Court File and Parties

COURT FILE NO.: CV-18-597920 DATE: 20200318 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Alison Eichenger, Tracey Eichenger and Frank Eichenger Plaintiffs – and – Dr. Sankar Vaidyanathan, “DC”, “P. Doran” and Humber River Hospital Defendants

COUNSEL:

Jillian Evans, for the Plaintiffs Nadia Marotta, for the Defendant, Dr. Vaidyanathan

HEARD: February 21, 2020

Davies J.

REASONS FOR DECISION

A. Overview

[1] Alison Eichenger was born at Humber River Hospital on May 19, 1998 to Tracey and Frank Eichenger. Dr. Vaidyanathan was the obstetrician responsible for Tracey’s care during Alison’s delivery.

[2] Alison presented with shoulder dystocia. Dr. Vaidyanathan used a vacuum and traction during Alison’s delivery. She was diagnosed with a brachial plexus injury within hours of her birth. She was referred to the Hospital for Sick Children for ongoing treatment. Alison eventually required surgical intervention and continues to have limited use of her arm.

[3] The Plaintiffs issued a Statement of Claim against Dr. Vaidyanathan, the Hospital and two nurses involved in Alison’s birth in which they allege that Alison sustained a severe brachial plexus injury to her left arm as a result of Dr. Vaidyanathan’s negligent care. The Plaintiffs also allege that Dr. Vaidyanathan caused severe brachial plexus injuries to other babies before Alison was born and had a pattern of using excessive force during deliveries. In addition to general and special damages, the Plaintiffs claim aggravated, exemplary and punitive damages.

[4] Dr. Vaidyanathan brings this motion under R. 21.01(1)(b) and R. 25.11 to strike those portions of the Statement of Claim that rely on an alleged pattern of misconduct or a history of other injuries on the basis that they are frivolous, vexatious or scandalous or, in the alternative, they disclose no cause of action. Dr. Vaidyanathan also asks that the claims for exemplary, punitive and aggravated damages be struck under R. 21.01(1)(b).

[5] For the reasons that follow I dismiss Dr. Vaidyanathan’s request to strike the similar fact pleadings but grant his request to strike the claims for exemplary, punitive and aggravated damages.

B. Similar Fact Pleadings

[6] As a rule, evidence that a party was negligent in the past is neither relevant nor admissible to prove subsequent negligence. The rule against similar fact evidence is designed to prevent triers of fact from engaging in propensity reasoning – reasoning that because the defendant acted in a negligent manner in the past, they are the sort of person to engage in negligent conduct (or have a propensity for being negligent) and are therefore liable for the negligent act alleged now. The rule also avoids distractions and prevents trials from becoming overly complex.

[7] There are, however, exceptions to the rule against similar fact evidence. Similar fact evidence can be relevant to an issue other than propensity and is admissible if its probative value in relation to an issue at trial is greater than its inherent prejudice. But this motion is not about the admissibility of similar fact evidence. That will be for the trial judge to decide.

[8] This motion is about the sustainability of pleadings. The issue is whether the similar facts pled are irrelevant or amount to nothing more than bare allegations such that they are scandalous and should be struck from the pleadings.

[9] There is no absolute prohibition against including similar fact allegations in pleadings. As long as the added complexity caused by the similar fact allegations does not exceed their probative value, a plaintiff is entitled to include them in their pleadings. [1] For the purpose of this motion, I must assume all the facts in the amended pleadings are true and I must decide whether the similar fact allegations are relevant to an issue in this case, how much complexity they add to the proceedings and whether the probative value of the similar fact allegations outweighs the added complexity.

a. Probative Value of the Similar Fact Allegations

[10] The probative value of similar fact allegations must be considered in the context of the pleadings themselves.

