Lucuta v. Stevens, 2019 ONSC 1691

Court File and Parties

COURT FILE NO.: C 454-14 DATE: 2019-03-15 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: GABRIELA LUCUTA, Plaintiff – and – DR. DAVID STEVENS, DR. PETER STEVENSON and GRAND RIVER HOSPITAL, Defendants

Counsel: Self-Represented (for Gabriela Lucuta) Logan Crowell - Counsel for Grand River Hospital Mark Lerner – Counsel for Dr. David Stevens and Dr. Peter Stevenson. (watching brief)

HEARD: March 13, 2019

Reasons for Judgment

The Honourable Justice James W. Sloan

1This is a medical malpractice action brought by the plaintiff after knee surgery at the Grand River Hospital on September 30, 2010. She initially attended at the emergency department on September 27, 2010.

2After her surgery she was discharged on October 2, 2010 and saw Dr. Stevens in follow-up on October 19, 2010.

3Grand River Hospital brings this summary judgment motion seeking to strike out the plaintiff’s claim against it in its entirety. If successful, the action against the hospital would be dismissed, but the action against the doctors would continue.

4In furtherance of her action, the plaintiff retained an American orthopedic surgeon named Michael J. Katz. His medical legal report is attached to the plaintiff’s reply motion record dated November 19, 2018 at Tab 3B. His CV is included as part of what appears to be his unsworn affidavit dated November 18, 2018.

5Although he appears well-qualified from an orthopedic medicine point of view, he does not have the requisite qualifications to opine on hospital procedures, including interactions between doctors, nurses and hospital administration staff.

6In addition, all of his orthopedic experience has been in the United States and none has been in Canada. He has spent very little time practicing medicine in a hospital setting, particularly a not-for-profit hospital. In addition, up to 70% of his earnings come from his authoring of medical legal reports. Most of his orthopedic practice, aside from authoring of medical legal reports, has taken place in a private U.S. clinic.

7At the end of her factum, the plaintiff has summarized her case as follows:

In Summary the plaintiff Gabriela Lucuta had established a breach of the standard of care, causation, and lack of informed consent which was caused by the gross hospital negligence. Evidence submitted is based on plaintiff Gabriela Lucuta’s medical records, sworn affidavits, medical legal reports, transcripts of expert evidence, the cross examination of both Dr. Katz and Dr. Waddell, authorities and tort law statutes and legislation.

8Also at the end of her factum, she states that the genuine issues to be tried are as follows:

a) Dr. Katz makes genuine critiques of the hospital; b) the hospital failed to coordinate Ms. Lucuta’s doctors and nurses; c) the hospital failed to coordinate a pre-surgical care; d) the hospital failed to coordinate postsurgical care; e) hospital neglected Ms. Gabriela Lucuta, both in the emergency department and orthopedic department; f) the hospital was responsible for providing an accurate diagnosis and standard medical treatment; and g) the hospital was responsible to obtain informed consent from Ms. Gabriella Lucuta prior to medical treatment.

The Hospital’s Position

9There is no genuine issue for trial in a medical malpractice action, if the plaintiff has not adduced admissible expert evidence. That medical evidence must establish:

1. the standard of care;
2. whether there was a breach of the standard of care; and
3. that the breach caused the plaintiff’s injuries.

10The Ontario Court of Appeal in Liu v. Wong, 2016 ONCA 366 stated the following at paragraph 14;

14Medical malpractice cases are complex – even where they may appear simple to the eye of a layperson – and judges and juries lack the expertise necessary to assess difficult questions such as causation, standard of care, and breach of the standard of care, without the assistance of expert reports. For that reason, this Court and others have stated that aside from the “clearest of cases” the absence of expert evidence in support of the plaintiff’s medical malpractice claim is fatal: see Larman v. Mount Sinai Hospital, 2014 ONCA 923.

11In trial judgment of the case of Hirchberg v. The Branson Drug Store, 2016 ONSC 4853, which was upheld by the Ontario Court of Appeal, the trial judge stated at paragraph 74:

74The hospital defendants acknowledge that informed consent is required, including with respect to the prescription of dexamethasone, but submit that this duty lay with the physicians who prescribed the drug to Ms. Dubins, not to the in-hospital pharmacies that dispensed it. That position is consistent with s. 10(1) of the Healthcare Consent to Act, S.O. 1996, c. 2, Sch. A, which imposes an obligation to obtain consent on the health practitioner that “proposes the treatment”. Neither the North York General nor Sunnybrook on-site pharmacy proposed treatment with dexamethasone, and the treating physicians who did recommend those treatments are independent medical practitioners for whom the hospital defendants are not responsible in law: Yepremian v. Scarborough General Hospital (1980) O.R. (2nd) 494 (C.A.). It would be cumbersome and inefficient at best if the hospital pharmacist was obligated to begin anew the process of obtaining informed consent when that consent had already been obtained by the prescribing physician.

12On a summary judgment motion the court must look at all of the evidence presented and decide if there is a genuine issue for trial.

