CITATION: Maracle v. Mascarin, 2016 ONSC 537

COURT FILE NO.: CV-11-0303-00

DATE: 2016, February 3

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

AMOS CARL MARACLE and PATRICIA DAWN BRANT

Plaintiffs (Responding Parties)

– and –

DR. STEVEN MASCARIN c.o.b. FAMILY DENTAL CENTRE

Defendant (Moving Party)

S. Baldwin and J. Sewell, for the Plaintiffs

M. Delgado, for the Defendant

HEARD: January 13, 2016

Tausendfreund, J.

SUMMARY JUDGMENT MOTION

OVERVIEW

[1] This is a summary judgment motion by the defendant dentist to dismiss the plaintiffs’ action against him for damages based on his alleged negligent dental malpractice. The defendant states that there are no genuine issues requiring a trial. He states that the plaintiffs have failed to provide evidence from a qualified and Rule 53.03 compliant expert to challenge the opinions of the experts retained by the defendant that it is unlikely that the dental treatment in question caused the plaintiffs’ injuries and damages.

[2] The plaintiffs state that they served an expert opinion more than two years ago. This opinion is from Dr. Campbell, the then treating physician of the plaintiff, Amos Maracle. The plaintiffs state that Dr. Campbell as a “participant expert” or “fact witness” does not require compliance with Rule 53.03 of the Rules of Civil Procedure for his opinion to be admissible. This opinion, if admissible, is a clear and direct challenge to the opinion of Dr. Zoutman, one of the experts who provided an opinion at the request of the defendant. The plaintiffs state that a summary judgment motion is not the forum to resolve competing expert reports. Counsel for the defendant could not refer me to an authority that stands for a contrary proposition.

FACTS

[3] The plaintiffs are husband and wife. They each filed an affidavit.

[4] On December 2, 2009, the plaintiff Amos Maracle, then age 65 and retired attended at the defendant’s dental clinic accompanied by his wife to inquire about possible tooth implants. The defendant dentist examined Mr. Maracle and recommended a procedure for either three or four implants. While still in the dentist chair and with the assistance of his wife, Amos Maracle agreed on a plan for three implants. To his surprise, Dr. Mascarin told him that he would start the procedure that very day.

[5] Amos Maracle had undergone heart surgery in 2007 and had been treated in 2008 for heart infection. His family physician was Dr. Lisowski and his heart specialist Dr. Campbell. He had been told by his treating physicians that it was necessary for him to have antibiotics before undergoing any medical or dental procedure. He was given a prescription for antibiotics and told to take the medication before a scheduled dental appointment.

[6] He had not taken the antibiotic prior to the dental consultation on December 2, 2009 as he had only expected a meeting with the dentist for a consultation. When told that the proposed implant procedure would start that very day, he told Dr. Mascarin that he first needed to take his antibiotic medication. Dr. Mascarin told him that he had this medication at his office and would provide it to him. He was given pills and a cup of water and then asked to go to the waiting room. There he sat with his wife for not more than 20 minutes when he was called back into Dr. Mascarin’s office who immediately started the implant procedure.

[7] Amos Maracle stated that the interval from the time he arrived at the dental office and then left with the three implant posts inserted was maximum 1 ½ hours and the time from taking the antibiotic until the start of the dental procedure was not more than 20 minutes. Patricia Brant recalled that the time period from their discussion of the cost of the implants while Amos Marcale was still in the dental chair and before he had decided to have the implants until they both left the office after the completed procedure was about 45 minutes.

[8] Dr. Mascarin in his affidavit asserts that after obtaining a verbal and written consent from Amos Maracle, he then provided him with the necessary prophylactic antibiotics. He waited for 60 minutes and then started the dental procedure which he recalled as being routine and uneventful. Two weeks later Amos Maracle attended at his office and told him that the implants were great and that he was not experiencing any problems.

[9] In fact, there were no apparent and immediate post-operative difficulties with the dental implant procedure. However, on January 21, 2010, some 50 days later, Amos Maracle suffered a sudden loss of vision in his right eye.

[10] Dr. Campbell, the treating cardiologist, saw Amos Maracle on February 2, 2010 for complaints of chest discomfort. Dr. Campbell’s treating notes and records indicate his diagnosis of an inflammation of the lining of one of the heart valves, described in medical jargon as “Streptococcal mitis/oralis aortic valve endocarditis”.

