COURT FILE NO.: CV-20-00644328-0000

DATE: 20230208

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

AASIA AYUBI and ALINA HADIYA GHAZNAVI

Plaintiffs

• and -

MOUNT SINAI HOSPITAL and KAREN GOMEZ HERNANDEZ

Defendants

Aasia Ayubi, self-represented Plaintiff

Justin Martin for the Defendant Karen Gomez-Hernandez

Ashley Maciuk for the Defendant Mount Sinai Hospital

HEARD: January 10, 2023

PERELL, J.

REASONS FOR DECISION

A. Introduction

A. Introduction

1The Plaintiff, Aasia Ayubi, is a self-represented litigant. She sues Dr. Karen Gomez-Hernandez who is an endocrinologist with privileges at Sinai Health System. Using its traditional historical name of Mount Sinai Hospital, Ms. Ayubi sues Sinai Health System.

2This is a medical malpractice action. Ms. Ayubi was treated for: (a) medullary thyroid cancer; and (b) hypothyroidism. In her Statement of Claim, Ms. Ayubi alleges that Dr. Gomez- Hernandez was negligent in the medical care that she provided for the hypothyroidism. Ms. Ayubi also alleges that the Hospital was negligent with respect to: (a) pre and post-surgery care, and (b) care it provided during Ms. Ayubi’s pregnancy. In her summary judgment motion material, Ms. Ayubi also complains that she was not made aware that the Hospital is a teaching hospital. Ms. Ayubi accuses the Hospital and Dr. Gomez-Hernandez of using her for the purposes of medical experiments.¹

3Dr. Gomez-Hernandez and the Hospital each bring summary judgment motions to have Ms. Ayubi’s action dismissed. I have read the motion records. I heard the oral arguments of the parties. The self-represented Ms. Ayubi spoke articulately, passionately, and with a sincere belief in the merits of her case, but she was no match for the professional, dispassionate, precise legal arguments of the lawyers for Dr. Gomez-Hernandez and the Hospital. Dr. Gomez-Hernandez and the Hospital had expert evidence to support their defence. Ms. Ayubi had no expert evidence to support her claim and the documentary records of the motion records did not support her case. For the reasons that follow, I am granting the Defendants’ summary judgment motions without costs.

4I shall provide a detailed explanation below why Ms. Ayubi’s action is dismissed without costs, but the succinct explanation why Ms. Ayubi’s medical malpractice case must be dismissed is that she has failed to provide expert opinion evidence to rebut the opinion evidence of the defendants.

5For Ms. Ayubi to ever have succeeded at a trial or for her to have ever succeeded on the summary judgment motion, she would have had to provide to the court opinions from two or more experts to rebut the expert opinions of Ms. Barbara Scott and Dr. Deric Morrison that the Hospital and Dr. Gomez-Hernandez did not breach the standard of care. The letter from Dr. Sohaila Aziz that was proffered by Ms. Ayubi does not qualify as an expert’s report. Moreover, Dr. Aziz does not opine on whether the Defendants failed to meet their respective standards of medical care. If anything, Dr. Aziz’s letter confirms that it is tragic that Ms. Ayubi has lost trust in the medical system precisely at the time when she desperately needs medical care for herself.

B. Procedural and Evidentiary Background

B. Procedural and Evidentiary Background

6The procedural and evidentiary background of this action is as follows.

7On July 21, 2020, by Statement of Claim, Ms. Ayubi, as a self-represented litigant, commences an action for herself and on behalf of her infant daughter. The defendants are Dr. Gomez-Hernandez and Mount Sinai Hospital, whose proper name is Sinai Health System. The claim is commenced pursuant to the simplified procedure, but the action is later converted to the ordinary procedure. Ms. Ayubi claims damages of $5 million.

8On August 20, 2020: (a) Dr. Gomez-Hernandez delivers her Statement of Defence and Crossclaim; and (b) the Hospital delivers its Statement of Defence and Crossclaim.

9On August 31, 2020, Ms. Ayubi delivers her Reply pleading.

10On October 2, 2020, Ms. Ayubi serves an Affidavit of Documents.

11On October 13, 2020, Dr. Gomez-Hernandez serves an Affidavit of Documents.

12On May 13, 2021, at a case management conference, Associate Justice Abrams agrees to case manage the action and the conference is adjourned to allow notice to be given to the Office of the Children’s Lawyer.

13On May 25, 2021, there is a case management conference. The Office of the Children’s Lawyer declines to act for the infant. Because Ms. Ayubi’s claim exceeds the monetary value for an action under the simplified procedure, she is advised that the claim must be reduced, or the action must proceed under the ordinary procedure, which is what occurred.

14On June 7, 2021, Dr. Gomez-Hernandez delivers an expert report from Dr. Deric Morrison. Dr. Morrison is an endocrinologist, which is the same specialty as Dr. Gomez-Hernandez. He is a registered physician in Ontario and is an associate professor of medicine at Schulich School of Medicine & Dentistry at Western University.

15On July 23, 2021, there is a case management conference. Ms. Ayubi consents to having an Order striking her infant daughter’s claim without prejudice to recommencing the claim.