[11] In their Statement of Claim, issued on May 16, 2018, the Plaintiffs allege that Alison’s injury was the result of Dr. Vaidyanathan’s negligence. They allege that he was impatient during Tracey’s labour. He used traction and a vacuum to accelerate the delivery. Alison’s shoulder became stuck. Dr. Vaidyanathan continued to use traction and applied the vacuum after Alison presented with shoulder dystocia to assist the birth. Alison’s left arm was flaccid when she was born. Her shoulder was X‑rayed, and she was diagnosed with a brachial plexus injury. The Plaintiffs allege that Dr. Vaidyanathan used excessive force and was negligent in managing her shoulder dystocia, resulting in her injury.

[12] The Plaintiffs also alleged that Dr. Vaidyanathan has caused “severe brachial plexus injuries to one or more babies…that were strikingly similar to the injuries caused to Alison during her delivery” and that Dr. Vaidyanathan has a “pattern of conduct in using excessive force” during deliveries. They also allege that Dr. Vaidyanathan breached his fiduciary duty to the Plaintiffs by delivering Alison when he “knew or ought to have known” that he had insufficient skill, knowledge or experience and that he had a history of causing brachial plexus injuries during delivery. Finally, they alleged that Dr. Vaidyanathan failed to advise them of prior adverse outcomes in relation to infants who presented with shoulder dystocia before obtaining Tracey’s consent for treatment.

[13] The Plaintiffs did not identify or plead any facts about any other infants who suffered brachial plexus injuries caused by Dr. Vaidyanathan before Alison’s birth in the original Statement of Claim.

[14] On June 3, 2019, Dr. Vaidyanathan served a Demand for Particulars with respect to those portions of the Statement of Claim that allege a pattern or history of causing brachial plexus injuries during delivery. In October of 2019, Dr. Vaidyanathan filed this motion to strike.

[15] After the motion materials were served, the Plaintiffs issued an Amended Statement of Claim and provided a Response to the Demand for Particulars. The Plaintiffs did not seek leave from the Court to amend their pleadings. The Amended Statement of Claim identifies a boy born one year before Alison who allegedly suffered a serious brachial plexus injury during birth because of Dr. Vaidyanathan’s negligence.

[16] The Plaintiffs provided an Affidavit from that boy’s mother describing his injury and the treatment she received from Dr. Vaidyanathan. Dr. Vaidyanathan was the treating obstetrician in that delivery as well. The mother describes that her baby’s shoulder got “stuck” in the birth canal. Dr. Vaidyanathan expressed frustration and used a vacuum to expedite his delivery. Her son was diagnosed with a brachial plexus injury the day after he was born by the mother’s family doctor. At that time, his arm was limp and non-functioning. Her son eventually recovered from his injury.

[17] Counsel for Dr. Vaidyanathan agreed to proceed with this motion based on the Amended Statement of Claim despite the jurisprudence from this Court which suggests that a plaintiff is not entitled to amend a Statement of Claim without leave when the pleadings are being challenged. [2] Both Counsel also agreed that, notwithstanding R. 21.01(2)(b) which says that no evidence is admissible on a motion under R. 21.01(1)(b), the mother’s Affidavit actually forms part of the pleadings because it is expressly referred to in the Response to Demand for Particulars and can be considered by me on this motion.

[18] The Amended Statement of Claim still alleges that Dr. Vaidyanathan caused severe brachial plexus to “one or more babies” before Alison was born and that he has a history of negligently causing brachial plexus injuries to babies during delivery, “including but not limited to the infant boy ” now named in the pleadings. Dr. Vaidyanathan takes the position that all references to other injured infants, including the named infant boy, should be struck from the pleadings because they do not meet the test for pleading similar facts.

[19] The Plaintiffs take the position that the injuries caused to the named baby boy are sufficiently similar to meet the similar fact test and that the references to other unnamed infants are relevant to other parts of their pleadings. The Plaintiffs argue that striking the similar fact allegations would unfairly narrow the scope of discovery and limit their ability to prove their case.