[11] On March 5, 2010, Dr. Campbell sent a report to Dr. Lisowski which included these comments and opinions regarding the heart condition of Amos Maracle:

a) I am following [Amos Maracle] with a bicuspid aortic valve and a dilated aorta. He had his aortic root replaced and an aortic valve repair in March 2007. His course was complicated by Streptococcal aortic valve endocarditis in February 2008.

b) He recently developed endocarditis with a different organism related to dental work.

c) He was admitted to hospital on February 2^nd.

d) I have sent off cultures. They all grew Streptococal mitis/oralis.

e) Amos has recurrent Streptococcal aortic valve infective endocarditis.

f) Unfortunately, he had dental work done a couple of week[s] prior to his presentation. He did receive Penicillin but only waited in the waiting room for about 20 minutes before his dental work was performed. He would not have reached therapeutic blood levels of antibiotics by that time and this was the likely source of his infective endocarditis.

[12] The statement of claim in this action issued December 2, 2011, followed by the statement of defence on May 3, 2012.

[13] The defendant served Rule 53.03 compliant reports from Dr. Nicolucci on November 2, 2012 and from Dr. Zoutman on March 6, 2013.

[14] The opinion of Dr. Campbell and his notes and records were included in the affidavit of the plaintiff Amos Maracle sworn October 8, 2013 and within days were served on counsel for the defendant.

[15] Lorraine Thomson in her affidavit of January 6, 2016 states in part that the notes and records of Dr. Campbell were tendered pursuant to ss. 35 and 52 of the Evidence Act, R.S.O. 1990, c. E. 23.

[16] On the issue of causation, Dr. Nicolucci’s report states:

a) Mr. Maracle was an appropriate candidate for implant treatment and that the implants were appropriately placed.

b) Considering Mr. Maracle’s medical history, the defendant administered the appropriate dose of prophylactic antibiotics at the appropriate time. The defendant followed the most recent standards (2007) approved by the American Heart Association and published by the Canadian Dental Association for the prevention and treatment of bacterial endocarditis.

c) The retinal artery embolus in Mr. Maracle’s right eye seemed to be a co-lateral result of cardiac complications and not a direct result of having the implants placed.

[17] Dr. Zoutman in his report served March 6, 2013 offered these opinions:

a) The defendant correctly identified Mr. Maracle as meeting the criteria outlined by the American Heart Association in their guidelines for the administration of prophylaxis and provided Mr. Maracle with the correct antibiotics;

b) Bacteria commonly enter the bloodstream after dental extractions or other dental procedures. However, the risk of “spontaneous” bacteremia after daily activities, including brushing and flossing and chewing is known to be much more likely to cause infective endocarditis than bacterium associated with any dental procedure;

c) It is extremely remote and unlikely that Mr. Maracle’s infective endocarditis was caused in any way by the dental procedure performed on December 2, 2009.

[18] Dr. Zoutman served a supplementary report on December 22, 2013 in which he opined that:

a) If Mr. Maracle received his prophylactic antibiotics approximately 20 minutes before the procedure, this timing would not alter his opinion expressed in his earlier report;

b) 2000 mg of amoxicillin taken orally 20 minutes prior to the start of the dental procedure would have achieved a level of amoxicillin in Mr. Maracle’s blood that would exceed the minimum inhibitory concentration necessary to kill Streptococcus oralis/mitis or similar bacterial strains;

c) Infective endocarditis develops and becomes clinically evident with 7 – 14 days after initiating bacteremia;

d) The interval of some 50 days between the time of the dental treatment (December 2, 2009) and the first manifestations of infective endocarditis is much longer than expected;

e) Bacteria resulting from daily activities such as chewing or brushing is much more likely to cause infective endocarditis than bacteremia associated with any dental procedure.

[19] These reports of Dr. Nicolucci and Dr. Zoutman state that they are based on their respective reviews of a copy of the defendant dentist’s clinical notes and records. In December of 2015, the Royal College of Dental Surgeons of Ontario advised counsel for the plaintiffs that:

a) The College requested the original clinical chart from the defendant dentist to assist with its investigation of the complaint which the plaintiff Amos Maracle had made to the College; and

b) The defendant advised the College that his original chart seemed to have gone astray and could not be located.