16On August 6, 2021, on consent, Associate Justice Abrams strikes Ms. Ayubi’s daughter’s claim without prejudice to it being recommenced. Associate Justice Abrams orders the action to proceed under the ordinary procedure.

17On August 11, 2021, the Hospital serves an Affidavit of Documents.

18On August 12, 2021, there is a case management conference. Associate Justice Abrams recommends that Ms. Ayubi seek legal advice about the delivery of experts’ reports. Examinations for discovery are scheduled.

19On October 5, 2021, Ms. Ayubi is examined for discovery.

20On November 17, 2021, Dr. Gomez-Hernandez and Kimberlee Parker, a representative of the Hospital, are examined for discovery.

21On December 2, 2021, Associate Justice Abrams orders a timetable for the action that requires Ms. Ayubi to serve an expert’s report on liability by April 30, 2022. The Defendants advise Ms. Ayubi that they will move for summary judgment if she fails to deliver expert evidence.

22On May 9, 2022, Dr. Gomez-Hernandez delivers a supplementary expert report from Dr. Morrison.

23On May 11, 2022, Ms. Ayubi delivers a letter from Dr. Sohaila Aziz. Dr. Aziz holds a Medical Council of Canada Licence and indicates in her letter that she is looking for residency training in Canada.

24Dr. Aziz’s letter is not an expert’s opinion. Although Dr. Aziz has professional credentials and obviously is knowledgeable, she does not qualify as an expert. It was suggested that Dr. Aziz did not qualify to provide an independent opinion because of partisanship and advocacy for Ms. Ayubi. Since Dr. Aziz does not purport to provide an opinion and since her medical evidence is entirely consistent with the other hearsay evidence provided for these motions for summary judgment and also the evidence of the Defendants, I am admitting Dr. Aziz’s letter as medical evidence and as evidence of Ms. Ayubi’s state of mind.

25On May 13, 2022, there is a case management conference. Associate Justice Abrams advises that Dr. Aziz’s letter would not qualify as an expert’s opinion. The Defendants advise that they respectively will be bringing summary judgment motions.

26On June 8, 2022, the parties attend Civil Practice Court. Justice Vermette sets a timetable for the summary judgment motions.

27On June 14, 2022, the parties attend an unsuccessful mandatory-mediation session.

28On July 4, 2022, Ms. Ayubi delivers a “Notice of Readiness for Pre-Trial Conference.”

29On August 29, 2022:

a. Dr. Gomez-Hernandez brings a motion for summary judgment supported by (a) an affidavit and expert report of Dr. Morrison; (b) an affidavit and expert report from Barbara Langille; (c) affidavit of Dr. Gomez-Hernandez, and (d) the transcript of Ms. Ayubi’s examination for discovery. Ms. Langille is a law clerk with Lerners LLP, lawyers for Dr. Gomez-Hernandez.

b. The Hospital brings a motion for summary judgment supported by: (a) an affidavit of Anna Marrison; and (b) affidavit of Barbara Scott. Ms. Marrison is a partner at Borden Ladner Gervais, legal counsel for the Hospital. Ms. Scott is a registered nurse with a diploma in nursing, a BScN from Ryerson University, and a Master Nursing Degree from the University of Toronto.

30On November 10, 2022, the Hospital delivers a second affidavit from Ms. Marrison.

31The summary judgment motion is argued on January 10, 2023.

32In her Reply Motion Record for the summary judgment motion, Ms. Ayubi relies on: (a) her own affidavit; (b) the affidavit of Salma Ayubi, who is Ms. Ayubi’s sister; (c) affidavit of Seema Ayubi, who is Ms. Ayubi’s mother; (d) affidavit of Fatima Ayubi, who is another sister of Ms. Ayubi; (e) affidavit of Hanif Ghaznavi, who is Ms. Ayubi’s partner and the father of her infant daughter; and (f) the transcript of her examination for discovery; and (g) Dr. Aziz’s letter.

C. Factual Background

C. Factual Background

33Having reviewed the material delivered for the summary judgment motions, although there are some matters that are not disputed, it appears that there are very different accounts of the medical care that Ms. Ayubi received from the Defendants. My understanding of the factual background is set out below.

34Ms. Ayubi, now age 30, was born in May 1992. The events begin in January 2019, when Ms. Ayubi is diagnosed with MEN2a thyroid cancer. Multiple Endocrine Neoplasia (presence of a new, abnormal growth of tissue) Type 2a (MEN2a) is a rare genetic disorder that often causes cancer. Ms. Ayubi’s family has a very strong family history of MEN2a. Ms. Ayubi’s father, her sisters Rabia and Salma all had their thyroids surgically removed at the Hospital.

35In January 2019 in addition to the MEN2a diagnosis, Ms. Ayubi is also diagnosed with hypothyroidism. Understandably, Ms. Ayubi is distraught, depressed, and frightened by the diagnoses.

36The thyroid is a gland located at the base of the neck that produces the hormones thyroxine (T-4) and triiodothyronine. These hormones are critical to heart rate, mood, energy, metabolism, bone health, and pregnancy. Disorders of the thyroid include the gland producing too much (hyperthyroidism) or too little hormone (hypothyroidism), which is the ailment suffered by Ms. Ayubi.

