COURT FILE NO.: CV-14-500782 DATE: 20240806
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: GUILLERMA MURALLA, Plaintiff – and – DR. MUJEEB QAZI, Defendant
Counsel: M. Greg Abogado and Andrew E. Franklin, for the Plaintiff Eric S. Baum and Justin Perry-Daiter, for the Defendant
HEARD: April 15-19, 22 and 24, 2024
L. Brownstone J.
Introduction
[1] The defendant dentist, Dr. Qazi, treated the plaintiff, Ms. Muralla, once. At that visit, an emergency attendance, Dr. Qazi extracted Ms. Muralla's upper right wisdom tooth (tooth 18). Ms. Muralla was subsequently hospitalized for weeks owing to a facial space infection.
[2] Ms. Muralla claims that she did not provide informed consent to Dr. Qazi for the removal of tooth 18, that he fell below the standard of care in removing tooth 18 and in not removing tooth 48, the lower right wisdom tooth opposing tooth 18, and that his breach of the standard of care caused her damages. She claims that Dr. Qazi’s negligence either caused the infection or caused the infection to worsen.
[3] Ms. Muralla claims general damages of $100,000, $14,651.39 as special damages for income loss and $56,557.93 as special damages for OHIP’s subrogated claim.
[4] Dr. Qazi acknowledges treating Ms. Muralla. He acknowledges the unfortunate fact of her facial space infection. He states that Ms. Muralla provided informed consent to the treatment and denies that his treatment fell below the standard of care in any way. In the alternative, if it did fall below the standard of care, he denies that it caused any damages to Ms. Muralla.
[5] For the reasons that follow I find that Ms. Muralla provided informed consent for the extraction of tooth 18. I find her claim in negligence fails on the issues of both standard of care and causation. In the alternative, I would assess Ms. Muralla’s general damages at $40,000, $14,651.39 as special damages for income loss and $56,557.93 as special damages for OHIP’s subrogated claim.
Background
[6] Most of the salient facts are not contentious. The parties agree on the chronology of Ms. Muralla's symptoms and treatment and I summarize them here. A significant set of facts on which the parties differ relates to informed consent. I will deal with those facts in my discussion and analysis of the informed consent issue.
[7] Ms. Muralla had been a patient of her regular dentist, Dr. Kirupakaran, since 2009, at which time she was 53 years old. At her initial visit, Dr. Kirupakaran noted that Ms. Muralla suffered from frequent headaches and had poor oral hygiene.
[8] In January and February of 2012, Ms. Muralla attended at her family doctor’s office complaining of stress headaches and facial numbness. As a result, she underwent a CT scan on February 22, 2012, the results of which were normal.
[9] On March 6, 2012, Ms. Muralla attended Dr. Kirupakaran for a regular visit. Nothing unusual was noted about tooth 18, which is the third molar or wisdom tooth in the upper right quadrant, or about tooth 48, which is the wisdom tooth on the lower right quadrant directly below 18, or about either tooth’s surrounding area.
[10] On Friday, March 23, 2012, Ms. Muralla returned to Dr. Kirupakaran, this time for an emergency appointment. Dr. Speers, a general dentist called as an expert by Dr. Qazi, Dr. Kirupakaran, and Dr. Qazi all testified that an emergency appointment in dentistry is an unscheduled appointment, where a patient is accommodated because of an urgent request, usually due to pain, trauma, or infection. At the emergency appointment on March 23, 2012, Ms. Muralla complained of pain on the right side of her face radiating up into her temporal area.
[11] Dr. Kirupakaran examined her, noting that Ms. Muralla had pain in the upper right quadrant, specifically tooth 18 and tooth 17, the neighboring molar. Doctor Kirupakaran documented pus, which is a sign of infection, around tooth 18. She prescribed Clindamycin, an antibiotic, and suggested that Ms. Muralla return the next week for tooth 18 to be extracted. Her notes indicate that her plan was to conduct a periapical X-ray, an X-ray conducted by inserting a device into the patient’s mouth, prior to extraction. The transcription of Dr. Kirupakaran’s March 23, 2012 clinical note reads, prepared for this proceeding, reads as follows:
Mar 23, 2012 RMH NSF [reviewed medical history, no significant finding], EE [emergency exam] CC [chief complaint] UR [upper right] [tooth] 18, 17 area difficult to open and pain, couldn't open, explained pus. 18 distal pocket and abscess draining pus, given Clindamycin 300mg, 1 tid for 7 days, NV [next visit] suggested ext [extraction] of 18 with PA [periapical radiograph].
