Court File and Parties

COURT FILE NO.: CV-1300489759 DATE: 20160802 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

TERRY HIRCHBERG Plaintiff – and – THE BRANSON DRUG STORE/NORTH YORK GENERAL HOSPITAL AND THE ODETTE CANCER CENTRE PHARMACY/SUNNYBROOK HEALTH SCIENCES CENTRE AND MD MARY DOHERTY – ODETTE CANCER CENTRE AND MD TODD MAINPRISE – SUNNYBROOK HOSPITAL AND MD KEN PACKHAM – SUNNYBROOK HOSPITAL AND MD MICHELLE HART – BAYCREST HOSPITAL Defendants

Counsel: Self-represented (for the Plaintiff) Christopher M. Hubbard and Alexandre Blanchard, for the Defendants Dr. Mary Doherty, Dr. Todd Mainprize, Dr. Ken Peckham and Dr. Michelle Hart Logan Crowell, for the Defendants The Branson Drug Store/North York General Hospital and the Odette Cancer Center Pharmacy/Sunnybrook Health Sciences Centre

HEARD: July 5, 2016

REASONS FOR DECISION

Justice W. Matheson

[1] The defendants seek summary judgment dismissing this medical malpractice claim on the grounds that there is no genuine issue requiring a trial.

[2] Specifically, the defendants Dr. Mary Doherty, Dr. Todd Mainprize, Dr. Ken Peckham and Dr. Michelle Hart (the “physician defendants”), and the defendants The Branson Drug Store/North York General Hospital and the Odette Cancer Centre Pharmacy/Sunnybrook Health Sciences Centre (“the hospital defendants”), have each brought a motion for summary judgment under Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[3] The defendants submit, among other grounds, that the plaintiff’s U.S. expert is not properly qualified and in any event his evidence falls well short of what is required to prove the plaintiff’s case. They submit that this action ought to be dismissed at this stage.

[4] The plaintiff contests both motions, and submits that a trial is required to deal with the issues raised in his action. He submits that there is a Canadian conspiracy regarding a drug called dexamethasone, resulting in the “worst cover-up in history”, and asks for further investigation by the court at trial.

[5] I conclude that this is an appropriate case for summary judgment, dismissing the claim. There is no genuine issue requiring a trial.

Brief background

[6] The plaintiff’s common-law spouse, Barbara Dubins, passed away on October 5, 2011, at age 64, after being diagnosed with an aggressive form of brain cancer. The plaintiff commenced this action, making allegations of both professional negligence and a lack of informed consent in relation to Ms. Dubins’ treatment.

[7] The action raises a number of matters of concern to the plaintiff. Without detracting from the significance to the plaintiff of the other allegations, the focus of most of the claims relate to the use of dexamethasone.

[8] The ample evidentiary record before me demonstrates the course of events through which Ms. Dubins was diagnosed with brain cancer, and the follow-up steps that were taken including with respect to treatment with the above drug. The following brief summary includes the roles of the various defendants in the treatment of Ms. Dubins.

[9] On March 14, 2011, Ms. Dubins went to the emergency department of the defendant North York General Hospital’s Branson Ambulatory Care Centre. She was experiencing memory loss and headache. A CT scan showed a brain tumour in her frontal lobe with edema causing compression. Ms. Dubins previously had breast cancer in 2008, and was instructed to follow-up with her oncologist from that time, the defendant Dr. Doherty.

[10] The emergency room physician, who is not a defendant, prescribed dexamethasone. Dexamethasone is a medication used for patients with brain tumours to reduce swelling and pressure on the brain. In his amended statement of claim, the plaintiff expressly pleads that the emergency physician “did no harm” and that the “emergency MD prescribed dexamethasone which was the correct drug prescribed in the correct dose for the correct duration.”

[11] The prescription for dexamethasone was filled as written at the North York General Hospital’s on-site pharmacy, the Branson Drug Store. The North York General Hospital and its on-site pharmacy had no further involvement in Ms. Dubins’ care.

[12] On March 16, 2011, Ms. Dubins was seen by Dr. Doherty at the defendant Sunnybrook Hospital, in its Odette Cancer Centre. Dr. Doherty is a radiation oncologist who has been practising at Sunnybrook for more than 25 years.