37On January 22, 2019, Ms. Ayubi attends Dr. Gus Meglis, who is a family physician at the Marlee St. walk-in medical clinic. Given the family history, the results of the laboratory tests, and his diagnoses, Dr. Meglis refers Ms. Ayubi to Dr. Eric Monteiro, a throat surgeon (otolaryngologist) at the Sinai Health System.

38On January 31, 2019, Ms. Ayubi with Mr. Ghaznavi, her partner, attend Dr. Monteiro, He performs a biopsy and diagnoses medullary thyroid cancer.

39Dr. Monteiro refers Ms. Ayubi to Dr. Gomez-Hernandez. She is an endocrinologist and an assistant professor of medicine at the University of Toronto. She practises at the University Health Network, which includes several hospitals including Sinai Health System. The referral is for a consultation with respect to the treatment of the cancer and also for the unrelated hypothyroidism presented by Ms. Ayubi.

40It shall be important to note that the treatment for Ms. Ayubi’s hypothyroidism is a pre-existing condition that would have required treatment regardless of the treatment for the cancer. Directing treatment for hypothyroidism is within the expertise of a family physician and typically involves synthetic thyroid endocrines.

41On February 13, 2019, Ms. Ayubi has a consultation visit with Dr. Gomez-Hernandez. Mr. Ghaznavi accompanies Ms. Ayubi. Dr. Gomez-Hernandez tells Ms. Ayubi that she suffers from hypothyroidism. Dr. Gomez-Hernandez tells Ms. Ayubi that if additional bloodwork confirms hypothyroidism, the treatment will be hormone replacement with pharmaceutical thyroid therapy.

42Dr. Gomez-Hernandez tells Ms. Ayubi that if the hypothyroidism condition is present during a pregnancy, then there is serious risk of miscarriage, premature birth, and health problems for the baby. Dr. Gomez-Hernandez tells Ms. Ayubi that it is a “contraindication” to conceive while hypothyroid. “Contradiction” is medical jargon for a medical condition that is a reason for a person not to receive a particular treatment. Ms. Ayubi understands that she should not become pregnant while hypothyroid. Indeed, because of a stillbirth experienced by one of her sisters, Ms. Ayubi is very frightened by the possibility.

43In understanding the events that follow, it shall be important to understand the “while hypothyroid” part of Dr. Gomez-Hernandez’s advice. The aspect to keep in mind is that Ms. Ayubi was advised not to become pregnant - while hypothyroid. She was not told to never become pregnant. Hypothyroidism is a condition that can be treated.

44On February 13, 2019, Janette Georgoussis, Dr. Gomez-Hernandez’s administrative assistant, contacts Ms. Ayubi. Ms. Georgoussis informs Ms. Ayubi that she is profoundly hypothyroid. Ms. Ayubi is provided with a prescription for an oral thyroid hormone (levothyroxine, brand name “Synthroid”) and oral and written instructions about taking the medication.

45On March 1, 2019, Ms. Ayubi with her partner attends Dr. Monteiro. There is a discussion about surgery. Dr. Monteiro advises a psychiatric assessment for Ms. Ayubi’s because of her anxiety, mood, and cognitive difficulties. The evidentiary record for the summary judgment motion is general and not detailed, but at various times Ms. Ayubi does attend on Dr. Sharon Szmullowicz, a psychiatrist, who is associated with the University Health Network. Ms. Ayubi’s attendances, however, are irregular and she misses appointments.

46The same day, Ms. Georgoussis contacts Ms. Ayubi to advise that lab results reveal a vitamin D deficiency and she tells Ms. Ayubi to start taking the vitamin.

47On March 5, 2019, Ms. Ayubi contacts Dr. Gomez-Hernandez’s office and requests a pregnancy test requisition (beta-HCG test), which is provided.

48On March 6, 2019, Ms. Georgoussis contacts Ms. Ayubi and tells her the pregnancy test is negative. Ms. Georgoussis tells Ms. Ayubi that pregnancy while hypothyroid is contraindicated.

49On March 13, 2019, Ms. Ayubi undergoes a CT head-and-neck scan.

50On March 27, 2019, Ms. Ayubi attends Dr. Monteiro. Ms. Ayubi consents to surgery.

51On March 31, 2019, Ms. Ayubi fills out and signs a pre-operative patient questionnaire. The questionnaire, among other matters, asks: “is there a possibility you could be pregnant?” Ms. Ayubi answers “no”. However, although it was not known at the time, Ms. Ayubi was likely several weeks pregnant on March 31, 2019. Later, on December 10, 2019, Ms. Ayubi gives birth to a healthy baby girl. The normal gestation period is 266 to 294 days from conception. There are 278 days between March 7, 2019, the day after Ms. Ayubi’s last negative pregnancy test and the birth of the newborn.

52On April 12, 2019, Ms. Ayubi is seen by the anaesthesiologist prior to surgery. She is also seen by a nurse in the pre-admission unit.

53On April 16, 2019, Ms. Ayubi is admitted to the Hospital for the surgery. On admission, she signs a form acknowledging that she understands that the Hospital is a teaching hospital. Dr. Monteiro performs a total thyroidectomy, surgically removing the thyroid. The surgery is uneventful with no complications.

