Court File and Parties

COURT FILE NO.: 10-CV-219323CM DATE: 20170510 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: CHRISTA LYNN RAWSTHORNE, PETER RAWSTHORNE, BRAEDEN RAWSTHORNE, an infant by his Litigation Guardian, CHRISTA LYNN RAWSTHORNE, LINDA ANN WIEBE, RONALD PETER WIEBE and JASON WIEBE, Plaintiffs

AND:

JOHN D. MAROTTA, RICHARD PATRICK HARPER, and CHEDOKE-MCMASTER HOSPITAL also known as HAMILTON HEALTH SCIENCES CORPORATION, Defendants

BEFORE: Justice Edward P. Belobaba

COUNSEL: Valerie Wise and Julia Lauwers for the Defendant Dr. Richard Harper Patrick J. Hawkins and John McIntyre for the Defendant Hospital Brian Moher and Monica Zamfir for the Plaintiffs

HEARD: April 6, 2017

summary judgment motions – limitations

[1] This is a dental malpractice action. There are two motions for summary judgment before me, both advancing a limitations defence. One is brought by the defendant dental surgeon, Patrick Harper, and the other by the defendant Hospital. Dr. Harper says the plaintiffs’ action is time-barred by the one-year limitation period in s. 89(1) of the Health Professions Procedural Code [1] and the Hospital relies on the two-year limitation period in s. 31 of the Public Hospitals Act [2].

[2] The underlying malpractice action arises from the medical care and treatment that was provided to eighteen year-old Christa Rawsthorne (“Christa”) by Dr. Harper at the Hospital in October 1992. The action, brought by Christa and her family-members, was commenced nine years later in October 2001. Discoveries took place in 2002 but the action was then side-lined for many years to accommodate related litigation.

[3] Dr. Harper says Christa had enough information to bring her action long before 2001 when the action was commenced and the action is now time-barred. The Hospital, in turn, focuses on the fact that Christa was discharged from the Hospital on October 28, 1992, the day after her dental surgery. The applicable limitations period required that she sue the Hospital within two years of her discharge - that is by October 28, 1994. The 2001 lawsuit, says the Hospital, is seven years too late.

[4] For the reasons set out below, I agree that the plaintiffs’ action is time-barred as against the Hospital but not as against Dr. Harper. The action against the Hospital is dismissed. The action against Dr. Harper shall continue on to trial.

Background

[5] The basic chronology is not in dispute. In 1989 when she was 15 years old, Christa began to experience headaches, earaches and jaw pain in the temporomandibular joint (“TMJ”) area of her jaw. She attributes this to an incident in gym class when she fell hard and hit her chin on the hardwood floor. After seeing a number of doctors and dentists she was referred to Dr. Harper in late 1991.

[6] Dr. Harper performed left-sided TMJ surgery on March 10, 1992. This surgery did not relieve Christa’s pain. He performed a second surgery on Christa on October 27, 1992. During this surgery, Dr. Harper inserted a silastic implant (“the Implant”) into her left TMJ. However, Christa’s pain continued. On February 8, 1993, Christa visited Dr. Harper for the last time and soon thereafter she began seeing Dr. Psutka.

[7] Dr. Psutka performed three surgeries on Christa’s TMJ. In January 1994, he removed the Implant and told Christa that the Implant had a perforation in it “the size of a quarter.” In 1995, Dr. Psutka removed more debris from the perforated implant and used a bone graft from Christa’s rib to reconstruct part of her left TMJ. In 1997, he performed revision surgery to remove more Implant debris as well as a bone spur which had grown on the graft.

[8] Over the next three years, Dr. Psutka’s medical notes indicate that Christa was generally “doing well” and “feeling great.” In January 2001, however, Christa’s infant son accidently hit her in her jaw and she collapsed in pain. Christa says it was in and around this time that she began to investigate whether the Implant that had been removed in 1994 was the cause of her facial pain and related health problems.