[13] Dr. Doherty reviewed the CT imaging of Ms. Dubins’ brain done at emergency and assessed Ms. Dubins. One possibility considered at this time was that Ms. Dubins’ breast cancer had metastasized.

[14] Dr. Doherty recommended whole-brain radiation treatment. As part of the usual recommended course of treatment, dexamethasone was also continued. Ms. Dubins’ family reported to Dr. Doherty that Ms. Dubins had improved since commencing that medication.

[15] Dr. Doherty discussed the recommended treatments and obtained Ms. Dubins' consent for them. The prescription for dexamethasone was filled out at Sunnybrook’s Odette Cancer Centre Pharmacy on March 18, 2011.

[16] Ms. Dubins underwent radiation therapy, and continued to take dexamethasone. About a week after her initial assessment by Dr. Doherty, on March 23, 2011, there was a follow-up meeting. Dr. Doherty discussed the possibility that the tumour was not a metastasis but a primary brain tumour. On that day, Ms. Dubins appointed four family members to act jointly and/or severally as her powers of attorney for personal care. Those four family members were her two adult sons and her two siblings. The plaintiff was not appointed as an attorney for personal care.

[17] David Dubins, one of Ms. Dubins’ sons and attorneys for personal care, has sworn an affidavit that forms part of the defendants’ motion material. Mr. Dubins attests about the decision-making process through which the treatment decisions were made for his mother, involving the various doctors and his mother’s four attorneys for personal care. The plaintiff, who was not one of these attorneys, was requested not to be present for the meetings with the physicians when the treatment decisions were made.

[18] Dr. Doherty discussed treatment recommendations with Ms. Dubins and her attorneys for personal care, and obtained consent to ongoing treatment including for dexamethasone.

[19] In April 2011, Ms. Dubins had a neurosurgery consultation with the defendant Dr. Mainprize. He is a neurosurgeon who has been practising at Sunnybrook since 2008. He advised that neither radiation therapy nor surgical debulking would significantly improve Ms. Dubins’ neurological status and that her prognosis was poor. He estimated that she had about four to six months to live.

[20] Dr. Mainprize had a number of discussions with the family about the risks and benefits of surgery. On May 2, 2011, consent was given to a right frontal craniotomy and resection of the tumour. The surgery was performed without complication. Pathology testing on the tumour confirmed the diagnosis of multifocal glioblastoma multiforme (GBM), the primary brain tumour initially diagnosed by Dr. Doherty. GBM is a very aggressive form of brain cancer.

[21] After her surgery, Ms. Dubins was admitted to the Radiation Oncology Service at Sunnybrook under the care of the defendant Dr. Peckham, a hospitalist practising at Sunnybrook.

[22] Dr. Peckham met with Ms. Dubins' family numerous times. He discussed the risks and benefits of various treatment options. He observed that it was unlikely that any treatment would result in significant improvement. He recommended and prescribed a continuation of dexamethasone in consultation with Ms. Dubins’ attorneys for personal care.

[23] A gastric feeding tube was inserted on May 12, 2011.

[24] Dr. Peckham arranged for consultations with various specialists. As a result of concerns raised by the plaintiff regarding dexamethasone, Dr. Peckham arranged for an endocrinology consultation. The endocrinologist confirmed that the use of dexamethasone was appropriate and that she would not change the dosage at that time.

[25] On June 9, 2011, Dr. Peckham met with the four attorneys for personal care to discuss Ms. Dubins’ prognosis. In accordance with the wishes of the attorneys for personal care, Dr. Peckham made arrangements to transfer Ms. Dubins to long-term palliative care at Sunnybrook. Then, in September 2011, she was transferred to Baycrest for ongoing end-of-life palliative care.

[26] While at Baycrest, which is not a defendant, Ms. Dubins’ feeding tube became blocked and fell out altogether. Ms. Dubins was transferred to the Complex Continuing Care Unit and came under the care of the defendant Dr. Hart. As set out in the transfer documentation, Dr. Hart was instructed not to communicate with the plaintiff regarding Ms. Dubins’ treatment and care, but to only communicate with her attorneys for personal care.

[27] Dr. Hart arranged for a consultation with a gastrointestinal specialist to assess the possible replacement of the feeding tube. There were discussions with four attorneys for personal care about Ms. Dubins’ prognosis and the risks and benefits of reinserting the tube. A medical ethicist was involved. The attorneys for personal care ultimately decided not to have the tube reinserted and gave this direction to Dr. Hart.

