BAKALLI v. CATRE, 2018 ONSC 3771

Court File No.: CV-16-546486

Motion Heard: 2018 05 18

Counsel: Alexandra Roman for the plaintiff Laura Robinson for the defendants

ENDORSEMENT

Master R. A. Muir -

[1] The plaintiff brings this motion seeking answers to questions refused on discovery by several of the defendant doctors.

[2] This is a medical malpractice action. The plaintiff alleges negligence on the part of the defendants in connection with certain hip related procedures performed in 2014 and 2015. The plaintiff had a left hip arthroplasty on August 8, 2014 performed by the defendants Dr. Catre, Dr. Luvisotto and Dr. Chang. The plaintiff had left hip revision surgery on May 4, 2015 performed by the defendant Dr. Rodriguez-Elizalde.

[3] Many of the issues on this motion were resolved by the parties prior to the return date for this motion. However, several refused questions remained in dispute and were the subject of argument on May 18, 2018.

[4] Two questions are in dispute from the examination of Dr. Catre. Both questions deal with the subject of metal fatigue. The plaintiff alleges that Dr. Catre negligently performed the left hip arthroplasty by inserting the wrong femoral head and/or acetabula cup. The plaintiff states that this alleged mismatch may have been a cause of metal fatigue which, in turn, resulted in the plaintiff’s hip pain experienced after the August 2014 procedure.

[5] Dr. Catre conducted a follow-up examination of the plaintiff in February 2015. He suggested at that time that metal fatigue may have been causing the plaintiff’s hip pain. The cause of the metal fatigue is clearly an issue in this action as pleaded and Dr. Catre is a specialist in orthopedic surgery. In my view, his knowledge, at the time of his treatment of the plaintiff, as to how metal fatigue may occur in these circumstances is relevant to this issue. In fact, Dr. Catre answered such a question at question 638 of the transcript.

[6] However, that is not what the plaintiff is asking with respect to the questions in dispute on this motion. The plaintiff is seeking Dr. Catre’s retrospective opinion as to the cause of the metal fatigue, in this particular case. In my view, these questions seek after the fact retrospective speculation about the cause of the metal fatigue in this case and are therefore improper. See Redman v. Hospital for Sick Children, 2010 ONSC 3769 (Master) at paragraphs 12 and 13. It is also important to note that in any event, Dr. Catre stated in his answer to question 587 that he had no belief, knowledge, ideas or theories as to the cause of the metal fatigue. Dr. Catre has answered questions with respect to his knowledge, information and belief at the time he was treating the plaintiff’. Questions 536 and 636 on Dr. Catre’s examination need not be answered.

[7] Several questions are in dispute from the examination of Dr. Rodriguez-Elizalde. In my view, Questions 100, 116, 150, 232 and 241 need not be answered. These questions are similar in nature to the questions refused by Dr. Catre, above. They squarely raise the specific allegations of negligence against Dr. Catre. They seek the after the fact opinion of Dr. Rodriguez-Elizalde with respect to what would cause trunnion wear, what would cause a loose acetabulum and whether Dr. Rodriguez-Elizalde now believes there was a hardware mismatch. I agree with the defendants that answering these hypothetical retrospective questions would necessarily require Dr. Rodriguez-Elizalde to speculate about and provide an opinion on the conduct and outcome of the surgery performed by his co-defendant Dr. Catre. Such questions are improper. See Motaharian v. Reid [1989] OJ No. 1947 (HCJ) at paragraph 3.

[8] I also agree with the defendants that questions 230 and 234 have been answered. With respect to question 230, Dr. Rodriguez-Elizalde has given an answer at question 231 that he believes the significant wear at the head/neck junction caused the metallosis. With respect to question 234, Dr. Rodriguez-Elizalde appears to voluntarily confirm at question 236 that he is unable to speculate on the cause of the trunnion wear. Nothing further is required in respect of these questions.

[9] In my view, questions 98 and 110 are proper questions and shall be answered. These questions seek to know whether Dr. Rodriquez-Elizalde understood and believed there to be an improper fit between the metallic head on the trunnion and why the acetabulum became loose. The important distinction with these questions is that Dr. Rodriguez-Elizalde is being asked for his belief and understanding at the time he was treating the plaintiff. The plaintiff alleges in the pleadings that the treatment of the plaintiff by Dr. Rodriguez-Elizalde before, during and after the revision surgery fell below the required standard of care. In this sense, these questions relate to the conduct of Dr. Rodriguez-Elizalde and his assessment, diagnosis and treatment of the plaintiff at the time she was his patient. Questions 98 and 110 shall be answered within 30 days.

[10] The parties shall confer and attempt to resolve the issues of re-attendance and the costs of this motion. If the parties are unable to agree, they shall provide the court with brief submissions in writing by July 16, 2018.

2018 06 15

Master R. A. Muir