Servello, et al v. Canon, et al, 2017 ONSC 6118

NEWMARKET COURT FILE NO.: CV-15-124628-00

DATE: 20171012

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

VITO SERVELLO, SERENA SERVELLO, CONCETTA SERVELLO and ALICIA SERVELLO and MELISSA SERVELLO, CHRISTINA SERVELLO and ISABELLA SERVELLO, by their Litigation Guardian, Vito Servello

Plaintiffs

– AND –

ALAN CANON, 2183615 ONTARIO INC. o/a CLINICAL CRANIAL OSTEOPATHY INC., and/or ALAN CANON ENTERPRISE CORP., and 2454920 ONTARIO INC. o/a OZONE CLINIC INC.

Defendants

Jeremy Solomon, for the Plaintiffs

No one appearing for the Defendants

HEARD: October 12, 2017

REASONS FOR JUDGMENT

HEALEY J.:

Nature of the Proceeding

[1] This is a negligence action in which damages are sought for the outcome of a procedure performed on the plaintiff Vito Servello by the defendant Alan Canon.

[2] The plaintiffs have brought a motion for default judgment, as the defendants have failed to deliver a statement of defence and were noted in default on or about February 11, 2016.

The Evidence

[3] On September 15, 2015 Mr. Servello consulted Alan Canon at a clinic owned and operated by the defendants regarding generalized aches and pains affecting his lower back. He consulted Mr. Canon on the recommendation of a friend, and because Mr. Canon described himself on his clinic websites as a neurosurgeon and doctor of osteopathy. During that consultation Mr. Canon reiterated to Mr. Servello that he was a medical doctor.

[4] During the consultation Mr. Canon told the plaintiff that he suffered from a variety of medical conditions, including toxins and B12 deficiency. He recommended treatment that involved injecting his knees with a substance he described as "Prolozone B-12" as well as acupuncture on his back and nutritional counselling.

[5] Mr. Canon did not provide any information to Mr. Servello about the potential risks before injecting his knees. He did not explain that he was not a medical doctor registered with the College of Physicians and Surgeons of Ontario (“CPSO”). Mr. Servello relied on Mr. Canon's advice that B12 injections in his knees would be helpful.

[6] Mr. Servello received the injections and acupuncture during the initial consultation on Sept 15, 2015. By that same night he began to experience unusual pain in his left knee, and two days later was experiencing sharp pain and inflammation in his left knee region. He sought medical assistance at Credit Valley Hospital that same day and was discharged with the recommendation to initiate physiotherapy.

[7] During the next few days the pain in his left knee increased, and a redness developed from his knee to his groin area. He attended Sunnybrook Health Sciences Center on September 20, 2015. Ultrasound and x-ray imaging revealed a large joint effusion in his left knee. The joint was aspirated and an elevated white cell count was discovered. The presence of Group B Streptococcus was confirmed. Mr. Servello underwent a surgical irrigation and debridement procedure under general anesthetic, performed by Dr. Sebastian Tomescu, and remained at Sunnybrook until discharged on September 29, 2015. Following this nine-day admission, he continued to receive portable intravenous antibiotic medication until November 4, 2015.

[8] Mr. Servello is employed as the Vice President of Tax at PepsiCo. Canada. He remained away from his workplace until October 13, 2015, when he made his first attempt to work for approximately 2 hours. He was limited by knee pain, fatigue and knee weakness. He utilized all of his available vacation days recovering from the infection and surgery.

[9] Mr. Servello's recovery has been protracted and he has now plateaued. He continues to experience constant pain in his left knee, leg numbness, swelling, stiffness and restricted range of movement. He has difficulty sleeping due to his knee symptoms and is generally fatigued. He has difficulty concentrating as a result of poor sleep and pain. He suffers from anxiety about the impairments that he must now cope with. His morning routine is slower due to pain and stiffness.

[10] Mr. Servello was 46 years of age at the time that the infection occurred. He has been married for 23 years and has four daughters. All of the plaintiffs have provided evidence of a marked change in Mr. Servello's personality, energy levels and participation in family life since the incident.