[12] At that time Dr. Kirupakaran thought the antibiotics would resolve the infection and tooth 18 could safely be extracted a week later. A follow-up appointment for the extraction was scheduled for March 31, 2012.
[13] Unfortunately, after the March 23, 2012 appointment, Ms. Muralla continued to suffer from pain. Accordingly, she attended the emergency department of North York General Hospital the next day, Saturday March 24, 2012. She was at the hospital for several hours, and tests were conducted, including a non-contrast CT scan. She was not nauseous, vomiting, feverish or swollen and there were no specific findings as a result of the tests and examination performed. Ms. Muralla was sent home and told to follow up with her dentist.
[14] Her pain did not subside. She telephoned Dr. Kirupakaran's clinic on Sunday March 25, 2012 seeking another emergency visit. Dr. Qazi was covering Dr. Kirupakaran’s emergency clinic that day. Doctor Qazi had never worked at Dr. Kirupakaran's clinic before; a mutual acquaintance had referred him to Dr. Kirupakaran to cover her clinic that day. March 25, 2012, was the only day that Ms. Muralla and Dr. Qazi met each other.
[15] Dr. Qazi was licenced to practice dentistry in Ontario in 2008. He graduated from university in Pakistan in 1990 with a general dentistry degree, and had also practiced in Newfoundland and in Pakistan. He testified that he remembers Ms. Muralla’s appointment because it was the only time he covered Dr. Kirupakaran’s practice, and Ms. Muralla was an emergency unscheduled visit. He stated that he could not decipher all of Dr. Kirupakaran’s notes from March 23, 2012, but could see that the chief complaint had been about teeth 18 and 17 and that Clindamycin was prescribed, which he believed was due to an infection.
[16] The parties agree on the following facts about the March 25, 2012 appointment. Ms. Muralla attended that day still in tremendous pain in her upper right quadrant; she had difficulty opening her mouth wide; she had been taking the Clindamycin prescribed by Dr. Kirupakaran; and at some point she signed a consent form.
[17] They also agree that Dr. Qazi extracted tooth 18 and did so without the assistance of an up-to-date X-ray. Rather, he relied upon an X-ray from January 2009. A periapical X-ray, to which Dr. Kirupakaran had referred in her note of March 23, 2012, is taken by inserting into the mouth a device that holds a film. As Ms. Muralla was in pain, she was unable to open her mouth wide enough, or to bite down on the device as required, for Dr. Qazi to be able to take the periapical X-ray. Dr. Qazi testified that he therefore tried to take a panoramic X-ray, but Dr. Kirupakaran’s X-ray machine was not working. Ms. Muralla did not recall Dr. Qazi trying to take a panoramic X-ray. It is not contentious that Dr. Qazi relied on Ms. Muralla’s 2009 panoramic X-Ray.
[18] Dr. Qazi conducted an intra-oral and extra-oral examination. His notes are brief and he elaborated on his findings at various times during the course of the litigation. He did not see pus on tooth 18 or tooth 48, but did see inflammation, also referred to as pericoronitis, at tooth 48. He noted that Ms. Muralla had pain on the upper and lower right-hand-side wisdom tooth areas. Tooth 18 was mobile and was impinging on the tooth below. Dr. Qazi injected Ms. Muralla with local anesthetic and removed tooth 18. While the billing code he used was for a complicated extraction, all parties agree that nothing about the extraction was complicated. Dr. Qazi states that he used the billing code in error.
[19] His transcribed clinical note states:
March 25th 2012 Code number 71201, tooth # 4 [Scratched out] 1[written in] 8: Patient Presented for an appointment, RMH [reviewed medical history], NSF [No specific finding], IOE/EOE, WNL. [intraoral exam, extraoral exam] WNL, Pain upper right/lower right wisdom teeth area. Pericoronitis, Tooth #48. Tooth #18 impinging on tooth number 48. Patient was already taking antibiotics/Clindamycin 300 mg/1 tablet/3 times a day. Administered lidocaine plain. 1 carpule local #18. Extracted #18, controlled bleeding post of (sic) instructions. Advised keep taking medications. Next visit, exo [extraction tooth #48]
[20] He acknowledged adding WNL (within normal limits) when he transcribed the note, and that it was not in his original note. He explained that by impinging he means that when the patient bit down on tooth 48, it caused pain. He testified that mobility of tooth 18 is implied in “impinging” – the tooth would only impinge the lower tooth if it was mobile.
