Court File and Parties

COURT FILE NO.: CV-16-0577-00SR DATE: 2020-06-25

Ontario Superior Court of Justice

BETWEEN:

David George Owen, Plaintiff Counsel: V. Popescu and N. Gerry, for the Plaintiff

- and -

Sukhjeevan Bains, Defendant Counsel: S. Miller, for the Defendant

HEARD: February 18, 20, June 3, 4, 5, 2020 at Thunder Bay, Ontario

BEFORE: Mr. Justice F. B. Fitzpatrick

Reasons For Judgment

[1] The Plaintiff, David George Owen (Mr. Owen), brings a claim alleging negligence against a dentist, Sukhjeevan Bains (Dr. Bains). Mr. Owen went to Dr. Bains to have a tooth pulled on April 13, 2016. The procedure did not go exactly as planned. Mr. Owen ended up losing consciousness while in the dental chair. He was then transported to hospital. About an hour and a half after arriving at the hospital, Mr. Owen had a bradycardiac event. That is, his heart rate dropped to about 30 beats per minute and he again lost consciousness. He was revived through the interventions of hospital staff. Mr. Owen describes what happened to him as a “near death experience”. He claims that he suffered a mental injury as the result of Dr. Bains’s actions that day and he seeks an award of $75,000.00 as a result.

[2] For reasons set out below, I find that Mr. Owen has not proven his case against Dr. Bains on a balance of probabilities. I dismiss his claim with costs if requested. If I had found Dr. Bains liable, I would have assessed damages for the injuries Mr. Owen now suffers to be compensable by an award of $40,000.00 in non-pecuniary damages plus $1,042.01 for a subrogated OHIP claim.

[3] This matter was commenced under the Simplified Procedure, Rule 76 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The parties agreed to conduct a summary trial. The evidence-in-chief of all witnesses was provided in affidavit form. Certain witnesses appeared virtually on consent of counsel. As a small matter of Ontario legal history, counsel advised of their belief that this matter was the first trial in the province to have been completed on the ZOOM platform during the pandemic. The court thanks counsel for their co-operation in completing the matter in a timely way.

Agreed Facts

[4] Counsel for the parties agreed that the majority of the facts relevant to the adjudication of this matter were not in dispute. Counsel prepared an agreed statement of facts. Based on the agreed statement of facts, I find as follows:

Mr. Owen is a 53-year-old man who lives in Marathon, Ontario. Mr. Owen is currently divorced. In April 2016, Mr. Owen was working as a site lead at Orica Canada Incorporated (“Orica”). He is currently employed as a site supervisor with Orica. In April 2016, Mr. Owen weighed approximately 300 pounds. He was 5 feet and 11 inches tall.

Dr. Bains is a member of the Royal College of Dental Surgeons of Ontario (“RCDSO”). Dr. Bains became licensed in 2015 and was at all material times qualified and licensed to practice dentistry in the Province of Ontario.

On April 13, 2016, at approximately 3:30 p.m. Mr. Owen presented to the Marathon Dental Clinic to undergo the extraction of one tooth, tooth number 16. After administering a local anesthetic, Dr. Bains started the tooth extraction procedure. During the extraction procedure, Mr. Owen reported to Dr. Bains that he did not feel well and asked for a drink of water.

Dr. Bains stopped the procedure and asked one of his assistants to call 9-1-1. Dr. Bains then asked Mr. Owen to open his mouth. Dr. Bains administered nitroglycerin (“NTG”) via spray into Mr. Owen’s mouth. Paramedics arrived in Dr. Bains’s office shortly after the NTG administration, at approximately 4:00 p.m. Paramedics found Mr. Owen hypotensive on assessment; they reported in the ambulance call report that he did not complain to them of any chest pain or shortness of breath.

Mr. Owen was then taken by the paramedics to the Wilson Memorial Hospital (“WMH”). At approximately 5:30 p.m., during Mr. Owen’s admission at WMH, Mr. Owen’s heart rate dropped to approximately 30 beats per minute. At that time Mr. Owen lost consciousness. Emergency medical personnel administered 0.5 mg of the drug Atropine, with normal saline in the amount of 250 cc. Both were administered intravenously. By approximately 5:40 p.m., Mr. Owen’s heart rate had increased to 57 beats per minute. By approximately 5:45 pm, Mr. Owen’s heart rate had increased to approximately 60 beats per minute.

