Shaw-Vanderholst v. Azzopardi, 2016 ONSC 6895
CITATION: Shaw-Vanderholst v. Azzopardi, 2016 ONSC 6895
COURT FILE NO.: 65/09
DATE: 20161116
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ADELE SHAW-VANDERHOLST, HENRY VANDERHOLST, JOHN VANDERHOLST and LINDY VANDERHOLST
Plaintiffs
– and –
DR. MARK JOSEPH ANDREW AZZOPARDI, DR. ANDREW FRANCIS CYRIL STRATFORD, DR. KELLY H. LAURENCE, DR. ROGER DALE TAYLOR, DR. FRANCIS STEPHEN MARROCCO and NORTHUMBERLAND HILLS HOSPITAL
Defendants
COUNSEL:
Russell J. Howe, Gayle T. Brock and Keenan Sprague for the Plaintiffs
Anne E. Spafford and Jennifer L. Hunter for the Defendants
HEARD: May 17, 2016, followed by written submission on costs
REASONS FOR DECISION
MULLINS J.:
Overview:
[1] The plaintiffs allege that the defendant physicians failed to provide Mrs. Shaw-Vanderholst with adequate care and treatment at the appropriate time. This allegedly contributed to a decline in her health and required her to have urgent surgery. At the outset of the trial, Dr. Francis Stephen Marrocco moved for summary judgment dismissing the plaintiffs’ claim against him. There was no issue requiring a trial, because the plaintiffs have failed to tender expert opinion evidence of causation in relation to this defendant’s alleged breach of standard of care, submits the defendant. As well, the defendants seek fees in the amount of $29,478 and $376.98 for disbursements for cost thrown away over May 16-25, 2016, the completion of the trial been adjourned due to Mrs. Shaw-Vanderholst’s poor condition.
[2] The plaintiffs ask the court to (a) dismiss Dr. Marrocco’s motion for summary judgment, (b) grant their cross-motion under r. 53.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [Rules] for leave to admit Dr. Yin Hui Siow’s reports and call Dr. Siow to testify on matters discussed in his reports dated April 10, May 6 and May 11, 2016, and (c) award costs to the plaintiffs.
[3] For the reasons that follow, I am dismissing Dr. Marrocco’s motion for summary judgment and granting the plaintiffs leave to submit Dr. Siow’s reports and call Dr. Siow to testify. I decline to rule on the matter of costs until the end of these proceedings.
Background & Procedural History:
[4] The plaintiffs issued a notice of action on May 6, 2009 and filed a statement of claim on June 5, 2009. They allege the defendants were negligent in providing medical care and treatment. Specifically, they claim Mrs. Shaw-Vanderholst’s declining health, diminished quality of life and eventual disablement from work stemmed from the defendants’ individual and collective failure to diagnose Crohn’s disease and provide her with meaningful testing, follow-up, and treatment. Dr. Azzopardi is alleged to have failed to adequately investigate her condition and to have misdiagnosed her illness. Dr. Taylor and Dr. Marrocco are alleged to have failed to order proper diagnostic testing after interpreting an initial CT scan performed in December 2004. Dr. Stratford is alleged to have failed to conduct further diagnostic testing after a colonoscopy. Ultimately, the plaintiffs maintain that as a result of the defendants’ negligence, Mrs. Shaw-Vanderholst was forced to undergo a lengthy and invasive surgery that was entirely avoidable if the defendants had provided proper care. The defendant physicians served their statement of defence on April 8, 2010. Overall, the defendants claim that any treatment, care and services met standards of practice; they deny negligence or breach of duties. The action was set down for trial on or about September 14, 2012, presumably by the plaintiffs. The pre-trial occurred on February 2, 2016. At that time, the defendants consented to the pending trial date of May 16, 2016.
[5] Dr. Marrocco served his notice of the motion for summary judgment on May 6, 2016.
[6] On May 16, 2016, Mrs. Shaw-Vanderholst attended court for the first day of the trial but left. The trial was adjourned until May 17, 2016 to allow time to gauge her fitness to testify. Mrs. Shaw-Vanderholst’s family physician, Dr. Corless, provided a note stating that she would be ready to continue on May 18, 2016.