[21] Dr. Qazi testified - and I accept, for reasons explained below in the informed consent analysis - that after completing the extraction, he advised Ms. Muralla to keep taking her antibiotics. He told her that if her condition worsened, she should go to the hospital. She was to return the next week for Dr. Kirupakaran to assess tooth 48. Dr. Qazi provided Ms. Muralla with written post-operative instructions.
[22] Still in pain the next day, Ms. Muralla returned to the emergency room at North York General Hospital. There she was assessed by Dr. Shafer, who noted no signs of infection. Dr. Shafer testified that she examined Ms. Muralla’s mouth at the bedside, not in a dental chair, and saw nothing concerning. Dr. Shafer initiated treatment for her working diagnosis of temporal arteritis, which is inflammation of the temporal artery. She also referred Ms. Muralla to two specialists, one of whom was a plastic surgeon, for follow-up. Dr. Shafer saw no signs of, and did not consider, that the patient might be suffering from a facial space infection.
[23] Ms. Muralla saw the plastic surgeon at an out-patient clinic at North York General Hospital on March 28, 2012 but was not comfortable with the surgeon’s proposed treatment plan. Still suffering from pain, she went to East York General Hospital. A contrast CT scan was performed which showed an abscess in direct proximity to the tooth 18 extraction site. She was admitted to hospital under the care of an otolaryngologist, Dr. El Masri, for a hospital stay that lasted more than 20 days, in which she underwent many procedures to drain the infection. Unfortunately, about ten days after discharge she had to be readmitted for over a week for another drainage procedure and intravenous antibiotics through a PICC line. The intravenous antibiotics continued at home for about two months after her second discharge. The infection had caused damage to her jawbone. Ms. Muralla was referred to the oral surgery department at Mount Sinai Hospital for follow-up.
[24] There is no doubt that the infection and its treatment were lengthy, painful, and difficult experiences for Ms. Muralla.
Issue One: Did Ms. Muralla provide informed consent to the removal of tooth 18?
[25] Ms. Muralla claims that she did not provide informed consent for the extraction of tooth 18.
[26] Ms. Muralla acknowledged that her signature is on the consent form providing consent to the removal of tooth 18. She stated that she signed the form at the request of the secretary after the procedure, on her way out of the clinic, and that the extraction itself had happened very quickly once she was in the dental chair. She denied having read its contents but conceded that she ought to have read it.
[27] Dr. Qazi stated that he reviewed the consent form with Ms. Muralla, as is his invariable practice. He testified that he took her pre-operative blood pressure reading, which is noted on the consent form, prior to the extraction. The form itself sets out the risks of the procedure including, among others, pain, swelling bleeding, and infection. The form sets out alternatives to extraction and potential risks of not having an extraction.
[28] In cross-examination, Ms. Muralla acknowledged that she had agreed at her examination for discovery in 2017 that Dr. Qazi told her that she should return to the hospital if the pain increased, and that her memory would have been better then than it was at trial. She further acknowledged that she knew that it was possible that there could be a post-procedure infection. She acknowledged that she was in terrible pain, that she wanted the pain to get better, and that all she could think about was getting out of pain immediately. She agreed it was possible Dr. Qazi spoke to her about the contents of the consent form, but she could not remember it.
[29] I find Ms. Muralla to be a credible witness. She fairly conceded facts, even when they were not helpful to her. For example, she acknowledged that some of her headaches were due to other causes, and that no one ever told her she should have her lower wisdom tooth (48) extracted. She was forthright in her evidence. She was neither evasive nor argumentative. She did not exaggerate her symptoms, agreeing when it was suggested to her that she did not have a fever when she presented to the North York General Hospital. However, I find her evidence on the issue of consent is not reliable. She conceded that her memory is affected by two things – first, it is unfortunately 12 years since the date of the extraction. Second, she was in terrible pain, and her sole focus at that time was on relieving the pain. She conceded that Dr. Qazi may have had a consent discussion with her that she does not recall.