On April 15, 2016, another dentist in Marathon, Dr. Mark Albus, completed the extraction of Mr. Owen’s tooth number 16. On April 18, 2016, Mr. Owen underwent a restoration of tooth number 45 by Dr. Albus. On March 31, 2017, Dr. Albus extracted Mr. Owen’s tooth number 36.

On May 30, 2017, Mr. Owen underwent a left heart catherization, coronary angiogram, left ventriculogram and percutaneous coronary intervention. In December 2018, Mr. Owen was prescribed the drug Lorazepam for when he must attend at a dentist’s office.

Disputed Facts

[5] In my view, from all the evidence presented at this trial, the essence of Mr. Owen’s claim is that he “suffered a near death experience” as the result of an alleged breach of a standard of care owed to him by Dr. Bains. The breach is the decision by Dr. Bains to administer NTG to Mr. Owen in the face of the symptoms that he was exhibiting amid a tooth extraction procedure. Dr. Bains’s decision in the moment was that Mr. Owen was suffering a heart attack, a myocardial infarction. It turns out that Mr. Owen was not suffering a heart attack.

[6] Mr. Owen argues that the administration of the NTG by Dr. Bains caused his heart rate to drop such that he lost consciousness. Mr. Owen argues that Dr. Bains should have treated him as having a fainting spell. Mr. Owen argues that Dr. Bains should have taken his pulse before administering the NTG. This is because NTG immediately lowers a person’s heart rate by allowing dilation of blood vessels. In the theory of the plaintiff, but for this administration of NTG, Mr. Owen would not have had a bradycardiac event at the WMH. He therefore would not have had a “near death” experience, an experience which has caused the psychological damage he now experiences.

[7] The defence admits that Mr. Owen currently suffers damages arising from a psychological injury. Mr. Owen called an expert Dr. Suzanne Chomycz to establish these injuries.

[8] Based on the admissions by the defence, I find that Mr. Owen suffers from a serious and prolonged mental injury that rises above the ordinary emotional disturbances which occasionally afflict any member of civil society. However, the defence vigorously disputes that these damages are connected to any actions, treatment or breach of the standard of care by Dr. Bains in his interactions with Mr. Owen.

[9] In my view, Dr. Bains’s admission of the fact of damages being suffered by Mr. Owen on an ongoing basis makes Dr. Chomycz’s expert evidence moot. I was not convinced by the plaintiff’s argument that Dr. Chomycz’s evidence was persuasive on the issue of causation. I discuss this finding later in this judgment.

[10] Mr. Owen also adduced expert opinion evidence from a Dr. Kenneth Melvin, a practicing clinical cardiologist. Dr. Melvin’s opinion was summarized in three answers to questions posed by counsel for Mr. Owen and is contained in his report which was an exhibit to the affidavit of his evidence-in-chief. The defence brought a mid-trial motion to have the answer to question 3 of Dr. Melvin’s report ruled inadmissible. The defence argued that it amounted to a cardiologist attempting to opine on the standard of care of a dentist. Counsel for Mr. Owen conceded that Dr. Melvin was not qualified to opine on the standard of care of a dentist. However, he argued that the answer in the report afforded a nuanced interpretation that made the answer admissible.

[11] Counsel for Mr. Owen indicated that whatever the ruling on the mid-trial motion, he was prepared to allow Dr. Melvin to be cross-examined the next day. Accordingly, I gave an oral ruling that the answer to question 3 was inadmissible and the matter continued. On June 4, 2020 I released my endorsement to counsel setting out my written reasons for that decision (Owen v. Bains, 2020 ONSC 3512).

[12] While there was no question that Dr. Melvin was a properly qualified expert, I find that his evidence was of no assistance to the court on the issue of causation. In order to understand my decision in that regard, I repeat the questions and answers from his opinion that were admitted into evidence:

1. Please confirm that there was no indication for the use of nitro spray under the circumstances that prevailed at the time and that the administration of this drug clearly worsened the vasovagal episode that the patient was experiencing.

   It is my opinion that there was no indication to use NTG in this instance, and its use likely exacerbated the vagal event-mediated hypotension.

2. At the same time, kindly clarify from a cardiology perspective whether the administration of the nitro spray in the office could reasonably be linked to the second vaso-vagal episode in the hospital that occurred some 1.50 hours later.

