Court File and Parties

COURT FILE NO.: 15-1410SR

DATE: 20210728

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Robert Scott Withers Plaintiff

– and –

Hardik Babubhai Patel Defendant

Self-Represented

M. Vrantsidis, for the Defendant

HEARD via Zoom: May 25, 26, 27 & 28, 2021

McCARTHY J.

REASONS FOR DECISION

Background

[1] The Defendant provided dental treatment to the Plaintiff out of the Manitouwadge Dental Clinic (“the clinic”) between July 3, 2013 and November 27, 2013. For the sake of brevity, dates mentioned in these reasons will refer to the year 2013 unless otherwise stated.

The Claim and the Defence

[2] The Plaintiff seeks damages from the Defendant for dental malpractice, battery and breach of fiduciary duty. The Plaintiff claims damages under four heads: general damages for loss of a tooth and battery, pecuniary damages for future expenses, punitive damages and aggravated damages. The Plaintiff did not set out a monetary amount in his statement of claim. In written submissions he alluded to damage awards in precedent cases which he extrapolated into 2021 dollars as follows: $64,000 for punitive damages, $38,000 for battery and $8,600.23 for loss of a tooth. The Plaintiff did not suggest an amount for breach of fiduciary duty and did not lead any evidence of incurred or future expenses.

[3] The Defendant states that the Plaintiff has failed to establish negligence or causation and is therefore entitled to no damages. Any damages for the loss of the tooth would be modest in any event: no more than $10,000 and perhaps as little as $500. The Defendant gave no range for damages for battery asserting instead that the Plaintiff consented to the treatment, leaving no room for a damages award.

[4] In addition, the Defendant advances a limitations defence. The statement of claim was issued on November 18, 2015. The Plaintiff agreed that any information relative to consent was given on or before the date of the root canal treatment (“RCT”) on November 14, 2013. On that date, the Plaintiff also learned that tooth #37 had been perforated and that Dr. Patel’s opinion was that it should be extracted. Thus, the Plaintiff possessed knowledge to ground a claim for negligence and breach of the standard of care with respect to the RTC by November 14, 2013. The claim had to be issued on or before November 14, 2015. It is therefore statue barred.

Plaintiff’s Course of Treatment with Dr. Patel

[5] The evidence established the following treatment history:

i) On July 3, a dental examination and x-ray revealed disease in tooth #37. Dr. Patel recommended root canal treatment because of the risk of further infection. Dr. Patel’s notes contain the entry “endo 37?”

ii) There was a follow up examination on November 11. Dr. Patel discussed the need for RCT with the Plaintiff. The Defendant’s clinical notes include an entry that the “pt will return for RCT”.

iii) The RCT was performed on November 14. The procedure featured the use of a dental dam, freezing, a magnifier, LED light and other dental instruments. During the procedure, an x-ray revealed that tooth #37 had been perforated.

iv) The Plaintiff returned to the clinic complaining of pain at tooth #37 on November 18. The Plaintiff and Dr. Patel discussed the need for an extraction.

v) The Plaintiff reattended the clinic on November 19. He executed a consent for dental extraction of tooth #37. Dr. Patel performed the extraction with the use of freezing.

vi) The Plaintiff returned to the clinic to have the sutures removed on November 27.

The Plaintiff’s Evidence

[6] Although he was articulate and conversant with some medical/dental terminology, I could not accept the Plaintiff as a credible witness. I did not find his evidence to be reliable. I can afford it little to no weight. This is not to demean him in any way: in the challenging role of a self-represented litigant, Mr. Withers was unfailingly polite and respectful to the court in both tone and demeanour. He is to be commended for that. This did not, however, serve to salvage his evidence or infuse it with any degree of reliability or cogency.