54Post-surgery, at 8:40 p.m. while a nurse is preparing the bed, Ms. Ayubi assisted by her sister and Mr. Ghaznavi goes to the washroom. Ms. Ayubi and her family’s account of what then happened is that Ms. Ayubi faints and falls. The family says that nursing staff attended and one of the nurses touches the neck where the thyroid was removed causing Ms. Ayubi to scream in pain. The Hospital’s version is that a nurse rushes to give the faint Ms. Ayubi a chair and while supporting Ms. Ayubi’s head, the surgical area is accidentally touched after which Ms. Ayubi screams and profanely curses out the nurse. Ms. Ayubi’s version of this incident is that she fell while being assisted to the washroom by her sister. Ms. Ayubi says that one of the attending nurses giggled and accuses Ms. Ayubi of acting. At around 8:45 p.m. another nurse who had witnessed the incident and who assists in putting Ms. Ayubi into her bed tells Ms. Ayubi that her language is not appropriate. This nurse reports that Ms. Ayubi responds with more cursing, but that the family members apologize. Ms. Ayubi’s mother says that she did apologize so as to not antagonize the nursing staff with whom the family was leaving to care for Ms. Ayubi.

55Ms. Ayubi is in the Hospital between April 16, 2019 and April 21, 2019. On April 19, 2019, Ms. Ayubi is upset because she is told that her nine-month-old daughter cannot stay overnight with her in the Hospital.

56On April 21, 2019, Ms. Ayubi is discharged from the Hospital.

57On April 24, 2019, Ms. Ayubi attends a post-operative appointment with Dr. Monteiro.

58On May 2, 2019, Ms. Ayubi cancels the May 3, 2019 scheduled appointment with Dr. Gomez-Hernandez.

59On May 10, 2019, Ms. Ayubi attends Dr. Gomez-Hernandez with her partner and one of her sisters. The doctor learns that Ms. Ayubi is adverse to and not taking her thyroid medication. Dr. Gomez-Hernandez is very concerned, and she recommends the intervention of a psychiatrist because it is important for Ms. Ayubi to take the medication.

60Unaware of the existing pregnancy, Dr. Gomez-Hernandez repeats that it is contraindicated to conceive while hypothyroid. Ms. Ayubi’s testimony is that she asked for a pregnancy test during this attendance. Dr. Gomez-Hernandez’s testimony is that no pregnancy test was requested. Dr. Gomez-Hernandez directs blood tests, which are completed on May 10, 2019.

61On May 14, 2019, Ms. Georgoussis emails Ms. Ayubi and tells her that the bloodwork indicates profound hypothyroidism. In the email message, Ms. Georgoussis tells Ms. Ayubi that she should avoid pregnancy in her condition. The message states: “No pregnancy at this time given profound hypothyroidism.” Ms. Ayubi misunderstands this message to mean that she is not pregnant because of her hypothyroidism.

62On May 16, 2019, with everyone still unaware of Ms. Ayubi’s pregnancy, Ms. Ayubi emails Dr. Gomez-Hernandez’s office complaining of vomiting. Ms. Ayubi is experiencing symptoms similar to the morning sickness she experienced during her previous pregnancy. Dr. Gomez-Hernandez promptly phones and tells Ms. Ayubi to immediately go to an emergency department. Ms. Ayubi goes to the Humber Hospital Emergency Department, but she decides to leave without receiving treatment.

63On May 17, 2019, Ms. Georgoussis phones Ms. Ayubi and is told about her having left the Emergency Department. Ms. Ayubi says that she believes she may be pregnant and asks for and is given a requisition for a pregnancy test. Still unaware of the existing pregnancy, Dr. Gomez- Hernandez tells Ms. Georgoussis to reiterate the strong recommendation that Ms. Ayubi avoid pregnancy.

64On May 19, 2019, Ms. Ayubi goes to the Hospital’s Emergency Department. Dr. Ginsberg admits her for hypothyroidism. Dr. Susan Tran of the Emergency Department diagnoses Ms. Ayubi as suffering profound hypothyroidism. Dr. Tran also advises Ms. Ayubi that she is pregnant. An ultrasound indicates that Ms. Ayubi is 8-9 weeks pregnant. Ms. Ayubi is admitted to the Hospital and started on intravenous Synthroid.

65Understandably Ms. Ayubi is shocked, depressed and scared to her core by the news that she is pregnant and was pregnant before and after the surgical removal of her thyroid.

66Ms. Ayubi is in the Hospital for nine days. Between May 19, 2019 and Ms. Ayubi’s discharge from the Hospital, Dr. Gomez-Hernandez attends on her at the Hospital. Dr. Gomez- reviews with Ms. Ayubi the potentially serious adverse effects associated with profound hypothyroidism for the fetus as well as the importance of medication compliance and of completing weekly blood tests to monitor her condition.

