Court File and Parties

COURT FILE NO.: CV-18-00136252-0000

DATE: 20220914

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Callister Gayadeen and Indraine Natasha Singh, Plaintiffs

AND:

Linda Dvali, Siba Haykal, Patrick Mark, Alvin Chang, Jeremy Hall, John Doe Doctors, Toronto East Health Network, also known as Michael Garron Hospital, Maritess Jose, Marites Duenas and Jane Doe Nurses, Defendants

BEFORE: Justice V. Christie

COUNSEL: Olivia Yue, Counsel, for the Plaintiffs

Andrew Kalamut and Eric Schultze, Counsel for Linda Dvali, Siba Haykal, Patrick Mark, Alvin Chang (“the Doctor Defendants”)

Keaghan Hepp, Counsel for Toronto East Health Network, also known as Michael Garron Hospital, Maritess Jose, and Marites Duenas (“the Hospital Defendants”)

HEARD: September 8, 2022

RULING ON SUMMARY JUDGMENT MOTIONS

Overview

[1] The Plaintiff, Callister Gayadeen, commenced this action, along with his wife as a Family Law Act claimant, against various physicians, nurses and a hospital. The Plaintiffs allege that the Defendants were negligent in the medical care provided to Mr. Gayadeen after he suffered life-altering injuries in a snowmobile collision. Specifically, the Plaintiffs allege that the surgery performed in June 2016 to attempt to restore some function to his left arm, a surgery that occurred six months post collision, resulted in damage to the radial nerve. The Plaintiffs also allege that Dr. Dvali, the surgeon, failed to properly obtain Mr. Gayadeen’s informed consent prior to performing surgery.

[2] Each group of Defendants, the Doctor Defendants and the Hospital Defendants, brought motions for summary judgment to dismiss the action as against them. Alternatively, in the case of Dr. Haykal only, this Defendant argued that the court should enforce an agreed upon settlement as between her and the Plaintiffs, in which the Plaintiffs agreed to the without costs dismissal of the action against her in exchange for a release in her favour.

[3] The arguments of the two groups of Defendants are substantially overlapping and will be dealt with as if one.

[4] The only evidence before the court on these motions is the evidence filed by the Defendants, which included the affidavit of Dr. Linda Dvali setting out the care that she provided to Mr. Gayadeen, and an affidavit and report from Dr. Douglas Ross, who provided opinion evidence on the issues of standard of care and causation. The Plaintiffs have not sought to provide any evidence in response to these motions, with the exception of a 3-page letter from Dr. Jeremy Hall, a former Defendant in these proceedings, which will be addressed further below.

[5] At the outset, it must be noted that with respect to the Defendants, Dr. Patrick Mark and Dr. Alvin Chang, there is complete agreement to dismiss the action as it relates to them. While an Order to dismiss has never been sought, releases were signed back in December 2020. The Plaintiffs agree to release these Defendants from the action.

[6] With respect to the remaining Defendants, having read the materials provided and carefully considered the submissions of all parties, this court is satisfied that these summary judgment motions should both be granted, and that the action be dismissed against the moving Defendants.

Facts

[7] On January 17, 2016, Mr. Gayadeen was involved in a high-speed snowmobile accident and suffered a number of injuries as a result, including:

a. A complete brachial plexus palsy (complete damage to the nerves that control the left arm);

b. A left subclavian artery dissection and pseudo aneurysm formation;

c. Left-sided rib fractures with pleural effusion;

d. Multiple cervical transverse process fractions; and

e. A left mid shaft humerus (upper arm bone) diaphysis fracture.

[8] Initially, Mr. Gayadeen was treated by Dr. Jeremy Hall, an orthopedic surgeon, and Dr. Melinda Musgrave, a plastic surgeon. Mr. Gayadeen wore a hard cervical collar until May 10, 2016, almost 4 months post injury. He had an initial period of casting for his humerus fracture and then transitioned to a sling to be worn constantly, without any range of motion for approximately 4.5 months. The orthopedic notes describe healing of the distal humerus fracture with non-operative treatment, and Mr. Gayadeen’s cervical spine fractures being treated non-operatively with a cervical collar.

[9] Mr. Gayadeen was referred to Dr. Dvali by Dr. Musgrave. The referral was for the assessment and management of severe left brachial plexus nerve injury in the context of a polytrauma. It was to be determined if surgical management was available to attempt to salvage some function in his left arm.