[7] The pre-trial motions were heard on May 17 and 18, 2016. Dr. Marrocco moved for summary judgment on the basis that the plaintiffs’ report on standard of care was served less than two weeks before the scheduled trial date and, more importantly perhaps, the plaintiffs have yet to establish causation against him. The plaintiffs cross-motioned for leave to call Dr. Peter Rossos, a gastroenterologist, and Dr. Siow, a radiologist, to testify at trial in accordance with the evidence in their reports dated May 6, 2016 and May 12, 2016 respectively.
[8] On May 19, 2016, Mrs. Shaw-Vanderholst left again, ostensibly due to illness after testifying for two hours. On May 20, 2016, though Mrs. Shaw-Vanderholst’s evidence was not completed, her children were called to testify. It was expected that Mrs. Shaw-Vanderholst would attend for medical care and rest, then resume giving her evidence.
[9] On May 24, 2016, Mrs. Shaw-Vanderholst left court again. She had not attended for medical care in the interim as expected. She attended at a local hospital. The treating physician, Dr. Woolfson, provided a note dated May 25, 2016 explaining that Mrs. Shaw-Vanderholst could not currently testify as she required treatment which may leave her incapacitated for months. The trial was adjourned indefinitely and returned for management to the case management judge. Counsel were invited to address costs. The plaintiffs were directed to seek leave or consent of the defendants to deliver any further expert reports on standard of care or breach before trial resumed, with the exception of any response to the defence’s most recent response to Dr. Siow’s late-served report and reports dealing with damages.
[10] On June 2, 2016, the defendants made written submissions for costs thrown away as a result of the trial adjournment.
[11] On June 20, 2016, the plaintiffs provided responding submissions on costs.
Overview of some of the expert evidence exchanged between the parties:
[12] Dr. Rossos produced a report dated July 29, 2010 commenting on the care provided by Dr. Marrocco to Mrs. Shaw-Vanderholst on December 22, 2004.
Ms. Adele Shaw-Vanderholst was admitted to the Northumberland Hills Hospital on December 22, 2004, with abdominal pain, clinical distension, and radiologic evidence of distal and mechanical small bowel obstruction. Plain abdominal views and a CT scan of the abdomen and pelvis indicated a “ratty” terminal ileum with irregular thickened walls and multiple dilated loops of small bowel to a maximum caliber of more than 3cm. In addition, there were multiple mildly prominent mesenteric lymph nodes and ascites. Despite these well documented findings suggesting an inflammatory process involving the terminal ileum, Dr. Marracco, the medical imaging consultant, dismissed them as related to chronic laxative use with pseudo-obstruction…Crohn’s disease should have specified in the differential diagnosis leading to further evaluation with endoscopy and biopsy of the colon and terminal ileum.
[13] In the case summary, Dr. Rossos states that an earlier referral to a gastroenterologist or more complete evaluation for underlying inflammatory bowel disease could have resulted in earlier diagnosis of small bowel Crohn’s disease and potentially prevented the need for urgent surgery through more effective management. As well, he suggested that a medical imaging expert opinion could have helped confirm whether suspicion of inflammatory disease should have been included in the differential diagnosis in 2004.
[14] A radiologist retained by the defence, Dr. Joseph Fairbrother, produced a report dated March 19, 2014 outlining his opinion that Dr. Marrocco met and exceeded the requisite standard of care. He observed that:
The exam status was “urgent”.
A note has been made on the requisition, in handwriting, showing an asterisk and “pt declined contrast.”
[S]ome patients elect not to have the examination performed with contrast and in these cases it is appropriate to perform the examination without contrast administration, as was done in this case.
Dr. Morrocco’s [sic] report is comprehensive and of high quality…has provided a much more detailed history than was available to him from the requisition.
In the conclusion of the report he has summarized the findings and has indicated that although a number of abnormalities are present, they are non-specific meaning they could not be attributed to a single diagnosis.