67During her stay in the hospital, Ms. Ayubi is attended to by a group of physicians including psychiatrists. During Ms. Ayubi’s admission to the Hospital and her discharge there is ongoing tension with the nursing staff. A matter of discord is that the pregnant Ms. Ayubi is adamant that her months old baby daughter remain with her in the hospital room. Ms. Ayubi signs “Release of Liability for an Infant Accompanying Admitted Patient to Hospital” form. The nursing staff advises Ms. Ayubi that the baby cannot be left alone with a patient at any time and another adult must be present to care for the baby in the room. This matter is a source of acrimony between Ms. Ayubi and the nursing staff. Ms. Ayubi discusses this matter with a social worker and a Unit Administrator.

68During her stay in the hospital, there is also associated grievances with respect to: (a) Ms. Ayubi being moved from a private room to a semi-private room; and (b) the other semi-private patient being unprepared to have Ms. Ayubi’s partner stay overnight in the semi-private room.

69Moreover, during Ms. Ayubi’s admission, there were ongoing problems with the prescribed diet and Ms. Ayubi keeping down the meals without vomiting. She also complains about the administering of anti-nausea medication which causes drowsiness. Ms. Ayubi refuses to take her medications. Ms. Ayubi is angry about the quality of nursing care.

70On May 27, 2019, Ms. Ayubi is discharged from the hospital. She is provided with a requisition for weekly blood tests to monitor her thyroid hormone and calcium levels.

71On June 6, 2019, Ms. Ayubi attends Ms. Gomez-Hernandez by telemedicine appointment. Dr. Gomez-Hernandez advises the continuation of thyroid, calcium, and vitamin D medications. The doctor discusses the pregnancy and medication. At this time, Ms. Ayubi’s hormone levels are normal. The medical plan is thyroid replacement therapy and continuing monitoring with blood tests.

72On June 15, 2019, Dr. Gomez-Hernandez phones Ms. Ayubi because the bloodwork from June 14, 2019 shows profound hypothyroidism. The doctor advises Ms. Ayubi to increase the dosage.

73On June 20, 2019, Ms. Ayubi cancels an appointment with Dr. Gomez-Hernandez scheduled for the next day.

74On June 21, 2019, Dr. Gomez-Hernandez phones Ms. Ayubi and advises that the lab results show low thyroid hormone and calcium levels. Ms. Ayubi is told to increase her medication dosage and about the importance of taking her medications because of the risk of the harm to the fetus. Dr. Gomez-Hernandez tells Ms. Ayubi to attend the Hospital to be seen by a psychiatrist because she seems to not understand the seriousness of the situation.

75On June 25, 2019, Ms. Ayubi does not attend a scheduled appointment at the endocrine test centre at Toronto General Hospital. Ms. Georgoussis phones Ms. Ayubi. Ms. Ayubi says that she no longer wishes to see any doctors from Mount Sinai Hospital.

76On July 2, 2019, Ms. Ayubi does not attend a scheduled appointment at the endocrine test centre at Toronto General Hospital.

77On July 3, 2019, Ms. Ayubi does not attend her appointment at Dr. Gomez-Hernandez’s clinic. Dr. Gomez-Hernandez emails Drs. Meglis, Monteiro, and Szmullowicz to advise that Ms. Ayubi is missing appointments, not completing recommended blood tests, and not taking her medications. Dr. Gomez-Hernandez expresses concern about the health of the fetus if Ms. Ayubi does not comply with the thyroid replacement therapy.

78On July 9, 2019, Dr. Gomez-Hernandez sees Ms. Ayubi at the Toronto General Hospital endocrine test centre. During this attendance, levothyroxine is administered and is well tolerated by Ms. Ayubi.

79On August 14, 2019, Dr. Gomez-Hernandez’s office emails Ms. Ayubi. The bloodwork indicates hypothyroidism. Ms. Ayubi is told to increase the dosage of her medication.

80On August 23, 2019, Ms. Ayubi cancels her appointment with Dr. Gomez-Hernandez. Dr. Gomez-Hernandez emails the various physicians involved in Ms. Ayubi’s care, including Dr. Szmullowicz, about concerns about the seriousness of Ms. Ayubi’s condition and the threat to the fetus.

81On August 27, 2019, Dr. Gomez-Hernandez sees Ms. Ayubi. During this appointment, Ms. Ayubi says that she is not compliant with her medicine regime taking the medicine every once in a while. Dr. Gomez-Hernandez strenuously urges her to follow the regime.

82On September 5, 12, 19, and 26, 2019, Ms. Ayubi cancels her appointments with Dr. Gomez-Hernandez.

83On September 5, 2019, Dr. Gomez-Hernandez writes the various physicians involved in Ms. Ayubi’s care to advise that Ms. Ayubi is missing appointments, not completing recommended blood tests, and not taking her medications.

84On September 30, 2019, Dr. Gomez-Hernandez writes the various physicians involved in Ms. Ayubi’s care requesting updates, if any, because Ms. Ayubi has cancelled her appointments.

85On October 3, 10, 17, and 24, 2019, Ms. Ayubi cancels her appointments with Dr. Gomez-Hernandez.

