Court File and Parties

COURT FILE NO.: CV-18-78269 DATE: 2024-07-17 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Ghalia Abdul-Hussein Plaintiff – and – Werner Ralph Zabel Defendant

Counsel: Self-Represented (for the Plaintiff) Corey Willard and Daniel Yang, for the Defendant

HEARD: May 16, 2024

Reasons for Judgment

Rees J.

Overview

[1] The defendant, Dr. Werner Zabel, is an ophthalmologist. He performed cataract surgery and a laser capsulotomy on the plaintiff, Ms. Ghalia Abdul-Hussein. Ms. Abdul-Hussein commenced this action against Dr. Zabel, alleging that he performed the procedures negligently and that he failed to obtain her informed consent.

[2] Despite repeated prompting by Dr. Zabel’s counsel, and court-ordered timetables, Ms. Abdul-Hussein failed to serve an expert medical report critical of Dr. Zabel’s care. For his part, Dr. Zabel obtained and served an expert medical report more than four years ago, which opines that he met the standard of care.

[3] Dr. Zabel brings this motion for summary judgment seeking the dismissal of Ms. Abdul-Hussein’s action.

[4] A plaintiff’s failure to serve expert medical evidence in support of their medical malpractice claim is fatal unless it is the clearest of cases. This case does not fall within this narrow exception. Expert evidence is required.

[5] There is no genuine issue requiring a trial. Without expert medical evidence in support of her claim, Ms. Abdul-Hussein’s action cannot succeed.

[6] Therefore, summary judgment is granted to Dr. Zabel. The action is dismissed.

Factual background

[7] Dr. Zabel first saw Ms. Abdul-Hussein for a cataract surgery consultation. Examination revealed cataracts in both eyes, and Dr. Zabel recommended a cataract extraction and lens replacement for her right eye, which had progressed to a more advanced stage than her left eye.

[8] Dr. Zabel’s evidence is that he discussed the details of the procedure, including its risks and benefits, with Ms. Abdul-Hussein. Ms. Abdul-Hussein’s evidence is that Dr. Zabel did not disclose the risks to her. Ms. Abdul-Hussein agreed to proceed with cataract surgery for her right eye.

[9] Following her pre-operative testing and measurements, Dr. Zabel saw Ms. Abdul-Hussein again, he says, to further discuss surgical complications as well as the different lens options available for implantation. Ms. Abdul-Hussein’s evidence is that Dr. Zabel did not disclose the risks to her. Three lens options were available to Ms. Abdul-Hussein: (1) a standard lens (covered by OHIP), (2) an aspheric antiglare lens, and (3) a multifocal lens. It was Dr. Zabel’s standard practice to discuss the strengths, weaknesses, and costs of each lens.

[10] Ms. Abdul-Hussein decided to proceed with the multifocal lens.

[11] Dr. Zabel performed Ms. Abdul-Hussein’s cataract surgery as an outpatient procedure.

[12] A week later, Dr. Zabel saw Ms. Abdul-Hussein for a post-operative follow-up appointment. Ms. Abdul-Hussein reported unclear vision, and examination revealed posterior capsular haze in her right eye. Based on Ms. Abdul-Hussein’s symptoms, Dr. Zabel recommended a laser capsulotomy for her right eye. Ms. Abdul-Hussein agreed to proceed. Ms. Abdul-Hussein’s evidence is that Dr. Zabel did not disclose the risks to her.

[13] Ten days later, Dr. Zabel performed Ms. Abdul-Hussein’s laser capsulotomy as an outpatient procedure.

[14] About a month after the laser capsulotomy, Dr. Zabel saw Ms. Abdul-Hussein about a possible exchange of her lens implantation. Ms. Abdul-Hussein had developed symptoms since the laser capsulotomy, including mild inflammation, glares at night, poor vision, and floaters. Dr. Zabel advised that the implant takes several months to settle and for a patient to adapt to the new vision. They discussed the surgical option of a lens exchange, but Ms. Abdul-Hussein was unsatisfied with her options.

[15] Dr. Zabel arranged for a second opinion with a different ophthalmologist.

[16] The next month, Dr. Zabel saw Ms. Abdul-Hussein for another follow-up appointment. Ms. Abdul-Hussein remained uncertain of her options. Dr. Zabel suggested a referral to another ophthalmologist for a third opinion.

[17] Ms. Abdul-Hussein initiated an action as against Dr. Zabel in November 2018. She alleges that Dr. Zabel failed to obtain her informed consent and that the procedures were performed negligently.

Issue

[18] The only issue is whether there is a genuine issue requiring a trial.

Analysis

The law of summary judgment

[19] The court shall grant summary judgment if it is satisfied that there is no genuine issue requiring a trial with respect to the claim or the defence, or the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 20.04(2).