[11] The Servellos were an active family that regularly went on ski vacations, biked and hiked. Mr. Servello was involved in driving his daughters to their extracurricular activities, where he often remained to watch them. He played sports with his daughters, such as baseball and basketball. He assisted with homework and participated in all of the household chores. In addition, Mr. Servello assisted his mother, a widow, who relied on him to help with many household chores such as snow shovelling, heavy cleaning and moving heavier items. The Servellos enjoyed hosting social gatherings with family and friends.

[12] All of the Servellos describe the changes in Mr. Servello's personality, noting that he is irritable and impatient, whereas in the past he was always pleasant, easy-going and relaxed. Spending time with his family was his first priority, whereas now he limits his involvement in his children’s recreational and after school activities. He has withdrawn from social pastimes and goes to bed early because he is generally fatigued. His mother no longer asks for his help, because on the weekends he needs the time to rest and gather his energy for the next work week. Mr. Servello does not visit or speak with his mother as often as he used to, and when they do interact she notices that there is an air of stress and strain. All of the family members have experienced this same strained atmosphere, as they recognize that Mr. Servello is withdrawn, sad, and frequently tired and in pain.

[13] Mrs. Servello has had to take on a great deal more of the family responsibilities, including driving the four children to their engagements and activities. She does more of the household chores and home maintenance. Their intimacy has been affected.

[14] Mr. Servello can perform his activities of daily living, but cannot sit or stand for long periods without pain. Any prolonged weight-bearing is avoided. Consequently he no longer engages in any sporting activities. He has gained weight and become far less active. His wife is now preparing special meals to assist him to lose weight.

[15] Prior to the incident Mr. Servello was a generally healthy male, although approximately 25 pounds overweight, needing to increase his fitness and suffering from generalized pain in his low back.

[16] The evidence provided by the plaintiffs is consistent with the medical records filed, and with the expert reports provided. I find that their evidence is credible and accept it in its entirety.

Causation

[17] The plaintiffs have provided two expert reports from Dr. Tomescu, who has provided the required Acknowledgment of Expert's Duty pursuant to Rule 53.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Dr. Tomescu holds a full-time appointment on the orthopedic surgery staff at Sunnybrook Health Sciences Center, is a lecturer at the University of Toronto, and has teaching responsibilities in orthopedic surgery. He has completed a fellowship in lower extremity reconstruction/arthroplasty and focuses his research on lower extremity mal-alignment and reconstructive surgery. It is the opinion of Dr. Tomescu that the cause of Mr. Servello's septic knee was most likely to have been the vitamin B12 injection he received. His symptoms began the same day that the injection was administered, and worsened thereafter to the point that he had to seek emergency medical care.

[18] Dr. Tomescu indicates that the standard of care required that Mr. Servello be informed of the associated risks, including infection, and that the technique and equipment used meet standards of prevention to minimize risk of infection. There is no information about the technique and equipment used by Mr. Canon when he performed the procedure in question. In addition, Dr. Tomescu opines that vitamin B12 replacement is to be administered either orally or intra-muscularly. Intra-articular injections of the knee, which is the procedure provided to Mr. Servello, administer either cortisone for inflammation or hyaluronic acid to provide joint lubrication. Further, there is no evidence of the use of vitamin B12 in alleviating knee or back pain.

[19] Based on Mr. Servello's evidence of what occurred during the consultation, and Dr. Tomescu’s expert evidence, I find that Mr. Canon, who was a member of the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario, fell below the standard of care in that he: 1) failed to inform Mr. Servello that there was no accepted evidence of benefits from the injection of vitamin B12 intra-articularly; 2) he failed to obtain Mr. Servello's informed consent to the procedure by failing to inform him of its risks; and 3) it is more probable than not that the manner in which the procedure was performed, either through technique or equipment processes, fell below an acceptable standard to minimize risk of infection.

[20] Based upon the timing of the development of Mr. Servello's pain, inflammation, cellulitis and sepsis in his knee joint, I find as a fact that the procedure carried out by Mr. Canon at his clinic on September 15, 2015 caused the infection and resulting impairments.