86On October 21, 2019, Ms. Ayubi is admitted to the Hospital for an iron transfusion and B12 treatment and because of her hypothyroidism. Dr. Gomez-Hernandez is advised of the admission. Dr. Denise Feig, who was the endocrinologist on the consult service, and who has expertise in management of endocrine disorders during pregnancy, confers with Dr. Gomez- Hernandez. The decision is made to double dose the levothyroxine medication while Ms. Ayubi is under observation in the hospital. Dr. Gomez-Hernandez discusses the treatment with Ms. Ayubi who consents to the treatment. The medication is administered and tolerated, and Ms. Ayubi is discharged later in the day. Upon this admission, Ms. Ayubi once again signs a form acknowledging that she understands that the Hospital is a teaching hospital.

87On October 22, 2019, at an obstetrical appointment for her pregnancy, the obstetrician detects a fetal heart beat irregularity. The alarmed Ms. Ayubi believes that the irregularity is related to the double dose of levothyroxine.

88On October 23, 2019, Dr. Monteiro’s office passes on a request from Ms. Ayubi for a referral to a different endocrinologist. Dr. Gomez-Hernandez makes a referral to Dr. Hank Lee.

89On November 14, 2019, Dr. Lee advises Dr. Gomez-Hernandez that he has received no communication from Ms. Ayubi. Dr. Gomez-Hernandez reports this information to the other physicians involved in Ms. Ayubi’s care.

90After November 14, 2019, Dr. Gomez-Hernandez has no further involvement with Ms. Ayubi’s care.

91On December 9, 2019, Ms. Ayubi goes to the Hospital suffering from abdominal pain. She is admitted to the Hospital and once again she signs a form acknowledging that she understands that the Hospital is a teaching hospital.

92On December 10, 2019, Ms. Ayubi goes into labour, and she delivers a healthy baby by spontaneous vaginal delivery.

93On December 11, 2019, Ms. Ayubi and the newborn are discharged from the Hospital.

94On June 2, 2020, Sonia Chisholm, an arbitration coordinator acting for Ms. Ayubi writes Dr. Gomez-Hernandez to demand that she attend an arbitration to negotiate a “pact” and to advise that Ms. Ayubi intends to bring an action for medical negligence if the pact cannot be reached.

95On July 21, 2020, the action is commenced. Ms. Ayubi commences the action as a self-represented litigant.

D. Discussion and Analysis

D. Discussion and Analysis

96A summary judgment motion is one of the two ways that a litigant has her day in court. Under the Rules of Civil Procedure, which govern civil actions like Ms. Ayubi’s, an action may proceed to a trial before a judge. At a trial, the judge hears oral testimony, and the witnesses are examined and cross-examined. A summary judgment motion is different. Although there is a hearing before a judge, it is based on a written record including transcript evidence. There is no oral testimony unless it is directed by the court. On a summary judgment motion, the parties make oral arguments based on the written motion record.

97On a summary judgment motion, the judge presiding at the hearing must decide if there are genuine issues requiring a trial. Rule 20.04(2)(a) of the Rules of Civil Procedure² 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.” If there are genuine issues requiring a trial, then the judge will order that the action proceed to a trial. If there are no genuine issues requiring a trial, then the judge will decide the case on the summary judgment motion.

98On a summary judgment motion, the court is entitled to assume that the parties have respectively advanced their best case and that the record contains all the evidence that the parties respectively will present at trial.³ The onus is on the moving party to show that there is no genuine issue requiring a trial, but the responding party must present its best case or risk losing.⁴ The onus is on the moving party to establish that there is no genuine issue requiring a trial, but each side must put its best foot forward with respect to the existence or non-existence of material issues to be tried.⁵

99Ms. Ayubi’s case is a medical malpractice case, and there are some special legal principles that are used for a summary judgment motion in a medical malpractice case about whether the doctor or the hospital staff were negligence in providing medical services.

100In a medical professional negligence case, for Ms. Ayubi to succeed on a motion for summary judgment she needs expert evidence about the standard of care. In a medical professional negligence case, the plaintiff requires evidence, typically expert evidence, to establish: (1) the standard of care; (2) whether there was a breach of the standard of care; and (3) causation. If this evidence is not presented, there is no genuine issue for trial and summary judgment may be granted dismissing the plaintiff’s action.⁶

101In a medical professional negligence case, for a defendant to succeed on a motion for summary judgment the defendant can rely on the plaintiff’s failure to proffer expert evidence if the defendant medical practitioner puts his or her best evidentiary foot forward and proves that there is no genuine issue on the merits of their defence, which the defendant may do by proffering expert evidence establishing that there was no breach of the standard of care and the defendant is not the cause of the harm suffered by the plaintiff.⁷

102I shall have some comments about the merits of Ms. Ayubi’s claim against Dr. Gomez- Hernandez, but the primary reason that her action must be dismissed is that without expert evidence to prove that: (a) Dr. Gomez-Hernandez breached the standard of care as an endocrinologist physician; and (b) Dr. Gomez-Hernandez’s negligence caused compensable harm (not all harm is compensable), Ms. Ayubi cannot successfully defend the summary judgment motion.

103I shall have some comments about the merits of Ms. Ayubi’s claim against the Hospital but the legal situation is the same, without expert evidence to rebut the expert evidence of the Hospital, Ms. Ayubi cannot succeed in resisting the summary judgment motion.

104Although, strictly speaking, it is not necessary to address the merits of Ms. Ayubi’s claims, she wants and needs her day in court, and so I have carefully reviewed the evidentiary record for the motions for summary judgment, and I make the following findings.