[28] Ms. Dubins received continuing palliative care at Baycrest until she passed away on October 5, 2011, about six months after her initial diagnosis.

[29] Through the course of most of the above events, Ms. Dubins received treatment with dexamethasone, but it was not continued in the final period. Among his other complaints about the drug, the plaintiff alleges that it ought not to have been abruptly stopped.

[30] Mr. Dubins attests that the defendant physicians advised him and the other attorneys for personal care of the material risks of dexamethasone. As well, Mr. Dubins was himself a lecturer in the Department of Pharmacology at the University of Toronto. Although not a physician, he was aware of the potential side effects of dexamethasone.

[31] In his affidavit on these motions, Mr. Dubins confirms that the treatment decisions regarding his mother that are questioned in this lawsuit were made following discussions about the material risks and potential outcomes between the physicians involved and the attorneys for personal care, who were very engaged in the process and provided fully-informed consent. Mr. Dubins was cross-examined on his affidavit without undermining this evidence. He attests that he and the other attorneys for personal care do not support the plaintiff’s action.

Action

[32] This action was commenced in October 2013, alleging professional negligence, including a failure to obtain informed consent to treatment with dexamethasone.

[33] Documentary production was completed in 2015. As well, all defendants have been examined for discovery either orally or in writing at the plaintiff’s request. The only examination for discovery that has not been conducted is the defendants’ examination for discovery of the plaintiff, which has been deferred pending disposition of these motions.

[34] The court-ordered schedule for the two motions for summary judgment included a schedule for the delivery of expert reports. Both sides indicated an intention to provide expert evidence and both sides did so, as discussed in more detail below.

Analysis

[35] The defendants have moved for summary judgment, seeking an order dismissing this claim. The relevant portion of subrule 20.04(2) of the Rules of Civil Procedure states as follows:

The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence. [Emphasis added.]

[36] As set out in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49, there will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits using the summary judgment process. This will be the 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.”

[37] On a motion for summary judgment, the judge should first determine if there is a genuine issue requiring a trial based only on the evidence before him or her without using the fact-finding powers in subrule 20.04 (2.1). If there appears to be a genuine issue requiring a trial, then the motion judge may, at his or her discretion: (1) weigh the evidence, (2) evaluate the credibility of a deponent, or (3) draw any reasonable inference from the evidence unless it is in the “interest of justice” for these powers to be exercised only at trial: Hryniak, at para. 66. The proportionality principle means that “the best forum for resolving a dispute is not always that with the most painstaking procedure:” Hryniak, at para. 28.

[38] To defeat the use of Rule 20, the responding party must show that there is a genuine issue that requires a trial. The responding party must put his best foot forward: Byfield v. The Toronto Dominion Bank, 2012 ONCA 49, at para. 10; Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, 242 A.C.W.S. (3d) 794, at para. 26, aff’d, 2014 ONCA 878.

Claim against the physician defendants

[39] The physician defendants seek summary judgment on two grounds: (1) that the plaintiff has failed to bring forward the requisite expert evidence to support his claim of professional negligence; and, (2) that the plaintiff has failed to demonstrate that the death would probably have been avoided but for the alleged breaches.

(1) Negligence

[40] The issue of informed consent is addressed separately below because it is not determined solely based on expert evidence. Leaving those allegations to one side, given the very complex nature of Ms. Dubins’ health problems and subsequent care, I readily conclude that this is not a malpractice case that could be successfully pursued without expert evidence, and that this requirement is not satisfied by the evidence put forward by the plaintiff from Dr. Levin.

[41] The absence of expert evidence in support of a medical malpractice claim is fatal to the claim except in the clearest of cases: Larman v. Mount Sinai Hospital, 2014 ONCA 923; Claus v. Wolfman (1999), 52 O.R. (3d) 673, at paras. 3-4, 11-12 (S.C.), aff’d (2000), 52 O.R. (3d) 680 (C.A.). A plaintiff in a medical malpractice case is required to deliver expert evidence to establish the standard of care and causation because courts do not generally have the expertise necessary to make the findings in these areas without the benefit of expert testimony: Richmond v. Balakrishnan, 2010 ONSC 5888, at para. 22, aff’d 2011 ONCA 316, leave to appeal refused, 2011 SCCL 75279.