[30] I find Dr. Qazi to be generally credible. His reason for remembering this visit – that it was his only attendance at Dr. Kirupakaran’s clinic and the only emergency visit that day – accords with common sense. I accept Dr. Qazi’s evidence that he discussed the consent form with Ms. Muralla prior to the procedure. The fact that this was his invariable practice and the notation of the pre-operative blood pressure on the consent form support this evidence.
[31] I find that Ms. Muralla gave her informed consent to the extraction of tooth 18.
Issue Two: Did Dr. Qazi fail to meet the standard of care in his treatment of Ms. Muralla?
[32] The test regarding the standard of care for a health professional is not controversial. The practitioner “ must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing…” Sylvester v. Crits et. al., [1956] O.R. 132, aff’d, [1956] S.C.R. 991. Plaintiffs are required to put forth expert evidence to establish the standard of care and causation: McNeil v. Easterbrook, [2004] O.J. No. 3976, at para. 16. An adverse outcome is not proof of negligence: St. Jean v. Mercier. The analysis is based on what the practitioner knew or ought to have known at the time; it is not an exercise based on the vision afforded by hindsight: Lapointe v. Hôpital Le Gardeur, [1992] 1 SCR 35.
[33] Ms. Muralla relied on two expert reports of Dr. John Gryfe on the issues of breach of the standard of care and causation. Dr. Gryfe was unavailable to testify at trial. For reasons delivered at the outset of trial, and attached to these reasons as Schedule A, I allowed Dr. Gryfe’s reports and the transcripts of his cross-examination for a summary judgment motion to be admitted into evidence, but noted that the weight to be given to his evidence remained to be determined at trial.
[34] Dr. Gryfe is an oral and maxillofacial surgeon, certified as such in 1968. He does not practice general dentistry. He opined that Dr. Qazi failed to maintain the standard of care in his diagnosis of Ms. Muralla. Dr. Gryfe opined that Dr. Qazi failed to properly diagnose the sources of Ms. Muralla’s infection and to appropriately manage it because:
a. Dr. Qazi should have taken X-rays that would have facilitated a complete diagnosis. He had an incomplete history as he could not read all of Dr. Kirupakaran’s note. When Dr. Qazi realized X-rays could not be taken, he should have referred her for X-rays and possibly to an oral surgeon. b. Dr. Qazi should not have injected local anesthetic next to tooth 18, as it can cause infection to spread; c. Dr. Qazi should have referred Ms. Muralla to a specialist; and d. Dr. Qazi should have removed tooth 48, the source of the infection.
[35] Ms. Muralla relies on the following conclusion contained in Dr. Gryfe’s report: “The error in diagnosis I believe was Dr. Qazi's inability to appropriately evaluate the significance of the infection that was clinically apparent in both of Ms. Muralla's maxillary right and mandibular right wisdom teeth.” However, plaintiff’s counsel conceded that the specific basis for this conclusion is unknown. While source documents are available, Dr. Gryfe did not testify and could not explain the basis for his opinion. Counsel also conceded that Dr. Gryfe’s reports are “not the easiest to read”.
[36] Dr. Gryfe appears to have relied on the sparseness of Dr. Qazi’s clinical notes and the transcript of his examination for discovery. In regard to the defendant’s answers on discovery, Dr. Qazi took steps to correct some of his answers in affidavits sworn in February 2017. On the eve of trial, Dr. Qazi served a chart correcting more of his evidence. Plaintiff’s counsel asked me to issue an order “refusing the defendant leave to admit the second corrected discovery testimony into evidence at trial”. Counsel conceded that Dr. Qazi could say “whatever he wants” in evidence at trial and that counsel was free to cross-examine on any inconsistencies with any of the evidence Dr. Qazi had previously provided.
[37] Presumably, had Dr. Qazi testified in a manner that was inconsistent with his earlier evidence but consistent with the corrected evidence provided on the eve of trial, plaintiff’s counsel would have cross-examined Dr. Qazi on his earlier statements or otherwise on the chart. That did not happen. Thus, the plaintiff’s motion, or objection to the chart, was moot and did not require a ruling. The chart formed no part of the evidence at trial.
