CITATION: Comrie v. Eckhaus, 2016 ONSC 1499
OSHAWA COURT FILE NO.: 88729/14SR
DATE: 20160301
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Kelly Ann Comrie,
Plaintiff (Respondent)
– and –
Dr. Allan A. Eckhaus, Eckhaus Medicine Professional Corporation,
Defendants (Moving Parties)
AND BETWEEN:
Shelly Jardine, and Rouge Health System (Ajax and Pickering Hospital),
Defendants (Not Appearing)
Sara J. Erskine and Garrett Schromm
Counsel for the Plaintiff (Respondent)
Junior Sirivar and Alexandre Blanchard,
Counsel for the Defendants (Moving Party)
HEARD: January 11, 2016
Madam Justice S.J. Woodley
REASONS FOR DECISION
Overview
[1] The Plaintiff, Kelly Ann Comrie, is a registered nurse who over a period of three years lost 155 pounds. Following her massive weight loss, Ms. Comrie retained the services of Dr. Allan A. Eckhaus to complete an elective operation known as a lower body lift and abdominal contouring. Due to medical concerns, Ms. Comrie opted to stay awake during the six-hour operation.
[2] The operation was completed at Ajax General Hospital where Dr. Eckhaus has operating privileges. At hour 5:15 of the operation, Nurse Shelly Jardine, the relief scrub nurse, entered the operating room and asked Dr. Eckhaus whether the patient “Had lost much weight from her breasts” (“the question”). Dr. Eckhaus replied “Ask the patient, she is awake”. Ms. Comrie claims she then responded from the operating table “That is a question men usually ask me”. Dr. Eckhaus and Nurse Jardine have no recollection of hearing this response from Ms. Comrie. No further discussion ensued during the operation.
[3] Ms. Comrie has commenced a claim relating to the question based on negligence, breach of fiduciary duty, and breach of contract against Nurse Jardine, the Hospital, Dr. Eckhaus, and Eckhaus Medicine Professional Corporation.
[4] Dr. Eckhaus and Eckhaus Medicine Professional Corporation bring this motion pursuant to Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, dismissing this action against them on the basis that there is no genuine issue requiring a trial.
Issues
[5] The issues to be determined are as follows:
a) Is the matter an appropriate case for determination by motion for partial summary judgment? If the answer is yes, is the court entitled to make findings adverse to those sought by the Defendants with the result that partial summary judgment will be granted in favour of the Plaintiff?
b) Is a trial required with respect to Dr. Eckhaus and Eckhaus Medicine Professional Corporation’s alleged liability for Nurse Jardine’s question?
Determination of Issues
[6] For the reasons below I find as follows:
a) The matter is an appropriate case for determination by motion for summary judgment. The court is entitled to make findings adverse to those sought by the Defendants with the result that partial summary judgment may be granted in favour of the Plaintiff.
b) A trial is not required to determine whether Dr. Eckhaus and Eckhaus Medicine Professional Corporation are liable for Nurse Jardine’s question. The action is dismissed as against Dr. Eckhaus and Eckhaus Medicine Professional Corporation.
Background Facts
[7] Ms. Comrie is a registered nurse who between 2009 and June 2012 lost approximately 155 pounds through diet and exercise.
[8] As a result of the weight loss, Ms. Comrie had excess skin and fat tissue on certain areas of her body which impeded her ability to exercise and work, caused hygiene issues, and made her feel self-conscious.
Pre-Operative Consultations April 24, 2012 and May 22, 2012
[9] On April 24, 2012, Ms. Comrie met with Dr. Eckhaus for a plastic surgery consultation for a procedure described as a “surgical lower body lift with abdominal contouring”.
[10] On May 22, 2012, Ms. Comrie attended a second consultation with Dr. Eckhaus. At this consultation Ms. Comrie requested that she remain awake for the surgery due to certain medical concerns. Dr. Eckhaus agreed that Ms. Comrie could remain awake during the surgery.
[11] Also on this date Ms. Comrie expressed privacy and modesty concerns and requested to wear a brassiere during the surgery. Dr. Eckhaus advised that although a brassiere could not be worn during surgery, Ms. Comrie would be draped. Ms. Comrie further enquired as to the identity of the persons that would be in the room during the surgery and who would be performing specific parts of the surgery.
[12] At the conclusion of the second consultation, Ms. Comrie confirmed that she would like Dr. Eckhaus to proceed with the surgery. The surgery was elective and the cost for the surgery, which totaled $11,500, was not covered by the Ontario Health Insurance Plan (OHIP). Ms. Comrie paid Dr. Eckhaus on May 22, 2015 for the total cost of the surgery and was issued a receipt for the payment by Dr. Eckhaus, Eckhaus Medicine Professional Corporation.
Pre-Anesthetic Consultation
[13] Ms. Comrie attended a pre-anesthetic consultation at the hospital with Dr. Patel, the anesthesiologist for the surgery. The consultation report confirmed that the patient was “very knowledgeable” and “wishes regional only, early ambulation”. Additionally, two possibilities were discussed which would allow Ms. Comrie to remain awake during the surgery. Following the notes regarding the possibilities the consultation report states the patient “understands and agrees”.
The Surgery on June 25, 2012
[14] The surgery was scheduled for June 25, 2012 at the Ajax Hospital for six hours. The surgery started at 10:00 a.m. As discussed with the anesthesiologist Ms. Comrie was given an epidural and was conscious throughout the procedure. Ms. Comrie swore that she was able to hear the conversation in the operating room and respond to questions.
