COURT FILE NO.: 17-74482

DATE: 2021/12/21

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Leslie Hurst, Plaintiff

AND

Gihab Shabib, Noor Amily, The Ottawa Hospital, Jane Doe, and Jill Doe, Defendants

BEFORE: Justice R. Ryan Bell

COUNSEL: Ms. Hurst, self-represented

Brooke Smith and Marie-Ѐve Caissy, for the defendants Dr. Shabib and Dr. Amily

Roberto Ghignone, for the defendant The Ottawa Hospital

HEARD: December 15, 2021

ENDORSEMENT

Overview

[1] This is a medical malpractice action. The plaintiff, Leslie Hurst, alleges that she has sustained damages as a result of a surgical procedure performed by Dr. Gihad Shabib and Dr. Noor Amily (the “physician defendants”) at The Ottawa Hospital, on November 15, 2015. The physician defendants performed a vaginal myomectomy on Ms. Hurst to remove a uterine fibroid. Ms. Hurst alleges that as a result of the defendants’ negligence, she has suffered permanent damage to her pelvic and vaginal region, including total lack of feeling in the vaginal area and removal of the clitoris.

[2] The physician defendants and the Hospital move for summary judgment asking that the action against them be dismissed on the basis that there is no genuine issue requiring a trial. The physician defendants submit that there is no genuine issue with respect to the claims against them because there is no evidence that either physician breached the standard of care, and no evidence to establish causation. The physician defendants have served expert evidence confirming they met the standard of care and that it is unlikely Ms. Hurst’s alleged injuries were the result of the surgery.

[3] The Hospital asserts that there is no genuine issue requiring a trial with respect to Ms. Hurst’s claims against it because there is no evidence that the Hospital and its employees did not meet the standard of care and Ms. Hurst has not provided evidence that establishes that she suffered the injuries alleged in the claim or that they resulted from the surgical procedure on November 15, 2015.

[4] Ms. Hurst contends that there are genuine issues requiring a trial or a mini-trial and requests that this court “appoint an adjudicator to assess the damages.” She submits that the Hospital or the physician defendants failed to properly document the alleged injuries in her medical records. She blames her former lawyer for the failure to obtain expert evidence establishing a breach of the standard of care and/or causation. Ms. Hurst also asserts that the expert evidence served by the physician defendants has not been tested on cross-examination and that the expert evidence is lacking because the expert did not physically examine Ms. Hurst.

[5] For the following reasons, the motions for summary judgment are granted and Ms. Hurst’s action is dismissed.

Factual Background

[6] On November 11, 2015, Ms. Hurst attended at the Hospital’s emergency department for a gynecology consultation due to symptoms that included bleeding from fibroids prolapsing through her cervix. Dr. Shabib, a specialist in obstetrics and gynecology with staff privileges at the Hospital, examined and assessed Ms. Hurst. Dr. Shabib determined that urgent surgical intervention to remove the fibroids was indicated. Ms. Hurst was admitted to the Hospital in the early morning of November 12, 2015 but left soon after. She returned to the emergency department later the same evening, complaining of vaginal bleeding. Ms. Hurst was once again admitted and scheduled to have surgery to remove the fibroids. On November 13, 2015, Ms. Hurst consented to undergo a vaginal myomectomy.

[7] On November 15, 2015, Dr. Shabib performed a vaginal myomectomy, assisted by Dr. Amily, a second-year resident acting under Dr. Shabib’s supervision. The surgery was completed and Ms. Hurst was discharged the same day. A gynecology note from November 15, 2015 indicates that Ms. Hurst was well, her pain was controlled, and no bleeding was noticed. Dr. Amily had no further involvement in Ms. Hurst’s treatment or care after the surgery.

[8] On November 18, 2015, Ms. Hurst attended at the Hospital’s emergency department with complaints of abdominal pain. Ms. Hurst was assessed and on examination, two small superficial abrasion areas on the labia majora were noted and attributed to the trauma/electrocautery of the fibroid. Ms. Hurst was discharged and instructed to take medication for pain and to avoid intercourse for six weeks.

[9] On December 8, 2015, Dr. Shabib saw Ms. Hurst at a follow-up appointment. Ms. Hurst complained that her clitoris was “not working” since the surgery. Dr. Shabib arranged for blood work and a Doppler ultrasound to assess clitoral blood flow. Dr. Shabib also requested a second gynecological opinion regarding management of Ms. Hurst’s reported symptoms. Dr. Shabib had no further involvement in Ms. Hurst’s treatment or care after this follow-up appointment.