[7] It is true that Dr. Patel’s chart contains an entry for November 18 which notes “missed canal”. Without some elaboration, comment or input from an expert, however, the entry means almost nothing. I am unable to conclude or infer anything from it. There was simply no evidence that any act or omission on the part of Dr. Patel during examination or RCT treatment was sub-standard, improper or inappropriate. More precisely, there is no evidence upon which I can make a finding that Dr. Patel’s treatment caused the perforation. Even if it did, there is no evidence before me that causing the perforation fell below the standard of care of a reasonably competent dentist. Tooth perforation may have been a common risk and outcome from RCT. There is nothing upon which to base a find of negligence.

[8] I accept that the tooth extraction on November 19 was unpleasant and that it made Mr. Withers feel faint. In the absence of something more serious or some expert evidence that Dr. Patel’s performance of the extraction was improper, unprofessional or that it fell below the standard of care, I cannot find that it amounted to battery.

[9] I do not accept the Plaintiff’s evidence that Dr. Patel “left him out of the decision making.” The clinical chart contains the following contemporaneous entries: “patient will return for the RCT”(November 11); that Dr. Patel having found the perforation, “discussed with patient and recommended tooth removal if pain” (November 14); that the patient returned to the clinic with “pain at 37”, that they “discussed options”; that Dr. Patel “recommended tooth removal” and that the “patient agrees” (November 18); and that the Plaintiff and the Defendant “discussed options” prior to the tooth being removed (November 19). Although the form is undated, the Plaintiff does not deny executing the consent to dental extraction of tooth #37. The Plaintiff conceded that he recalls Dr. Patel recommending extraction but could not remember the date. As cross-examination pressed on, it was obvious that the Plaintiff was simply trying to dodge the subject of informed consent. Finally, almost casually, the Plaintiff conceded that he would have provided consent to the RCT on or before November 14, 2013. He then reluctantly admitted that his sole reason for attending the clinic on November 19 was to have the tooth extracted. He understood that the purpose of that day’s procedure was to extract tooth #37. There is no compelling evidence to support the Plaintiff’s contention that he was left out of the decision-making. In fact, the evidence establishes the complete opposite: I find that the Plaintiff was both informed and aware of the findings and recommendations of the Defendant as well as the options open to him in advance of both the RCT and the extraction.

[10] I do not accept the Plaintiff’s assertion that he would have withdrawn his consent to the RCT if he knew about the risk of losing a tooth. This has no basis in fact, in logic or in reason. He was made aware that tooth #37 was diseased and that the disease might spread if the tooth was left untreated. He had ample time to come to a decision on all aspects of treatment. There is no evidence that he was pressured, misinformed, disinformed or misled.

[11] I do not accept that the Plainitff’s depression or PTSD were caused or contributed to by the loss of the tooth. There is no medical evidence to support that assertion. Moreover, he has been receiving disability benefits for PTSD and depression (among other conditions) since 1994, well before the dental treatment in question. Most troubling, perhaps, is the admission that the Plaintiff lost between 6 and 8 adult teeth before being treated by Dr. Patel. Quite why the loss of tooth #37 would factor so heavily in his present afflictions was left entirely unexplained.

[12] The Plaintiff’s suggestion that he is now left with one tooth supporting his mouth cannot be taken seriously. Nor can any credence be given to the Plaintiff’s theory that his altered bite results from his jaw finding a place where his teeth are not as bad. There is no evidence to support this. The Plaintiff’s assertions that eating and talking exacerbate his discomfort and that he has chronic jaw and muscle pain are completely undocumented. If these problems were significant, troubling and permanent, one would have expected to see some history of treatment, therapy or complaint. There was simply no such evidence before the court. In fact, the medical chart from Midland Family Dentistry, where the Plaintiff received treatment a year later (November 11, 2014) and on a number of occasions between 2014 and 2019, contains no mention of pain in the jaw or at the extraction site, no complaints of chewing problems and no mention whatsoever of any improper treatment at the hands of Dr. Patel. The Plaintiff’s explanation that he did not wish to involve Dr. McClure was simply not believable. The absence of any evidence of complaint to a medical practitioner in over seven years since the events in question entirely undermines the Plaintiff’s evidence that he is in anyway afflicted by jaw or tooth pain.