[15] Ms. Comrie claims that she specifically requested that she not be given narcotics or sedatives but was given Versed (a conscious sedative) without her knowledge or permission.
[16] As part of her motion materials, Ms. Comrie filed the Operating Room (OR) Anesthetic Record obtained from her chart. Amongst other matters, the OR Anesthetic Record provides the following information:
i) Ms. Comrie had a warming blanket upper and lower; and
ii) Ms. Comrie was prepped and draped.
[17] Ms. Comrie claims that throughout the first phase of the procedure and part of the second phase, she was able to converse with the doctors and nurses. Ms. Comrie claims that she was groggy at the beginning of the procedure because of the medication (Versed).
[18] Ms. Comrie claims that the grogginess wore off as the procedure progressed, however no explanation was provided why Ms. Comrie was able to converse for only “part of the second phase”.
[19] Dr. Eckhaus` evidence is that he had spoken to the patient a number of times throughout the surgery and she had responded well; she seemed aware, alert, and coherent.
[20] Ms. Comrie relies upon Dr. Eckhaus’ evidence in this regard in furtherance of her claims.
[21] During the second phase of the operation, approximately 45 minutes before the procedure ended, Dr. Eckhaus leaned over the drape and asked if Ms. Comrie was “Ok”. Ms. Comrie answered “Yes”. Dr. Eckhaus then advised that there was only 45 minutes left.
[22] Nurse Jardine entered the operating room shortly following the exchange between Ms. Comrie and Dr. Eckhaus.
[23] Nurse Jardine`s evidence was that the only information that she received before entering the operating room was provided by the list posted on the wall that detailed the patients and procedures for that day. Nurse Jardine recalls that the list stated that the procedure was a “body lift”.
[24] Ms. Comrie provided a copy of the operating room list posted on June 25, 2012, with her motion materials. The operating room list provided the following information: time (09:30 a.m.), surgeon/assistant (Eckhaus, A., Hampole, M.), anesthesiologist (Patel, K.), patient (Comrie, Kelly), age, sex, (49, F), type of anesthetic (GEN) and procedure (Body Lift Post Weight Loss).
[25] Nurse Jardine entered the operating room at approximately 3:15 p.m. Dr. Eckhaus was performing the operation at the time of Nurse Jardine`s entry and according to his evidence was concentrating on the operation.
Doctor Eckhaus’ Evidence Regarding Nurse Jardine’s Question
[26] Dr. Eckhaus from his independent recollection recalls Nurse Jardine asking him if Ms. Comrie “had lost much weight from her breasts”.
[27] Dr. Eckhaus does not recall speaking to Nurse Jardine before she asked the question as he was involved with performing the surgery.
[28] Dr. Eckhaus deposed that the question posed by Nurse Jardine “was a clinically relevant question based on interest in patients who have lost massive weight, which many of the nurses are.” Dr. Eckhaus further stated that he was unsure whether Nurse Jardine’s question was directed towards an additional procedure on the patient’s breasts because that does occur in abdominal surgeries, or whether the question was relevant to the context of massive weight loss.
[29] Dr. Eckhaus further deposed that he believed the question was a clinically directed question of general interest. Dr. Eckhaus is of the opinion that when nurses hear of someone who has been so successful in their weight loss, which is acknowledged can be very difficult for many people, the nurses are very impressed and have clinically related questions of interest.
[30] When questioned whether it struck Dr. Eckhaus odd that Nurse Jardine asked about the breast area specifically, he answered as follows: “To be truthful, it did not, even for a second, strike me as out of context or odd or inappropriate”.
[31] By his affidavit filed on this motion, Dr. Eckhaus swears that he interpreted Nurse Jardine’s question to be for one of two reasons: either related to the surgical case or to learn more generally about this type of surgery in patients who have lost large amounts of weight. Because of Ms. Comrie’s conscious state, Dr. Eckhaus thought it would be an unique learning opportunity for Nurse Jardine to directly interact with the patient. Moreover, Dr. Eckhaus indicated that there are times he performs breast contouring surgery at the same time as abdominal surgery. If work was to be done on the breasts, which would be Dr. Eckhaus’ next field of surgery, Nurse Jardine would have to prepare the scrub table and instruments for that part of the surgery.
[32] Dr. Eckhaus further swears that he “did not, in any way, consider this to be an inappropriate comment.” Nurse Jardine “asked this question, in the context of the circulating nurse telling her that the patient had lost half of her body weight. In Dr. Eckhaus’ view, “it was reasonable for Ms. Jardine to enquire as to where the weight had been lost and the relative amount of weight loss compared to the other parts of the body”.
[33] In response to Nurse Jardine`s question Dr. Eckhaus replied “Ask the patient, she is awake”.
Ms. Comrie’s Evidence Regarding Nurse Jardine’s Question
[34] Ms. Comrie’s evidence is that Dr. Eckhaus’ reply to Nurse Jardine’s question passed the onus of responding to Nurse Jardine’s question to her, which multiplied the impact of the offensive question and forced her into the awkward position of replying.
[35] Ms. Comrie’s evidence is that she was “shocked and embarrassed by the comment and unsure of how to respond”. Ms. Comrie claims that she “wanted to object to the comment” and tell Nurse Jardine how “inappropriate, unprofessional and derogatory the question was”. However, Ms. Comrie claims that “given the circumstances” she “could not say these things and instead said, ‘That is a question men usually ask me’”.