[20] The plaintiffs state that this information provided by the College is important for a number of reasons:

a) The amount and type of antibiotic given to Amos Maracle and the length of time the dentist waited before starting the procedure are critical pieces for the causation opinions. That is particularly so, the plaintiffs state, as the defendant asserts that he waited one hour while the plaintiffs’ evidence is that it was but 20 minutes between the time the antibiotics were administered and the procedure started.

[21] The plaintiffs also note that the discipline record of the defendant dentist with the Royal College of Dental Surgeons of Ontario indicates that in 2005 he had been found guilty for failing to keep records as required by the Regulations of the College and that he was found guilty of falsifying a record.

Analaysis

[22] The issue on this motion is whether there is a genuine issue requiring a trial with respect to the claim the plaintiffs advance. The defendant seeks Summary Judgment on the grounds that there is no genuine issue requiring a trial as the plaintiffs are unable to establish that the defendant caused the alleged injuries pleaded in the statement of claim.

[23] The court shall grant Summary Judgment if it is satisfied that there is no genuine issue requiring a trial with respect to a claim.

Rules of Civil Procedure, Rule 20.04(2)(a)

[24] Rule 20.04(2.1) and (2.2) grant enhanced powers for Judges hearing Summary Judgment motions. These include:

a) The ability to weigh evidence;

b) The ability to determine credibility;

c) The ability to draw reasonable inferences; and

d) The ability to hear oral evidence – the “mini trial”.

[25] In addition, the principle of proportionality was codified in Rule 1.04 as follows:

“1.04(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.”

[26] The Supreme Court of Canada in Hryniak, Hryniak v. Mauldin, 2014 SCC 7, [2014] S.C.J. No 7, called for a “culture shift” that would promote timely and affordable access to the civil justice system: para 3. That shift was stated to require “simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of a particular case”: para 2.

[27] Hrynaik detailed these additional propositions on the resolution of Summary Judgment motions:

a) There will be no genuine issue requiring a trial when the Judge is able to reach a fair and just determination on the merits on a motion for Summary Judgment: para 49.

b) This will be the case when the process

i) allows the Judge to make the necessary findings of fact,

ii) allows the Judge to apply the law to the facts, and

iii) is a proportionate, most expeditious and less expensive means to achieve that result: para 66

c) The enhanced fact – finding powers granted in Rule 24.04(2)(1) may be employed on a motion for Summary Judgment unless it is in the “interests of Justice for them to be exercised only at trial”: para 52

[28] The defendant states and I accept that in cases alleging medical malpractice which includes alleged dental malpractice, liability may be established if the plaintiffs demonstrate on a balance of probabilities that the dentist’s conduct fell below the applicable standard of care, which is the degree of skill of a reasonably competent dentist practising in Ontario: McNeil v. Easterbrook [2004] [O.J. No. 3976] (S.C.J) at para 14. The plaintiffs must establish that the treatment in question was the cause of the injury. In the face of an expert opinion obtained by the defendant on a technical causation issue such as in a medical malpractice case, a finding of negligence must be based on a supporting expert opinion: McNeil ibid at paras 15 and 16. If the plaintiffs in these circumstances do not deliver an expert report on the issue of causation and negligence, they will not have raised a genuine issue with respect to that material fact and the defendant would be entitled to Summary Judgment: McNeil ibid at para 16.

[29] The parties have agreed, for purposes of this motion, that the issue of the standard care is not “in play”, but only the issue of causation.

[30] The defendants have produced two Rule 53.03 compliant medical opinions. Dr. Nicolucci opined that Mr. Maracle’s complications with his right eye seemed to be a co-lateral result of cardiac complications and not a direct result of having the implants placed. Dr. Zoutman opined that it is extremely remote and unlikely that Mr. Maracle’s infective endocarditis heart condition was caused in any way by the dental procedure performed by the defendant on December 2, 2009.

[31] In response to these two opinions commissioned by the defendant, the plaintiffs rely on the opinion of Dr. Campbell that the defendant dentist did not wait long enough for the Penicillin to have reached the required therapeutic blood levels of antibiotics before starting the dental procedure and that this was the cause of the infective endocarditis.