[13] I am not prepared to afford any weight to the evidence of either Darlene Elliott or Reed Withers as it pertains to pain and suffering allegedly being experienced and reported by the Plaintiff. This evidence is irreconcilable with the complete absence of medical records documenting any concerns or complaints for over seven years. Susan Withers, the Plaintiff’s first witness, offered the court nothing in the way of relevant evidence.

The Defendant’s Evidence

Dr. Patel

[14] Dr. Patel impressed me as a competent professional and made for a sound, credible witness.

[15] I accept his evidence that he detected the diseased #37 tooth early on in his treatment of the Plaintiff. By July 3, he noted that bacteria had penetrated and infected outside the apex of the tooth. I accept that he then discussed the Plaintiff’s options and the risks associated with RCT. This was consistent with his clinical chart and with his normal practice. He recounted in detail their discussion of November 11: both the size of the lesion and the fact that the tooth contained a filling increased the risks of RCT which included loss of the tooth.

[16] Dr. Patel provided a detailed explanation of the RCT and how the x-ray taken following the procedure revealed a perforation. He believed that the perforation was caused by the Plaintiff biting down on the drill. While this was not noted in his chart, I find this to have been nothing more than an oversight. As Dr. Patel explained, clinical notes are intended to record major points like diagnoses, options and procedures. Certainly, Dr. Patel advised the Plaintiff right away about the perforation and warned him that the tooth might have to be extracted. I also accept that Dr. Patel recommended a referral to an endodontist but that the nearest one was many hours away. Because it was not feasible to repair the damaged tooth in a short period of time, Dr. Patel recommended its removal. He obtained the written consent of the Plaintiff and proceeded with the extraction on November 19.

Dr. Speers

[17] Dr. Speers was qualified as an expert in general dentistry, restorative dentistry and comprehensive restorative dental care.

[18] He read and reviewed the clinical chart and the radiographs.

[19] He opined that it was appropriate for Dr. Patel to recommend RCT. There was clear evidence of infection at the end of the two roots of tooth #37. There was evidence of dissolution of the bone caused by the infection. RCT was the only option available to save the tooth; the tooth could no longer be saved after the perforation.

[20] Dr. Speers was an entirely credible witness. I found his expert opinion helpful and reliable. There being no competing expert opinion, his evidence was effectively uncontradicted. I attach great weight to it.

Standard of Care

[21] The Plaintiff tendered no expert opinion that Dr. Patel’s treatment of him fell below the standard of care. In Kurdina v. Gratzer, 2010 ONCA 288, at para. 2, the Ontario Court of Appeal made clear the need for expert evidence to establish a breach of the standard of care in medical malpractice cases:

It is well established that to establish a breach of the standard of care to support a claim for medical negligence, a plaintiff is required to lead expert evidence of a physician practicing in the same field as the defendant attesting to the defendant’s negligence.

[22] It is no different for dental malpractice cases. As stated by Justice Doi in Johnson v. Rajanna, 2020 ONSC 2489, at para. 16:

To pursue the action at trial, a Plaintiff in a dental malpractice action is required to produce an expert report to support her claim on the issues of standard of care and causation.

[23] Not only did the Plaintiff not provide the court with any expert evidence on the issue of standard of care, but he conceded that no doctor or dentist has advised him that Dr. Patel’s treatment fell below that standard.

[24] In any event, the evidence that I did receive, including the expert opinion of Dr. Speers, satisfies me that Dr. Patel’s treatment of the Plaintiff was at all times appropriate.