   It is common for vaso-vagal events to recur in the presence of continuing stressors, which were likely present in the context of the initial dental stress, the EMT transfer to the hospital and events surrounding that. The hypotension induced by the event and the additional hypotensive effect of NTG did eventually resolve but not until Atropine and IV fluids were administered.

[13] I do not see the answer to question 1, as to whether or not Dr. Bains should have administered NTG to Mr. Owen, as dispositive or of assistance to the central issue of causation in this matter. This is because I find on the evidence that what happened to Mr. Owen in Dr. Bains’s office was not connected to what happened to him later at the hospital.

[14] It was not disputed that Mr. Owen’s current psychological injury arose from his “near death experience” of April 13, 2016. Accordingly, I see the essential fact in dispute as whether Mr. Owen could be said to have experienced “an event” or a “series of events” on April 13, 2016. This is important because of the issue of causation that the plaintiff must prove on the balance of probabilities.

[15] Mr. Owen’s own evidence on the point of the “near death experience” was instructive to me. In his affidavit, he describes intrusive memories and flashbacks of the incident (singular, my emphasis), and then he stated at para. 21 of his affidavit of January 20, 2020:

Since the incident on April 13, 2016, I have experienced intrusive memories and flashbacks of the incident – i.e. waking at the hospital with medical professionals surrounding me, having had nightmares and night terrors, feeling upset and having a negative reaction when reminded of the incident and having avoided external reminders of the incident by avoiding attending at the dentist despite ongoing tooth issues. [Emphasis added]

[16] I view this particular piece of Mr. Owen’s testimony as significant because of what he does not reference “ie waking up in a dental office” in his description of what composes his flashbacks and intrusive memories that are an aspect of the mental injury he now deals with. Also, I note his description, twice, in a particular sentence recited above, of “the incident” in the singular. In cross-examination, Mr. Owen tried to correct this by saying that the entirety of events on April 13, 2016 constituted “the incident”. I note that the evidence given by Mr. Owen’s family doctor at trial suggested that what happened to Mr. Owen on April 13, 2016 was all one long occurrence. It suggested that Dr. Bains was the catalyst for the hospital visit as the result of administering NTG to Mr. Owen. I find other evidence to be to the contrary and more persuasive that Mr. Owen cannot establish the causal link necessary for liability to be found against Dr. Bains.

[17] In my view, what happened to Mr. Owen in Dr. Bains’s office cannot be causally linked as the “but for” of the “near death experience”, a near death experience that occurred at the WMH after Mr. Owen lost consciousness and was then revived – about an hour and half after being transported by paramedics from Dr. Bains’s office. There was no dispute that Mr. Owen now suffers from a mental injury. The main issue is whether that injury was caused by a breach of the standard of care which Dr. Bains admits he owes to Mr. Owen.

[18] There is no question that Dr. Melvin could not opine on the standard of care. In hindsight, all the experts called by Mr. Owen criticized Dr. Bains’s administration of NTG. This is because it turns out that Mr. Owen was not having a heart attack while in the care of Dr. Bains. However, in the moment, given Mr. Owen’s obesity and the fact that he was profusely sweating, mumbling, and apparently losing consciousness, I agree with the evidence presented by Dr. Bains’s expert, Dr. Peter Nkansah, that it was a reasonable for Dr. Bains to administer the NTG to Mr. Owen: it was reasonable to assume that Mr. Owen was having a heart attack at the time.

[19] I agree with the submission of counsel for Dr. Bains that the expert evidence of Dr. Melvin did not consider the fact that Mr. Owen was unable to verbally communicate at the critical time whether or not he was having chest pains. Chest pain is a classic and important symptom of a heart attack. It seemed from the cross-examination of Dr. Melvin that it was his view that absent the usual signs of a heart attack, it was not prudent to administer the NTG which contributed to a further drop in Mr. Owen’s blood pressure and a corresponding loss of consciousness. However, for me this is only significant if there is a “but for” causal link to what happened to Mr. Owen in Dr. Bains’s office and what he experienced in the hospital.