[38] Dr. Gryfe was unable to opine on how a general dentist (the applicable standard) is expected to approach an issue at an emergency appointment. Having not practiced general dentistry in some fifty years, he testified on cross-examination in the summary judgment motion that he was unfamiliar with the nature of an emergency appointment.
[39] The defence called two expert witnesses. For the reasons that follow, I accept their evidence and not that of Dr. Gryfe.
[40] Dr. Richard Speers was a general dentist from 1975 until his retirement in 2019. He engaged in private practice in both rural and urban settings. He was qualified to and provided opinion evidence on the standard of care expected of a general dentist in an emergency visit at which the patient presented as Ms. Muralla did.
[41] Dr. Speers testified that at an emergency appointment, a general dentist is expected to take immediate steps to alleviate the patient’s acute distress and minimize future risk. The appointment is not expected to be comprehensive in nature. I accept this evidence. It was the only expert evidence before the court on this issue, Dr. Speers was qualified to give it and was not challenged on it.
[42] Dr. Speers testified that it is very common for dentists to examine patients with pericoronitis (swelling of the gums) and infection. Pericoronitis has many causes, and is not necessarily a sign of infection. The prescription of Clindamycin, the antibiotic prescribed to Ms. Muralla, and the extraction of wisdom teeth are also very common actions in general dentistry.
[43] Dr. Speers testified that Dr. Qazi met the standard of care in his treatment of Ms. Muralla. The extraction of tooth 18 was warranted, as Ms. Muralla had an active infection that was not getting better. After attending the hospital the previous day, she had been referred back to the dentist.
[44] Dr. Speers also testified that the extraction was performed appropriately. Dr. Qazi appropriately established the diagnosis, obtained consent, used an appropriate type, infiltration method and volume of anesthetic, controlled the bleeding, and gave appropriate post-operative instructions. He testified that nothing Dr. Qazi did or failed to do caused Ms. Muralla’s injuries.
[45] Dr. Speers also testified that it was reasonable and appropriate for Dr. Qazi not to have extracted tooth 48. There was swelling on the gums surrounding tooth 48 from the impingement of tooth 18, which was where the infection was. At an emergency visit, the appropriate care is to provide the least intervention required to manage the acute issue. There was a reasonable likelihood that the swelling near tooth 48 would resolve with the continued course of Clindamycin and the extraction of tooth 18, the impinging tooth. Tooth 48 was never extracted or noted as a cause of concern in any of the subsequent treatment records reviewed. Indeed, as of the last X-ray produced in the litigation, dating from January 2017, tooth 48 had not been extracted.
[46] Dr. Speers also opined that it was appropriate to remove tooth 18 based on the 2009 X-ray. Ms. Muralla’s root morphology would not have changed between 2009 and 2012. Based on his clinical examination and the 2009 X-ray, proceeding with the extraction was the proper course of action. An X-ray does not always show infection, and in this case, would not have changed the course of treatment. It would not have shown a deep space infection. Although Dr. Speers agreed in cross-examination that a recent X-ray might contribute to a decision, he maintained that the clinical picture is more important. An X-ray is assistive, not determinative.
[47] Dr. Speers also testified that a referral to a specialist was not warranted, because it was a simple extraction well within the skill level of a general dentist. Waiting for a referral in this case was not warranted and indeed, could have made things worse. It would not have been reasonable to defer treating the active infection in tooth 18 that was not responding quickly to antibiotics. The tooth needed to come out as quickly as possible to establish drainage. The space infection was completely unpredictable. According to Dr. Speers, had Ms. Muralla been subjected to a delay in treatment, the outcome of the infection could have been much more dramatic, even fatal.
[48] Dr. Speers conceded in cross-examination that Dr. Qazi’s notes were sparse, but maintained that they were adequate for an emergency visit. He disagreed with the suggestion put to him that Dr. Qazi’s treatment was improper because he did not follow Dr. Kirupakaran’s treatment plan of waiting for a week and conducting a periapical X-ray before extracting tooth 18. In his view, the proper course of action was to extract the tooth, not to wait a week to see if the Clindamycin successfully treated the infection.