[20] The circumstances of Alison’s delivery and injury are very similar to those of the identified baby boy. Both babies presented with shoulder dystocia. Both mothers describe Dr. Vaidyanathan being frustrated and impatient during their labour. Both mothers describe Dr. Vaidyanathan using a vacuum and traction to expedite the delivery. Both infants suffered brachial plexus injuries that required ongoing attention. Dr. Vaidyanathan either ignored or minimized the extent of the injury suffered in each case. Dr. Vaidyanathan told Tracey and Frank he has delivered many other babies who suffered brachial plexus injuries. He assured them that the injury would resolve spontaneously. Dr. Vaidyanathan did not say anything to the other mother about her son’s injury. Given the similarities in the procedure used by Dr. Vaidyanathan during the two deliveries, the specific injury caused and Dr. Vaidyanathan’s lack of attention to the injury following the births, I find that the similar fact allegations have probative value in relation to the negligence claim.

[21] In his defence, Dr. Vaidyanathan may claim that brachial plexus is a common injury and that any harm caused to Alison was accidental, not the result of his negligence. Again, the issue is not whether evidence about the injury to the other baby will be admissible at trial in response to any defence raised. The issue is whether, if proven, the prior injury could be admissible to rebut a defence of accident. In my view, what happened with the other baby could be relevant to rebut a defence of accident.

[22] The similar fact allegations are not being advanced in support of the negligence claim only. The Plaintiffs have made several other claims that relate to Dr. Vaidyanathan’s knowledge, skill and experience delivering babies who present with shoulder dystocia. Whether Dr. Vaidyanathan was involved in deliveries that resulted in brachial plexus injuries, his knowledge of the risks of these injuries and his experience managing those risks will be relevant to these claims.

[23] For example, the Plaintiffs claim Dr. Vaidyanathan knew or ought to have known that he had caused severe brachial plexus injuries in the past and failed to advise Tracey of other negative outcomes before obtaining her consent to treatment. The Plaintiffs also claim that Dr. Vaidyanathan committed professional misconduct by delivering Alison when he knew or ought to have known that he lacked the skill to deliver a baby who presents with shoulder dystocia. Professional misconduct is defined in the regulations to the Medicine Act, 1991 to include practicing when the physician knows that he has “deficient clinical ability”. The Plaintiffs also claim that Dr. Vaidyanathan breached his fiduciary duty to Tracey by performing the delivery when he knew or ought to have known that he had insufficient skill, knowledge or experience to deliver an infant with shoulder dystocia. Dr. Vaidyanathan’s fiduciary duty may include an obligation to disclose to Tracey errors he made in relation to other patients in similar circumstances and to disclose information a reasonable patient would want to know before consenting to treatment. [3] These pleadings are all legally viable. They align with Dr. Vaidyanathan’s statutory, regulatory and common law obligations to his patients. Whether or not the Plaintiffs plead allegations of similar injuries or a pattern of conduct, these all raise issues about Dr. Vaidyanathan’s care of other patients with shoulder dystocia and his knowledge of how to manage the risk of brachial plexus injuries.

[24] The Plaintiffs also claim that Humber River Hospital allowed Dr. Vaidyanathan to treat Tracey and deliver Alison when they knew or ought to have known that he was not trained to do so. Again, Dr. Vaidyanathan’s knowledge, experience and skill delivering babies who present with shoulder dystocia, and the hospital’s knowledge of past negative outcomes, will be relevant to this claim whether it is framed as a similar fact allegation or not.

[25] I find that the similar fact allegations about the brachial plexus injury suffered by the identified baby boy and the alleged pattern of injuries to other patients have significant probative value in relation to the negligence claim and the other claims in this case.

b. Added complexity from the similar act allegations

[26] The allegations that Dr. Vaidyanathan has a history of using excessive force and causing severe brachial plexus will add some complexity to the negligence claim. However, Dr. Vaidyanathan’s knowledge, experience and skill in relation to delivering babies who present with shoulder dystocia is highly relevant to several other claims made by the Plaintiffs. To advance the claims related to Dr. Vaidyanathan’s lack of knowledge, experience and skill, the Plaintiffs must be able to ask Dr. Vaidyanathan how he managed similar cases in the past. Questions about Dr. Vaidyanathan’s experience delivering babies with shoulder dystocia, his knowledge of how to manage a delivery when the baby presents with shoulder dystocia and his knowledge of the risk of severe brachial plexus injuries in those cases will inevitably arise. As a result, framing or characterizing these issues as similar act allegations does not meaningfully increase the complexity of this case overall.