[10] Dr. Dvali first met Mr. Gayadeen in her office on May 31, 2016. An examination revealed severe diffuse atrophy to the left upper arm, including in the supraclavicular and infra-clavicular areas, suggesting a pattern of injury extending to the scalene muscles and pectoralis muscles and possibly the trapezius on the left. The shoulder was severely inferiorly subluxed by more than two finger widths and was not passively correctable. Mr. Gayadeen was experiencing severe pain and stiffness. Dr. Dvali determined that Mr. Gayadeen had sustained a severe poly-trauma as a result of the snowmobile collision, with no clinical or electrical evidence of any nerve recovery to his left upper extremity. He had no use of his left arm. Dr. Dvali also determined that Mr. Gayadeen’s extensive stiffness to his left upper extremity and neck was as a result of being immobilized in a hard collar for a long period of time, and having a lengthy immobilization for his humerus fracture. Dr. Dvali asked Mr. Gayadeen to increase his passive range of motion, and he agreed to attend his physical therapy sessions at RVH in Barrie to facilitate those exercises. Dr. Dvali advised Mr. Gayadeen that she would like to discuss his case with her mentor in the United States and she received Mr. Gayadeen’s consent.

[11] Dr. Dvali did consult with colleagues, Dr. MacKinnon and Dr. Tung, prior to the next appointment with Mr. Gayadeen. It is worth noting that Dr. Ross, the expert retained by the Doctor Defendants, identified these doctors as “two of the world’s leading peripheral nerve surgeons”. Dr. Tung recommended that Dr. Dvali offer to proceed with a brachial plexus exploration to explore the viability of the nerves, as well as potential viability of nerve donors.

[12] On June 7, 2016, Mr. Gayadeen had another visit with Dr. Dvali. Dr. Dvali disclosed to Mr. Gayadeen the risks of surgery, specifically a brachial plexus exploration, decompression and neurolysis, including:

a. The risk of failure to improve symptoms despite surgery;

b. The risk of inability to perform nerve transfers despite having consented for them;

c. The risk of damage to any nearby structures including nerve, artery, bone and tendon;

d. The risk of lung injury (pneumothorax) from dissection of the intercostal nerve donors;

e. The risk of poor quality of the nerves given Mr. Gayadeen’s history of left pleural effusion and chest wall injury;

f. The risk of failure to improve pain or of worsening pain from surgery (including neuropathic pain); and

g. The risk that secondary procedures may be required to improve Mr. Gayadeen’s severely limited passive range of motion if he obtained motor recovery.

Dr. Dvali also informed Mr. Gayadeen that she would not recommend delaying the surgery given the time that had already passed, that he had already been significantly delayed from his physiotherapy due to his treatment to that point, that he would require an anesthetic consultation to ensure he was a candidate for general anesthetic for the surgery, and that the surgery would require an overnight admission as the surgery would take an entire day. According to Dr. Dvali, Mr. Gayadeen confirmed that he understood that there were no other surgical options, he accepted the risks of surgery, and that she would do everything she could to improve his situation. According to Dr. Dvali, Mr. Gayadeen informed her that he wanted to proceed immediately with any treatment that could help him. Dr. Dvali’s contemporaneously prepared notes set out what was discussed with Mr. Gayadeen. Also, an executed consent form sets out that Mr. Gayadeen agreed that the risks of surgery were explained to him and that he accepted those risks.

[13] On June 22, 2016, Mr. Gayadeen was scheduled for brachial plexus nerve transfer surgery at Michael Garron Hospital. Mr. Gayadeen was admitted to the Defendant Hospital for this surgery, that was conducted by Dr. Dvali, assisted by Dr. Haykal. Drs. Mark and Chang provided anaesthesia. The Defendant Nurses, Jose and Duenas, were the circulating and scrub nurses.

[14] Immediately prior to the start of the surgery, when Mr. Gayadeen was under general anaesthetic and on the operating table, Dr. Dvali positioned Mr. Gayadeen’s arm to allow for appropriate access to the surgical site and reduce any tension or traction on the nerves. This required that his left arm be abducted and externally rotated. When Dr. Dvali moved Mr. Gayadeen’s arm, she noted that his humerus, at the location of the previous fracture, was unstable and not fully healed. Dr. Dvali immediately sought the opinion of the on-call orthopedic surgeon at the Hospital, Dr. Peter Weiler. Dr. Weiler and Dr. Dvali agreed that the surgery could proceed once the arm was stabilized; in fact, Dr. Weiler opined that the nerve surgery ought to take priority over any procedure to treat the fracture. A note from Dr. Weiler states in part:

I therefore suggested that if one was going to stabilize the humerus, it would be necessary to cancel the brachial plexus today, focus on the repair of the nonunion, and then bring him back to the OR at a later date. After some discussion, it was felt that the brachial plexus should take priority as, in order to effect as optimal a potential recovery, this needs to be done within 6 months.