[49] The suggestion that it was wrong not to follow Dr. Kirupakaran’s plan was also put to Dr. Qazi in cross-examination. I reject the proposition that Dr. Qazi erred by removing tooth 18 on March 25, 2012, when Dr. Kirupakaran had intended to wait a week before its removal. Both Drs. Speers and Zoutman, whose evidence I shall turn to next, were unequivocal that removal of tooth 18 was warranted given Ms. Muralla’s presentation on March 25, 2012. All indications were that the Clindamycin was not having the desired effect. It makes no sense to suggest that Dr. Qazi should have ignored the presentation of the patient in front of him and slavishly followed a note from two days before, regardless of what had happened in the intervening two days.
[50] The defence’s second expert witness was Dr. Dick Zoutman, an infectious disease physician and medical microbiologist. Dr. Zoutman was qualified to give opinion evidence on the cause of infection, the location or site of infection, and the course of treatment of the infection. He testified that there was nothing Dr. Qazi (or for that matter Dr. Shafer or Dr. Kirupakaran) did, did not do, or should have done that would have altered the course of Ms. Muralla’s infection.
[51] Dr. Zoutman’s opinion was that, given Ms. Muralla’s severe headaches and the pus that Dr. Kirupakaran saw on March 23, 2012, the infection was likely brewing beneath the surface by then. However, Dr. Zoutman testified that there were no signs that any of the three treating practitioners, including Dr. Qazi, should have seen that would have led them to conclude Ms. Muralla likely had a facial space infection. The infection was too small to be seen and indeed, was not seen on the CT scan conducted at the North York General Hospital on March 24, 2012. Nor was there a detectable abscess, swelling, or other abnormality noted by any of the doctors or dentists who treated her until she underwent a contrast CT scan at the East York General Hospital on March 28, 2012.
[52] Like Dr. Speers, Dr. Zoutman testified that the extraction performed by Dr. Qazi mitigated the course of infection to some degree because, had the tooth not been extracted on March 25, 2012, there would have been nowhere for the infection to drain. The extraction of tooth 18 ameliorated and mitigated the course of the infection’s progress, allowing drainage to occur through the mouth rather than solely creeping into her face. The evidence on March 25, 2012 pointed to tooth 18 being the source of the problem. Dr. Zoutman testified that nothing Dr. Qazi could have done would have changed the course of Ms. Muralla’s infection or the outcome. Dr. Zoutman also testified that facial space infections can occur without any antecedent procedures. Teeth and gums are exposed to many bacteria and are the sites of many infections.
[53] Dr. Zoutman was cross-examined on the fact that the chronology set out in his first report was not comprehensive, and included some facts that were taken not from source documents but from the pleadings he had reviewed. For example, Dr. Zoutman stated that Ms. Muralla had pain on biting and chewing. This and other portions of his chronology came from the statement of defence, not from the evidence. Nonetheless, Dr. Zoutman explained where his opinion was based on the medical documentation and where it was based on the statement of defence. He explained the connection between “impinging” in the medical documentation, the pain on biting and chewing in the statement of defence, and how these reasonably fit together, that is, impingement would be expected to cause pain on biting and chewing.
[54] I do not find Dr. Zoutman’s references to the statement of defence in his chronology to detract from or adversely affect his opinion. Dr. Zoutman reviewed the totality of the medical evidence, over 1000 pages, and commented on those that he found relevant. He agreed on cross-examination with some conclusions that he had not specifically referred to, such as Dr. El Masri’s conclusion that the infection source was in the mouth. He explained the reasoning behind his opinion that the infection started before Dr. Qazi treated Ms. Muralla, not when he treated her.
[55] I accept the evidence of Drs. Speers and Zoutman that there is no basis for Dr. Gryfe’s conclusion that tooth 48 was the cause of the infection or that it should have been extracted. To the degree Dr. Qazi thought, on March 25, 2012, that tooth 48 may also have been infected, this is not substantiated by any of the other evidence. Tooth 48 was never noted to be the cause of infection, and was never extracted in all the months during which Ms. Muralla was treated for the infection. The clinical tests, including a bone scan performed at Toronto East General Hospital on May 7, 2012, do not implicate tooth 48 or its surrounding area. There is simply no basis in the evidence for Dr. Gryfe’s conclusion that tooth 48 should have been extracted and that this would have altered the course of Ms. Muralla’s infection.