13The Hinchberg case is close to being on all fours with the current case, because it involved a medical malpractice case where the plaintiff was self-represented and had retained a physician from New York State, who was an expert in hematology and oncology. At paragraph 45, the Ontario Court of Appeal, (2017 ONCA 62) stated:

45There are a number of difficulties with the evidence of Dr. Levin. Upon review of Dr. Levin’s curriculum vitae and related enclosures I am not satisfied that he is qualified to give expert evidence on the standard of practice in the province of Ontario with respect to any of the physician defendants. It is well accepted that the standard of care requires that a physician conduct their practice in accordance with the conduct of a prudent and diligent physician in the same circumstances. In the case of a specialist, a physician’s conduct must be assessed in light of the conduct of other ordinary specialists who possess a reasonable level of knowledge, competence and skill expected of professionals in Canada in that field … Dr. Levin’s material is insufficient to establish his expertise regarding Canadian standards of practice, let alone those applicable to the physician defendants’ circumstances.

14At paragraph 77 of the Hinchberg trial judgment the judge stated:

77Dr. Levin’s declaration focuses on the handouts given by the hospital pharmacies so that patients taking dexamethasone are aware of side effects to watch out for. He finds that the handouts inadequately describe the side effects as compared to the drug prescribing information. However, even if I assume that Dr. Levin is properly qualified to speak about pharmacists, which he is not, his declaration did not specifically address the treatment of Ms. Dubins nor does he give the opinion that the handouts caused her any harm.

15The hospital suggests that Dr. Katz, after opining on what he considers the doctor’s negligence, simply adds that the hospital was negligent also.

16With respect to Dr. Katz’s professional qualifications to opine on whether or not the hospital did anything wrong, the hospital points out the following:

a) Dr. Katz never practiced in Ontario; b) the U.S. and Canadian healthcare systems are very different; c) Katz confirms that he is not offering an opinion on the care provided by the nursing staff; d) Katz confirms he is not offering an opinion on the care provided by the occupational or physiotherapists; e) Katz has worked mostly in a private U.S. clinic and the bulk of his income comes from doing medical legal reports; and f) he has never been a hospital administrator.

17The expert retained by the hospital is Dr. Waddell. He is well qualified to opine on hospital orthopedic care in Ontario. He is a recipient of the Order of Canada with over 43 years of experience practicing orthopedic surgery at St. Michael’s Hospital in Toronto and has been chief of orthopedic surgery, surgery in chief and director of the trauma service at that facility.

18He has taught at the University of Toronto since 1988, chaired the Government of Ontario’s Panel for Orthopedic Surgery from 2007 to 2012 and chaired the Canadian Orthopedic Foundation Board from 2010 to 2014.

19Even if Dr. Katz’s report is taken into account, Katz does not relate the question of causation to the hospital. At pages 14 and 15 of his report he indicates that the doctors carried out the wrong surgical procedure, which ultimately led to the plaintiff seeking out further surgical intervention and suffering further damage to her knee.

20He faults the doctors for failing to properly assess the patient’s medical situation, for failing to order an MRI and failing to do surgery in a timely manner. In addition, he alleges Dr. Stevens informed the plaintiff that she was having a different surgical procedure than she actually had and that Dr. Stevens did not coordinate follow-up for the patient’s post-surgical care.

21In the summary on page 15 of his report, he states that the substandard care at the Grand River Hospital involved the following:

1. Too many close reductions of the left patella dislocations.
2. Long waits for reduction of patella dislocations.
3. No MRI to determine involvement of the medial retinaculum and capsule.
4. Incorrect surgical procedure listed on the consent form signed by the patient.
5. Wrong surgical procedure performed on 09/30/104 recurrent patella dislocations.
6. No post-surgical care was arranged.

22All of the six allegations above involve decisions made by doctors and not the hospital or its staff.

23Although mentioned by the plaintiff, Katz does not address any negligence involving nursing staff or medications.

24In the second last paragraph on page 16 of his report he states: “The substandard care also involved Grand River Hospital which did not coordinate the doctors in an effective manner to allow smooth diagnosis and treatment of the patient Gabriela Lucuta.”

25Nowhere in his report does he explain what he means by the words “coordinate” and “in an effective manner”. There is no explanation of what, in his expert opinion, should have been done, or not done “to coordinate the doctors in an effective manner”. In short, this is simply an allegation and not an expert opinion.

26With respect to his allegation of failing to coordinate post-surgery follow-up, he likewise does not say what was done, what was not done and what happened to the plaintiff as a result of the alleged failure.

27With respect to the plaintiff’s allegation of not being sent home with appropriate amount of antibiotics, and while it may be troubling if true, since the plaintiff suffered no infection it is irrelevant to her claim for negligence.

28Likewise, the plaintiff complains about customer service issues, such as lack of assistance with her personal hygiene or her bed sheets not being changed appropriately, do not rise to the level of a triable issue in a medical malpractice case.