[32] In the face of these competing medical opinions on the issue of the medical/dental malpractice allegation, the summary trial provisions in Rule 20.04 do not provide the appropriate forum to resolve such contradictory opinions. In my view, to prefer one such opinion over another requires nothing less than a trial process. Indeed, counsel for the defendant was unable to refer me to a decision which would support his position that the question of competing medical opinions could be resolved at the Summary Judgment stage of an action.

[33] However, that does not end the matter, as the defendant states that absent compliance with Rule 53.03, the opinion of Dr. Campbell is not and should not be admissible.

[34] Relying on the Divisional Court decision of Westerhof v. Gee Estate (2013 ONSC 2093) the defendant states that if a party seeks to introduce opinion evidence from a treating physician for its truth, that party must comply with Rule 53.03 and that failure to do so should be a barrier to the admissibility of that report. What the defendant fails to state is that this Divisional Court decision of Westerhof was overturned by the Ontario Court of Appeal: see Westerhof 2015 ONCA 206. The Court of Appeal distinguished reports from experts “engaged by or on behalf of a party” from that of treating physicians with notes and records as tendered. The Court of Appeal referred to the latter type of experts as “participant experts” and stated this:

“Para 60. . . I conclude that a witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with rule 53. 03 where:

a) the opinion to be given is based on the witness’s observation of or participation in the events and issues; and

b) the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.

Para 61 Such witnesses have sometimes been referred to as “fact witnesses” because their evidence is derived from their observations of or involvement in the underlying facts. Yet, describing such witnesses as “fact witness” risks confusion because the term “fact witness” does not make clear whether the witness’s evidence must relate solely to their observations of the underlying facts or whether they may give opinion evidence admissible for its truth. I have therefore referred to such witnesses as “participant experts”.

Para 62. . . I conclude that rule 53.03 does not apply to the opinion evidence of a non-party expert where the non-party expert has formed a relevant opinion based on personal observations or examinations relating to the subject matter of the litigation for a purpose other than the litigation.

Para 76. . . in McNeill v. Filthaut, 2011 ONSC 2165, MacLeod-Beliveau J., . . . described the “ultimate purpose of rule 53.03” as being “to limit and control the proliferation of experts retained by litigants”. . . she described the “introduction of the new rules about expert witnesses” as “an effort to eliminate the use of ‘hired guns’ or ‘opinions for sale’ in civil litigation where the use of which has resulted in potentially biased expert evidence being given at trial”. . .

Para 81 . . . I conclude that rule 4.1.01, rule 53.03 and Form 53 are a comprehensive framework addressing a specific class of expert witnesses and expert reports. . . I see no basis for concluding that rule 53.03 was intended to apply to persons other than expert witnesses “engaged by or on behalf of a party to provide [opinion] evidence in relation to a proceeding”.

Para 82 Witnesses, albeit ones with expertise, testifying to opinions formed during their involvement in a matter, do not come within this description. They are not engaged by a party to form their opinions, and they do not form their opinions for the purpose of the litigation. As such, they are not “engaged by or on behalf of a party to provide [opinion] evidence in relation to a proceeding. . .”

[35] Dr. Campbell had been the treating cardiologist for the plaintiff Maracle prior to this dental procedure on December 2, 2009. He saw Mr. Maracle some two months later on February 2, 2010 for heart issues following the plaintiff’s development of blindness in his right eye. He treated him over the next few weeks and provided an opinion on March 9, 2010. The Statement of Claim was not issued until December 2, 2011.

[36] I am satisfied that Dr. Campbell at all times was a participant expert whose notes, records and opinions were prepared as a treating physician and not as one who was “engaged by or on behalf of a party to provide opinion evidence in relation to a proceeding”.

[37] The defendant further states that the notes, records and opinion of Dr. Campbell must be served in a manner that will permit cross-examination. He relies on Suwary v. Women’s College Hospital, [2008] O.J. No. 883, Toronto-Dominion Bank v. Schrage, 2009 CanLII 45444 (ON SC), [2009] O.J. No. 3636 and Danos v. BMW Group Financial Services Canada, 2014 ONSC 2060, [2014] O.J. No. 1802. The defendant points to these authorities in support of his position that a party intending to rely on the opinion of an expert on a Summary Judgment motion must put the evidence forward in a manner that will permit cross-examination of the expert. In each of these three decisions, the plaintiffs had filed an affidavit by a third party who, on the basis of knowledge, information and belief, had attached one or more expert reports as exhibits. In each of these decisions the Court essentially held that on a motion for Summary Judgment the Court was entitled to insist on sworn evidence and, in the case of experts, that the evidence be given by the expert and not filtered through the hearsay evidence of the party: see Toronto-Dominion Bank, supra, at para 39. However, each of these decisions pre-date the Ontario Court of Appeal decision of Westerhof, supra, in which the Court stated at para 85:

“. . . I am not persuaded that disclosure problems exist in relation to the opinions of participant experts and non-party experts requiring that they comply with rule 53.03. In many instances, these experts will have prepared documents summarizing their opinions about the matter contemporaneously with their involvement. These summaries can be obtained as part of the discovery process. Further, even if these experts have not prepared such summaries, it is open to a party, as part of the discovery process, to seek disclosure of any opinions, notes or records of participant experts and non-party experts the opposing party intends to rely on at trial. . .”

[38] I note that the records, notes and opinions of Dr. Campbell were served by the plaintiffs in October 2013, as attached to the affidavit of the plaintiff Maracle sworn October 8, 2013. They were further served in August of 2015 as attached to the affidavit of Lorraine Thomson sworn August 12, 2015 and further in January 2016 as attached to affidavit of Ms. Thomson of January 5, 2016. Had the defendant been so inclined, he could have sought to examine Dr. Campbell under Rule 39.03 as a witness before the hearing of a pending motion. That had been so as of October 2013. I have no evidence of any requests the defendant may have made in that regard on this motion.

[39] I also note that the records and notes of Dr. Campbell are admissible as business records made in the usual and ordinary course of a business under s. 35 of the Evidence Act and under s. 52 of that Act as a report obtained by a party to an action signed by a physician and with leave of the Court.

[40] For reasons stated, I find that the notes, records and opinion of Dr. Campbell are admissible. Accordingly, I am faced on this Summary Judgment motion with two competing sets of medical opinions on the issue of causation. That leads me to comments made by the Ontario Court of Appeal in Rothwell v. Raes, 1990 CanLII 6610 (ON CA), [1990] O.J. No. 2298. Before the court was the issue of causation raised by the appellants who sought to have the court reverse specific findings of fact made by the trial Judge in the decision under appeal. The court’s response at para 6 was this:

“The question of causation is essentially a question of fact to be determined by the trial judge. It is not for this court to weigh conflicting evidence or to reassess the relative merits of contradictory expert testimony.”

These comments on a parallel basis, in my view, apply here on this Summary Judgment motion which turns on the question of causation.

[41] Additionally, as I noted above, the accuracy and reliability of the notes and records of the defendant dentist is in question. He was unable to produce to the Royal College of Dental Surgeons of Ontario his original notes and records which apparently have gone missing for unnamed reasons. The plaintiffs state that these notes and records are of importance, as the opinions on causation obtained by the defendant rely and are based on those very notes and records. The plaintiffs further state that it is not clear from these notes and records what quantity and type of antibiotics were administered. The plaintiffs urge that discoveries are needed to ferret out answers to these issues relating to the defendant’s notes and records.

[42] For reasons stated, this motion for Summary Judgment is dismissed.

[43] Relying on para 78 of Hryniak, supra, and as I see no compelling reasons to the contrary, I will seize myself of this action at least on a trial management basis. In view of this extended Summary Judgment motion, the timetable set by Order of February 17, 2015 now appears out of date. I will extend it. I expect counsel to work out a new proposed timetable and to so advise me prior to March 30, 2016. In the alternative, counsel may arrange a date to appear before me to state why it was not possible to arrive at a consent proposed timetable.

[44] If counsel cannot agree on costs of this motion, I expect to receive brief written submissions not later than February 29, 2016.

Honourable Mr. Justice Tausendfreund

Released: February 3, 2016

COURT FILE NO.: CV-11-0303-00

DATE: 2016, February 3

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

AMOS CARL MARACLE and PATRICIA DAWN BRANT

Plaintiff (Responding Parties)

– and –

DR. STEVEN MASCARIN c.o.b. FAMILY DENTAL CENTRE

Defendant (Moving Party)

SUMMARY JUDGMENT MOTION

Tausendfreund, J.

Released: February 3, 2016