[36] Ms. Comrie’s evidence is that she made her reply statement loudly enough that she knows that Dr. Eckhaus, Nurse Jardine, and the rest of the operating room heard her. Ms. Comrie’s evidence is that the operating room dropped silent immediately after she responded and except for one instance when Dr. Hampole requested a chair, no one spoke for the remainder of the procedure.
[37] Dr. Eckhaus has no independent recollection of any reply by Ms. Comrie.
Nurse Jardine’s Evidence Regarding Her Question
[38] Nurse Jardine does not recall asking the question, does not recall Dr. Eckhaus` response, and does not recall whether Ms. Comrie responded.
[39] Nurse Jardine advised that after Dr. Eckhaus said that the patient was awake, she was “a little bit shocked” and wasnt sure if the patient had sedation, or not. Nurse Jardine further stated that she didnt ask any further questions as at that specific time she “was just shocked that the patient would be awake for a procedure like that”.
[40] The surgery concluded on June 25, 2012, after approximately six hours and Ms. Comrie was admitted to the Hospital overnight and discharged the following day.
Post-Operative Visits on June 26, 2012 and July 3, 2012
[41] Ms. Comrie was seen by Dr. Eckhaus on June 26, 2012 before discharge and for follow-up on July 3, 2012 at the one week post-operative mark. Ms. Comrie did not express any concerns about Nurse Jardine`s question on either occasion, however, she did express satisfaction with the results of the surgery.
Post-Operative Visit on July 10, 2012
[42] On July 10, 2012, Ms. Comrie re-attended for a further post-operative appointment at Dr. Eckhaus office. It was at this appointment that Ms. Comrie first raised her concerns with Dr. Eckhaus about Nurse Jardines question, Dr. Eckhaus` response, and the impact that the question and the response had on her emotionally.
[43] Dr. Eckhaus advised Ms. Comrie that he did not see anything wrong with Nurse Jardine`s question and had not viewed the question as being “inappropriate or derogatory”.
[44] Ms. Comrie advised that she felt the question was “an abusive, derogatory, harassing comment”. Dr. Eckhaus disagreed.
Email to Hospital Administrator on July 12, 2012
[45] Ms. Comrie advises that she felt that her complaint was not heard by Dr. Eckhaus and that he was dismissive. Consequently on July 12, 2012, she sent an email to Lisa McVety, an administrator at the Hospital, to detail her concerns and complaint.
[46] Eckhaus Plastic Surgery was copied on the email (initially copied to the wrong address which was corrected to Eckhaus Plastic Surgery`s administration email address).
[47] While there is some dispute as to when or whether Dr. Eckhaus personally received a copy of the email, I find that nothing turns on this point. The July 12, 2012 email addressed to Ms. McVety, hospital administration, is a complaint against Nurse Jardine.
[48] The details of the complaint contained in the July 12, 2012 email are as follows: “as a fellow colleague I am dismayed, not only at the callous comment made during my surgery and but the lack of professionalism the nurse showed towards me. Best nursing practice tells me she was there to assist and to be an advocate for me (awake or asleep) amongst other responsibilities”.
[49] Although the email continues to detail concerns regarding Nurse Jardine it contains no complaint against Dr. Eckhaus nor does the email request a response or reply from Dr. Eckhaus.
[50] Quite simply, upon reviewing the email as a whole there does not appear to be any reason for Dr. Eckhaus to respond to the email. Further, there does not appear to have been any reason to copy Dr. Eckhaus (by his professional corporation) on the email, except to inform Dr. Eckhaus that a formal complaint against the nurse had been made by Ms. Comrie to the proper authority (the hospital administration).
Post-Operative Visit on August 28, 2012
[51] Ms. Comrie’s evidence is that she heard nothing further from Dr. Eckhaus until August 28, 2012, at a follow-up appointment.
[52] Ms. Comrie states that Dr. Eckhaus mentioned that she seemed upset and distant. Ms. Comrie states that she discussed her concern about Ms. Jardine`s behaviour and “the way Dr. Eckhaus handled the situation”.
[53] Ms. Comrie states that Dr. Eckhaus was wholly dismissive of her concerns and that the meeting between them was confrontational.
[54] Ms. Comrie queried whether Dr. Eckhaus had received a copy of her July 12, 2012 email and he denied receiving a copy. Ms. Comrie advised that at one point in the meeting Dr. Eckhaus offered to set up a meeting with Nurse Jardine, however, Ms. Comrie declined. Ms. Comrie further states that it was at this point she understood that Dr. Eckhaus was not advocating for her either in the operating room or in his office.
[55] Ms. Comrie advised Dr. Eckhaus that she would find another surgeon to look after her problems. Ms. Comrie requested her chart and Dr. Eckhaus indicated that he would forward it at a later date. Dr. Eckhaus enquired whether Ms. Comrie wanted follow up blood work done in his lab and Ms. Comrie said no. According to Ms. Comrie as she left the office Dr. Eckhaus said, “Take care Kelly”.
[56] Dr. Eckhaus’ evidence regarding the August 28, 2012 visit is that Ms. Comrie raised the issue again. By his notes of the meeting he indicates that Ms. Comrie stated that she had sent an email to the Hospital Administrator on July 12, 2012, but he had not received it. Dr. Eckhaus asked that the email be resent to him. Ms. Comrie refused. Dr. Eckhaus reiterated his opinion that he “did not view the comment as having been inappropriate or derogatory”.
