 321 at 14.
[^8]: An Auditory Brainstem Evoked Response test.
[^9]: Both sides agree that ENT means “ear, nose and throat specialist” and refers to Dr. Wade.