[10] Ms. Hurst alleges that as a result of the surgery, she has sustained permanent damage to her pelvic region. She alleges a total lack of feeling in her vaginal area and the removal of the clitoris. Ms. Hurst alleges that her overall health and fertility have deteriorated to the point where she can no longer get pregnant, and that she is unable to participate in recreational, social, sexual, and household activities at all or to the same extent as prior to the surgery. Ms. Hurst alleges that her injuries were caused by the negligence of the defendants, particulars of which include:

a. they caused severe and permanent damage to the pelvic and vaginal region;

b. they were overly aggressive during the surgery;

c. they damaged surrounding tissue unnecessarily;

d. they failed to adequately assess Ms. Hurst;

e. they failed to adequately treat Ms. Hurst;

f. they failed to conduct adequate physical examinations of Ms. Hurst;

g. they failed to exercise reasonable care in relation to their treatment of Ms. Hurst;

h. they failed to meet the standard of care expected of a reasonably prudent practitioner;

i. they failed to administer adequate medical care; and

j. they were lacking in sufficient training, expertise, and skill.

Procedural History

[11] Ms. Hurst commenced her action in November 2017. The physician defendants and the Hospital served their respective statements of defence and crossclaim in May 2018.

[12] At the request of the physician defendants, a case conference was held on April 24, 2019, to establish a timetable and for discovery planning. Ms. Hurst did not attend this case conference. A second case conference was scheduled for May 22, 2019.

[13] At the case conference on May 22, 2019, Ms. Hurst appeared and advised the court that she was in the process of retaining a lawyer and obtaining a medical report. A case conference was scheduled for September 24, 2019, to establish a timetable for the action.

[14] At the third case conference on September 24, 2019, counsel appeared as agent for Ms. Hurst. A timetable was established. Ms. Hurst was required to obtain an expert report by March 31, 2020. Ms. Hurst did not serve an expert report by March 31, 2020.

[15] On August 21, 2020, the physician defendants served the expert report of Dr. Shawna Johnston, a physician with a specialty in obstetrics and gynecology.

[16] A fourth case conference was scheduled for October 28, 2020. Kenneth Wise appeared at the case conference and advised the court that he might be retained to represent Ms. Hurst. The defendants’ motions for summary judgment were scheduled for March 4, 2021. Mr. Wise was subsequently retained as counsel for Ms. Hurst.

[17] On January 8, 2021, Ms. Hurst’s counsel advised that more time was required to retain an expert and to prepare for the motions scheduled for March 4, 2021. On January 20, 2021, the defendants consented to an adjournment of the motions on conditions, including that the motions would be rescheduled for the late summer or the early fall of 2021, and Ms. Hurst would serve her expert report no later than June 1, 2021. Ms. Hurst did not meet this deadline.

[18] On June 25, 2021, a fifth case conference was held. The motions for summary judgment were scheduled for November 30, 2021. Ms. Hurst was required to serve her responding material by July 30, 2021. Ms. Hurst did not file an expert opinion by the required date.

[19] On November 30, 2021, I granted Mr. Wise’s motion for an order removing him as lawyer of record for Ms. Hurst. Ms. Hurst requested a brief adjournment of the motions for summary judgment. The motions were rescheduled for December 15, 2021.

Summary Judgment

[20] Rule 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that the court shall grant summary judgment if “the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.” A judge hearing a motion for summary judgment has the power to weigh the evidence, evaluate the credibility of a deponent, and draw reasonable inferences from the evidence: r. 20.04(2.1).

[21] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process: (i) allows the judge to make the necessary findings of fact; (ii) allows the judge to apply the law to the facts; and (iii) is a proportionate, more expeditious, and less expensive means to achieve a just result than going to trial: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 4 and 49.

[22] In determining whether summary judgment is appropriate, the court must have regard to the entire evidentiary record and the Hryniak analytical framework: Royal Bank of Canada v. 1643937 Ontario Inc., 2021 ONCA 98, 154 O.R. (3d) 561, at para. 23. The analytical approach set out in Hryniak, at para. 66 requires that the motion judge undertake a two-step approach. First, the motion judge should determine if there is a genuine issue requiring a trial based only on the evidence before her, without using the enhanced fact-finding powers under r. 20.04(2.1). Second, if there appears to be a genuine issue requiring a trial, the motion judge should determine if the need for a trial could be avoided by using the enhanced powers under rr. 20.04(2.1) and 20.04(2.2): Royal Bank of Canada, at para. 24.