[57] Dr. Eckhaus felt that it might be beneficial to Ms. Comrie to meet with Nurse Jardine and offered to organize a meeting to discuss the issue. Ms. Comrie turned down the invitation.
[58] Dr. Eckhaus offered to continue to follow Ms. Comrie’s care, but she indicated that she would find someone else and requested a copy of her chart. Dr. Eckhaus stated that he arranged for her medical records to be copied and provided to her.
[59] Dr. Eckhaus had no further involvement or contact with Ms. Comrie.
[60] There has been no further contact between Ms. Comrie and Dr. Eckhaus outside of this litigation.
Standard of Care Applicable to Dr. Eckhaus
[61] As part of the motion materials filed, Ms. Comrie provided an expert report prepared by Dr. Kimberley E. Meathrel which determines that the standard of care applicable to Dr. Eckhaus and opines whether he met the standard of care in his conduct before, during, and after the operation explicitly stating any factual assumptions made during the assessment.
[62] The expert report advises as follows:
i) From the documentation, Dr. Eckhaus has performed and documented all elements of a standard preoperative consult as would be completed by a reasonable plastic surgeon.
ii) Surgeons are independent contractors to hospitals and not hospital employees. Surgeons, unless in a senior administrative position, would have no input into the hiring/firing/disciplining of nursing staff or into the day-to-day nursing staffing or management. It is my understanding that Dr. Eckhaus does not have an administrative role in the management of the Rouge Valley operating rooms. Nurses are unionized and subject to strict rules regarding scheduling, disciplining, promotions, and demotions.
iii) On the day of the surgery, Dr. Eckhaus would have no control/input or authority otherwise to determine which nursing staff was assigned to the same operating room as him. Nursing assignments would generally be completed by the OR nursing manager and not a physician.
iv) Upon reviewing Dr. Eckhaus` operative note, the operation appears to have met the standard of care from a surgical technique standpoint.
v) It is a physicians duty to maintain the dignity and comfort of the patient and to place the patients needs first. In the event that a physician feels his or her patient feels demeaned, insulted, or that they have been spoken to in a derogatory way, it would be a standard expectation of the physician to advocate on behalf of their patient; including apologizing for and explaining any misunderstandings and facilitating communications between any other members of the health care team that may have been involved in the event.
vi) Dr. Eckhaus does not employ or supervise the hospital nursing staff and does not have the authority to discipline/admonish or otherwise reprimand hospital employed nurses directly. However, if he felt a nurse had made a medical error, a judgment error, or otherwise caused undue hardship or stress to his patient through verbal or physical actions, he would have the ethical responsibility to advocate on behalf of his patient to help resolve the situation and make his patient feel safe and secure. If he felt the comment was inappropriate, he would be expected to explain the context of the comment to Ms. Comrie or ask Ms. Jardine to explain herself to the patient. If he had heard Ms. Comries response and knew that she was feeling insulted, then he would be expected to take steps to resolve this situation in the OR by asking Ms. Jardine to apologize and/explain herself or apologize to Ms. Comrie on behalf of Ms. Jardine, without taking responsibility for Ms. Jardines statements, but taking responsibility for ensuring Ms. Comries comfort and dignity. Furthermore, if he felt the situation had not been resolved to the patients satisfaction at the time, he would have the ability to report his concerns to the nursing manager and ask for her to intervene with Ms. Jardine.
vii) If independent witness testimony collaborates Ms. Comries version of events that the comment was derogatory and her response was loud, clear, and on the balance of probabilities heard by Dr. Eckhaus, then it would be determined that he fell below the standard of care by not advocating for his patients comfort by asking Ms. Jardine to apologize or explain her remarks.
viii) Postoperative Care: From the evidence it appears that Dr. Eckhaus attempted to engage Ms. Jardine in conflict resolution.
ix) The standard of care in this situation would be to listen to the patients concerns, attempt to explain the position of the surgeon without invalidating the patients concerns, attempt to facilitate conflict resolution, and offer to continue care or transfer care according to the patient`s wishes.
Conclusions
x) With respect to preoperative assessment and care, he met the standard of care.
xi) With respect to the technical completion of the operation, he met the standard of care.
xii) With respect to his intraoperative management of the comment, there is conflicting evidence as to whether or not he met the standard or care.
xiii) With respect to his postoperative care, he met the medical standard of care for his hospital admission and postoperative assessments of Ms. Comrie`s healing and surgical healing.
xiv) There is conflicting evidence as to whether or not he met the standard of care in terms of advocating for his patient and conflict resolution.
[63] The issue on this motion is whether a trial is required with respect to Dr. Eckhaus and his professional corporations alleged liability for Nurse Jardines question.
Analysis
The Test for Summary Judgment
[64] Rule 20 outlines when a court may grant summary judgment. In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court stated that Rule 20 was amended to improve access to justice. The reforms changed the test for summary judgment from whether a case presents “a genuine issue for trial” to whether there is a “genuine issue requiring a trial” (at para. 43).
[65] The new powers in Rule 20 allow motion judges to weigh evidence, evaluate credibility, draw reasonable inference, and call oral evidence. These new powers expand the number of cases in which there will be no genuine issue requiring a trial; thus, demonstrating that a trial is not the default procedure and eliminating the presumption of substantial indemnity costs against a party that brought an unsuccessful motion for summary judgment.
