KAMATEROS v WOMEN’S COLLEGE HOSPITAL, 2022 ONSC 2819

COURT FILE NO.: CV-20-00640812-0000 MOTION HEARD: 20210803

Superior Court of Justice - Ontario

RE: NIKKI-NANCY KAMATEROS, Plaintiff AND: WOMEN’S COLLEGE HOSPITAL, DR. DIMITROIS GIANNOULIAS, Defendants

BEFORE: ASSOCIATE JUSTICE R. FRANK

COUNSEL: L. Ostler and L. Chitapain (student-at-law), Counsel for the Defendant/Moving Party, Dr. Dimitrois Giannoulias J.D. Ekpenyong, Counsel for the Plaintiff/Responding Party E. Sanderson, Counsel for the Defendant, Women's College Hospital

HEARD: 03 AUGUST 2021

Reasons for Decision

1These reasons are supplementary to my Reasons for Decision dated November 3, 2021 (the “November 2021 Reasons”).

[2] These supplementary reasons provide: (a) rulings on those aspects of the relief sought in Dr. Giannoulias’ Amended Notice of Motion dated July 22, 2021 that were not ruled upon in the November 2021 Reasons, namely impugned paragraphs 22(x), 22(xi), 23(vii), 24(2) [in total], and 28(3) [in total] of the Statement of Claim; and (b) clarification of the decision with respect to paragraphs 32‑41 and 48 of the Statement of Claim and paragraphs 22-24 of the Proposed Amended Statement of Claim.

3These supplementary reasons should be read in conjunction with the November 2021 Reasons, and any capitalized terms not defined in these supplementary reasons are as described and defined in the November 2021 Reasons.

Analysis

Paragraphs 22(x) and 22(xi)

[4] Paragraphs 22(x) and (xi) of the Statement of Claim read as follows: (x) He knew or ought to have known that providing care to Ms. Kamateros, when he knew or ought to have known that his clinical and surgical skills were deficient, was below the standard of practice for doctors and that continuation of his treatment of Ms. Kamateros in such circumstances was an act of professional misconduct; (xi) Despite the fact that he knew or ought to have known that he was providing care to Ms. Kamateros when his clinical and surgical skills were deficient, he failed to disclose to Ms. Kamateros this information in order to permit her to make an informed decision about having Dr. Giannoulias perform the surgical procedure on her, or having the procedure performed at all; and,

5For the reasons set out in paragraphs 41-53 of the November 2021 Reasons, I find that these paragraphs are proper pleadings in support of the Plaintiff’s allegations of breach of fiduciary duty and the claims for punitive damages. In particular, the allegations relate to Dr. Giannoulias’ knowledge of his own deficiencies, and they are supported by sufficient pleadings of material fact.

6I pause to note that at paragraphs 34 and 52 of the November 2021 Reasons, I referred to certain paragraphs of the Statement of Claim that were not impugned in the Notice of Motion, and that certain of those paragraphs of the Statement of Claim (i.e., paragraphs 22(x), 22(xi), 24(2) and 28(3)) are impugned in the Amended Notice of Motion. In my view, this does not change the result, except as expressly modified by these supplementary reasons. Specifically, I find that, taken in combination, the pleadings regarding Dr. Giannoulias’ alleged deficiencies in clinical and surgical skills, incompetence and complication rates meet the minimum pleading threshold necessary to support the pleaded fiduciary duty claim, except as specifically provided for in the November 2021 Reasons and these supplementary reasons.

Paragraph 23(vii)

[7] Paragraph 23(vii) reads as follows: (vii) they failed to take appropriate action following the receipt of complaints regarding Dr. Giannoulias’ practice at the hospital;

8For the reasons set out in paragraphs 29-36 and 42 of the November 2021 Reasons, I find that this pleading is improper and should be struck. This pleading alleges that the Hospital’s failure to take action was connected to “complaints regarding Dr. Giannoulias’ practice at the hospital”. This improperly references unidentified and unspecified prior conduct without pleading any similarity or other basis to connect the alleged complaints or practice to the current case. Further, the balance of the paragraph cannot stand on its own as a proper allegation related to breach of fiduciary duty because without the reference to “complaints regarding Dr. Giannoulias’ practice at the hospital” there is insufficient material fact pleaded to support it; see paragraphs 42 and 43 of the November 2021 Reasons. ¹