[15] Dr. Nitin Khanna, a gastroenterologist retained by the defence, provided an opinion on causation in a report dated June 9, 2014. Dr. Khanna considered whether the diagnosis of obstructing Crohn’s disease was missed in 2004-2005 and also whether a delayed diagnosis in 2006-2007 significantly altered Mrs. Shaw-Vanderholst’s overall health and need for surgery.
In December 2004, she presented with symptoms that could be consistent with a small bowel obstruction…Unfortunately, Ms. Shaw-Vanderholst refused IV contrast as recommended by the Radiologist. Contrast for her CT would have improved the quality of the test…The CT scan did report some dilation of small bowel loops and areas of thickened small bowel wall, both non-specific findings and not proof of Crohn’s disease. There was no evidence of a transition point which would be more conclusive for mechanical obstruction. There was a significant amount of stool within the colon more suggestive of constipation and a motility problem, likely due to her narcotic analgesic usage.
Ms. Shaw-Vanderholst’s symptoms during her admission in December 2004 improved with an enema for constipation. This is not consistent with small bowel obstruction due to Crohn’s disease. Throughout 2005, she had intermittent symptoms that resolved on their own.
I feel that there is inconclusive evidence to suggest that a diagnosis of obstructing Corhn’s disease was missed by the treating physicians during 2004-2005.
In the summer of 2006 and into 2007, Ms. Shaw-Vanderholst’s condition changed…In 2006, she developed more recurrent pain in the upper abdomen…She also developed GI bleeding, anemia, recurrent vomiting and weight loss. These symptoms would be consistent with small bowel Crohn’s disease given the lack of findings on her upper endoscopy and colonoscopy.
It is my belief that in this particular patient, surgical resection both for diagnostic and therapeutic purposes would have been the most likely outcome.
The medical therapies for Crohn’s disease work best in treating inflammation. However, once structuring to the point of obstruction occurs, medical therapy for Crohn’s disease provides no benefit in the prevention of surgical resection.
[I]t is also my opinion that a delay in the diagnosis of Crohn’s disease … did not cause the need for her surgical resection. The type of surgery performed and amount of small bowel resected was similarly not altered significantly.
Overall, Dr. Khanna’s report suggested that if there was a delay in diagnosis, it did not cause the damages claimed by the plaintiff.
[16] Dr. Rossos wrote a supplemental report dated October 27, 2014 stating that his opinion remained unchanged and reiterating that timely treatment would have provided her with “either remission or at least improved control”.
Between November 27, 2003 and April 24, 2007, Ms. Shaw-Vanderholst was frequently evaluated and managed for chronic abdominal and pelvic pain, narcotic dependence, interstitial cystitis and a presumed anxiety disorder. Her anemia, recurrent gastrointestinal bleeding and weight loss should have resulted in an earlier referral to a gastroenterologist for further management. By the time she was referred to Dr. Ben Ho it was too late to change the course of her illness and avoid emergency laparotomy and intestinal resection for obstructing Crohn’s disease.
Although the described findings were characteristic of an inflammatory intestinal condition such as Crohn’s disease the primary differential diagnosis by the radiologist Dr. Frank S. Marracco was chronic laxative use with pseudoobstruction. Other possibilities included a small bowel infection and recent release of a mechanical small bowel obstruction.
On the basis of these features, referral to a gastroenterologist in either 2005 or 2006 would have prompted a dedicated and detailed investigation of her abdominal discomfort, variable bowel pattern, fatigue, anemia, weight loss and abnormal abdominal imaging. Had referral been made to a gastroenterologist by mid-2006, it is likely that she would have been diagnosed with mild to moderate Crohn’s disease and started on a course of appropriate therapy. Medical therapeutic approaches and strategies aimed at achieving and maintaining remission were well established and documented at that time with intent to improve quality of life and reduce the need for surgery. Available treatment options would have likely prevented her from requiring such extensive and urgent surgical intervention in May 2007.
The skip nature of his [sic] condition would explain the absence of gross inflammatory disease at the time of her colonoscopy performed by Dr. Stratford on September 5, 2006.