[66] Karakatsanis J., writing for the court, laid out the test to apply when determining whether a summary judgment motion may be granted, at para 66:
On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
[67] In determining whether there is a genuine issue requiring a trial the Court of Appeal for Ontario suggested that “summary judgment would most often be appropriate when cases were document driven, with few witnesses and limited contentious factual issues, or when the record could be supplemented by oral evidence on discrete points” (at para. 48).
[68] The SCC affirmed that the Court of Appeal’s suggestions are helpful observations, but should not be taken as delineating firm categories of cases where summary judgment should and should not apply; summary judgment may be appropriate in a complex case, with a voluminous record, that has no genuine issue requiring a trial. At para. 49, the SCC further explained that a case where there is no genuine issue requiring a trial will be a case when the process: “(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 a proportionate, more expeditious and less expensive means to achieve a just result.”
[69] When summary judgment allows the judge to find the necessary facts and resolve the dispute, proceeding to trial is generally not proportionate, timely or cost effective. Alternatively, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute.
[70] I accept the Defendants` submission that the focus should not be on what kind of evidence could be adduced at trial, but rather on whether a trial is required. The evidence simply must be such that I am confident that I can fairly resolve the dispute fairly and justly.
[71] In the present case I find that there is no practical difference between the parties’ submissions regarding this issue. Both properly rely upon the test as set out by the SCC in Hryniak v. Mauldin.
[72] I accept the Plaintiff’s submission that it is open to the court to make a finding adverse to the moving party and grant summary judgment in favour of the Plaintiff. No other logical conclusion can be reached. If I am able to determine the issues in favour of the Defendants on the facts before me then I have an equal ability to determine the issues adversely as against the Defendants.
[73] The onus is on the moving party to establish a prima facie case that there is no genuine issue requiring a trial. The onus then shifts to the responding party to show that there is a genuine issue requiring a trial. The responding party must put their best foot forward and cannot simply advise that further or better evidence may be available at trial.
[74] In the circumstances of this case I find that the evidence submitted is sufficient to (1) allow me to make the necessary findings of fact; and (2) allow me to apply the law to the facts. In the present case based on the facts before me I find that summary judgment is a proportionate, more expeditious, and less expensive means to achieve a just result.
Negligence
[75] In order to establish liability, the Plaintiff is required to establish that a duty of care exists and that the Defendants fell below the applicable standard of professional care. The Plaintiff is required to provide expert evidence to determine the appropriate standard of care of the medical professional in the circumstances.
[76] Once the standard of care is established, the court makes findings of fact to determine whether the standard was met. If the standard of care is met, there is no need to explore the matter further. However, if the standard of care is breached, factual and legal causation must be considered to determine liability in negligence.
Breach of Fiduciary Duty and/or Unjust Enrichment
[77] In addition to negligence, the Plaintiff advances claims of breach of fiduciary duty and breach of contract and/or unjust enrichment.
[78] With respect to the claim of breach of fiduciary duty, while I agree that the relationship between a surgeon and a patient is fiduciary in nature, I do not agree that a separate claim lies for breach of fiduciary duty against the Defendants. Based on the specific facts of this case, the applicable standard of care is the standard of professional care, as established by the expert. There are no separate considerations to be applied to breach of fiduciary duty and no separate cause of action exists against the Defendants, Dr. Eckhaus and Eckhaus Medicine Professional Corporation, for breach of fiduciary duty.
[79] With respect to the Plaintiff’s claim for breach of contract, the Plaintiff claims that the doctor-patient relationship is based on a contract for medical services, and a breach of professional duty can arise in contract, as well as in tort. The Plaintiff further claims that by failing to meet the professional and fiduciary obligations placed upon the doctor, the Defendants have breached an express or implied term of their contact.
[80] The applicable standard of care is the standard of professional care, as established by the expert. In the present case there was no contract produced or proven between the parties and even in the most general “contract” terms there are no separate considerations to be applied to the claim of breach of contract and/or unjust enrichment. In the circumstances of this case no separate cause of action exists for breach of contract and/or unjust enrichment.
Standard of Care
[81] As noted above, the Plaintiff bears the burden of tendering expert evidence from a properly qualified physician to establish the applicable standard of care.
[82] A physician, even a specialist, gives no guarantee of success. The physician is liable for malpractice if he fails to conduct himself like a reasonable prudent doctor. This is an objective standard which takes into account the extra knowledge possessed by the doctor. A specialist must engage in an honest an intelligent exercise of judgment and if a substantial opinion in his profession confirms his judgment, even if it is wrong, it is an error in judgment and not unskillfulness or negligence: Hajgato v. London Health Association, 1983 CanLII 1687, 36 O.R. (2d) 669, at p. 683.
[83] In assessing the performance of a physician, courts are required to base their conclusions upon the expert evidence before them, and not to speculate as to the adequacy of professional standards where no expert evidence attacks those standards. As was stated by Gould J., of the British Columbia Supreme Court, in McLean v. Weir, 1977 CanLII 2239 (BC SC), [1977] 5 W.W.R. 609, at p. 620, aff’d 1980 CanLII 391 (BC CA):
It is true that the court may accept in whole or in part or reject in whole or in part the evidence of any witness on the respective grounds of credibility or plausibility, or a combination of both. But in technical matters, unlike in lay matters within the traditional intellectual competence of the court, it cannot substitute its own medical opinion for that of qualified experts. The court has no status whatsoever to come to a medical conclusion contrary to unanimous medical evidence before it even if it wanted to, which is not the situation in this case. … There is an evidentiary bar to opinion evidence on technical subjects from non-qualified witnesses, and an equally rigid bar against judges coming to conclusions on technical matters (other than domestic and constitutional law) founded on their own opinions rather than on evidence from qualified witnesses.