[56] I accept Drs. Speer’s and Zoutman’s conclusion that tooth 18 was the likely source of infection. I accept Dr. Zoutman’s evidence that the infection was likely brewing for some period of time prior to March 25, but was not visible. This explains why Ms. Muralla continued to have symptoms, but why no one- not Dr. Kirupakaran, not the March 24 CT scan performed at the North York General Hospital, not Dr Qazi and not Dr. Shafer - saw anything to lead them to believe there was a facial space infection.
[57] Having found that tooth 18 was the likely source of the infection, most of Dr. Gryfe’s conclusions in his second report fall. That is, Dr. Gryfe is critical of Dr. Qazi not removing tooth 48 because it is important to remove the source of the infection. Dr. Qazi did just that by removing tooth 18.
[58] Dr, Zoutman’s evidence, which I have accepted, that the infection was likely brewing beneath the surface by March 23, 2012, also supports Dr. Speers’s conclusion, which I accept, that there was no reason for Dr. Qazi to refer Ms. Muralla to a specialist. The reason for extraction and extraction itself appeared straightforward based on all available information: Crawford v Penney, [2003] O.J. No. 89 (SCJ) at para. 230(c). There is no evidence that an X-ray or examination performed by an oral surgeon would have revealed anything that would have assisted in finding the infection or treating it more aggressively than by Clindamycin.
[59] I accept Drs. Speer’s and Zoutman’s conclusion that the manner of injection, volume and administration of anesthetic was within the standard of care. Dr. Speers acknowledges that there is a theoretical possibility that the administration of local anesthetic can cause infection to spread, but notes that it is very unlikely, and anesthetic is required to remove the tooth. Dr. Zoutman testified that local anesthetic contains antibacterial properties. Therefore, it is very unlikely to cause the spread of infection.
[60] I accept the evidence of Dr. Speers that in the circumstances of an emergency visit, where the patient was in terrible pain, the clinical examination revealed the infection at tooth 18 to be the likely source of the pain, an up-to-date X-ray was unattainable but a three-year old X-ray showing root structure and morphology was available, Dr. Qazi did not fall below the standard of care in proceeding to perform the extraction without an updated X-ray. I do not read Crawford v Penney at para. 230(b) as suggesting otherwise. Rather, that case indicates that practitioners must perform their own diagnostic steps and not merely rely on what they are told. I find that Dr. Qazi met that standard here, given what was available to him. He was required to exercise his skill and judgment taking into account all of the circumstances, which is what he did. I accept Dr. Speers’s evidence that the manner in which Dr. Qazi did so met the requisite standard of care.
Issue Three: If Dr. Qazi failed to meet the standard of care, has Ms. Muralla proven such failure caused her damages?
[61] The plaintiff must prove on a balance of probabilities that the defendant caused or materially contributed to the damage in fact and in law: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 3. The injuries suffered must be related to the wrongful conduct, foreseeable and not too remote: Hacopian-Armen Estate v. Mahmoud, 2021 ONCA 545 at para. 55. The analysis is to be based on the information reasonably available to the practitioner at the time the wrongful act is said to have occurred: Hacopian at para. 58. In general, the test is the “but-for” test – that but for the negligent act or omission the injury would not have occurred: Hillis v Meineri at para. 76. The possibility of a causal connection is insufficient; speculation is insufficient: Hillis at paras. 80-81.
[62] As noted above, I accept Dr. Zoutman’s evidence that tooth 18 was the likely source of the infection, that the infection was brewing beneath the surface prior to March 25, 2012, and that Dr. Qazi’s removal of tooth 18, far from causing or worsening Ms. Muralla’s infection, actually likely mitigated its course.
[63] I find that Dr. Qazi’s decisions, primarily the decisions to proceed with the extraction without an up-to-date X-ray, even if they fell below the standard of care (which I have found they did not), did not cause Ms. Muralla’s infection or worsen her infection. The plaintiff has put forward no evidence to support such a contention.
[64] There is no evidence, for instance, that an X-ray would have revealed the deep space infection. Indeed, the only test that revealed the infection was a contrast CT scan performed at East York General Hospital. It was not suggested that Dr. Qazi should have, or could have, performed that test.
[65] Similarly, even if Dr. Qazi had telephoned Dr. Kirupakaran because of the partial illegibility of her note of March 23, 2012, there is no evidence and no basis to believe that his actions would have been different. There is every indication, now that the entirety of that note has been transcribed and considered by the experts in the context of the course of Ms. Muralla’s treatment, that he would have done the same thing. Failure to telephone Dr. Kirupakaran did not cause or contribute to any injury to the plaintiff.