The surgery was conducted.

[15] As for Dr. Haykal, she was a resident in the plastic surgery program at the time. she assisted during the surgery but was not involved in the positioning or movement of Mr. Gayadeen’s left arm pre-operatively. Dr. Haykal effectively served as a second set of hands during surgery and did not make any decisions.

[16] Immediately following the surgery, Dr. Dvali contacted Dr. Jeremy Hall, Mr. Gayadeen’s treating orthopedic surgeon at St. Michael’s. Dr. Dvali informed Dr. Hall of the non-union of the humerus fracture. Dr. Dvali made arrangements for Mr. Gayadeen to be transferred to St. Michael’s Hospital the next day, June 23, 2016, for management of the humerus fracture.

[17] Mr. Gayadeen was transferred to St. Michael’s on June 23, 2016. He had surgery which included the insertion of plates and screws into his left arm.

[18] The next time that Dr. Dvali saw Mr. Gayadeen was on July 14, 2016, at a scheduled follow up appointment. Mr. Gayadeen reported to Dr. Dvali that he had seen Dr. Hall who had noted an injury to the radial nerve in his left arm when treating the humerus fracture.

[19] On September 27, 2016, Dr. Dvali again had a follow up appointment with Mr. Gayadeen. She noted that his incisions were in good condition, he had significant improvement in his left arm pain and swelling, and improvements in range of motion.

[20] On December 20, 2016, Dr. Dvali saw Mr. Gayadeen for the last scheduled follow up. Despite being instructed to continue with physiotherapy, Mr. Gayadeen had failed to do so. He indicated that he was discouraged with this progress. Dr. Dvali strongly encouraged him to continue physiotherapy and provided him with a prescription for same.

[21] On June 19, 2018, the Plaintiffs commenced this medical negligence action against the Defendants by way of Statement of Claim. The Plaintiffs alleged that various doctors, nurses, and the hospital were negligent in their care, prior to, during, and following the performance of the brachial plexus surgery on June 22, 2016. Specifically, the Plaintiffs claim, for Callister Gayadeen, general and special damages in the amount of $1,000,000 each, and for Indraine Natasha Singh, damages in the amount of $100,000. Mr. Gayadeen claimed that he had no sensation or movement in his arm and that it hangs as a “dead weight”. He claimed that he was not informed of such a risk. Counsel at that time was listed as Ronald Bohm, SBMB Law in Richmond Hill.

[22] On November 5, 2018, the Plaintiffs discontinued their claim as against the Defendant, Dr. Jeremy Hall, by Notice of Discontinuance, dated November 5, 2018.

[23] On April 28, 2020, following the close of pleadings, the parties agreed to a detailed discovery plan. The discovery plan stipulated that all examinations for discovery must be completed by September 30, 2020.

[24] On July 13, 2020, the Plaintiffs agreed to the without-costs dismissal of this action as against Drs. Chang and Mark. On December 7, 2020, the Plaintiffs returned executed releases in favour of Drs. Chang and Mark. An Order has never been sought or obtained. During the hearing of these motions, the Plaintiffs confirmed their agreement to a dismissal in relation to these Defendants.

[25] On July 20, 2020, the Plaintiffs also agreed to a without-costs dismissal of this action as against Dr. Haykal, subject to executing a release. However, the Plaintiffs have never returned an executed release. During this motion, the Plaintiffs stated that they were vehemently opposed to the release of Dr. Haykal from this litigation.

[26] Pleadings have closed and documentary productions have been exchanged.

[27] In the summer of 2020, the Plaintiffs chose to and did examine three Defendants: 1) Dr. Dvali, 2) a representative of Toronto East Health Network, Maritess Jose, and 3) Marites Duenas. The Plaintiffs chose not to examine Dr. Haykal. [The deadline for completing examinations for discovery as per the discovery plan was September 30, 2020.]

[28] Following discoveries, specifically on April 15, 2021, the Doctor Defendants served the expert report of Dr. Douglas Ross dated April 14, 2021. Dr. Ross is a plastic surgeon, the same specialty as Dr. Dvali. He, like Dr. Dvali, sub-specializes in the treatment of peripheral nerve injuries and treatment.