[42] Courts have granted summary judgment dismissing medical malpractice claims where a plaintiff has not brought forward any or sufficient expert evidence to support the claim: e.g., Larman v. Mount Sinai Hospital; Richmond v. Balakrishnan. However, whether a claim ought to be dismissed must be considered in the particular circumstances of each case.

[43] The defendants have put their “best foot forward” on this motion, addressing the claim on its merits, and have not simply called upon the plaintiff to prove his case. The physician defendants have put forward a very substantial evidentiary record in support of their motion. Each of the four defendant doctors has delivered an affidavit that addresses the merits of the claim. They have all been cross-examined. They have also put forward the affidavit of Mr. Dubins regarding the question of informed consent and Mr. Dubins has been cross-examined. In addition, the defendant physicians have delivered three expert reports that are discussed below. The experts have been cross-examined.

[44] In response to these motions, the plaintiff has also put forward a substantial evidentiary record. He has delivered a ten volume responding motion record. It includes two documents described as his affidavits opposing each motion. Although the defendants raised some concerns about the form of those affidavits, I have proceeded on the basis that they are properly before me. With respect to expert evidence, the plaintiff put forward a document described as a “declaration” of Dr. Mark Levin, a physician from Monsey, New York and expert in hematology and oncology. Again, there are some irregularities with respect to the form of that document. I have disregarded the irregularities for the purpose of this motion.

[45] There are a number of difficulties with the evidence of Dr. Levin. Upon a review of Dr. Levin’s curriculum vitae and related enclosures, I am not satisfied that he is qualified to give expert evidence on the standard of practice in the province of Ontario with respect to any of the physician defendants. It is well accepted that the standard of care requires that a physician conduct their practice accordance with the conduct of a prudent and diligent physician in the same circumstances. In the case of a specialist, a physician’s conduct must be assessed in light of the conduct of other ordinary specialists who possess a reasonable level of knowledge, competence and skill expected of professionals in Canada in that field: ter Neuzen v. Korn, [1995] 3 S.C.R. 674, at para. 46; Branco v. Sunnybrook, [2003] O.J. No. 3287, 133 A.C.W.S. (3d) 421 (S.C.J.), at para. 8. Dr. Levin’s material is insufficient to establish his expertise regarding Canadian standards of practice, let alone those applicable to the physician defendants’ circumstances.

[46] As well, Dr. Levin’s proffered expertise in hematology and oncology does not extend to three of the physician defendants in this case, specifically Dr. Mainprize (a neurosurgeon), Dr. Peckham (a hospitalist) and Dr. Hart (a palliative and complex continuing care physician). At best, Dr. Levin may have expertise relevant to the care given by Dr. Doherty, a radiation oncologist. There are other potential problems with Dr. Levin’s expertise as well.

[47] Even if I were to accept Dr. Levin as a qualified expert, his declaration falls well short of what would be minimally required for the plaintiff to establish the standard of care applicable to the defendants and any breach thereof, as well as causation. The questions posed to him and his answers relate to the drug dexamethasone. However, Dr. Levin does not advance any opinion about the medical course of Ms. Dubins specifically. His declaration does not refer to having reviewed her course of treatment, medical records or any other information with respect to her situation in particular. The declaration provides general answers to questions only. Dr. Levin’s declaration does not opine that any of the defendant physicians breached the standard of practice in their care of Ms. Dubins. Further, there is no expert evidence from the plaintiff on any of the other complaints asserted in the amended statement of claim, such as the failure to reinsert the feeding tube.

[48] The physician defendants have put forward three expert witnesses on this motion to demonstrate that the plaintiff’s claim has no merit. In each case, the expert is qualified to give opinion evidence on the matters about which opinions are offered, in accordance with the standard of practice in the province of Ontario. Very briefly, that evidence about the standard of care is summarized as follows.

[49] Dr. William McMillan is a radiation oncologist at the Juravinski Cancer Centre in Hamilton, Ontario. He is also the Head of Radiation Oncology at the Walker Family Cancer Centre in St. Catherines, Ontario, as well as an Associate Professor in the Department of Oncology at the McMaster University Faculty of Medicine.

[50] Dr. McMillan rendered an opinion about the conduct of Drs. Doherty and Peckham in relation to the allegations in the amended statement of claim. He opined that both Dr. Doherty and Dr. Peckham met the standard of care in all respects, including with respect to the use and dosage of the drug dexamethasone.