[84] Absence expert evidence establishing that Dr. Eckhaus breached the standard of care and such breaches caused the Plaintiff`s damages, there is no genuine issue requiring a trial and the Defendants’ motion for summary judgment must be granted. (See Whiteman v. Iamkhong, 2013 ONSC 2175, [2013] O.J. No. 5053, at paras. 112-113, 133; and Lozowy v. Trillium Health Centre, 2007 CanLII 11321 (ON SC), at para. 25).
The Standard of Care Established by the Expert Dr. Meathrel
[85] The Plaintiff provided an expert report dated November 24, 2015, prepared by Dr. Kimberley E. Meathrel, a surgeon with a specialty in plastic surgery. No other reports or opinions were submitted and no objections to Dr. Meathrel’s qualifications were presented by the Defendants.
[86] I accept Dr. Meathrel’s November 24, 2015 report as an expert report which in accordance with the authorities is determinative of the standard of care applicable to Dr. Eckhaus in this proceeding.
[87] I also accept the Plaintiff’s submission that the surgeon-patient relationship is a well-established category in which a duty of care exists.
Review of Dr. Meathrel’s Report
[88] I do not intend to review the allegations of negligence where the report has made a clear finding that Dr. Eckhaus met the standard of care.
[89] As such, it is to be noted that in accordance with the conclusions contained in the expert report tendered, Dr. Eckhaus met the standard of care as follows:
i) With respect to preoperative assessment and care, he met the standard of care;
ii) With respect to the technical completion of the operation, he met standard of care; and
iii) With respect to his postoperative care, he met the medical standard of care for his hospital admission and postoperative assessments of Ms. Comrie`s healing and surgical healing.
[90] The report cites two areas where Dr. Meathrel claims that there is conflicting evidence as to whether or not the standard of care was met, as follows:
i) With respect to his intraoperative management of the question, there is conflicting evidence as to whether or not he met the standard or care; and
ii) There is conflicting evidence as to whether or not he met the standard of care in terms of advocating for his patient and conflict resolution.
[91] At this point it is necessary to clarify the use of expert reports in a proceeding. Expert reports are necessary to establish the standard of care applicable and assist the triers of fact in reaching a determination. However, expert reports do not remove judicial discretion in the weighing of evidence and the examination of the facts in the proceeding.
[92] Expert witnesses are required to advise as to the standard of care. It is not the role of an expert to substitute their decision for that of the trier of fact or to weigh the evidence. That role belongs to the judge and in this case to the motion judge.
[93] It remains necessary therefore to review the standard of care as applicable to the situation as determined by the expert Dr. Meathrel and to apply the standard of care to the evidence before the court.
Standard of Care Applicable to Intraoperative Management
[94] The standard of care applicable to the intraoperative management of the question was determined by Dr. Meathrel, as follows:
Intraoperative Care:
Surgeons are independent contractors to hospitals and not hospital employees. Surgeons, unless in a senior administrative position, would have no input into hiring/firing/disciplining of nursing staff or into the day-to-day nursing staffing or management. It is my understanding that Dr. Eckhaus does not have an administrative role in the management of the Rouge Valley operating rooms. Nurses are unionized and subject to strict rules regarding scheduling, disciplining, promotions and demotions.
On the day of surgery, Dr. Eckhaus would have no control/input or authority otherwise to determine which nursing staff was assigned to the same operating room as him. Nursing assignments would generally be completed by the OR nursing manager and not a physician.
Dr. Eckhaus would not have had the ability to know which nursing staff would be coming in to start the evening shift, would not have the opportunity to choose which evening nursing staff would be relieving in his room, nor would he have the opportunity to discuss the case or patient preferences with relieving RN staff prior to them entering the room. Any communication of specifics of the surgery would be completed between the outgoing and incoming nursing staff directly.
Dr. Eckhaus, would have no knowledge of what was discussed during nursing handover, but would have a standard expectation that this operative plan was communicated between the nursing staff. If she was asking the questions as a general inquiry to the overall management plan for the patient or as a learning point to further her own knowledge of the care of the post-massive weight loss patients then the question would not be inappropriate.
[95] Dr. Meathrel continued to discuss the standard of care applicable to the intraoperative management of the question, as follows:
The Royal College of Physicians and Surgeons of Canada elucidates the expectations for physicians in Canada in 2015 in the CanMeds guidelines. Pertinent features of these guidelines include:
Health Advocate Key Competency 1. Respond to an individual’s health needs by advocating with the patient within and beyond the clinical environment
Communicator: Key Competency 1. Establish professional therapeutic relationships with patients and their families
1.1 Communicate using a patient-centered approach that encourages patient trust and autonomy and is characterized by empathy, respect and compassion
1.2 Optimize the physical environment for patient comfort, dignity, privacy, engagement and safety
1.5 Manage disagreements and emotionally charged conversations
1.6 Adapt to the unique needs and preferences of each patient and to his or her clinical condition and circumstances
Leader: Key Competency 3. Demonstrate leadership in professional practice
It is a physician’s duty to maintain the dignity and comfort of the patient and to place the patient’s needs first. In the event a physician feels his or her patient feels demeaned, insulted or that they have been spoken to in a derogatory way, it would be a standard expectation of the physician to advocate on behalf of their patient; including apologizing for and explaining any misunderstandings and facilitating communication between any other members of the health care team that may have been involved in the event.