Battery and Informed Consent

[25] There is no basis for a finding of battery. I find that the Plaintiff was provided with all the necessary information to allow him to make an informed decision regarding both the RCT and the extraction. The Plaintiff now admits to having given his consent to the RCT. I accept that RCT was the appropriate treatment given the Plaintiff’s presenting condition and the findings on radiographs. The Plaintiff provided written consent to the extraction on a detailed form. I accept that extraction was the only option once the perforation was detected. I find that a reasonable person in the same situation as the Plaintiff would have undertaken those same procedures. The Plaintiff was informed of the condition of the tooth as far back as July 3. He had further consultation with the Defendant on November 11. He voluntarily returned to the clinic three days later for the RCT. The Plaintiff conceded that Dr. Patel answered any questions he had. I find that the Plaintiff would have been aware that any kind of oral surgery would bring some level of discomfort. There was no expert evidence led of what other variety of information could have or should have been offered to the Plaintiff. There was no evidence that the procedures inflicted any kind of unnecessary or unusual pain or discomfort on the Plaintiff’s person.

Breach of Fiduciary Duty

[26] There is no basis for a finding that Dr. Patel breached his fiduciary duty to the Plaintiff. I accept none of the Plaintiff’s evidence that the Defendant exploited or mistreated him, or acted in a manner contrary to the best interests of his patient. The evidence satisfies me that Dr. Patel’s treatment and handling of the Plaintiff’s situation was entirely appropriate, professional and fair.

Limitations Defence

[27] The Plaintiff’s claim is partly statute-barred. This action needed to be commenced within two years of the discovery of the claim. The start date for the running of the limitation period is the day on which the person with the claim first knew that the injury, loss or damage had occurred.

[28] The statement of claim was issued on November 18, 2015. Any potential claims discovered by the Plaintiff prior to November 18, 2013 are statute barred. The Plaintiff agreed that any information relative to the consent for the RCT was given prior to the date of the RCT which took place on November 14, 2013. On that same date, the Plaintiff learned of the perforation. There was no evidence that the Plaintiff only became aware that the Defendant had breached the standard of care after November 14, 2013; indeed, the Plaintiff admitted that no medical doctor or dentist has ever offered him such advice.

[29] The Plaintiff had knowledge of all the material facts necessary to ground allegations of negligence, breach of fiduciary duty and battery as they related to the RCT by November 14, 2013. His claim for any damages arising from that event is therefore statute-barred.

[30] Any claims related specifically to the tooth extraction on November 19, 2013 are not statute barred since the facts relevant to the claims under informed consent and battery for that procedure could not have been known until that date.

Damages

[31] Since there was no battery, there can be no damages for battery.

[32] Since there was no breach of fiduciary duty, there is no basis upon which to assess damages under that heading.

[33] Damages for loss of tooth #37 can be assessed. Mr. Withers was no doubt proud of his teeth; however, he certainly had lost teeth before. I am unable to find that the loss of tooth #37 has materially contributed to his PTSD or depression. There was no medical evidence upon which to arrive at that conclusion; those afflictions were present in the Plaintiff’s life long before the tooth extraction. If indeed the RCT or extraction had been proved to be unnecessary or if the extraction had been proved to be the result of some negligent act on the part of the Defendant, then the pain and discomfort accompanying those procedures would have been compensable as well.

[34] I would have assessed general damages at $5,000.00.

[35] The Plaintiff did not pursue his claim for aggravated or punitive damages. There is no basis upon which to award damages under either of those headings.

Disposition

[36] The Plaintiff has failed to prove negligence or breach of the standard of care on the part of the Defendant.

[37] There is no basis for a finding of battery or breach of fiduciary duty.

[38] The Plaintiff’s claims relative to the RCT are statute barred.

[39] There is no basis for the recovery of any damages.

[40] For the foregoing reasons, the claim is dismissed.

Costs

[41] In the event that the parties are unable to come to some agreement on costs, then I will entertain written submissions on the issue to be served and filed according to the following schedule and terms: written submissions of the Defendant limited to 4 pages double spaced on or before August 31, 2021; responding submissions of the Plaintiff limited to 3 pages double spaced on or before September 10, 2021; and reply submissions of the Defendant, if any, limited to 2 pages double spaced, on or before September 17, 2021.

McCarthy J.

Released: July 28, 2021