[29] Dr. Ross is entirely in agreement with the care provided to the Plaintiff. He opined that the nature of the Plaintiff’s functional limitations is neither a result of any intraoperative injury nor is it as a result of any act or omission on the part of the Doctor Defendants. In the opinion of Dr. Ross, the injury to Mr. Gayadeen’s radial nerve was not caused by any act or omission on the part of any of the Defendants, rather, it was his professional opinion that Mr. Gayadeen’s difficulties with his left arm function are the result of the snowmobile collision itself. According to Dr. Ross, abducting and externally rotating the shoulder was an “absolute requirement” to complete the nerve surgery, and the intra-operative instability of the humerus fracture “did not compromise the patient’s nerve surgery or ultimate recovery, nor was it the likely cause of injury to the patient’s radial nerve”.

[30] Dr. Ross summarized his opinions in his affidavit as follows:

a. Dr. Dvali obtained Mr. Gayadeen’s informed consent to proceed with the procedure. Based on Dr. Dvali’s contemporaneously prepared pre-operative consultation notes, the material risks of the procedure were disclosed to Mr. Gayadeen, including the risk of damage to surrounding structures, such as bone.

b. Dr. Dvali’s pre-operative care was expeditious, expert and complete. Her recommendation to proceed with the surgery, after consulting with other experts in the field, was appropriate.

c. Dr. Dvali’s abduction and external rotation of Mr. Gayadeen’s shoulder was an absolute requirement of the surgery, and met the standard of care. Dr. Dvali’s decision to seek an intra-operative consultation with an orthopaedic surgeon was appropriate, as was her decision, made jointly with the orthopaedic surgeon, to proceed with the nerve surgery. The nerve surgery itself was also entirely appropriate.

d. Dr. Dvali certainly met the standard of care in her post-operative treatment of Mr. Gayadeen. She arranged for appropriate follow-up and for the patient to receive physiotherapy.

e. In my opinion, the radial nerve injury that Mr. Gayadeen experienced is most likely a consequence of the high-kinetic-energy injury, being the snowmobile accident, that resulted in the humerus fracture, subclavian artery disruption, rib fractures and cervical spine fractures. The same energy that fractured the plaintiff’s humerus during the crash is almost certainly the cause of the radial nerve injury.

[31] On the last page of his report, Dr. Ross provided further detail as to his opinion on the cause of the radial nerve damage. He stated:

In addition, the EMG of May 2nd, 2016 documents that a severe injury to the radial nerve (and its roots or parent cord) had occurred above the level of the humerus fracture. This is confirmed by the presence of so-called fibrillation potentials in the triceps muscle on EMG testing. The triceps muscle is innervated by the radial nerve but the branches to the muscle leave the radial nerve above / proximal to the site of the fracture which confirms that the radial nerve was not functioning above the fracture. This combination of clinical and EMG findings also made it impossible to diagnose the second level of injury (at the fracture) prior to either Dr. Dvali’s or Dr. Hall’s surgery.

[32] The Plaintiffs have not taken any steps in this action since the completion of discoveries in the summer of 2020. Specifically, the Plaintiffs have not served any expert evidence to contradict or challenge the view of Dr. Ross on the standard of care.

[33] On August 25, 2021, counsel for the Doctor Defendants wrote to Plaintiffs’ counsel indicating an intention to move for summary judgment and enclosed a draft notice of motion. On September 3, 2021, given that there was no response, counsel for the Doctor Defendants emailed Plaintiffs’ counsel to indicate that he now had no choice but to proceed with the motion seeking dismissal of the action.

[34] On February 7, 2022, the Doctor Defendants served and filed their motion record for this summary judgment motion, followed later by a factum and brief of authorities. The Doctor Defendants’ motion for summary judgment was scheduled to be heard on May 30, 2022.

[35] The Hospital Defendants served their motion materials on the Plaintiffs on May 27, 2022, acknowledging this was short service, but requesting to have the motion heard at the same time given the overlapping issues.

[36] On May 30, 2022, when the parties appeared for the scheduled motion, there were no responding materials from the Plaintiffs. Counsel for the Plaintiffs indicated that he was winding down his practice and asked to be removed from the record. This Court directed that the parties re-attend with the Plaintiffs present, on June 1, 2022. The summary judgement motions were adjourned to September 8, 2022.

[37] On June 1, 2022, with the Plaintiffs present, Michael Brown was removed from the record. The Plaintiffs were given until June 30, 2022 to retain new counsel. The summary judgment motion remained scheduled for September 8, 2022.

[38] On June 17, 2022, Olivia Yue wrote to counsel for the Doctor Defendants to indicate that “Lawyers and Lattes” had been retained as counsel for the Plaintiffs. New counsel was provided with copies of the endorsements from this court and was advised of the motions scheduled for September 8, 2022.

