Cvjetkovic v. Gupta, 2016 ONSC 2322

CITATION: Cvjetkovic v. Gupta, 2016 ONSC 2322

COURT FILE NO.: C-1036-13

DATE: 2016-04-06

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Bernarda Cvjetkovic, Plaintiff

AND:

Dr. Neeru Gupta, Defendant

BEFORE: The Honourable Justice R.J. Nightingale

COUNSEL: J.G. Langlois, Counsel, for the Plaintiff

J. Laham, Counsel, for the Defendant

HEARD: April 1, 2016

ENDORSEMENT

[1] The defendant brings this motion for summary judgment under Rule 20.04 to dismiss the plaintiff’s action.

[2] The plaintiff commenced this action in November 2013 claiming that the defendant, a glaucoma specialist, was negligent in his care of the plaintiff and by not obtaining the plaintiff’s informed consent to the gold shunt surgery he performed on her left eye on November 29, 2011.

[3] The defendant denied the allegations and this matter has proceeded to examinations for discovery.

[4] The defendant provided his own detailed affidavit with supporting documentation as well as the affidavit evidence of Dr. Rajiv Bindlish, both of which confirmed that the defendant was not negligent in his assessment, treatment and management of the plaintiff and that he had obtained the plaintiff’s proper informed consent to the operation.

[5] Although this motion was served on the plaintiff returnable on November 26, 2015 and was adjourned twice at the plaintiff’s request so that she could obtain the evidence of an expert doctor, she obtained no such evidence.

[6] Plaintiff’s counsel on March 31, 2016, the day before the hearing of this motion, provided a responding affidavit not from the plaintiff but from the defendant’s law firm’s articling student. That affidavit simply stated that the plaintiff stated a number of things regarding Dr. Gupta’s care of her and alleging lack of informed consent. It did not clearly state his information came from her but the implication was likely that it had.

[7] Moreover, the affidavit confirmed that the plaintiff had not obtained the evidence of an expert doctor or report with respect to the allegation of negligence against the defendant and his breach of the required standard of care in his treatment provided to the plaintiff. The affidavit confirmed that plaintiff abandoned her claim against the defendant for negligence in breaching the required standard of care and now restricted her claim to that of lack informed consent negligence. That position was confirmed by plaintiff’s Counsel at the outset of the hearing.

Evidence of Dr. Gupta

[8] Dr. Gupta’s affidavit confirmed that he assessed the plaintiff on a referral from her treating ophthalmologist because of uncontrolled left eye pressure. He noted she had end-stage glaucoma and a complex ophthalmologic history because of injuries at an early age and several previous eye surgeries. She had a significant loss of sight already in her left eye. The defendant confirmed in his report the same day to the plaintiff’s referring ophthalmologist that she was at risk of losing all of her sight in that eye.

[9] His evidence was that he discussed various potential treatment options for her left eye with the plaintiff and ruled out three other options as she was not a suitable candidate for them after those discussions.

[10] Dr. Gupta because of the plaintiff’s complex ophthalmologic history discussed the option with the plaintiff of his performing gold shunt surgery to try to preserve what little sight she had remaining in her left eye. His evidence was that he discussed this option in detail with her including the risks and benefits. In particular, he specifically explained the high risk level of the procedure and the potential for loss of all sight arising from complications including bleeding. The plaintiff’s niece was present for the discussion.

[11] Significantly, his evidence was that he also explained to the plaintiff that if she did not proceed with any treatment, her sight loss was inevitable.

[12] He confirmed the plaintiff’s reported symptoms, history and findings on his physical examination and his advice he gave to her in his contemporaneously made notes and in his report the same day to her treating ophthalmologist. This included his having discussed with the plaintiff the potential of loss of all of her sight even with this gold shunt procedure. He stated that he confirmed this while he discussed the benefits and risks of the procedure in detail with the patient including the potential for complications.

[13] His evidence was that the plaintiff elected to proceed with the left gold shunt surgery and that he provided her with an detailed informed consent procedure form which she signed confirming that the nature, material side effects, material risks, special or unusual risks and alternative courses of action as well as the consequences of not having the treatment had been explained to her by him.

[14] The form also confirmed that she understood and was satisfied with the explanation about the nature, effects, risks and side effects of the treatment procedures that would be performed on her and that she had been afforded an opportunity to ask questions about these matters and that her questions had been answered to her satisfaction.