Dr. Eckhaus does not employ or supervise the hospital nursing staff and does not have the authority to discipline/admonish or otherwise reprimand hospital employed nurses directly. However, if he felt a nurse had made a medical error, a judgment error or otherwise caused undue hardship or stress to his patient through verbal or physical actions, he would have the ethical responsibility to advocate on behalf of his patient to help resolve the situation and make his patient feel safe and secure. If he felt the comment was inappropriate, he would be expected to explain the context of the comment to Ms. Comrie or ask Ms. Jardine to explain herself to the patient. If he had heard Ms. Comrie’s response and knew that she was feeling insulted, then he would be expected to take steps to resolve this situation in the OR by asking Ms. Jardine to apologize and/or explain herself or apologize to Ms. Comrie on behalf of Ms. Jardine, without taking responsibility for Ms. Jardine’s statements, but taking responsibility for ensuring Ms. Comrie’s comfort and dignity. Furthermore, if he felt the situation had not been resolved to the patient’s satisfaction at the time, he would have the ability to report on his concerns to the nursing manager and ask for her to intervene with Ms. Jardine. [Emphasis added.]
[96] As it is apparent, the standard of care as it relates to Dr. Eckhaus is subjective in nature and dependent upon Dr. Eckhaus’ understanding and comprehension of the situation. The standard of care clearly is whether Dr. Eckhaus feels his patient feels demeaned, insulted or that they have been spoken to in a derogatory way and whether Dr. Eckhaus felt the comment was inappropriate.
[97] Dr. Eckhaus’ evidence was unequivocal. He did not feel the question was derogatory or inappropriate nor did he feel (intraoperative) that Ms. Comrie felt demeaned, insulted or that she had been spoken to in a derogatory way.
[98] On the basis of the evidence before me there is no conflicting evidence regarding Dr. Eckhaus’ intraoperative management of the question.
[99] The Plaintiff was required to put all relevant evidence before the court for the hearing of this motion and the court is entitled to assume all evidence available at trial is being presented at the motion.
[100] To the extent that the expert report found on the facts that there “is conflicting evidence” on this issue, the report is in error.
Standard of Care Applicable to Advocating for his Patient and Conflict Resolution
[101] Dr. Meathrel states that the standard of care in this situation would be “to listen to the patient’s concerns, attempt to explain the position of the surgeon without invalidating the patient’s concerns, attempt to facilitate conflict resolution and offer to continue care or transfer care according to the patient’s wishes”.
[102] Dr. Meathrel concludes that there is conflicting evidence as to whether or not Dr. Eckhaus met the standard of care in terms of advocating for his patient and conflict resolution.
[103] The standard of care applicable to advocating for his patient and conflict resolution is inexorably tied to the standard of care applicable to intraoperative care. In other words, the standard of care is dependent upon the subjective intent of Dr. Eckhaus as follows:
a) In the event a physician feels his or her patient feels demeaned, insulted…it would be a standard expectation of the physician to advocate;
b) If he felt a nurse had made a medical error, a judgment error or otherwise caused undue hardship or stress to his patient through verbal or physical actions, he would have the ethical responsibility to advocate;
c) If he felt the comment was inappropriate, he would be expected to explain the context of the comment to Ms. Comrie or ask Ms. Jardine to explain herself to the patient;
d) If he had heard Ms. Comrie’s response and knew that she was feeling insulted, then he would be expected to take steps; and
e) If he felt this situation had not been resolved to the patient’s satisfaction at the time, he would have the ability to report on his concerns to the nursing manager and ask for her to intervene with Ms. Jardine.
[104] As noted above, Dr. Eckhaus clearly and unequivocally stated that he did not feel that the question was derogatory or inappropriate nor did he feel that his patient felt demeaned, insulted, or had been spoken to in a derogatory way. Further, Dr. Eckhaus’ uncontroverted evidence is that he did not hear Ms. Comrie’s response to the question and did not know that she felt insulted.
[105] Ms. Comrie did not raise any concerns relating to the question with Dr. Eckhaus until the post-operative appointment on July 10, 2010. At that time Dr. Eckhaus advised Ms. Comrie that he did not find the question inappropriate or derogatory.
[106] Ms. Comrie repeated her concerns to Dr. Eckhaus at the post-operative appointment on August 28, 2012. At that time Ms. Comrie advised that she had written an email to the hospital administration regarding the incident. Dr. Eckhaus offered to facilitate a meeting with Nurse Jardine. Ms. Comrie refused the invitation.
[107] There was no need for Dr. Eckhaus to report the concerns to the nursing manager as Ms. Comrie herself had taken her concerns to the hospital administration, the body in charge of nursing discipline.
[108] Dr. Eckhaus’ evidence is that he offered to continue to care for Ms. Comrie, but she refused his offer.