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

[21] The motion judge must first determine if there is a genuine issue requiring a trial based only on the evidence filed on the motion, without relying on the enhanced fact-finding powers under r. 20.04(2.1). If, however, the motion judge concludes that a genuine issue for trial exists, the motion judge must go on to consider whether the need for a trial may be avoided by resorting to the enhanced fact-finding powers set out in rr. 20.04(2.1) and (2.2). The motion judge may use those powers, in his or her discretion, unless doing so would be contrary to the interests of justice. Using the enhanced powers will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole: Hryniak, at para. 66.

[22] On a motion for summary judgment, the moving party bears the evidentiary burden of showing that there is no genuine issue requiring a trial. If the moving party has discharged its evidentiary burden, the onus then shifts to the responding party. See Sanzone v. Schechter, 2016 ONCA 566, 402 D.L.R. (4th) 135, at para. 30, leave to appeal refused, [2016] S.C.C.A. No. 443; New Solutions Extrusion Corp. v. Gauthier, 2010 ONSC 1037, at para. 12, aff’d 2010 ONCA 348. To successfully resist a summary judgment motion, a responding party must set out sufficient facts to show that there is a genuine issue requiring a trial.

[23] Each party must put its best foot forward to show whether or not there is an issue for trial. The court is entitled to assume that the record contains all the evidence the parties would present at trial: Toronto-Dominion Bank v. Hylton, 2012 ONCA 614, at para. 5. The responding party must “lead trump or risk losing” and put their “best foot forward”: BNS v. Compas, 2018 ONSC 3262, at para. 9. A responding party “may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial”: r. 20.02(2). See T. Hamilton and Son Roofing Inc. v. Markham (City), 2018 ONSC 2665, 91 C.L.R. (4th) 146, at para. 29.

[24] The principles governing the admissibility of evidence on a summary judgment motion are the same as those that apply at trial, save for the limited exception of permitting an affidavit made on information and belief found in r. 20.02(1): Sanzone, at para. 15.

Is there a genuine issue requiring a trial?

[25] In medical negligence actions, expert evidence is required to prove that the treatment provided by the defendant physician breached the standard of care and that the breach was causally connected with the plaintiff’s injury. This is because “[m]edical malpractice cases are complex … and judges and juries lack the expertise necessary to assess difficult questions such as causation, standard of care, and breach of the standard of care, without the assistance of expert reports”: Liu v. Wong, 2016 ONCA 366, at para. 14, leave to appeal refused, [2016] S.C.C.A. No. 264. Except in the clearest of cases, the absence of supportive expert evidence is fatal to the plaintiff’s claim: ibid.

[26] Expert evidence is equally required in informed consent cases: Lewin-Gillies v. York Central Hospital, 2018 ONSC 883, at para. 48; Samuel v. Ho, at paras. 27-28; Whitehead v. Ontario Shores Centre for Mental Health Sciences, 2024 ONSC 2566, at para. 82.

[27] To establish a lack of informed consent, the plaintiff must prove that the defendant physician failed to disclose a material risk or an indicated treatment alternative, and that this caused the plaintiff`s damages. Causation must be determined on both a subjective and objective basis: the plaintiff must show that the plaintiff would not have consented to the procedure, and that a reasonable person in the plaintiff’s circumstances would not have proceeded with the procedure even if adequately informed. See Hirchberg v. Branson Drug Store, 2016 ONSC 4853, 31 C.C.L.T. (4th) 145, at para. 59, aff’d 2017 ONCA 62, 36 C.C.L.T. (4th) 166; Whitehead, at para. 71.

[28] In informed consent cases, expert evidence is relevant to determining the material risks of a particular procedure, if the alternative treatment options were medically reasonable, and whether causation is established: see Hirchberg, at para. 60; Leblanc v. Hunt, 2011 ONSC 1333, at paras. 60-62, 66-68; Samuel, at para. 28; Whitehead, at para. 72.

[29] Courts have consistently granted summary judgment where a plaintiff failed to file a supportive expert medical opinion: see e.g. Latulippe v. Greenspoon, 2017 ONSC 6579, at para. 27; Beazley v. Johnston et al., 2023 ONSC 4956, at paras. 152-54. “[I]t is now beyond dispute that there can be no genuine issue that would require a trial if a plaintiff claiming medical negligence does not obtain expert opinions to support the allegations laid out in the statement of claim”: Comer v. Mount Sinai Hospital, 2022 ONSC 1321, at paras. 13-14. This requirement applies equally to informed consent cases: Samuel, at paras. 28-32; Whitehead, at paras. 86-88.

[30] Dr. Zabel has filed an affidavit attesting to the care that he gave Ms. Abdul-Hussein. He has also filed an expert opinion affidavit from Dr. John Lloyd, an ophthalmologist, which opines that Dr. Zabel met the standard of care in every respect. Ms. Abdul-Hussein has chosen not to cross-examine the affiants. I am satisfied that Dr. Lloyd is a properly qualified expert in ophthalmology, and I accept his expert opinion.