He [Dr. Anthony Jeffrey] dismissed this as “largely functional related to personality disorder and depression”. He indicated that she was “very much attached to her illness, and uses that to manipulate her family, as well as her doctors, and Dr. Azzopardi is well aware of this.” Unfortunately, this shared view of functional manipulative behaviour prevented Ms. Shaw-Vanderholst from receiving appropriate medical therapy for her Crohn’s disease.
[17] Dr. Khanna produced an additional report dated March 18, 2015. In this, Dr. Khanna states that:
It is my opinion that her ongoing difficulties are not the result of her ileocecal surgical resection or her perceived delay in the diagnosis of her Crohn’s disease.
The most likely reasons for her ongoing symptoms of abdominal pain and bowel difficulties are a recurrence of her Crohn’s disease or functional bowel problems….Also, many of Ms. Shaw-Vanderholst’s symptoms could either be explained, or at least worsened, by an Anxiety Disorder.
[18] Dr. Davison issued a supplementary report dated October 9, 2015 in which he considered Dr. Taylor’s treatment of Mrs. Shaw-Vanderholst during 2004 and 2005. Dr. Davison stated that:
In retrospect, with the benefit of knowing her diagnosis made at surgery over two years later, it is theoretically possible that CT imaging changes seen in the small bowel on December 22, 2004 represented Crohn’s disease, but this seems highly improbable to me in the absence of a corresponding clinical picture consistent with the disease…In any event, even if Crohn’s disease had been contemplated based on the CT scan findings, the next diagnostic procedure would have been colonoscopy, which Dr. Taylor appropriately booked at the follow-up appointment. During the period of Dr. Taylor’s care for Ms. Shaw-Vanderholst, there was no indication for the physicians involved to consider more urgent intervention or to recommend dedicated small bowel imaging such as CT enterography.
In my opinion, Dr. Taylor’s management of this case was completely appropriate.
[19] The pre-trial for this case occurred on February 2, 2016.
[20] Dr. Khanna produced another supplementary report dated February 29, 2016. This includes:
This severe recurrence in September 2015 requiring surgery despite aggressive medical therapy and close follow up by Dr. Ho further supports my original opinion that Ms. Shaw’s disease is of a phenotype that will ultimately require surgery, more than once as it turns out. As such, it is still my opinion that a delay in her diagnosis by Dr. Azzopardi et al back in 2006-2007, was not the cause for her need for surgery.
Dr. Khanna reaches the conclusion that Mrs. Vanderholst’s ongoing difficulties and her need for surgery were not caused by any perceived delay in her Crohn’s disease diagnosis.
[21] After reviewing the 2004 CT scan and Dr. Fairbrother’s report, Dr. Siow composed a report dated April 10, 2016. The report was delivered to the defendants on May 3, 2016, less than two weeks before the scheduled trial date. The following are excerpts from Dr. Siow’s April 10, 2016 report:
My interpretation of CT abdomen and pelvis December 22, 2004 from Northumberland Hills Hospital
Clinical history: possible bowel obstruction. Previous hysterectomy (at p. 2).
CT abdomen and pelvis was obtained without intravenous or oral contrast. There is a notation stating that the patient declined contrast.
There are markedly dilated fluid filled loops of proximal small bowel.
Multiple prominent lymph nodes are seen in the mesentery,
There is a very subtle “swirling” type of pattern of the vessels of the small bowel mesentery. This can be seen with a volvulus or malrotation of the small bowel and could be the cause of the patient’s small bowel obstruction. Alternatively, this could also represent an internal hernia although this is not clearly identified.
My Summary of Above Study
There are findings of mid-small bowel obstruction with a large amount of associated free fluid in the peritoneal cavity. The cause of the small bowel obstruction is not clearly identified although a volvulus or internal hernia is suspected.