[9] Christa retained legal counsel experienced in alloplastic TMJ litigation and soon learned that the Implants were not only mechanically defective but biologically hazardous. There was considerable scientific evidence that not only did the Implants perforate and disintegrate requiring immediate removal, the disintegration process released granular material into surrounding soft tissue that caused “progressive bone degenerative changes” and “giant cell foreign body responses.”

[10] The plaintiffs (Christa and family members) issued their statement of claim on October 24, 2001. As against Dr. Harper, the pleading alleges, amongst other things, negligence in the installation of the mechanically defective Implant and a failure to warn about the long-term, post-removal biological hazard. The claim against the Hospital is similarly focused, in large part, on its negligence in allowing the defective Implant to be used in TMJ procedures and his failure to warn about the long-term biological hazard.

[11] I will deal first with Dr. Harper’s motion and then the Hospital’s.

The claim against Dr. Harper

[12] Section 89(1) of the Health Professions Procedural Code [3] provided at the time in question as follows:

No person who is or was a member is liable to any action arising out of negligence or malpractice in respect of professional services requested of or rendered by the person unless the action is commenced within one year after the date when the person commencing the action knew or ought to have known the fact or facts upon which the negligence or malpractice is alleged.

[13] I agree with Dr. Harper that the failure to warn claims are claims in negligence and therefore the one-year limitation period applies throughout.

[14] Christa must prove that she did not know and could not have known the material facts giving rise to the action before October 24, 2000, that is, one year before the commencement of her October 24, 2001 action. Christa must show, in other words, that she did not know and could not have known that her injury, loss or damage was caused by an act or omission of Dr. Harper until after October 24, 2000. Christa says it was the incident with her infant son (hitting her jaw) in January 2001 that prompted her to do research on the Implant and retain legal counsel.

[15] The record before me consists only of affidavits from the plaintiffs, in particular Christa and her mother, and their cross-examinations. There are no affidavits from Dr. Harper or the Hospital, and no affidavits from any other medical professionals such as Dr. Psutka. Counsel for Christa says the best (and only) evidence, all uncontroverted, is that of the plaintiffs.

[16] I can find comfortably on the evidence that Christa knew or ought to have known in 1994 and 1995, when Dr. Psutka performed the Implant and debris removal surgeries, that the Implant was defective. At least mechanically defective. According to Christa, she knew that the Implant had to come out because it was perforated and could do damage to her joint if it was not removed; and that the debris also had to be cleared. Christa concluded that she had been implanted with a “bad joint” - a “lemon” - that needed to be removed. As she explained on cross-examination:

Q. When Dr. Psutka removed the implant, then, did you understand or think that something had gone wrong with the implant surgery Dr. Harper did?

A. Sorry. Can you repeat that?

Q. Sure. When Dr. Psutka took out the implant, did you think, at that point in time, that something must have gone wrong with Dr. Harper’s implant surgery?

A. I just felt we got a lemon, it is what it is, let’s get it fixed

[17] Christa’s evidence is that none of the doctors, beginning with Dr. Harper, ever told her or said anything to her about the Implant being hazardous. “Dr. Psutka only told me that the implant had to come out because it was perforated…[No one] ever advised me that Silastic implants had been the subject of FDA or Health Canada recall notices as well as other dental professional recalls.”

[18] Christa’s mother said the same thing:

[A]t the time of [Christa’s] explantation surgery by Dr. Psutka in 1994, Dr. Psutka never told us that implant particles or remnants of the implant left in [her] jaw were hazardous. At the time, he told us that all of the implant had been removed …I was never told about any risks associated with Silastic implants prior to my daughter’s surgery or since by Dr. Harper … or Dr. Psutka.

[19] The mother’s evidence is corroborated by what she said in her letter to Mount Sinai Hospital in March 1995 – that “Christa’s [explant] surgery in January of 1994 by Dr. Psutka was extremely successful.”

[20] In his factum, Dr. Harper drew the court’s attention to possible pockets of evasion or prevarication in Christa’s cross-examination evidence. I recognize that credibility issues may materialize as this action proceeds. Nonetheless, and on the whole, Christa’s evidence at its core remains largely uncontroverted. I cannot find on this evidence that Christa knew or ought to have known about the highly toxic biological hazards relating to the Implant before she began researching the issue and retained legal counsel in or after January 2001. She certainly knew about the so-called mechanical defects – the propensity for disintegration and the need to remove the resulting debris – but she did not know and could not have known until after January, 2001 that the Implant was biologically hazardous.