105Turning to the merits of Ms. Ayubi’s claims, there is no doubt that she and her family have undergone a very traumatic experience, and it is undoubtedly true that they have confronted and continue to confront a very serious medical condition that threatens Ms. Ayubi’s physical and mental health. It is most unfortunate that Ms. Ayubi has lost faith with the medical system because she needs ongoing medical assistance. Notwithstanding her perception of a bad experience with the medical system, it is important for her to take care of herself.

106Ms. Ayubi’s and her family’s complaints about not being informed that the Hospital is a teaching hospital and that Dr. Gomez-Hernandez is an instructor to medical students and residents at the teaching hospital are without legal merit. Ms. Ayubi knew, or she ought to have known that she was a patient at a teaching hospital. She signed acknowledgements of understanding that the Hospital is a teaching hospital.

107If she subjectively did not appreciate what she signed, then, in any event, no harm was caused to her from the circumstance that she was treated at a teaching hospital. Although she may not have understood it, Ms. Ayubi made a contribution to the health care system by being a patient at a teaching hospital. There is no evidence that she was the subject of medical experimentation. She consented to treatments with fully informed information. There is no evidence that there was any intention to harm Ms. Ayubi and her unborn child. Indeed, the evidence is all to the contrary. The evidentiary record reveals that Dr. Gomez-Hernandez was anxious and gravely concerned that both Ms. Ayubi and the unborn not come to harm.

108Based on the evidentiary record, there is no merit to Ms. Ayubi’s complaints about the conduct of Janette Georgoussis, Dr. Gomez-Hernandez’s administrative assistant.

109There is no merit to Ms. Ayubi’s complaint that the Hospital was hiding evidence because Kimberlee Parker was a representative of the Hospital at the examinations for discovery and none of the nursing staff gave evidence. Under the Rules of Civil Procedure, a non-human, incorporeal entity, like a corporation or a hospital, is examined for discovery in the only humanly possible way, which is by examining a human representative of the corporation or hospital. Although as a self-represented litigant, Ms. Ayubi may not have been aware of it, there are procedural remedies if the representative is not properly prepared to provide evidence. However, there is nothing in the immediate case that suggests that there was inadequate disclosure of evidence to Ms. Ayubi.

110It is true that none of the nursing staff provided evidence for the summary judgment motion and there might have been some merit to Ms. Ayubi’s complaints about the standard of nursing care. On the summary judgment motion, I had Ms. Ayubi’s and her family’s evidence about what happened at the hospital and the hearsay evidence and perhaps double hearsay evidence about the nurses’ account of what happened. This was a factual matter that raised a genuine issue for trial. However, there was no genuine issue for trial about whether the Hospital breached the standard of care. In other words, even based on Ms. Ayubi’s and her family’s account of what happened at the hospital, she was unable to establish that the nursing staff were negligent.

111As noted above, the Hospital provided expert evidence. Based on the hospital’s records and the records of this litigation, including Ms. Ayubi’s account of what happened, it was Ms. Scott’s opinion that the Hospital met the standard of care – which I should point out is not perfection but a reasonable standard of care. Ms. Ayubi did not proffer any rebuttal expert evidence to counter Ms. Scott’s persuasive evidence.

112Turning again to the merits of Ms. Ayubi’s case against Dr. Gomez-Hernandez, based on the evidentiary record on the summary judgment motions, there are no genuine issues for trial at all, and the situation with respect to the expert evidence is similar to the situation with the Hospital. Ms. Ayubi has not provided evidence to rebut the very persuasive expert evidence of Dr. Morrison.

113It is unfortunate that it was unknown that Ms. Ayubi was pregnant during the thyroid surgery, but no harm was caused by this situation. The surgery was successful and uneventful, and the surgery did not cause any harm to the fetus. Eight months later, Ms. Ayubi gave birth to a healthy child.

114It is also unfortunate that to this day, Ms. Ayubi does not understand that the threat to her unborn child’s health was Ms. Ayubi’s pre-existing hypothyroidism - which was treatable if she took her medications.

115It is unfortunate that the medical jargon is confusing, but when Ms. Ayubi was told that pregnancy while hypothyroid was contraindicated, she was being provided information to avoid a problem pregnancy, but she was not being told that a problem pregnancy could not be addressed.

116It is unfortunate that Defence counsel put some blame on Ms. Ayubi for getting pregnant notwithstanding the medical advice that pregnancy was contraindicated. This blame is misplaced because there never was medical advice that Ms. Ayubi should not get pregnant. There was never any birth control measures prescribed. Ms. Ayubi was left to make her own decisions about birth control. The advice she received was that she should not get pregnant while she was hypothyroid. When she became pregnant, the advice became that she should treat her hypothyroidism so as to avoid harm to the baby.

117It is unfortunate that Ms. Ayubi seems to blame Dr. Gomez-Hernandez for the circumstance that Ms. Ayubi underwent her surgery while unknowingly pregnant. This circumstance undoubtedly distressed and added to Ms. Ayubi’s depression and misery, but the surgery was uneventful and the surgery while she was pregnant is not the source of any ongoing medical predicament for Ms. Ayubi. It is to be hoped that the cancer has been dealt with by the surgery. What remains to be dealt with is the hypothyroidism.