[109] Ms. Comrie’s evidence is that Dr. Eckhaus offered to set up an appointment with Nurse Jardine, which she refused. Ms. Comrie then stated that she posed to Dr. Eckhaus the following, “I guess I am left to find another surgeon to look after my problems?” Ms. Comrie’s evidence is that she asked for a copy of her chart, which Dr. Eckhaus declined stating he would forward it at a later date. Dr. Eckhaus asked Ms. Comrie if she wanted follow up blood work done in his lab and she said no.
[110] Ms. Comrie claims that there was never “an offer of follow up, nor was she told to make another appointment, nor was there an offer to transfer care to another surgeon”.
[111] Dr. Meathrel concludes that there is “conflicting evidence as to whether or not he met standard of care in terms of advocating for his patient and conflict resolution”.
[112] To the extent that the expert report found on the facts that there “is conflicting evidence on this issue” – the report is in error as follows:
a) Dr. Eckhaus did not feel that his patient felt demeaned, insulted…therefore there was no initial expectation of the physician to advocate;
b) Dr. Eckhaus did not feel that a nurse had made a medical error, a judgment error, or otherwise caused undue hardship or stress to his patient through verbal or physical actions, therefore there was no initial ethical responsibility to advocate;
c) Dr. Eckhaus did not feel the question was inappropriate, and therefore he was not expected to explain the context of the question to Ms. Comrie or ask Nurse Jardine to explain herself to the patient;
d) Dr. Eckhaus did not hear Ms. Comrie’s response and did not know that she was feeling insulted, therefore he was not expected to take steps; and
e) On August 28, 2012, when Dr. Eckhaus understood this situation had not been resolved to the patient’s satisfaction at the time, he would have the ability to report on his concerns to the nursing manager and ask for her to intervene with Nurse Jardine. However, this step was not necessary as Ms. Comrie had already reported her concerns to the hospital administration (Ms. McVety). Dr. Eckhaus did offer to review a copy of the email sent to Ms. McVety. This offer was refused by Ms. Comrie. Dr. Eckhaus offered to arrange a meeting between Ms. Comrie and Nurse Jardine. This offer was also refused by Ms. Comrie. Dr. Eckhaus offered to continue care for Ms. Comrie, at least to the extent of offering follow up blood work, and again, Ms. Comrie refused.
[113] Applying the facts to the standard of care as determined by the Plaintiff’s expert, Dr. Meathrel, it is clear on the facts before me that Dr. Eckhaus satisfied the standard of care applicable to advocating for his patient and conflict resolution.
Conclusion
[114] Absence evidence from an appropriately qualified expert establishing that Dr. Eckhaus breached the standard of care and such breach caused Ms. Comrie’s damages, summary judgment must be granted. (See Whiteman v. Iamkhong, at paras 112-113; and Lozowy v. Trillim Health Centre, at para. 25).
[115] I am of the opinion that there is no genuine issue requiring a trial in this case. I am also of the opinion that this case is precisely the type of case contemplated by the Supreme Court of Canada in Hryniak v. Mauldin.
[116] As noted by Karakatsanis J., at para. 4,
[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 a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.
[117] In the present case, Ms. Comrie seeks damages against her surgeon and his professional corporation for a question posed to him by a relief scrub nurse who was not chosen or trained by him, who did not report to him, who he had no authority to reprimand, and whose question he could not have prevented from being asked in the first place. When he became aware that the question concerned his patient Dr. Eckhaus discussed the concerns with the patient, offered to engage in conflict resolution, and was informed that the patient sought redress from the hospital administration. Dr. Eckhaus offered to continue care for the patient and satisfied all aspects of the standard of care as established by the Plaintiff’s expert.
[118] There is no question that Dr. Eckhaus fulfilled his duties as a surgeon. The sole issue is whether Dr. Eckhaus reacted to the question posed by the scrub nurse appropriately, advocated for his patient, and attempted to engage in conflict resolution in accordance with the standard of care applicable to the situation. The applicable standard of care is based on the subjective feelings and beliefs of the doctor and the evidence is clear that that Dr. Eckhaus did not breach any standard of care to the patient.
[119] As for the Plaintiff’s claim against the professional corporation, I find that there are no grounds for the Plaintiff to succeed. Apart from issuing an invoice for Dr. Eckhaus’ services, and being copied with the email sent by Ms. Comrie to Ms. McVety on July 12, 2012, the professional corporation provided no services to Ms. Comrie.
[120] The Plaintiff’s claims as against Dr. Eckhaus and Eckhaus Medicine Professional Corporation are entirely dismissed.
[121] The Supreme Court is clear that the rules of summary judgment must be interpreted broadly, favouring proportionality and fair access to the affordable, timely, and just adjudication of claims. The fact that the Plaintiff has opted to proceed to trial through the simplified procedure does not detract from the Defendants’ right to have their claim determined by summary judgment.
Disposition
[122] For the reasons detailed above, the following Order shall issue:
a) An Order granting summary judgment and dismissing the Plaintiff’s action as against Dr. Allan A. Eckhaus and Eckhaus Medicine Professional Corporation; and
b) If the parties are unable to agree upon costs, the Defendants shall have until April 2, 2016, to file costs submissions and the Plaintiff shall have until April 20, 2016 to respond. The Defendants’ reply, if any, shall be served and filed before May 1, 2016. The cost submissions, response, and reply shall each not exceed three pages in length with Bills of Costs attached. If no submissions are filed by April 2, 2016, no costs shall be awarded.
Madam Justice S.J. Woodley
Released: March 1, 2016