My review of Dr. Marrocco’s CT report
Subsequent to my review of the study, I reviewed Dr. Marrocco’s report and while I agree with his findings, I disagree with his conclusion regarding the absence of small bowel obstruction. Dr. Marrocco mentions “multiple dilated loops of small bowel” which is abnormal. This is either an ileus, which is a functional dilation of bowel usually seen as a dilation throughout the bowel loops, or a mechanical dilation meaning in this case a mechanical small bowel obstruction. A change in caliber of small bowel loops is expected in a mechanical obstruction and Dr. Marrocco’s findings fit this when he mentions “evidence of a transition point from dilated to collapsed small bowel”. However, in his conclusion, Dr. Marrocco states that “there is no evidence of small bowel obstruction currently” which in my opinion contradicts his stated findings (at p. 3).
Dr. Marrocco proposes a number of entities to explain the findings of his report, one of these is “recent release of a mechanical small bowel obstruction”…he does not explain how he came to this conclusion…it would be more reasonable to state that there is a small bowel obstruction especially since Dr. Marrocco’s findings would support this.
I find that Dr. Marrocco contradicts himself in his report between his findings and conclusion and also in his lack of clarity as to his thought process.
For the above mentioned reasons, Dr. Marrocco has fallen below standard of care in the interpretation of this CT study.
[22] Overall, it stated that Dr. Marrocco breached the standard of care in his interpretation of the CT scan.
[23] Dr. Rossos issued a second supplementary report dated May 6, 2016 in response to Dr. Khanna’s June 2014 report. The following are excerpts from Dr. Rossos’s May 6, 2016 report:
The report of Dr. Yin-Hui Siow dated April 10, 2016 confirms the presence of small bowel pathology on Ms. Shaw-Vanderholst’s CT imaging of abdomen and pelvis performed December 22, 2004. This finding combined with her abdominal discomfort, variable bowel pattern, fatigue, subsequent anemia, weight loss and hypoalbuminemia should have prompted referral to a gastroenterologist. A gastroenterologist would have undoubtedly pursued further small bowel imaging with a small bowel follow-through or small bowel enema that would have likely demonstrated features suggestive of small intestinal Crohn’s disease and prompted earlier medical treatment. When she required urgent laparotomy and resection of 60cm of small intestine on May 7, 2007, her surgeon Dr. Wherrett discovered significant distension starting at the mid small bowel with sparing of the terminal ileum. This corresponds well with the findings reported by Dr. Siow on the CT scan performed almost two and a half years prior. Her surgical pathology revealed active chronic ileitis consistent with Crohn’s disease with marked luminal narrowing. This finding and her prior response to a short exposure to corticosteroids supports the probability of response to medical therapy if it were offered to her in advance (at p. 2).
Here, Dr. Rossos confirms his earlier opinion and states that he believes that had the plaintiff received available treatment options, the urgent surgical intervention would have likely been avoided.
[24] Dr. Siow produced a supplemental report dated May 11, 2016. The following are excerpts from this report:
A small bowel obstruction is present although the cause is not clearly identified.
A distal small bowel obstruction has developed since February 2007. There are abnormal distal small bowel loops with at least two apparent areas of stricture on CT.
[25] Dr. Siow observes that it is much more likely than not that the abnormalities identified in the December 2004 CT scan represent Crohn’s disease.
Key Issues:
[26] I will address the following issues in my ruling:
Should the plaintiffs be granted leave to admit late-served expert reports and call the experts to testify on the substance of those late-served reports despite non-compliance with r. 53.03?
Is there a genuine issue requiring a trial with respect to the plaintiffs’ claims against Dr. Marrocco?
Should the costs thrown away matter be determined now (at an interim stage) or at the end of the trial? Which party should be granted costs thrown away for adjournment? What quantum should be granted to the successful party?
Issue #1: The plaintiffs are granted leave to admit late-served expert reports and call the experts to testify on the substance of those late-served reports despite non-compliance with r. 53.03.