118It is unfortunate that to this day, Ms. Ayubi does not understand the increasing of her thyroid medication (the double dosing etc.) was necessary medical treatment once she became pregnant.

119It is unfortunate that Ms. Ayubi does not seem to understand that whether or not she is or was pregnant, she needs to deal with her hypothyroidism. Perhaps because of her understandable distress and depression about from the cancer and her hypothyroidism, Ms. Ayubi never understood that the threat to her unborn child was not the synthetic hormone medication, but the threat was her not taking the medicine.

120The evidence on the summary judgment motion is that Dr. Gomez-Hernandez was genuinely and intensely concerned to have Ms. Ayubi take the medication that was absolutely necessary for the health of the mother and that was necessary to avoid risk to the health of the unborn child.

121On this summary motion, there is no evidence other than that the child was born healthy, but the evidence is that Ms. Ayubi continues to misunderstand that she needs to take care of herself by taking medication for hypothyroidism that is not going away but that is treatable.

122A judge is not a physician but the evidentiary record on this motion indicates that there is no genuine issue for trial about the medical care provided by Dr. Gomez-Hernandez. Ms. Ayubi was well cared for by the doctor and by her administrative assistant. The evidence also establishes that Ms. Ayubi should immediately seek out medical care to address her hypothyroidism.

E. Conclusion

E. Conclusion

123For the above reasons, the summary judgment motions are granted, and Ms. Ayubi’s action is dismissed.

124With respect to costs, both Defendants expended over $45,000 for partial indemnity scale legal costs. Nevertheless, they each sought costs of only $5,000. Commendably, these requests reflect a genuine empathetic concern for Ms. Ayubi’s health. However, modern costs rules are designed to advance five purposes in the administration of justice: (1) to indemnify successful litigants for the costs of litigation, although not necessarily completely; (2) to facilitate access to justice, including access for impecunious litigants; (3) to discourage frivolous claims and defences; (4) to discourage and sanction inappropriate behaviour by litigants in their conduct of the proceedings; and (5) to encourage settlements, and none of these purposes would be meaningfully served by awarding $5,000 each to the Defendants. Therefore, I am simply dismissing her action without costs. If Ms. Ayubi needs to be taught a lesson, it is that the Defendants and this Court continue to be concerned that she take care of herself.

Perell, J.

Footnotes

1. 1Ms. Ayubi originally brought this action on behalf of her baby daughter, but that claim was stayed without prejudice to it being recommenced with legal counsel in the future. My Ayubi did not know that under the Rules of Civil Procedure, infants require litigation guardians and legal representation.
2. 2Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
3. 3Saltsov v. Rolnick, 2010 ONSC 914 at paras. 43–44 (Div. Ct.); Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372 at para. 11; Rogers Cable TV Ltd. v. 373041 Ontario Ltd., [1994] O.J. No. 844 (Gen. Div.); Bluestone v. Enroute Restaurants Inc. (1994), 1994 CanLII 814 (ON CA), 18 O.R (3d) 481 (C.A.); Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 1998 CanLII 4831 (ON CA), 164 D.L.R. (4th) 257 (Ont. C.A.).
4. 4Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co, (1996), 1996 CanLII 7979 (ON SC), 28 O.R. (3d) 423 (Gen. Div.), aff’d [1997] O.J. No. 3754 (C.A.); Pizza Pizza Ltd. v. Gillespie (1990), 75 O.R. (2d) 255 (Gen. Div.).
5. 5Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, 2021 SCC 22 at para. 25; Wallace v Ralph-Edwards, 2019 ONSC 899; Canada (Attorney General) v. Lameman 2008 SCC 14 at para. 11; Goudie v. Ottawa (City), 2003 SCC 14 at para. 32; Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co., (1996), 1996 CanLII 7979 (ON SC), 28 O.R. (3d) 423 at p. 434 (Gen. Div.), aff’d [1997] O.J. No. 3754 (C.A.).
6. 6Comer v. Mount Sinai Hospital, 2022 ONSC 1321; Owala Estate v. Southlake Regional Healthcare Centre, 2019 ONSC 5930; Drougov v. Apotex Inc., 2015 ONSC 2896; Kim v. Choi, 2012 ONSC 6627; Ryabikhina v. St. Michael’s Hospital, 2011 ONSC 1884; Lozowy v. Trillium Health Centre, [2007] O.J. No. 1332 (S.C.J.); McNeil v. Easterbrook, [2004] O.J. No. 3976, (S.C.J.); Claus v. Wolfman (1999) 1999 CanLII 14824 (ON SC), 52 O.R. (3d) 673 (S.C.J.), aff’d (2000), 2000 CanLII 22728 (ON CA), 52 O.R. (3d) 680 (C.A).
7. 7Comer v. Mount Sinai Hospital, 2022 ONSC 1321; Carreiro v. TimWen Partnership, 2017 ONSC 2013; Larusson v. Wein, 2016 ONSC 5391; Sanzone v. Schechter, 2016 ONCA 566, leave to appeal refused [2016] S.C.C.A. No. 443.