[23] A party moving for summary judgment has the evidentiary burden of showing there is no genuine issue requiring a trial. Once this burden is discharged, the responding party must prove that its claim has a “real chance of success.” Each party must put its best foot forward to establish whether or not there is an issue for trial; the court is entitled to assume that the record contains all the evidence the parties would present at trial: Toronto-Dominion Bank v. Hylton, 2012 ONCA 614, at para. 5.

[24] The fact that both sides to a motion for summary judgment may bear evidentiary burdens does not alter where the evidentiary burden originates. As Nordheimer J.A. wrote in Dia v. Calypso Theme Waterpark, 2021 ONCA 273, at para. 25:

On this point, I repeat the explanation of the burden of proof enunciated by Brown J.A. in Sanzone v. Schecter, 2016 ONCA 566, 402 D.L.R. (4th) 135, at para. 30…where he said:

First, the evidentiary burden on a moving party defendant on a motion for summary judgment is that set out in rule 20.01(3) – “a defendant may…move with supporting affidavit material or other evidence.” As explained in Connerty, at para. 9, only after the moving party defendant has discharged its evidentiary burden of proving there is no genuine issue requiring a trial for its resolution does the burden shift to the responding party to prove that its claim has a real chance of success.

[25] In a medical malpractice action, where a defendant has discharged its evidentiary burden, the absence of expert evidence in support of the plaintiff’s claim is fatal in all but “the clearest of cases.” As the Court of Appeal for Ontario stated in Liu v. Wong, 2016 ONCA 366, at para. 14:

Medical 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 an expert evidence [sic] in support of the plaintiff’s medical malpractice claim is fatal: see Larman v. Mount Sinai Hospital, 2014 ONCA 923.

Evidence on the Motions

[26] Dr. Shabib filed an affidavit in support of the physician defendants’ motion. Dr. Shabib’s clinical notes and records are attached as an exhibit to his affidavit. The evidentiary record also includes the affidavit of Dr. Johnston and her expert report dated July 30, 2020. Dr. Johnston holds a specialty in obstetrics and gynecology. She practises at the Kingston General Hospital. Dr. Johnston reviewed the pleadings and medical records. In Dr. Johnston’s opinion, Dr. Shabib and Dr. Amily both met the standard of care. Dr. Johnston opines that it is unlikely the injuries alleged by Ms. Hurst were the result of the surgery performed by the defendant physicians. Dr. Johnston’s report is not critical of the care provided by the Hospital.

[27] Dr. Johnston opines that Dr. Shabib’s surgical plan of myomectomy was the correct one for Ms. Hurst given that she expressed a wish to attempt pregnancy, despite the presence of factors making the possibility of future pregnancy highly unlikely. In Dr. Johnston’s opinion, the procedure was performed without deviation from the expected protocol. The operative note describes the procedure with clear and adequate detail, there were no anesthetic or procedural complications, and there is no documentation regarding vulvar or clitoral trauma.

[28] Dr. Johnston opines that it would be unlikely that the surgical procedure performed by the physician defendants could have caused any clitoral dysfunction. Dr. Johnston explains that the procedure of vaginal myomectomy would not logically be expected to cause clitoral damage given that the innervation along its entire course is anatomically far from the upper vaginal canal and cervix, being the surgical site in the procedure performed on Ms. Hurst. In Dr. Johnston’s opinion, Dr. Shabib met the standard of care in arranging the diagnostic imaging and a second opinion to evaluate Ms. Hurst’s complaint. Dr. Johnston notes that there were no objective findings to suggest clitoral injury or dysfunction; to the contrary, while Ms. Hurst described a subjective loss of clitoral sensation, examinations by both her family physician and a consultant gynecologist were normal.

[29] In Dr. Johnston’s opinion, the surgery performed by the physician defendants did not negatively impact on Ms. Hurst’s fertility. Dr. Johnston notes that Ms. Hurst was 49 years of age and had a long history of infertility. Dr. Johnston’s review of the medical records did not disclose any documentation that proves Ms. Hurst experienced significant functional impairment post-surgery. In Dr. Johnston’s opinion, Ms. Hurst’s functional status was improved by the effective management of her abnormal uterine bleeding and anemia.

[30] The Hospital records form part of the evidentiary record on the motions. I have already made reference to the November 15, 2015 gynecology note indicating that following surgery, Ms. Hurst was doing well, her pain was controlled, and no bleeding was observed. Ms. Hurst was discharged. The Hospital records indicate that when Ms. Hurst was assessed on November 18, 2015, two small, superficial abrasion areas were noted and attributed to the trauma/electrocautery of the fibroid. Ms. Hurst was instructed to take pain medication and to abstain from sexual intercourse for six weeks. Ms. Hurst was discharged.