[39] On June 30, 2022, the parties appeared again before this court. The Plaintiffs were personally present along with Ms. Yue. The parties agreed to a timetable, endorsed by the court, as follows:

a. The Plaintiffs will serve and file responding materials by August 5, 2022.

b. The Defendants will serve and file reply materials by August 10, 2022.

c. Any cross-examinations will take place by August 17, 2022.

d. The Defendants will serve and file facta for the motions by August 26, 2022.

e. The Plaintiffs will serve and file a responding factum by September 2, 2022.

f. The Defendants may serve and file a reply factum by September 6, 2022 (if necessary).

[40] On August 5, 2022, Plaintiffs’ counsel advised Defendants’ counsel that their expert report was not “done yet” and requested to provide their materials “next week”. In a subsequent email on the same day, Plaintiffs’ counsel indicated that they would serve and file responding materials “by the end of today” and the expert report the following week, which would be a report from Dr. Jeremy Hall, a former Defendant in these proceedings. The Plaintiffs did not deliver any materials on August 5, 2022.

[41] On August 8, 2022, counsel for the Doctor Defendants requested the Plaintiffs’ record as soon as possible so that the timetable could be preserved. On that day, the Plaintiffs served a brief statement of argument, but not an expert report. Nothing was filed with the court.

[42] On August 9 and 10, counsel for the Doctor Defendants followed up to request the expert report from Dr. Hall that they had indicated would be forthcoming. Plaintiffs’ counsel indicated that it would be coming “soon”.

[43] No further material was provided to the Defendants until the day of the hearing. At the hearing, the Plaintiffs requested to admit, in response to these motions, a 3-page letter from Dr. Jeremy Hall dated August 11, 2022. Both groups of Defendants argued against the admission of the letter from Dr. Hall. In summary, both groups of Defendants argued that it did not comply with the rules for admission of expert evidence, and, in any event, did not address the central standard of care issue in the case. The Plaintiffs argued, with frankly no assistance from counsel, that they believed this letter was already submitted to the court on these motions, and that it was relevant to the issue of the re-fracture during surgery.

[44] After allowing the Defendants to review the letter and after hearing from counsel, this court took the opportunity to review the three-page letter. This court noted that the letter stated in part:

Mr. Gayadeen was assessed by Dr. Dvali and underwent exploration of the left brachial plexus and nerve transfers on June 22, 2016. I do not have the details regarding this procedure however Mr. Gayadeen was found to have pain and mobility at his humeral shaft fracture postoperatively. He was subsequently sent to St. Michael's Hospital Emergency Department for assessment.

I do not have details regarding the procedure, positioning or mechanism of injury to the left humerus at the time of Dr. Dvali’s surgical intervention. It is however obvious that Mr. Gayadeen’s left humerus fracture integrity was challenged during this procedure resulting in fracture instability.

[45] The letter then dealt with events that occurred subsequently at St. Michael’s Hospital. In answering the questions obviously put to him by counsel, Dr. Hall referred to the “necessary perioperative arm positioning”. He stated, “ As described above, I am unaware of the details regarding the procedure nor positioning at the time of surgery. Mr. Gayadeen fracture healing integrity would be most challenged with either angular deformity and or rotational forces. I cannot comment on whether these elements occurred at the time of Dr.Dvali’s procedure.”

[46] This court held the 3-page letter to be inadmissible, given that:

a. Despite the fact that this litigation has been ongoing since June 2018 and Dr. Hall has been involved in the Plaintiff’s medical care since the beginning, this letter was only provided to the Defendants the morning of the summary judgment motions at the court’s insistence.

b. There has been no opportunity to cross-examine the doctor on his opinions.

c. There is no affidavit.

d. The letter does not provide a list of documents relied on by the doctor in forming the opinion, pursuant to Rule 53.03(2.1)(6)(iii).

e. There is no acknowledgement of the expert’s duty signed by the expert, pursuant to Rule 53.03(2.1)(7).

[47] In ruling that this document was inadmissible, this court acknowledged that in some cases failure to comply with the Rules might lead a court to consider an adjournment to allow the expert report to be brought into conformity with the rule and to allow for cross examination. However, in this case, even if the letter were admitted, this did not assist the Plaintiffs. Dr. Hall did not provide an opinion on the standard of care in this case. Frankly, Dr. Hall, as an orthopaedic surgeon, did not even suggest that he was qualified to provide such an opinion. Therefore, while this court ultimately found the report inadmissible, this court was further of the view that, even if admissible, it would not assist the Plaintiffs on the Defendants’ motions for summary judgment.