Damages

General Damages

[21] In addition to the restricted mobility and pain from which he already suffers, Mr. Servello is likely to require one, if not more, knee replacements in his lifetime. Dr. Tomescu opines that his pain and stiffness may worsen over time and require further intervention. Dr. Tomescu explains that the longer an infection is present in a joint, the more damage occurs to the articular cartilage. For an extended period of infection, such as the seven days during which Mr. Servello's infection progressed, the outcome is expected to be poorer. He opines that Mr. Servello's risk of developing osteoarthritis is substantial.

[22] Taking into account the myriad of ways that Mr. Servello's life is impacted by this injury, the injury itself, the medical procedure and recovery that he endured in September 2015, his age, and the strong likelihood of at least one knee replacement, I find that an appropriate general damage award to compensate him for his pain, suffering and loss of enjoyment of life is the sum of $125,000. This amount is also in keeping, in today's dollars, with the general damage awards granted for similar injuries in Riehl v. City of Hamilton, 2012 ONSC 3333, Mason v. Moore, (2005) 32204 (ON SC), and Skocir v. Premier Fitness Clubs (Yorkdale) Inc., (2008) 57453 (ON SC).

Family Law Act Claims

[23] Based on the evidence provided by each of the plaintiffs, it is clear that they have suffered a substantial loss of care, guidance and companionship from the level previously provided by Mr. Servello. The appropriate awards, taking into account all of the evidence, are as follows: his wife, Serena Servello - $30,000; his mother, Concetta Servello - $20,000; and each of his daughters - $7,500.

Pecuniary Damages

[24] The subrogated claim of OHIP presently amounts to $19,665.08 according to the payment summary filed. Additionally, the plaintiffs have provided evidence through correspondence from the Ministry of Health and Long-Term Care that the cost of the knee replacement, including physician services and postoperative care, is estimated to be $14,192. Given that I do find that it is a real and substantial likelihood that Mr. Servello will require at least one knee replacement during his lifetime, both the sum for past medical care and the estimate for future medical care will be awarded in the total amount of $33,857.08

[25] Mr. Servello claims that he will suffer a future loss of income at the time that his knee is replaced. He is a salaried employee in an executive position and his income in the past taxation year was $555,319. He should not be required to use his vacation time for postoperative recovery, but at the same time there is no evidence that he will suffer a loss of income if required to take time to recuperate from surgery. In 2015, the year of the infection, his total income increased by almost $40,000 over what it had been in 2014. The same trend exists between 2015 and 2016. I am unable to find that the evidence establishes the possibility of income loss in the future.

Punitive Damages

[26] As the clinic webpages demonstrate, Mr. Canon was holding himself out as a medical doctor at the time that he performed the procedure on the plaintiff. Similarly, his LinkedIn profile as of October 13, 2015 demonstrates that he held himself out as a medical doctor at the material time.

[27] Mr. Servello has been informed by Mr. Garry Hickey, an investigator with the CPSO, that Alan Canon has never been registered or licensed with the CPSO. According to the evidence of Yvonne Hahn, a solicitor with the plaintiffs' law firm, her review of the Ontario Regulations for Accreditation of Doctors of Osteopathic Medicine indicates that practitioners of osteopathic medicine must be registered and licensed with the CPSO.

[28] Further, the evidence filed demonstrates that Mr. Canon was given notice on or about April 17, 2015 that he was charged with certain violations of the Traditional Chinese Medicine Act, 2006, S.O. 2006, c. 27 and the Regulated Health Professions Act, 1991, S.O. 1991 c. 18 ("RHPA”), including using a prohibited title contrary to s. 33(1) and performing an unauthorized controlled act contrary to s. 27(1). The Decision and Reasons for Decision of the Discipline Committee of the College of Traditional Chinese Medicine Practitioners and Acupuncturists has been filed in the record. These documents indicate that the matter came on for a hearing on October 20, 2015, at which time Mr. Canon admitted to three of the allegations of professional misconduct, including violations of s. 33(1) and s. 27(1) of the RHPA. This means that, when Mr. Canon held himself out as both a medical doctor and doctor of osteopathic medicine at the time of Mr. Servello’s appointment, he was aware that he had been charged with similar violations only months earlier and was facing a disciplinary hearing for his professional misconduct. It is clear that Mr. Canon similarly performed an unauthorized controlled act on Mr. Servello, namely inserting needles beneath the surface of the skin for a purpose other than acupuncture, when he was aware that he had been charged with a similar violation months earlier.