[31] Dr. Zabel has discharged his burden on the summary judgment motion to show that there is no genuine issue requiring a trial with respect to Ms. Abdul-Hussein claims based on negligence and lack of informed consent.

[32] By contrast, Ms. Abdul-Hussein has not filed any expert medical opinion on informed consent, the standard of care, or causation – which is required to prove her claims of negligence.

[33] Instead, Ms. Abdul-Hussein swore an affidavit stating that Dr. Zabel did not properly inform her of the risks of the procedures before her two surgeries. She also states that she did not sign the consent to surgery forms, and that her signatures are fraudulent.

[34] Ms. Abdul-Hussein’s affidavit exhibited an unsworn report of Brenda Petty, a “Certified Questioned Document Examiner-Diplomate” in Duncan, Oklahoma. But this report simply addresses the authenticity of Ms. Abdul-Hussein’s signed consent forms, and does not opine on Dr. Zabel’s medical care.

[35] The document examiner’s report is inadmissible on the summary judgment motion. On a summary judgment motion, a party can file an affidavit from the expert containing his or her opinion or an affidavit from the expert with the report attached: Sanzone, at para. 16. Ms. Abdul-Hussein has, unfortunately, done neither.

[36] This is not simply an evidentiary or procedural defect that could be cured, however. Even if the document examiner’s report were admissible and I were to accept Ms. Abdul-Hussein’s evidence that she did not sign the consent forms and that Dr. Zabel did not explain the risks of the procedures, it still leaves the plaintiff without any expert medical evidence supporting her negligence claim. (To be clear, I need not make any findings in this regard.)

[37] Ms. Abdul-Hussein’s affidavit exhibits a decision and reasons of the Inquiries, Complaints and Reports Committee of the College of Physicians and Surgeons of Ontario. However, the decision and reasons are inadmissible in civil proceedings: Regulated Health Professions Act, 1991, S.O. 1991, c. 18, s. 36(3).

[38] Ms. Abdul-Hussein’s claim is framed in battery, or in the alternative, negligence for failing to disclose the risks of the surgeries and negligence in the performance of the surgeries. The claim alleges that Dr. Zabel failed to obtain her informed consent before treatment.

[39] The claim is not properly one for battery. Where there is an alleged failure to make adequate disclosure to a patient, this gives rise to a claim in negligence. It does not vitiate consent and give rise to a claim of battery: Denman v. Radovanovic, 2024 ONCA 276, at para. 43.

[40] Ms. Abdul-Hussein’s claim thus requires supportive expert medical evidence and her failure to file any is fatal to the action. Nothing in the evidence persuades me that this is the clearest of cases in which expert evidence would not be required. To the contrary, the plaintiff was required to answer the defendant’s expert medical evidence with supportive expert medical evidence of her own.

[41] Therefore, I conclude that Ms. Abdul-Hussein has failed to discharge her burden to prove that her claims have a real chance of success.

[42] I am mindful that Ms. Abdul-Hussein is self-presented. Although she was represented when the action began, she served a notice of intention to act in person in March 2019, five months after commencing the action. She has been self-represented since.

[43] Fairness requires the court to accommodate a self-represented party’s unfamiliarity with the litigation process to enable her to present her case to the best of her ability, in a manner that respects the rights of the other party. And when a represented party invokes the Rules to seek relief against a self-represented party, the represented party must ensure it complies fully with its own obligations under the Rules, and not use the rules to take unfair advantage of the self-represented litigant: Sanzone, at paras. 21-23.

[44] For over three years, Ms. Abdul-Hussein was provided with many opportunities to provide relevant and supportive expert medical evidence. On at least 14 occasions, counsel for Dr. Zabel requested she serve an expert medical report. Counsel for Dr. Zabel carefully explained the need for such expert evidence – specifically from an ophthalmologist – on several occasions. Counsel for Dr. Zabel sought to assist Ms. Abdul-Hussein navigate the litigation process within the bounds of his professional obligations to his client. It was a model of how counsel should behave towards a self-represented party – with courtesy, civility, and good faith. The court also provided directions to Ms. Abdul-Hussein to obtain an expert medical report. The court twice granted Ms. Abdul-Hussein additional time for the preparation of an expert medical report. Ultimately, Ms. Abdul-Hussein did not do so.

[45] Ms. Abdul-Hussein has received every reasonable accommodation from the court, and Dr. Zabel has complied with his obligations and has been scrupulously fair to Ms. Abdul-Hussein.

Disposition

[46] Summary judgment is granted to Dr. Zabel. The action is dismissed.

[47] If the parties cannot agree on costs, they can each make written submissions to me of no more than 1,000 words, accompanied by bills of costs and any r. 49 offers, within two weeks of the release of these reasons for judgment. These are to be sent by email to scj.assistants@ontario.ca to my attention.

Justice Owen Rees Released: July 17, 2024