[51] Dr. McMillan opined that Dr. Doherty understood the implications of dexamethasone use, treated this patient appropriately with dexamethasone in order to decrease her intracranial pressure, provided a standard tapering regime for dexamethasone and exercised appropriate precautions. Dr. McMillan further opined that Dr. Doherty’s preliminary diagnosis of brain metastases was reasonable given the patient’s history of recently treated breast cancer, the neurological clinical findings, the indication of two brain lesions on the patient’s initial CT imaging, and given that breast cancer is known to metastasize to the brain and multifocal GBM is relatively uncommon.

[52] Dr. McMillan opined that Dr. Peckham’s treatment of Ms. Dubins with dexamethasone was appropriate, noting that Dr. Peckham could not have safely decreased the patient’s dose of dexamethasone and that his management of the patient made it clear that he understood the significance of long-term use.

[53] Dr. Paul Mueller is a neurosurgeon at St. Michael’s Hospital in Toronto, Ontario and a professor of surgery at the University of Toronto. He has been in practice and neurological surgery for over 36 years. He gave an opinion about the care provided by Dr. Mainprize. Dr. Mueller opined that Dr. Mainprize met the standard of care in all respects, noting that [he] “undertook appropriate care and treatment in the medical and surgical management” of the patient and that the use of dexamethasone was “life-saving and appropriate”.

[54] In Dr. Mueller’s opinion, without the treatment through dexamethasone, Ms. Dubins’ intracranial pressure would have caused earlier disability and death.

[55] Dr. James Downar is a palliative and critical care physician at the University Health Network in Toronto and an Assistant Professor in the Department of Medicine at the University of Toronto. He provided an opinion about the care given by Dr. Hart. Dr. Downar opined that Dr. Hart met the standard of care in this case. He opined that the use of dexamethasone, including the dose given, was appropriate in the circumstances to reduce peritumourial swelling and intracranial pressure. He further explained that when a patient is expected to have a short prognosis, it is often reasonable to continue dexamethasone without tapering because the most significant side effects of the drug only become apparent with extended use.

[56] Dr. Downar further opined that Dr. Hart managed the patient’s blocked feeding tube appropriately. Dr. Hart identified the correct substitute decision-makers, facilitated family meetings, arranged a gastrointestinal specialist consultation and involved a medical ethicist. In Dr. Downar’s opinion, Dr. Hart’s care in this respect was “exemplary”. Dr. Downar further supports the resulting decision not to reinsert the patient’s feeding tube, noting that the feeding tube would not offer any benefit in the circumstances (as is often the case in the end-of-life stage where the patient’s body can no longer process and use the nutrients properly) and that the reinsertion carries risks of bleeding, infection and aspiration pneumonia.

[57] The defendant physicians’ expert evidence is compelling evidence that the defendant physicians met the requisite standard of care.

[58] Moving to the question of informed consent, there is no question that a physician has a duty to obtain the informed consent of the patient (or substitute decision maker) before treatment is provided. The physician must disclose the nature of the proposed treatment, its gravity, any material risks and any special or unusual risks. Expert evidence is relevant, but the question of whether there was informed consent is not determined solely by the professional standards of the time. Professional standards are a factor to be considered.

[59] In actions where a plaintiff alleges failure to obtain informed consent, there is no genuine issue for trial unless the plaintiff has put forward evidence establishing the following:

(i) that the healthcare practitioner who recommended the treatment failed to disclose the material, special or unusual risks of the treatment that was provided;

(ii) that the patient (or substitute decision-maker(s)) subjectively would not have consented to the treatment if the disclosure has been properly made; and,

(iii) that a reasonable person in the patient’s circumstances would not have consented to the treatment had disclosure been properly made: Cvjetkovic v. Gupta, 2016 ONSC 2322, at para. 37, citing Reibl v. Hughes, [1980] 2 S.C.R. 880.

[60] Expert evidence is relevant to the question of what risks were associated with a particular treatment and were considered material from the standpoint of their probability of occurrence and severity, as well as on the question of breach of standard of care: Samuel v. Ho (2009), 173 A.C.W.S. (3d) 628 (S.C.J.), at paras. 27-28, citing Claus v. Wolfman (1999), 52 O.R. (3d) 673 (S.C.J.), aff’d (2000), 52 O.R. (3d) 680 (C.A.); Leblanc v. Hunt, 2011 ONSC 1333, at paras. 66-69.