Paragraph 24(2)

[9] Paragraph 24(2) reads as follows, with my mark-up of the portions previously ordered to be struck out and those that I am now ordering shall also be struck out: (2) Particulars of Dr. Giannoulias's knowledge of his deficiencies and complication rates arises from inter alia the fact that prior to the treatment of Ms. Kamateros, and in relation to care provided by Dr. Giannoulias to other patients who were also undergoing surgery by Dr. Giannoulias, his medical skills, judgment and knowledge were the subject of: (i) criticism by recognized experts in the field of gynaecology; (ii) discipline proceedings before the College of Physicians and Surgeons of Ontario; ² (iii) complaints to the Hospital; and,

10For the reasons set out in paragraphs 29-36 and 42 of the November 2021 Reasons, I find that paragraph 24(2)(iii) is an improper pleading and should be struck out. However, for the reasons set out in paragraphs 41-53 of the November 2021 Reasons dealing with pleadings tied to claims for breach of fiduciary duty, I decline to strike the balance of paragraph 24(2).

11Thus, in addition to striking out paragraph 24(2)(ii) as provided in the November 2021 Reasons, paragraph 24(2)(iii) is also struck out. The balance of the paragraph, including paragraph 24(2)(i), is permitted.

Paragraph 28(3)

[12] Paragraph 28(3) reads as follows, with my mark-up of the portions previously ordered to be struck out and those that I am now ordering shall also be struck out: (3) Particulars of the Hospital's and the Administrators' knowledge of his deficiencies and complication rates arises from inter alia the fact that they knew, prior to the treatment of Ms. Kamateros, and in relation to care provided by Dr. Giannoulias to other patients who were also undergoing surgery by Dr. Giannoulias, his medical skills, judgment and knowledge were the subject of: (i) criticism by recognized experts in the field of gynaecology; (ii) discipline proceedings before the College of Physicians and Surgeons of Ontario; ³ (iii) complaints to the Hospital; and, (iv) multiple legal proceedings initiated against Dr. Giannoulias as a result of surgical and other complications and complaints about poor patient care .

13For the reasons set out in paragraphs 29-36 and 42 of the November 2021 Reasons, I find that paragraph 28(3) is an improper pleading and should be struck out. However, for the reasons set out in paragraphs 41-53 of the November 2021 Reasons dealing with pleadings tied to claims for breach of fiduciary duty, I decline to strike the balance of paragraph 28(3).

14Thus, in addition to striking out paragraph 28(3)(ii) as provided in the November 2021 Reasons, paragraphs 28(3)(iii) and (iv) are also struck out. The balance of the paragraph, including paragraph 28(3)(i), is permitted.

Damages Claims

15For the reasons outlined in paragraph 54 of the November 2021 Reasons, I decline to strike the impugned paragraphs 32-41 and 48 of the Statement of Claim relating to damages.

Clarification regarding the Proposed Amended Statement of Claim

16In paragraph 37 of the November 2021 Reasons for Decision, I found that paragraphs 22, 23 and 24 of the Proposed Amended Statement of Claim are all improper and I disallowed those proposed amendments. For greater certainty, this includes the two paragraphs in the Proposed Amended Statement of Claim that, inadvertently, are both numbered as paragraph 23.

Conclusion

17For the reasons set out above, the pleadings identified above as improper are struck out pursuant to Rule 25.11 of the Rules of Civil Procedure. The balance of the impugned pleadings shall remain.

[18] The parties may make written submissions with respect to costs of the motion, limited to three pages exclusive of attachments, as follows: (a) by the Moving Party, within 20 days of the release of these supplementary reasons; and (b) by the Plaintiff, within 20 days of the receipt of the Moving Party’s submissions.

R. Frank Associate J. DATE: May 10, 2022

Footnotes

Footnotes

1. 1I have declined to strike certain other pleadings about the Hospital’s failure to take action where I have concluded that such pleadings are related to alleged breaches of fiduciary duty and are supported by pleadings of sufficient material facts.
2. 2In my November 2021 Reasons, I already ordered that paragraph 24(2)(ii) shall be struck out.
3. 3In my November 2021 Reasons, I already ordered that paragraph 28(3)(ii) shall be struck out.