[15] Dr. Gupta also signed that form which confirmed that he had personally explained the anticipated effects, the nature, material risks, special or unusual risks and side effects and alternative courses of action for the proposed gold shunt procedure.

[16] The gold shunt surgery was performed by the defendant doctor on November 29, 2011. Unfortunately during the surgery, the plaintiff suffered a suprachoroidal bleed in the left eye which necessitated immediate removal of the gold shunt by the defendant and closure of the eye.

[17] He saw the plaintiff in follow-up appointments later that day and on December 7 and 20th 2011.

Evidence of Dr. Hindlish

[18] Dr. Hindlish’s ophthalmologist practice in Oakville is limited to general ophthalmology, glaucoma, corneal and external disease.

[19] After reviewing all of the available medical records, Dr. Hindlish provided his opinion and expert report which he adopted in his affidavit. His opinion was that Dr. Gupta met the standard of care with respect to assessment, treatment and management of the plaintiff.

[20] His opinion was that Dr. Gupta also appropriately informed the plaintiff of the risks and benefits of the treatment options available to her including gold shunt surgery and obtained the plaintiff’s consent before proceeding with the gold shunt surgery. He confirmed the surgery was complicated due to a suprachoroidal hemorrhage and the gold shunt needed to be removed and the blood drained through the surgical site.

[21] His evidence was that the plaintiff during her initial presentation was noted by Dr. Gupta to have significant scarring and vascularization of the eye making two other types of surgeries challenging with risks of post operative complications.

[22] He noted the plaintiff’s left eye still had some visual potential but that absence of intervention would have resulted in complete blindness due to her elevated intraocular pressure and extensive damage to the optic nerve and visual field.

[23] His evidence was that the gold shunt surgery procedure, in which Dr. Gupta was well trained, was a reasonable option because of the condition of the plaintiff’s eye even though her high risk eye with elevated IOP was at risk for complications such as suprachoroidal hemorrhage which he said was clearly indicated to the patient prior to the surgery as noted in the surgical consent form. When the bleeding complication occurred during the operation, he said Dr. Gupta appropriately managed the situation by removing the gold shunt device, draining the blood and closing the eye.

[24] There was no cross examination of these two witnesses on their affidavit evidence.

Evidence of the Plaintiff’s Articling Student

[25] As indicated above, the plaintiff has not obtained an expert report from any doctor to support her position.

[26] The articling student’s affidavit evidence confirmed that the plaintiff states that Dr. Gupta failed to inform her about the gold shunt surgery procedure including the fact that this was an incisional surgery, failed to inform her of the risk of suprachoroidal hemorrhage that may result in total loss of vision and that she was only advised of the risk of bleeding which she interpreted as a normal part of any surgery.

[27] She stated Dr. Gupta failed to inform her of the anesthesia procedure involved in the surgery and that she suffered a significant degree of pain during surgery. She stated that the plaintiff is adamant that she never would have agreed to the surgery had she been informed of the chance that she would have had such an explosive eruption and the complete loss of her eyesight.

Parties’ Positions

[28] The defendant’s position during her Counsel’s submissions was that the evidence of the defendant and supporting evidence of Dr. Hindlish confirm that there is no genuine issue requiring a trial on the issue of lack of informed consent.

[29] Her position was also that the plaintiff had been given over four months to file her own responding affidavit and expert evidence and had chosen not to. Her position was that the affidavit evidence of the articling student should be given no weight and that the plaintiff, having been given the opportunity to put her best foot forward, has not established a defence to the defendant’s motion for summary judgment on her claim for negligence of lack of informed consent.

[30] After defendant’s counsel had provided her submissions, counsel for the plaintiff asked the Court to accept a document that he said he just had the plaintiff sign indicating that she was willing to endorse the articling student’s affidavit. When the court asked for defendant’s counsel position on whether it should look at the document, the Court was told that it could but that no weight should be attached to it. The document simply had the plaintiff’s signature affixed directly underneath the articling student’s signature and appeared to be sworn in the presence of plaintiff’s counsel on the date of the hearing of this motion.

[31] Defendant’s counsel also stated that the plaintiff could not now try to introduce new evidence from the plaintiff herself on this motion based on that document after she had already made her submissions.

[32] The plaintiff’s position was simply that there is an issue for trial as the plaintiff would still have some sight for some period of time if she did not have the surgery, that the lack of an expert report on the issue of lack of informed consent from the plaintiff is redundant, and that the defendant doctor should have provided the plaintiff with more details of the potential consequences. Accordingly, the trial judge should determine the issues of liability for lack of informed consent and credibility.