[61] Even if I accepted the plaintiff’s expert evidence regarding dexamethasone, which addresses the risks associated with that drug to some extent, the plaintiff’s claim fails in that he has not demonstrated either subjectively or objectively that different decisions would have been made upon different disclosure. Quite the contrary, the defendants have put forward substantial evidence of the process through which informed consent was obtained, including from Mr. Dubins, one of the attorneys for personal care, who was personally involved in the decision-making process.

[62] Mr. Dubins confirmed that informed consent was given throughout and indicated that he and the other attorneys for personal care do not agree with the allegations made by the plaintiff in this action.

[63] I have considered the plaintiff’s evidence regarding his involvement. However, he was not an attorney for personal care and was not present at the meetings held for the purpose of discussing treatment recommendations and obtaining informed consent for treatments. His evidence and the evidence of his expert do not fulfill the above criteria for a successful claim based upon lack of informed consent.

(2) Causation

[64] The physician defendants also seek dismissal this claim for failure to prove causation. As a general rule, the plaintiff cannot succeed unless he shows as a matter of fact that he would not have suffered the loss “but for” the negligent act or acts of the defendant or defendants: Clements (Litigation Guardian of) v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 46. I must take a robust and pragmatic approach to determining if the plaintiff has established that one or more of the defendant’s negligence has caused his loss. Scientific proof of causation is not required: Clements, at para. 46.

[65] Exceptionally, a plaintiff may succeed by showing that a defendant’s conduct materially contributed to the risk of the plaintiff’s injury, where (a) the plaintiff has established that his loss would not have occurred “but for” the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and (b) the plaintiff, through no fault of his own, is unable to show that any one of the possible tortfeasors affect was the necessary or “but for” cause of his injury, because each can point to one another as a possible “but for” cause of the injury, defeating a finding of causation in the balance of probabilities against anyone: Clements, at para. 46.

[66] These legal principles require a focus on the loss claimed by the plaintiff. In this case, the plaintiff claims $1 million in damages, including $2,400 per month for the rent and expenses paid by Ms. Dubins, loss of her guidance, care and companionship, loss of her manufacturing business during illness and afterward, mental anguish and punitive damages.

[67] In short, to succeed, the plaintiff must show that “but for” the alleged negligence, these damages would not have occurred. However, the record demonstrates that sadly and inevitably Ms. Dubins was going to and did die from aggressive brain cancer. As opined by the experts Drs. McMillan and Muller, Ms. Dubins’ death was caused by GBM, the most malignant of all primary brain tumours, for which there is no cure. The plaintiff has not established that the claimed damage was caused by the alleged negligence.

[68] I recognize that the plaintiff is very concerned about the drug dexamethasone. He made that point vigorously in both his written and oral submissions. He submitted that there was a Canadian conspiracy regarding dexamethasone, resulting in the worst cover-up in history regarding the impact of the drug and he called for an investigation. However, in this case, the plaintiff has failed to establish that “but for” the negligence of one or more of the defendants, his losses would not have occurred. Nor has he established that this case falls within the exception where there is more than one potential tortfeasor obscuring the ordinary application of the “but for” test.

[69] The plaintiff has not established that there is a genuine issue requiring a trial. The defendant physicians’ motion prevails on both grounds: the expert evidence put forward by the plaintiff fails to establish the standard of practice applicable to these defendants, nor a breach of the applicable standard, and it has not been established that the alleged negligence caused the damages claimed in this action.

Claim against the hospital defendants

[70] The plaintiff’s claim against the hospital defendants, as pleaded in the amended statement of claim, is that “the Pharmacists did have a legal duty to obtain an ‘informed consent’ by disclosing the risks and side effects” of Ms. Dubins’ dexamethasone prescriptions, and instead “fraudulently” concealed those side effects.

[71] The hospital defendants seek summary judgment on the basis that the hospital pharmacies, in filling the prescriptions for dexamethasone, did not have a duty to obtain informed consent and, in any event, the evidence does not support a finding of negligence.

[72] The hospital defendants have also put forward a substantial record in support of their motion, similar to that delivered by the physician defendants. They have provided an affidavit from a licensed pharmacist from Sunnybrook as well as the opinion of an expert witness, Christine Donaldson, a qualified pharmacist with extensive experience in hospital pharmacy work. Ms. Donaldson has been cross-examined on her expert opinion. These defendants have also put their best foot forward.