[29] This evidence makes clear that Mr. Canon deliberately and willfully, with reckless disregard for the consequences, contravened the RHPA, resulting in Mr. Servello's injury.

[30] Mr. Canon was found guilty of professional misconduct at the October 2015 hearing, and his penalty included attending in person before the panel to receive a public and recorded reprimand, having his Certificate of Registration suspended for a period of 14 months, and being required to enroll in and successfully complete certain College-approved courses at his own expense, including ethics and a refresher course in traditional Chinese medicine fundamentals. He was also ordered to pay costs in the amount of $5,000.

[31] Shockingly enough, despite these findings and penalties, the evidence filed establishes that even after his disciplinary hearing, Mr. Canon continued to hold himself out as a medical doctor and doctor of osteopathic medicine in his website profiles. This evidence shows a clear intention to continue to obtain financial profit at the expense of endangering the public. Whether he is still continuing to do so today is unknown, but given that the evidence was as recent as May 2017, it is likely.

[32] Such behavior cries out for an award of punitive damages to both express the court’s condemnation for such socially irresponsible behavior, and to deter the defendants and like-minded individuals from similar activity. It is the type of advertent, wrongful act that is sufficiently malicious and outrageous on its own to attract an award of punitive damages: Whiten v. Pilot Insurance Co., 2002 SCC 18, at paras 78-79. As Mr. Solomon submitted, and I agree, the outcome for Mr. Servello could have been much worse had this infection gone unchecked for a lengthy period, or had it not responded to the combination of surgical and antibiotic therapy. Fortunately he sought timely medical attention, and the interventions worked. But the fact that his injury was incurred while Mr. Canon was knowingly, egregiously, ignoring his professional obligations undoubtedly has made this experience all the more traumatic.

[33] Under the circumstances, I find that an award of punitive damages in the amount of $75,000 is well warranted.

Prejudgment Interest

[34] The statement of claim was issued on November 12, 2015. Interest on non-pecuniary damages is calculated from November 12, 2015 at the rate of 5% per annum (699 days in total) as follows:

(a) for Veto Servello, on damages in the sum of $125,000, the annual interest amount is $6,250, which amounts to a total prejudgment interest award of $11,969.18;

(b) for Serena Servello, on damages in the sum of $30,000, the annual interest amount is $1,500, which amounts to a total prejudgment interest award of $2,872.60;

(c) for Concetta Servello, on damages in the sum of $20,000, the annual interest amount is $1,000, which amounts to a total prejudgment interest award of $1,915.07; and

(d) for each of Alicia Servello, Melissa Servello, Christina Servello and Isabella Servello, on damages in the sum of $7,500, the annual interest amount is $375, which amounts to a total prejudgment interest award of $718.15;

[35] Utilizing a period of 2 years + 25 days (755 days in total) at the rate of 1% per annum on the pecuniary damages awarded of $33,857.08 for past and future medical care, the annual interest amount is $338.57, which amounts to a total prejudgment interest award of $700.33.

Costs

[36] I have reviewed the plaintiffs’ lawyer’s Bill of Costs. Despite the fact that the action was not defended, significant time has been expended on the file including meetings with the plaintiff, meeting with the CPSO investigator, investigation and review of the disciplinary hearing, reviewing hospital and physiotherapy records, obtaining expert reports and preparing the motion for default judgment, in addition to a number of other less time-consuming steps. Disbursements were reasonably incurred in the amount of $2,546.36. Taking into account HST, the defendants shall pay costs to the plaintiffs fixed in the sum of $12,415, all-inclusive.

Healey J.

Released: October 12, 2017