Analysis

[48] Rule 20 of the Rules of Civil Procedure lays out the process and considerations that apply to a summary judgment motion, which include:

a. Affidavit evidence is required, which may be on information and belief (Rule 20.02)

b. The Responding Party may not rely on their pleadings, but must provide specific facts by way of affidavit, demonstrating a genuine issue for trial (Rule 20.02(2))

Pursuant to Rule 20.04:

(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence….

[49] As the Supreme Court of Canada made clear in Hryniak v. Mauldin, 2014 SCC 7, the first step is to determine if there is a genuine issue requiring a trial based only on the evidence presented by the parties without using the fact-finding powers in rule 20.04(2.1) and (2.2). The expectation is that in making or responding to the motion, the parties have each put their best foot forward. There will be no genuine issue requiring a trial when the court is able to reach a fair and just determination on the merits. Such a determination is possible when the court can make the necessary findings of fact, apply the law to the facts, and where the result is a proportionate, more expeditious and less expensive means to achieve a just result. If there is no genuine issue requiring a trial, summary judgment must be granted. If there appears to be a genuine issue requiring a trial, for the second step, the court then determines whether the need for trial can be avoided by using the fact-finding powers to weigh evidence, evaluate credibility, and draw inferences.

[50] The moving party bears the onus of establishing a prima facie case that there is no genuine issue requiring a trial. If successful, the onus then shifts to the responding party. The responding party must provide evidence to meet their onus. They must set out the facts necessary, through affidavit material or other evidence, to show that a genuine issue requiring a trial exists.

[51] The courts have made it clear that the responding party to a summary judgment motion cannot simply advise that further or better evidence is in their possession and may be available at trial. In Wallace v. Ralph-Edwards, 2019 ONSC 899, Di Luca J. stated:

[41] The modern approach to summary judgment motions requires that parties continue to put their “best foot forward”; see Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753, at para. 9. As Corbett J. notes in Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200 at para. 32, aff’d 2014 ONCA 878:

Summary judgment motions come in all shapes and sizes, and this is recognized in the Supreme Court of Canada’s emphasis on “proportionality” as a controlling principle for summary judgment motions. This principle does not mean that large, complicated cases must go to trial, while small, single issue cases should not. Nor does it mean that the “best foot forward” principle has been displaced; quite the reverse. If anything, this principle is even more important after Hyrniak, because on an unsuccessful motion for summary judgment, the court will now rely on the record before it to decide what further steps will be necessary to bring the matter to a conclusion. To do this properly, the court will need to have the parties’ cases before it.

[42] The Court can also assume that the party responding to a summary judgment motion will present the evidence it intends to rely on at trial in order to prove that its claim or defence has a chance of success. In the vernacular, the responding party must “lead trump or risk losing”, see: 1061590 Ontario Ltd. v. Ontario Jockey Club, (1995), 1995 CanLII 1686 (ON CA), 21 O.R. (3d) 547 (C.A.) at p. 557, Salsbury v. Kraft, 2017 ONSC 177 at para. 12, and Cvjetkovic v. Gupta, 2016 ONSC 2322 at paras. 43-45.

[52] In a medical negligence action such as this one, a plaintiff must serve expert evidence that establishes that the Defendant both fell below the standard of care, and, but for that breach of the standard of care, the Plaintiff would not have suffered the alleged injury. In Samuel v. Ho, 2009 CanLII 941 (ONSC), the court stated:

[24] To survive a defendant’s summary judgment motion in a medical malpractice action, the plaintiff is required to provide some expert evidence that the defendant failed to meet the requisite standard of care and that this failure caused the plaintiff’s injuries. Where the plaintiffs in a medical malpractice case do not deliver an expert opinion in support of all elements of the cause of action in negligence, a genuine issue has not been raised and summary judgment ought to be granted. (See: Hardy v. Hospital for Sick Children, supra, at para. 8, Claus v. Wolfman (1999), 52 O.R. (3d) 674 (Gen. Div.) at paras. 4 and 12; aff'd (2000), 2000 CanLII 22728 (ON CA), 52 O.R. (3d) 680 (C.A.), Lozowy v. Trillium Health Centre, [2007] O.J. No. 1332 (S.C.J.) at paras. 16 to 19 and McNeil v. Easterbrook, [2004] O.J. No. 3976 (S.C.J.) at para. 16.)