[20] Mr. Owen relies on the expert opinion of Dr. Melvin in the answer to question 2 for just such evidence. I disagree. In my view, the answer to question 2 is equivocal in connecting the one event to the other. While Dr. Melvin does say “the hypotension induced by the event ” (“event” singular, my emphasis), I do not find in the answer to question 2 a causal connection sufficient to say that the plaintiff has discharged its burden of proof on that issue. Dr. Melvin’s opinion expressed in the answer to question 2 was not sufficiently clear for me to accept it as persuasive. Also, it does rely on the plaintiff’s overall theory that the occurrences at Dr. Bains’s office and the hospital were all one long event, which I am not prepared to accept.

[21] In fact, the plaintiff’s specific expert on the standard of care, Dr. Douglas Mason, expressly opined that the administration of NTG to Mr. Owen by Dr. Bains did not cause Mr. Owen to experience a bradycardiac event at WMH. This opinion was shared by Dr. Nkansah. I accept this opinion as persuasive. Mr. Owen had a bradycardiac event at the hospital for a variety of reasons, mostly his health, none of which can be connected to Dr. Bains.

[22] It is clear on the evidence that the administration of NTG by Dr. Bains did not cause Mr. Owen to have the symptomatic bradycardiac event – at the WMH at about 5:30 p.m. on April 13, 2016. While Mr. Owen testified that he viewed what happened to him on April 13, 2016, both at the hospital and the dentist’s office as one event, he definitely lost consciousness on two separate occasions. He claims Dr. Bains almost killed him. On the evidence presented, I disagree.

[23] I find that it was Mr. Owen’s physical condition which “almost killed him”. His experience had nothing to do with anything Dr. Bains did or did not do. Mr. Owen was significantly overweight. He suffered from hypertension. He required heart surgery within 13 months of the April 13, 2016 “event” at WMH. He had heart issues going into the office of Dr. Bains. In my view, based on what was going on in those brief moments where Mr. Owen appeared to be in significant distress, Dr. Bains first called 911. He then administered NTG. I find that this course of treatment did not fall below the standard of care required by a reasonably prudent dentist practicing in the province of Ontario.

[24] As noted above, the plaintiff relied on the expert evidence of Dr. Chomycz with regard to the issue of causation. I did not find her expert opinion on causation to be persuasive. I say this for a number of reasons.

[25] Dr. Chomycz was asked six questions which formed the basis of her opinion evidence at trial. I accept her conclusions in regard to questions 1, 4, 5 and 6. I do not accept her conclusions in regard to questions 1 and 2 for reasons I will outline.

[26] The defence did not advance any evidence in respect of the answer to question 1. The defence admitted, and I so find, that Mr. Owen suffers from a serious and prolonged mental injury that rises above the ordinary emotional disturbances that will occasionally afflict any member of civil society.

[27] In my view, Dr. Chomycz’s opinion on causation is premised on what I see as a factual error. Dr. Chomycz treated everything that happened to Mr. Owen on April 13, 2016 as one “event”. Her evidence and report speak of an “event’, singular, as opposed to a series of events. As I have found, I see what occurred to Mr. Owen as a series of events. First, he began to suffer some kind of physical difficulty in the middle of the tooth extraction. This caused Dr. Bain to call 911 and then administer NTG. On the evidence, I cannot say for certain if this action caused Mr. Owen to lose consciousness while in the dental chair. In any event, the “near death experience” which I find has caused Mr. Owen damage, occurred at the hospital and not at the dentist’s office.

[28] Even if I am wrong in this assessment, I have evidence from the medical records presented at trial that once Mr. Owen came under the care of paramedics at about 4:00 p.m. on April 13, 2016, his heart rate had returned to a level that could not be described as “hypotensive”. It was in the 70 to 90 BPM range. It was only about an hour and half after Dr. Bains had administered the NTG, at 5:30 p.m., that Mr. Owen suffered the bradycardiac event at WMH. He lost consciousness and was revived on that occasion.

[29] In my view, the chain of causation was broken or at least was not established by the plaintiff. The plaintiff has not linked the actions of Dr. Bains to the bradycardiac event at the hospital. On April 13, 2016, Mr. Owen lost consciousness twice. In my view, these losses of consciousness represented two distinct events, not a singular event. They occurred in two different places.

[30] I accept the expert opinion of Dr. Mason that administration of the NTG would not have caused the second bradycardiac event. I am uncertain on the evidence that it caused the first occasion of Mr. Owen losing consciousness. I find Mr. Owen’s underlying heart deficiencies caused the events, plural, at issue.