[21] The applicable law is not in dispute. The case law is clear that discovery does not depend upon awareness of the totality of the defendant’s wrongdoing. Neither the exact extent nor the type of loss need be known for the cause of action to accrue. Once the plaintiff knows that “some damage has occurred and has identified the tortfeasor the cause of action has accrued.” [4]

[22] Dr. Harper says it is enough that Christa knew that some damage had occurred, namely the injury or loss was caused by the mechanical defect. She did not have to know that the Implant caused additional injury or loss because of the biological hazard. But as the Supreme Court noted in Peixeiro [5], the cause of action accrues when the plaintiff knows that some damage has occurred and she has identified the tortfeasor who caused this damage. Here, Christa could not identify the tortfeasor responsible for the post-removal biological harm until she began to research the Implant in and after January 2001 following the incident with her infant son.

[23] As the Court of Appeal noted in Aguonie v. Galion Solid Waste Material Inc.: “[t]he discovery of a tortfeasor involves more than the identity of one who may be liable. It involves the discovery of his or her acts or omissions which constitute liability.” [6] And again, and more recently, in Presidential MSH Corporation v. Marr Foster & Co. LLP: “[t]he issue is whether the plaintiff knew or ought reasonably to have known injury loss or damage had occurred … that was caused by or contributed to by an act or omission of the defendant .” [7] The same point was made in the legal literature by a commentator specifically discussing Peixeiro in the context of medical malpractice actions:

Each element of the cause of action must be known to the plaintiff or with reasonable diligence known to her. Fault causation and damage are each elements of the cause of action. ...In order to bring the action, the act of negligence alleged, attached to a specific defendant must be within the knowledge of the plaintiff. [8]

[24] Christa did not and could not connect the January, 2001 flare-up of pain to Dr. Harper until she discovered that the Implant was more than just mechanically defective. She did not identify Dr. Harper as the tortfeasor responsible for the biological harm until after January 2001 when she began her research and retained legal counsel. Therefore the action commenced in October, 2001 is not time-barred.

[25] Dr. Harper argues that if this narrative is accepted, then Christa knew or should have known about the so-called biological hazard by 1997 or 1998. He points to the fact that Christa and her mother had joined a TMJ/Implant support group in their area around 1993 and that she must have been aware of an Implant lawsuit that was filed in 1993 by Ms. Hunse, one of the members of this support group. Dr. Harper also points to the fact that by 1998 Christa, by her own admission, had copies of articles from the support group in her possession, The titles of the articles included:

➢ The TMJ Implant Disaster

➢ They were supposed to relieve chronic head and neck pain, but the jaw implants that thousands of people received during the ‘80s weren’t sufficiently tested. Now, they’re a medical time bomb.

➢ Implants in Jaw Joint Fail, Leaving Patients in Pain and Disfigured

[26] Dr. Harper says it is hard to believe that Christa had not at least read the titles of the articles. On cross-examination, Christa admitted that she could have read a few sentences such as an article headline or byline. Dr. Harper asks that I draw the inference from the evidence about the Hunse lawsuit and the titles of these articles that Christa knew or should have known by 1997 or 1998 (and well before October, 2000) that the Implant was not only mechanically defective but also biologically hazardous.

[27] I am not prepared to draw such an inference. I would not be comfortable in doing so on the record before me. Nor am I confident that it would be fair or just to do so. [9] Whether and to what extent Christa knew about the Hunse lawsuit and that the lawsuit was alleging biological hazards, and whether and to what extent Christa read any of the aforementioned articles and actually realized from the contents of these articles that the Implant was biologically hazardous is best resolved at trial.

[28] Dr. Harper’s limitation defence remains a genuine issue for trial. His motion for summary judgment is dismissed.