[53] Accordingly, where the Plaintiff failed to deliver an expert report that (1) establishes what the requisite standard of care was at the time, (2) identifies a breach of that standard of care, and (3) establishes that the breach caused the loss, there is no genuine issue requiring a trial. In McNeil v. Easterbrook, 2004 CanLII 31804 (ON SC), the court stated:

[16] In numerous cases, the courts have held that without an expert’s opinion supportive of the plaintiff’s position, medical negligence cannot be established: see Claus v. Wolfman (1999) 1999 CanLII 14824 (ON SC), 52 O.R. (3d) 673; aff’d (2000) 2000 CanLII 22728 (ON CA), 52 O.R. (3d) 680 (C.A.). Expert evidence is required to establish the standard of care, the breach of the standard of care and that the negligent treatment was connected to the injury in question. Where liability issues are technical such as in medical malpractice cases, a finding of negligence must be based on a supporting expert opinion: see Hardy v. The Hospital for Sick Children [2002] O.J. No. 4008 (Sup.Ct.); Hajgato v. London Health Association (1982), 36 O.R. (2d) 669 (H.C.); aff’d (1984) 1983 CanLII 1687 (ON CA), 44 O.R. (2d) 264(C.A.). Where the plaintiffs do not deliver an expert report to support all elements of the cause of action in negligence, a genuine issue has not been raised with respect to a material fact. Without such evidence, the defendant is entitled to summary judgment.

[54] In the context of informed consent, the Plaintiffs must, minimally, put forward evidence that Dr. Dvali failed to adequately disclose treatment options, or failed to disclose a material, special, or unusual risk of surgery. In Markowa v. Adamson Cosmetic Facial Surgery Inc., 2012 ONSC 1012, the court stated:

[192] A physician has a duty to obtain the informed consent of a patient before treatment is provided. It is well-established that a physician must disclose those risks of the procedure that are material or special or unusual.

[193] The question whether a particular risk is a material risk or a special and unusual risk is a matter for the trier of fact. It is also for the trier of fact to determine whether there has been a breach of the duty of disclosure. A subjective concern which is peculiar to the patient and which is not expressed to the physician, such as a fear of surgical materials, must be expressed to the physician. Only what a physician knows that the particular patient deems relevant to a decision whether to undergo a particular treatment should be factored into the analysis of what risks are material or special and unusual.

[195] Based upon the decisions in Reibl v. Hughes and Hopp v. Lepp, the Ontario Court of Appeal summarized the following principles for triers of fact to determine what are material risks in Videto et al. v. Kennedy:

1. The question of whether a risk is material and whether there has been a breach of the duty of disclosure are not to be determined solely by the professional standards of the medical profession at the time. The professional standards are a factor to be considered.

2. The duty of disclosure also embraces what the surgeon knows or should know that the patient deems relevant to the patient’s decision whether or not to undergo the operation. …

3. A risk which is a mere possibility ordinarily does not have to be disclosed, but if its occurrence may result in serious consequences, such as paralysis or even death, then it should be treated as a material risk and should be disclosed.

4. The patient is entitled to be given an explanation as to the nature of the operation and its gravity.

5. Subject to the above requirements, the dangers inherent in any operation such as the dangers of anaesthetic, or the risks of infection, do not have to be disclosed.

6. The scope of the duty of disclosure and whether it has been breached must be decided in relation to the circumstances of each case.

7. The emotional condition of the patient and the patient’s apprehension and reluctance to undergo the operation may in certain cases justify the surgeon in withholding or generalizing information as to which he would otherwise be required to be more specific.

8. The question of whether a particular risk is a material risk is a matter for the trier of fact. It is also for the trier of fact to determine whether there has been a breach of the duty of disclosure.

In Markowa, the Court held that the Plaintiff had not tendered any admissible evidence that the doctor refused or failed to answer any of her questions, or that he somehow misrepresented his qualifications or the clinical fellowship program to her, in such a way that any genuine issue requiring a trial was raised as to the informed consent of the Plaintiff.

[55] Further, in the context of informed consent, the Plaintiffs would need to establish that a reasonable person in the Plaintiff’s circumstances likely would not have consented to the treatment if proper disclosure had been made. In Arndt v. Smith, 1997 CanLII 360 (SCC), [1997] 2 SCR 539, the court stated:

[14] Laskin C.J. carefully noted that purely subjective fears which are not related to the material risks should not be taken into account in applying the modified objective test. In other words, fears which are idiosyncratic, which do not relate directly to the material risks of a proposed treatment and which would often be unknown to a physician, cannot be considered. This is what ensures that the objective standard truly is based on the actions of a “reasonable person”. It means that a doctor will not be held responsible for damages attributable to a plaintiff’s idiosyncrasies. It ensures that a plaintiff would not be able to successfully prove causation simply by demonstrating an irrational fear which, had the physician disclosed all the risks, would have convinced the plaintiff to forego medical treatment. For example, if a doctor failed to tell the patient that one of the risks of a procedure was an allergic reaction which could cause a temporary red rash on the skin, and the patient had an irrational belief that a rash is a highly significant and dangerous sign of evil spirits in the body, the patient could not successfully prove causation by demonstrating that he would not have proceeded with the treatment on the basis of this irrational fear.