Key Positions of the Parties
[27] The plaintiffs submit that:
(a) Dr. Rossos would/should be permitted to testify on the causation issue, because his opinions have been stated in earlier served reports;
(b) Dr. Siow’s report responds to the report by the defence’s expert radiologist, Dr. Fairbrother, on the issue of Dr. Marrocco’s conduct. Dr. Siow’s report does not introduce new facts—it only introduces a different medical opinion based on a review of the same medical records accessible to the defence radiologist;
(c) Court should grant leave under r. 53.08 on the basis that leave is presumptively to be granted under the Rules;
(d) Denial of leave could result in dismissal of case over technical breach;
(e) It is in the interest of justice to admit relevant evidence that is of central importance;
(f) The plaintiffs will be prejudiced otherwise;
(g) Leave ought not to be required since the defendant also breached r. 53.03 by serving Dr. Riddell’s expert report after the pre-trial; and
(h) If leave is required, Dr. Owen’s report is supplemental and responds to the defendants’ late served report and results in no prejudice to the defendants.
[28] Dr. Marrocco submits that:
(a) The late service of Dr. Siow’s report violated r. 53.03 and prejudiced his ability to respond without an adjournment; and
(b) If leave is granted to the plaintiffs to file Dr. Siow’s report, it will cause undue delay in the conduct of the trial.
The Law
[29] Rule 53.03(1) states, “[a] party who intends to call an expert witness at trial shall, not less than 90 days before the pre-trial conference scheduled under subrule 50.02 (1) or (2), serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1).” If a report is not served accordingly, rule 53.03(3) states an expert witness may not testify with respect to an issue, except with leave of the trial judge. Rule 53.03(4) permits a party to move to the court for an extension or abridgment of time to serve a report or supplementary report. In Gardner (Litigation guardian of) v. Hann, 2011 ONSC 3350, 203 A.C.W.S. (3d) 84, at para. 14, Wilson J. stated
The underlying considerations for the Court when determining if it is appropriate to make an order extending or abridging the time are the same as they were prior to the amendments: whether in all of the circumstances and in order to ensure a fair adjudication of the matters before the Court it is in the interests of justice to allow the evidence in.
[30] In Brandiferri v. Wawanesa Mutual Insurance Co., 2011 ONSC 3200, 16 C.P.C. (7th) 169, at para. 17, Lauwers J. stated:
[T]he combination of rule 1.04 and rule 2.03 confers significant discretion on the court, not "to set aside a newly enacted rule" or "to dispense with a newly enacted rule and restore or reactivate a repealed provision"…but simply to relieve against rule compliance "only where and as necessary in the interest of justice" in the particular situation.
[31] Relevant and probative evidence should be admitted.
[A]ny time a Court excludes relevant evidence the Court's ability to reach a just verdict is compromised. Relevant evidence should not be excluded on technical grounds, such as lack of timely delivery of a report, unless the Court is satisfied that the prejudice to justice involved in receiving the evidence exceeds the prejudice to justice involved in excluding it: Hunter v. Ellenberger (1998), 25 C.P.C. (2d) 14 (Ont. S.C. (H.C.)), at para. 7.
[32] Moreover, “[t]he exclusion of apparently relevant and probative evidence is not a remedy for a possible breach of the Rules that a court should hasten to accept, since the exclusion of such evidence could imperil the just determination of a case, contrary to a foundational principle of the Rules”: Lee (Litigation guardian of) v. Toronto District School Board, 2012 ONSC 3266, 218 A.C.W.S. (3d) 102, at para. 22.
[33] Rule 53.08 further states that “leave shall be granted on such terms as are just and with an adjournment if necessary, unless to do so will cause prejudice to the opposite party or will cause undue delay in the conduct of the trial.” In Dybongco-Rimando Estate v. Lee (1999), 43 C.P.C. (4th) 195 (Ont. S.C.), at para. 18, Quinn J. described prejudice as that “for which costs are not an adequate answer; undue delay is “nothing more than a delay which, in the circumstances of the case, is unreasonable.” The onus is on the responding party to show that prejudice will be caused or undue delay in the conduct of the trial will arise: Winters v. Loblaws Supermarket Ltd., 2003 CanLII 11069 (ON SC), at para. 5. It is rare that late delivery of a report will cause prejudice to the opposing party in a case without a jury and if an adjournment can be granted without undue inconvenience: Hunter v. Ellenberger (1998), 25 C.P.C. (2d) 14 (Ont. S.C. (H.C.)), at para. 6.