[27] Pursuing questions about Dr. Vaidyanathan’s knowledge of the risks of brachial plexus injuries based on his past experience does, of course, run the risk of compromising the privacy and confidentiality of other patients. Those issues can and should be addressed by the redaction of the names in the records. Similarly, any dispute over the appropriate scope of the inquiries about Dr. Vaidyanathan’s past cases is an issue that can be resolved during the discovery process itself.

c. Balancing of Probative Value with the Added Complexity

[28] The Plaintiffs have not simply made a bald assertion that Dr. Vaidyanathan has a pattern of similar adverse outcomes. Dr. Vaidyanathan told Tracey and Frank he has delivered many babies who suffered brachial plexus injuries in the past. The Plaintiffs also have evidence that in at least one other case, Dr. Vaidyanathan caused a similar injury to another baby in very similar circumstances.

[29] More importantly, Dr. Vaidyanathan’s knowledge, experience and skill will be a prominent issue in relation to several claims made by the Plaintiffs. His treatment of other patients and the outcomes in other cases, whether framed as similar acts allegations or not, are relevant to this issue. While the alleged pattern of conduct may increase the complexity of the negligence claim, it has significant probative value that exceeds the complexity it might create. To strike allegations of a pattern of conduct would interfere with the Plaintiffs’ ability to advance their claims, especially their claim that Dr. Vaidyanathan breached his fiduciary duty and failed to obtain informed consent.

[30] The motion to strike the similar fact allegations from the statement of claim is, therefore, dismissed.

C. Claim for Punitive, Exemplary and Aggravated Damages

[31] Alison is seeking “punitive damages in the amount of $200,0000” as well as “exemplary and aggravated damages in the sum of $200,0000”. It is not clear why the Plaintiff joined a claim for exemplary and aggravated damages together and included a separate claim for punitive damages. Punitive or exemplary damages can be awarded in exceptional cases where a defendant’s misconduct is malicious, oppressive or high-handed, and it offends the Court’s sense of decency. [4] On the other hand, aggravated damages are intended to augment the general damages and compensate for intangible injuries.

[32] Regardless of the drafting irregularity, the Statement of Claim does not specify the basis for awarding punitive damages or aggravated damages in this case. The basis for granting punitive or aggravated damages is also not apparent even from a generous, liberal reading of the Statement of Claim. Paragraphs 1(c) and 1(d) of the pleadings are therefore struck with leave granted to the Plaintiffs to amend the Statement of Claim within 60 days.

D. Costs

[33] I encourage the parties to reach an agreement on the issue of costs. If they are unable to do so, Dr. Vaidyanathan may serve and file written submissions on costs of no more than three (3) pages together with any supporting authority on or before April 3, 2020. The Plaintiffs may serve and file written responding submission of no more than three (3) pages and supporting authorities on or before April 17, 2010. These submissions may be filed by delivery to my assistant, Lorie Waltenbury (lorie.waltenbury@ontario.ca). In the event that I do not receive any written cost submissions by April 24, 2020, I will deem the issue of costs to have been settled.

Davies J. Released: March 18, 2020

Footnotes:

[1] Garwood Financial Ltd. v. Wallace, [1997] O.J. No. 3358 (S.C.J.) [2] Cosentino v. Dominaco Development Inc., 2010 ONSC 208 at para. 10, PaineWebber Mortgage Acceptance Corp. v. Mundi, [2004] O.J. No. 1730 (S.C.J.) at para. 2 [3] Williams v. Wai-Ping, supra at para. 19 [4] Whiten v. Pilot Insurance Co, 2002 SCC 18 at para. 36