[16] The Reibl test has had the desired effect of ensuring that patients have all the requisite information to make an informed decision regarding the medical procedure they are contemplating. Members of the medical and legal professions are familiar with its requirements. It strikes a reasonable balance, which cannot be obtained through either a purely objective or a purely subjective approach. A purely subjective test could serve as an incitement for a disappointed patient to bring an action. The plaintiff will invariably state with all the confidence of hindsight and with all the enthusiasm of one contemplating an award of damages that consent would never have been given if the disclosure required by an idiosyncratic belief had been made. This would create an unfairness that cannot be accepted. It would bring inequitable and unnecessary pressure to bear upon the overburdened medical profession. On the other hand, a purely objective test which would set the standard by a reasonable person without the reasonable fears, concerns and circumstances of the particular plaintiff would unduly favour the medical profession.

Therefore, the Plaintiffs must not only establish a failure to disclose relevant information of subjective causation but also that a reasonable person in Mr. Gayadeen’s circumstances would not have consented if disclosure had been properly made. The Plaintiffs must lead evidence to establish this.

[56] As stated earlier, in response to a summary judgment motion by the Defendants asking for a dismissal of the action, the Plaintiffs were required to put their “best foot forward”. This Court is to assume that the Plaintiffs’ evidence on this motion is the evidence to be lead at trial. In this case, the Plaintiffs have put forward no evidence, apart from the letter from Dr. Hall, which this court has determined to be inadmissible, but more importantly, unhelpful to them even if admissible.

[57] There was no burden on any of the Defendants to deliver expert evidence. Yet, the Doctor Defendants served the expert opinion of Dr. Ross on April 15, 2021, just under 1.5 years ago.

[58] At a trial, the Plaintiffs would bear the onus of establishing a breach of the standard of care, and to establish that any such breach caused their losses. With respect to the negligence claim in relation to Mr. Gayadeen’s care and treatment, the only evidence before this court is the unchallenged evidence of Dr. Douglas Ross which supports Dr. Dvali’s treatment of Mr. Gayadeen and confirms that the likely cause of the radial nerve injury and the fractured humerus was the snowmobile collision, not the pre-operative positioning of Mr. Gayadeen’s arm. This is a complete defence for all remaining Defendants. On the basis of this evidentiary record, the Plaintiffs cannot possibly establish that any of the Defendants breached the requisite standard of care required, or that any such breach of the standard of care caused the Plaintiffs’ damages. There is, therefore, no genuine issue for trial.

[59] With respect to the informed consent claim, the only evidence before this court is the unchallenged evidence of Dr. Dvali demonstrating that she discussed the material risks of surgery with Mr. Gayadeen, including the possibility that the surgery would not improve the symptoms and the possibility of damage to nearby structures, including bone. In the face of those risks, Mr. Gayadeen wanted her to do what she could to restore his arm function. Even if Dr. Dvali did not disclose the risks, which she did, there is absolutely no suggestion that Mr. Gayadeen would not have accepted those risks given that this surgery was his only option – his only hope to regain some function. It is obvious that a reasonable person in Mr. Gayadeen’s position, would have accepted the risks, at least there is no evidence to suggest otherwise. There is no genuine issue requiring a trial.

Conclusion

[60] In summary:

a. On consent of the parties, this action, as against Dr. Patrick Mark and Dr. Alvin Chang, is dismissed, without costs.

b. With respect to the remaining Doctor Defendants, Linda Dvali and Siba Haykal, the summary judgment motion is granted and the action as against them is dismissed.

c. With respect to the Hospital Defendants, Toronto East Health Network, also known as Michael Garron Hospital, Maritess Jose, and Marites Duenas, the summary judgment motion is granted and the action as against them is dismissed.

d. As John Doe Doctors and Jane Doe Nurses have not been identified, the action as against them is discontinued.

e. Given these rulings, this action is now at an end.

f. As for costs relating to these motions and related appearances, the court strongly encourages the parties to consult with each other and attempt to reach a reasonable agreement. If the parties are unable to agree as to costs, the court will accept written submissions on costs, which shall be no more than three pages in length, excluding supporting documentation, and which shall be provided to the court office, and to Bev.Taylor@ontario.ca, no later than 4:30 p.m. on September 23, 2022.

Justice V. Christie

Date: September 14, 2022