Disposition
[34] The pleadings contend that Dr. Marrocco failed to order proper diagnostic testing after his interpretation of a CT scan in December 2004, that he failed to properly diagnose Crohn's disease and to have provided the plaintiff with meaningful follow-up testing and treatment. The expert medical evidence tendered by the plaintiff, if leave is granted for it to be heard or otherwise received relative to Dr. Marrocco's liability, is that of Drs. Rossos and Siow. Dr. Rossos is a gastroenterologist, wherefore not of a comparable qualification to Dr. Marrocco, a radiologist. Dr. Rossos's critique of Dr. Marrocco is that Dr. Marrocco failed to offer a differential diagnosis of Crohn's disease. Had an inflammatory bowel disease been identified, he observes, an earlier referral to a gastroenterologist could have resulted in an earlier diagnosis and potentially prevented the need for urgent surgery. In his supplementary report, Dr. Rossos expresses the view that referral to a gastroenterologist in either 2005 or 2006 would likely have led to a diagnosis of mild to moderate Crohn's disease. It was not until the delivery on May 3, 2016, however, that the plaintiff delivered a report from an expert of commensurate qualifications, namely that of Dr. Siow, offering the requisite opinion on the standard of care of a radiologist. Dr. Siow disagreed with Dr. Marrocco’s opinion that there was no small bowel obstruction visible on the CT scan done in December 2004. Dr. Siow is of the view that Dr. Marrocco breached the standard of care in the conclusions he had drawn from the CT. Dr. Siow gives no explicit opinion as to causation in either of his reports, remarking only that the abnormalities identified in the December 2004 CT by Dr. Marrocco more likely than not represented Crohn's disease.
[35] Clearly on the facts of this case, the evidence of Dr. Rossos and Dr. Siow are essential to the plaintiffs meeting the burden of proof vis-à-vis the claims against Dr. Marrocco. There would be certain prejudice to the plaintiffs were leave not granted for their evidence to be received on the hearing of the motion for summary judgment and at trial. Failing to admit relevant evidence could give rise to a miscarriage of justice.
[36] As for the defendants, there is no evidence an adjournment or costs would not adequately address any prejudice that would result from leave being granted to receive this expert evidence. The plaintiffs’ reports do not allude to new facts: Vaillancourt v. Domtar Inc. (1999), 29 C.P.C. (4th) 114 (Ont. C.J. (Gen. Div.)), at para. 15; Grigoroff v. Wawanesa Mutual Insurance Co., 2011 ONSC 2279, 2 C.C.L.I. (5th) 294, at para. 23; Moore v. Getahun, 2014 ONSC 237, 237 A.C.W.S. (3d) 530, at para. 69. The defendants have already developed opinions that support their defence. Given the adjournment of the trial due to Mrs. Shaw-Vanderholst’s circumstances, the defendants will have ample time to prepare and respond to the evidence. For these reasons, leave is granted to the plaintiffs to tender the reports of Drs. Rossos and Siow and to call the experts to testify.
Issue #2: There is a genuine issue requiring a trial with respect to the plaintiff’s claims against Dr. Marrocco.
Key Positions of the Parties
[37] Dr. Marrocco submits that:
(c) His motion has merit and causes no significant prejudice to the plaintiffs whose delay/inaction in delivering requisite experts’ evidence has triggered the need for this motion;
(d) The plaintiffs must lead expert evidence from a physician practicing in the same field of medicine as him;
(e) The plaintiffs have failed to produce any expert evidence demonstrating that but for Dr. Marrocco’s conclusion from the CT scan report that Mrs. Shaw-Vanderholst had no small bowel obstruction, which they characterize as the breach, she would not have suffered the alleged damages; and
(f) Dr. Siow’s latest report is deficient in that it fails to acknowledge his agreement with Dr. Marrocco’s finding and disagreement only with the 2004 CT scan conclusion. Further, this expert report fails to identify a causal link between the specific breach identified by Dr. Siow and the plaintiff’s alleged injury and damages.
[38] The plaintiffs submit that Dr. Marrocco’s motion for summary judgment is without merit as there are genuine issues for trial.