[73] The plaintiff’s consolidated responding record includes another affidavit of himself responding to the hospital defendants’ motion, as well as another declaration from Dr. Levin. Again, I have disregarded issues raised by the hospital defendants regarding the form of these documents.

[74] The hospital defendants acknowledge that informed consent is required, including with respect to the prescription of dexamethasone, but submit that this duty lay with the physicians who prescribed the drug to Ms. Dubins, not the in-hospital pharmacies that dispensed it. That position is consistent with s. 10(1) of the Health Care Consent Act, S.O. 1996, c. 2, Sch. A, which imposes an obligation to obtain consent on the health practitioner that “proposes a treatment.” Neither the North York General nor Sunnybrook on-site pharmacy proposed the treatment with dexamethasone, and the treating physicians who did recommend those treatments are independent medical practitioners for whom the hospital defendants are not responsible in law: Yepremian v. Scarborough General Hospital (1980), 28 O.R. (2d) 494 (C.A.). It would be cumbersome and inefficient at best if a hospital pharmacist was obligated to begin anew the process of obtaining informed consent when that consent had already been obtained by the prescribing physician.

[75] The difficulty with suggesting a second duty to obtain informed consent in this case is aptly demonstrated when considering the defendant North York General and its in-house pharmacy. The plaintiff has expressly admitted that the prescription filled at that pharmacy was for the correct drug in the correct dose for the correct duration, and caused no harm. He therefore does not fault the prescribing physician, who has not been sued. In the circumstances, it is unsustainable to suggest that the hospital or its in-house pharmacy breached some duty in filling that very prescription.

[76] Even if there were a duty on the pharmacies to obtain informed consent, the plaintiff has not established the necessary elements of a successful claim. As discussed above with respect to the physician defendants, to succeed the plaintiff would have to, and has not, demonstrated that subjectively and objectively consent would not have been given upon proper information. Informed consent to the treatment was given to the relevant physicians with respect to the prescription filled at the hospital pharmacies.

[77] Dr. Levin’s declaration focuses on the handouts given by the hospital pharmacies so that patients taking dexamethasone are aware of side effects to watch out for. He finds that the handouts inadequately describe the side effects as compared to the drug prescribing information. However, even if I assume that Dr. Levin is properly qualified to speak about pharmacists, which he is not, his declaration does not specifically address the treatment of Ms. Dubins nor does he give the opinion that the handouts caused her any harm.

[78] In contrast, Christine Donaldson, a well-qualified expert pharmacist, opined that the pharmacists followed applicable standards and there was no breach of the standard of care regarding Ms. Dubins. Ms. Donaldson explained the role of the information sheets that are handed out, noting that they are intended to warn out-patients that they should contact their doctor if they have certain symptoms after they begin to take a prescribed drug.

[79] Lastly, the hospital defendants fairly allow that it could be argued that elements of the medical negligence alluded to in the plaintiff’s amended statement of claim, beyond the specific allegation regarding informed consent, might also be intended to relate to the hospital defendants’ pharmacists. In this regard, the hospital defendants rely on the same principles articulated in the physician defendants’ motion regarding the evidentiary requirements for a medical negligence claim and the failure of the plaintiff to adduce the necessary evidence regarding the standard of care and causation. Ms. Donaldson’s evidence also supports the hospital defendants’ position in this regard.

[80] To the extent that those broader allegations were intended to be made against the hospital defendants, and for the reasons articulated above including with respect to the negligence claim against the defendant physicians, negligence has not been established by the plaintiff. The necessary expert evidence has not been put forward by the plaintiff and the plaintiff has not demonstrated that there is a genuine issue that requires a trial.

Decision on motions

[81] On the record before me, a trial is not required to fairly and justly decide this case. The motions for summary judgment are granted and this action is dismissed.

[82] If the parties are unable to agree on costs, each group of defendants shall make their submissions by delivering brief written submissions together with a costs outline by August 19, 2016. The plaintiff may respond by delivering brief written submissions by September 15, 2016. All of these written submissions may be filed with the court by leaving a copy addressed to me at Judges Administration, Room 170, on the main floor of the courthouse at 361 University Avenue, Toronto.

Justice W. Matheson

Released: August 2, 2016