[31] Clearly as Mr. Owen lost consciousness at the hospital, I can understand why he described what occurred as a ‘near death experience”. In his evidence, he tried to connect the two events as really being one, but I find that this was not credible based on what he said in his evidence-in-chief affidavit in paragraph 21, as I recounted above.

[32] Dr. Chomcyz opines that it is from this “near death” experience that Mr. Owen has developed symptoms that she has diagnosed as Adjustive Disorder with Anxiety and Major Depressive Disorder. I accept her diagnosis. I do not accept her evidence that the cause of same were the result of the actions of the defendant.

[33] Mr. Owen was coping with life stressors when he went to the dentist on April 13, 2016. He was having marital difficulties. He was stressed out at work. He was obese. All of these factors can lead to cardiac difficulties. Pulling a tooth was not identified as a cause of the cardiac difficulties. In the course of giving her opinion on causation, Dr. Chomcyz testified that Mr. Owen reported no prior mental health concerns and no prior impairment at work socially or recreationally. This underlying premise was not borne out in the evidence.

[34] Medical records of a visit that Mr. Owen had with his family doctor in February 2016 indicated that he was stressed about his deteriorating marriage and with the stressors at work. He had previously suffered from sleep apnea which Dr. Chomcyz agreed could cause mental health issues. Mr. Owen did not report these to Dr. Chomcyz.

[35] It appears that Dr. Chomcyz constructed events in a manner that fit her desire to connect the defendant to Mr. Owen’s ongoing mental problems. I do not know if this was done consciously or not, but Dr. Chomcyz’s conclusions and the underlying factual misinterpretations cause me to discount her evidence about links between Mr. Owen’s condition and her diagnosis.

Damages

[36] The parties agree that the value of the OHIP subrogated claim is $1,042.01. The parties agree that if liability was found against Dr. Bains, Mr. Owen would be entitled to an award only in respect of non-pecuniary damages. The parties submit a range for the value of these non-pecuniary damages.

[37] The plaintiff submits that an award of $75,000.00 would be appropriate. The defendant submits that the injury suffered by Mr. Owen was relatively mild and argues that an award of $10,000.00 would more than adequately reflects the difficulties Mr. Owen now faces.

[38] Psychiatric damages have traditionally been more difficult to quantify than physical ones. As part of assessing the value of the damages, I rely on how I observed Mr. Owen give his testimony in this matter. Mr. Owen gave his evidence before this court in an honest and straightforward manner. He was respectful, appropriate and direct. His conduct and deportment were consistent with the observations made by Dr. Chomycz during her assessment of him. I have no doubt that Mr. Owen has difficulty coping with the anxiety and depression that has been brought on by the psychiatric damage he has experienced. I took note of his comment during his evidence to the effect that “a man in his position is not supposed to be suffering these types of things; it is more for people who have been in battle”. These comments strike me as telling. I understand and empathize with Mr. Owen. In my view, Mr. Owen is a person who is bravely trying to cope with a difficult circumstance that has happened to him. I do not think he has “failed to mitigate his damages”. It strikes me that Mr. Owen is managing with his injuries, he continues to work but he has had some difficulties otherwise in his life like a divorce.

[39] Had liability been found, I would have assessed non-pecuniary damages in this matter to be $40,000.00.

Disposition

[40] For the reasons stated, I find that the plaintiff has failed to prove on the balance of probabilities that the defendant is liable to him for the psychiatric damages he has suffered. The claim is dismissed. In the normal course, the defendant would be entitled to his costs of this matter.

[41] If the defendant seeks costs, I will entertain submissions in writing. The defendant will submit these to the court within fourteen days of the release of this decision. The submissions are to be no more than 3 pages plus a bill of costs and copies of any offers to settle that the defendant relies upon for its submissions. The submission is to be contained in one electronic PDF document that is to be bookmarked. Any reference to case law shall be hyperlinked with express notation of the particular paragraphs in the authorities which are relied upon.

[42] The plaintiff may then make reply submissions in writing within twenty-one days of release of this decision. The same parameters as to type and length of submissions apply to the plaintiff’s submission.

[43] Order to go dismissing the claim with costs if requested.

“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick Released: June 25, 2020