Relevant Statutory Provisions
[39] The Rules provide:
General
20.04 (2) 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; or
Powers
20.04 (2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
Disposition
[40] As the jurisprudence clearly establishes, a plaintiff in a medical malpractice action must establish, on a balance of probabilities, that a physician’s conduct fell below the applicable standard of care. As well, it must be established that the breach of standard caused the harm. In numerous cases, the courts have held that without an expert's opinion supportive of the plaintiff's position, medical negligence cannot be established. Expert opinion evidence is required to establish the standard of care, the breach and generally, causation. Where the plaintiff does not deliver an expert report to support all elements, a genuine issue is not raised with respect to a material fact and at defendant may be entitled to summary judgment.
[41] The defendants are correct in their submission, in my view, that the plaintiffs have not presented an explicit expert opinion that Dr. Marrocco’s alleged failure to conclude that the 2004 CT scan showed an obstruction of Mrs. Shaw-Vanderholst’s bowel, as per the opinion of Dr. Siow, caused her not to have been diagnosed and treated for Crohn's disease in a timely fashion and to have had urgent surgery, among other consequences, as per the opinion of Dr. Rossos. Mrs. Shaw-Vanderholst’s circumstances, as she presented to medical professionals and according to the evidence, appear to have been complex, Symptoms and presentations of the disease with which she was latterly diagnosed may, according to the evidence, be somewhat variable and present a challenge to medical professionals to diagnose and treat. Mrs. Shaw-Vanderholst’s psychological characteristics and medication usage may have complicated the interpretation of her physical health.
[42] It may not, however, always be essential that there be an explicit expert opinion to support a plaintiff's theory of causation. An inference of causation may, in the clearest of cases, be drawn, without an expert’s opinion, though the burden of proving causation still remains upon the plaintiff: Lozowy v. Trillium Health Centre, 2007 CanLII 11321 (ON SC), at para. 20 and McNeil v. Easterbrook, 2004 CanLII 31804 (ON SC), at para. 15, citing Snell v. Farrell, 1990 CanLII 70 (SCC). Whether this is one of those clearest of cases in which such an inference might be drawn should await a careful weighing of all of the evidence following a full hearing.
[43] Given the plaintiffs have tendered expert evidence as to standard of care and breach of the standard of care, I find there are genuine issues requiring a trial.
Issue #3: The costs thrown away matter should be determined at the end of the trial.
Key Positions of the Parties
[44] The defendants argued that because they were ready to proceed, they are entitled to recover costs wasted by the plaintiff. There have been five adjournments since 2013, two of which are documented in the Trial Record. The defendants assert that costs could have been avoided if Mrs. Shaw-Vanderholst sought medical attention and advised of the need for an adjournment on a timely basis.
[45] The plaintiffs requested that the court decline the defendants’ request for costs thrown away. They argue that they should not be penalized for Mrs. Shaw-Vanderholst’s health condition and that costs should be determined at the end of the trial along with any other costs submissions when the court will be in a better position to gauge medical evidence and determine the impact of the defendants’ actions on Mrs. Shaw-Vanderholst’s health. In the alternative, if costs are granted to the defendants, the plaintiffs request that the award not be payable until the conclusion of the trial. The plaintiffs assert that they do not have the means to pay an interim cost award.
[46] In their reply, the defendants distinguish the facts of this case from the case law cited in the plaintiffs’ costs submissions. They point to the distinction between ‘responsibility’ and ‘fault’ in the context of costs thrown away due to adjournment. Generally, the defendants submit, the cited cases do not support the plaintiffs’ position. No evidence has been submitted to support the assertion that Mrs. Shaw-Vanderholst is impecunious nor is it relevant to the court’s determination of costs.
Disposition
[47] The evidence, at present, is insufficient for me to fully assess the degree of responsibility to be borne by the plaintiffs as to the time and costs thrown away in May of 2016. As I am seized with this trial having heard evidence, I will reserve all aspects of costs to the time of giving judgment following trial.
Madam Justice A.M. Mullins
Released: November 16, 2016