Analysis

[33] Under Rule 20, if the court is satisfied after consideration of the evidence advanced on the motion by both parties that there is no genuine issue requiring a trial, the court shall grant summary judgment accordingly.

[34] There is no genuine issue requiring a trial on a summary judgment motion where the evidence allows the judge to make necessary findings of fact, apply the law to the facts, and where summary judgment is proportionate, more expeditious and less expensive to achieve a just result. Hyrniak v. Mauldin 2014 SCC 7.

[35] The court must assume that the record before it contains all of the evidence on which the partly would rely at trial.

[36] A plaintiff alleging negligence by reason of lack of informed consent must produce expert evidence of a physician setting out the material risks of the procedure and establishing that the defendant fell below the standard of care by failing to disclose the material risk. Samuel v. Ho [2009] O.J. No. 172; Leblanc v. Hunt et al. 2011 ONSC 1333; Kurdina v. Gratzer 2010 ONCA 288.

[37] In order to establish her lack of informed consent claim for damages, the plaintiff must prove on a balance of probabilities that Dr. Gupta failed to adequately disclose material or special or unusual risks as to the treatment provided to the plaintiff and that such lack of disclosure caused her alleged damages using the modified objective test. That requires the plaintiff to establish subjectively that she would not have consented to the treatment if that disclosure had been properly made but also that a reasonable person in her circumstances would not have consented to the treatment if disclosure had been properly made. Reibl v. Hughes 1980 23 (SCC), [1980] 2 S.C.R.880.

[38] Based on the evidence before me on this motion, I believe I am able to make the necessary findings of fact and apply the law to the facts so as to achieve a just result that is proportionate, more expeditious and less expensive without the necessity of a trial.

[39] In this case, no expert evidence on behalf of the plaintiff was provided to confirm the plaintiff’s position and the only expert evidence was that of the defendant doctor and Dr. Hindlish that the defendant in fact met the standard of care in disclosing the risks to the plaintiff of the gold shunt surgery procedure. This is confirmed in the defendant’s contemporaneous medical records and reports and the informed consent form signed by the plaintiff before the surgery regarding the high risk level of the procedure and the potential loss of sight arising from complications which were discussed with the plaintiff.

[40] As indicated above, the plaintiff has not provided any expert evidence to support her position with the reasonable inference being that she will not be able to do so because of the lack of such evidence.

[41] In addition, given the requirement of the plaintiff to put her best foot forward on the evidence, the affidavit evidence of the articling student should be given little or no weight as it is clearly hearsay evidence and is not admissible at trial. Lawyers should not swear affidavits on highly contentious issues on the merits in summary judgment motions. Ferriera v. Cardenas 2014 ONSC 711; Sky Solar (Canada) Ltd. v. Economical 2015 ONSC 4714.

[42] I also agree that the plaintiff should not be permitted to now attempt to file the document which her counsel indicates is her “endorsement” of the articling student’s affidavit with the suggestion that it may be her own personal affidavit. This attempt to introduce new evidence of the plaintiff herself on this motion after the defendant’s counsel submissions were completed should not be permitted to patch up holes in the case created by the defendant’s evidence or defendant’s counsel submissions. Suwary v. Women’s College Hospital 2008 8789 (ONSC).

[43] Lastly, even if that document was admissible and could be construed as the plaintiff’s own affidavit and contains her subjective belief that she would not have proceeded with the surgery had she been properly advised of the risks, there is no evidence from her on this motion that a reasonable person in her circumstances would not have proceeded with the surgery if proper disclosure had been made.

[44] To the contrary, the evidence suggests that the loss of sight in the plaintiff’s left eye was inevitable if nothing was done but there was the potential of preserving the plaintiff’s limited eyesight in that eye if the gold shunt surgery was performed. The reasonable inference would be that a reasonable person in those circumstances would proceed with the proposed surgery which had unfortunate results but about which the plaintiff had been warned.

Conclusion

[45] The defendant’s motion for summary judgment is granted and the action against Dr. Gupta is dismissed.

[46] If the defendant is asking for costs and the parties cannot agree on the amount, the defendant can make written submissions to my chambers in Simcoe of no more than three pages in length along with a bill of costs within 10 days from the date of this decision. The plaintiff will have 7 days thereafter to similarly respond. If no submissions are received, each party will be deemed to have borne their own costs of this action.

“Nightingale, J.”

The Honourable Justice R. J. Nightingale

Date: April 6, 2016