[31] The record before me includes Ms. Hurst’s affidavit of January 8, 2021, in which Ms. Hurst describes her counsel’s efforts to retain an expert. I also have before me various medical records of Ms. Hurst. In addition, Ms. Hurst relies on photographs attached to her factum.

[32] Ms. Hurst did not cross-examine Dr. Shabib or Dr. Johnston. Ms. Hurst did not file expert evidence in support of her claim.

Analysis

[33] I am satisfied that the physician defendants and the Hospital have discharged their evidentiary burden of proving there is no genuine issue requiring a trial. The medical records of the surgical procedure do not support, and in fact, contradict Ms. Hurst’s claims. There is expert evidence that the physician defendants met the standard of care and that it is unlikely that Ms. Hurst’s alleged injuries resulted from the surgical procedure performed on Ms. Hurst.

[34] Dr. Johnston’s opinion is supportive of all aspects of the care provided by the physician defendants and raises no issues with the care provided by the Hospital. I also note that it is settled law that the Hospital is not vicariously liable for the actions and decisions of the physician defendants: Yepremian et al. v. Scarborough General Hospital et al., 1980 1906 (ON CA).

[35] Ms. Hurst has not filed any expert evidence critical of the care she received from the physician defendants or attesting to their failure to meet the standard of care required in the circumstances. She has not filed any expert evidence supportive of her claim that the alleged damages arose as a result of the surgical procedure performed by the physician defendants on November 15, 2015.

[36] Ms. Hurst has had ample opportunity to obtain and present an expert opinion in support of her allegations. She was reminded of her obligation to obtain expert evidence at the case conferences and in writing by counsel. Ms. Hurst was plainly aware of her obligation to obtain expert evidence. She confirmed, more than once, both when she was represented and when she was self-represented, that she was taking steps to obtain an expert opinion. Despite a court-ordered timetable requiring her to file her expert evidence by March 31, 2020 – a date later extended to January 8 and then June 1, 2021 – she has not obtained or delivered an expert report.

[37] In a medical negligence action, where a plaintiff has failed to obtain an admissible expert report, the court may draw the inference that the plaintiff was unable to obtain an expert report to support the allegations of negligence: Suserski v. Nurse, 2006 40677 (ON SC), at para. 23. Given the length of time Ms. Hurst has had to obtain an expert report, and the accommodations provided to her in this regard, I infer that she has been unable to do so. My conclusion is reinforced by Ms. Hurst’s belated attempt to blame her former lawyer for her failure to obtain a medical report. Her position at the hearing is belied by her confirmation, including at a time when she was self-represented, that she was taking steps to obtain an expert opinion.

[38] I find that the absence of expert evidence in support of Ms. Hurst’s medical malpractice claim is fatal. Without such expert opinion, which I infer that Ms. Hurst is unable to obtain, her action has no hope for success. There is, therefore, no genuine issue that requires a trial.

Disposition

[39] In my view, this is “precisely the type of case that summary judgment is designed to address so as to avoid putting the parties to the time and expense of a full blown trial”: Kueber v. Royal Victoria Regional Health Centre, 2018 ONCA 125, at para. 3. The physician defendants and the Hospital have produced evidence that there is no genuine issue requiring a trial. Ms. Hurst has failed to produce any expert evidence to establish her theory that there was breach of the standard of care or that the defendants’ care and treatment of Ms. Hurst caused her alleged injuries. I infer she is unable to do so. The absence of an expert report in support of her medical malpractice claim is fatal.

[40] I find there are no genuine issues requiring a trial with respect to any of the claims in the action. Summary judgment is granted to the defendants and the action is dismissed with costs.

[41] I encourage the parties to agree on the costs of the motions and the action. If the parties are unable to agree, they may make written submissions limited to a maximum of three pages. The defendants shall deliver their costs submissions by January 4, 2022. Ms. Hurst shall deliver her responding costs submissions by January 18, 2022. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as amongst themselves.

Justice R. Ryan Bell

Date: December 21, 2021

COURT FILE NO.: 17-74482

DATE: 2021/12/21

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Leslie Hurst, Plaintiff

AND

Gihab Shabib, Noor Amily, The Ottawa Hospital, Jane Doe, and Jill Doe, Defendants

ENDORSEMENT

Ryan Bell J.

Released: December 21, 2021