The Plaintiff’s Position

29The plaintiff took the court through and read from significant portions of her factum.

30She commenced with an excerpt from the 1942 United Kingdom case of Gold v. Essex County Council for the proposition that:

When a patient seeking free advice and treatment such as that given to the … plaintiff knocks at the door of the defendant’s hospital, what is he entitled to expect? He will find an organization which comprises consulting physicians and surgeons, presumably also house physicians and surgeons, a staff of nurses, equipment for administering Grenz Ray treatment and a radiographer, Mead, employed to give that treatment.

Nursing, it appears to me is just what the patient is entitled to expect from the institution and the relationship of the nurses to the institution supports the inference that they are engaged to nurse the patients. In the case of nursing home conducted for profit, a patient would be surprised to be told that the home not undertake to nurse him. In the case of a voluntary hospital with the usual nursing staff his just expectation would surely be the same.

31She then went on to detail numerous allegations of negligence, some of which have been set out under the heading: “The Hospital’s Position”.

32With respect to the allegation that she waited at the hospital for five hours in pain before she received any medication, she was asked how that affected the outcome of her knee surgery. Her response was to the effect that not having the pain medication affected her whole person. She also said it was psychologically damaging but admitted she has not obtained a psychological report.

33She alleged that she was negligently sent home from the hospital with insufficient antibiotics. However, because she had some leftover antibiotics at home, she never developed any infection. Notwithstanding the lack of infection she submits her treatment at the hospital was substandard and worthy of compensation.

34She complained about not being asked to sign a prescription consent form before receiving medication, however she could not articulate how this impacted the outcome of her knee surgery or how it affected her whole person.

35She complained bitterly about the treatment she received at the hospital from the nurses, but did not tie this alleged mistreatment to any problems with her knee but rather her whole person. She complained that the nurses were disrespectful, did not assist her with her personal hygiene, did not change her bed sheets when necessary, did not manager her medication properly and did not order an EKG. It is her position that all of these issues require a trial.

36She submits that all of the above complaints constitute what she described as a breach of standard medical care.

37The plaintiff, in her claim which was amended on June 19, 2018 under the heading “The Cause Of Action”, framed her case in negligence. She plead that the defendants “owed a duty of accepted medical standard of care” to her.

38Paragraphs 82 and 83 of the plaintiff’s amended statement of claim read as follows:

82 Ms. Lucuta states that but for the actions and or omissions of the defendants, which constituted gross medical negligence along with substandard of medical care she would not have had, and continued to have, ongoing patellar subluxations, severe knee pain, numbness in the lower leg, and impaired functionality of the left knee between September 27, 2010 and June 7, 2013.

83 Ms. Lucuta states that her ongoing medical condition was caused by the gross medical negligence which is a breach of accepted standard of medical care, due to the substandard orthopedic procedure, and lack of informed consent for surgical intervention which also, constitutes medical malpractice of the defendants jointly and severally, the particulars of which are as follows …

Findings

39I find that Dr. Katz, while possessing orthopedic credentials, does not have the credentials or related work experience in an Ontario hospital setting to opine on procedures and interactions between medical personnel in an Ontario hospital.

40Dr. Katz does not have the expertise, which he concedes, with respect to offering an opinion on nursing and physiotherapy matters. In fact, Dr. Katz does not address any alleged negligence involving the nursing staff, physiotherapy staff or medications.

41His summary of “substandard care” set out at paragraph 22 of this “experts report” relates almost, if not exclusively, to matters that are in the purview of doctors not the hospital administration or the hospital staff.

42With respect to the issue of postsurgical care not being arranged, no evidence was presented with respect to who should make those arrangements. In any event, there is nothing in Dr. Katz’s report to suggest that the plaintiff’s recovery from her knee surgery was compromised by whatever lack of postsurgical care he is referring to.

43Nowhere in his report does he explain what he means by the words “coordinate” and “in an effective manner”. He does not opine on what should or should not have happened, nor does he opine on whether or not the plaintiff’s recovery from her knee surgery was compromised by this lack of “coordination”.

44The plaintiff herself was unable to articulate to the court, how her knee surgery and recovery from same, was compromised by anything that she alleges the hospital was responsible for.

45Her overriding complaint with the hospital appears to be the treatment she received from the nurses, which she felt was substandard and therefore negligent.

46Based on the evidence presented on this motion, I find there is no genuine issue requiring a trial with respect to the liability of the hospital, to the claims of the plaintiff.

47I therefore dismiss the plaintiff’s action against Grand River Hospital with costs.

48If the parties are unable to agree on costs, Mr. Crowell shall forward his brief submissions on costs to me by March 22, 2019. Ms. Lucata shall forward her brief response to me by March 28, 2019. Mr. Crowell shall then forward his reply, if any, to me by April 4, 2019. Cost submissions may be sent to my attention by email, care of Kitchener.Superior.Court@ontario.ca. Cost submissions, excluding bills of costs shall be limited to 5 pages using spacing of 1.5 and 12 pitch font.

James W. Sloan J.