The claim against the Hospital

[29] The Hospital says the action is statute-barred by virtue of the two-year limitation period in s. 31 of the Public Hospitals Act [10] which was in effect at the time in question. Section 31 provides that:

Any action against a hospital or any nurse or person employed therein for damages for injury caused by negligence in the admission, care, treatment or discharge of a patient shall be brought within two years after the patient is discharged from or ceases to receive treatment at the hospital and not afterwards.

[30] The case law is clear that the s. 31 limitation period is not subject to the principle of discoverability. The provision is mandatory in its wording and it runs from the day the patient ceases to receive treatment at the hospital or from the patient’s discharge from the Hospital. [11]

[31] As the Court of Appeal noted in Von Cramm v. Riverside Hospital of Ottawa [12]:

It may seem harsh to apply limitation provisions under the Public Hospitals Act in a situation such as this where the plaintiff could not have known or reasonably have been expected to know of the negligence of the hospital until long after the limitation period had expired; but section [31] is quite clear and we must give effect to it. The wording is precise and there is no valid ground for avoiding it … Any amelioration of the situation must be provided by the Legislature and not by the Court.

[32] The plaintiffs issued their statement of claim on October 24, 2001. The allegations of negligence referring to the Hospital relate to the treatment provided to Christa on October 27, 1992. The “failure to warn” allegations constitute a form of negligence and are made with respect to treatment received by Christa at the Hospital. As such, these allegations fall within the meaning of “negligence in the admission, care, treatment and discharge of a patient” under s. 31 of the Public Hospitals Act.

[33] Christa was discharged from the Hospital on October 28, 1992 and did not re-attend at the Hospital for any treatment after this date. Accordingly, the limitation period expired on October 28, 1994, almost seven years before this action was commenced.

[34] I agree with the Hospital that this is an appropriate case for summary judgment. There is no genuine issue for trial and the action against it should be dismissed.

Disposition

[35] Dr. Harper’s motion for summary judgment is dismissed. The limitations issue remains a genuine issue for trial. The Hospital’s motion for summary judgment is granted and the action as against the Hospital is dismissed.

[36] Both the plaintiffs and the Hospital are entitled to their costs on a partial indemnity basis. The parties filed costs submissions seeking the following: Dr. Harper $140,000 (motion plus action), the Hospital $97,000 (motion plus action) and the plaintiffs $36,000 (motion only). In my view, it is fair and reasonable in all the circumstances of this litigation to award $36,000 all-inclusive to the plaintiffs, payable forthwith by Dr. Harper; and $70,000 all-inclusive to the Hospital, payable in any event of the cause by the plaintiffs but only after the Harper litigation has been fully resolved.

Belobaba J. Date: May 10, 2017

[1] Regulated Health Professions Act, 1991, S.O. 1991, c. 18, Schedule 2, Health Professions Procedural Code. [2] Public Hospitals Act, R.S.O. 1990, c. P.40. [3] Supra, note 1. [4] Peixeiro v. Haberman, {, 1997] 3 S.C.R. 549, at para 18. [5] Ibid. [6] Aguonie v. Galion Solid Waste Material Inc., [1998] O.J. No. 459 (C.A.) at para. 24. [7] Presidential MSH Corporation v. Marr Foster & Co. LLP, 2017 ONCA 325, at para. 27. [8] Legate, “Limitation Periods in Medical Negligence Actions Post-Peixeiro” (1998) 20 Adv. Q. 326 at 334 and 341. [9] Hryniak v. Mauldin, 2014 SCC 7, at paras. 50, 57 and 59. [10] Ibid. [11] Von Cramm v. Riverside Hospital of Ottawa, [1986] O.J. No. 999 (C.A.), Hay v. Canadian Red Cross Society, [2004] O.J. No. 2887 (Sup. Ct.), Purtell v. Royal Ottawa Hospital, [2005] O.J. No. 2965 (Sup. Ct.), aff’d 2007 ONCA 367, leave to appeal refused [2007] S.C.C.A. No. 362. Also see Endean v. St. Joseph’s General Hospital, 2017 ONSC 118, a related litigation, (unreported) at para. 34 [12] Von Cramm, supra, note 3, at para. 12.