[66] Likewise, there is nothing beyond speculation to support the plaintiff’s theory that the injection of local anesthetic caused the infection to spread. There is no evidence that this occurred, or that it likely occurred. The evidence is that there is a theoretical possibility this can occur. That is insufficient to discharge the plaintiff’s burden.
[67] There is no evidence that a referral to an oral maxillofacial surgeon would have assisted Ms. Muralla. The infection was not seen at North York General Hospital the day after the extraction. It was only found when a contrast CT was performed at East York General Hospital several days later. There is no evidence that an oral maxillofacial surgeon would have had available and would have performed a contrast CT scan. Even North York General Hospital did not perform such a scan on March 24 or 26, 2012.
[68] Ms. Muralla’s ongoing complaints of dizziness and headaches also have not been proven to have been caused by the infection. Ms. Muralla fairly acknowledged that she has suffered from headaches for years, even before she saw Dr. Qazi, and that her headaches and dizziness can be related to her high blood pressure and stress level.
[69] I therefore find that Ms. Muralla has not proven that, even if Dr. Qazi failed to maintain the standard of care in his treatment of her, that failure caused her injuries.
Issue Four: If there was negligence that caused damages, what is the appropriate amount of damages to award?
[70] The plaintiff sought $100,000 in general damages, $14,651.39 as special damages for income loss and $56,557.93 as special damages for OHIP’s subrogated claim.
[71] The plaintiff was 56 years old at the time of the tooth extraction. She worked part-time as a personal support worker and health care aide for Fudger House at that time, and also worked part-time for a company that sold insurance. She described the health care work as physically demanding, requiring her to provide hands-on assistance to elderly people for their activities of daily living.
[72] In August 2012, the infections disease physician from Toronto East General Hospital provided a letter indicating Ms. Muralla medically fit to return to work. She testified that although she went back to work for a few shifts, she still had pain and dizziness, and was unable to work.
[73] In December 2012 she resigned from Fudger house, effective January 2013. She moved to London to be with her partner, who is now her husband. She had worked for Fudger for 21 years at that point, and concluded she would be able to get a similar job in London.
[74] Ms. Muralla limited her claim to damages for loss of employment income to income lost from the date of extraction until she resigned from Fudger house effective January 2013. Because her work was shift-based and she did not work set hours, the plaintiff measures this by the difference between her 2011 income and her 2012 income, which is $14,651.39. The defendant argues that the decline in Ms. Muralla’s taxable income from 2011 to 2012 was only about $6,000.00. Further, her income had been declining since 2019. I find the plaintiff’s method of calculating her wage loss to be reasonable.
[75] In terms of general damages, there is no doubt that Ms. Muralla suffered a difficult treatment course to control the infection in hospital and post-discharge. Ms. Muralla testified that she continues to suffer from headaches, dizziness, and numbness on the right side of her face, symptoms she experiences once or twice a week.
[76] Ms. Muralla testified that although she is “trying to live as a normal person without complaint”, she continues to have numbness on the right side of her face, headaches, dizziness, nausea, and pain. She does not take prescription medication and tries to engage in healthy activities.
[77] While there are no cases of deep space infection before the court, the plaintiff relies on Scott v. Chapnik, [1998] O.J. No. 1305 and Courtney v Clearly 2010 NLCA 46 in support of its argument that general damages for pain and suffering should be fixed at $100,000. The defendant states that the range is about $15,000, relying on Dowel v Millington 2016 ONSC 6671 and Oswald v Canada.
[78] Having reviewed the cases and considered inflationary adjustments, I would assess general damages in this case as $40,000. In so doing, I have considered Ms. Muralla’s hospital stay and post-discharge infection control treatments. I have also considered that her numbness is related to the infection and have assumed, solely of the purposes of quantifying damages that some headaches and dizziness could be attributed to the infection. I note that in Courtney the plaintiff suffered much more significant damage.
[79] I would order special damages in the amount sought by the plaintiff, $14,651.39 as special damages for income loss and $56,557.93 as special damages for OHIP’s subrogated claim.
Disposition
[80] The claim is dismissed.
[81] The parties are encouraged to agree on costs of the trial. Should they be unable to do so, the defendant may provide costs submissions of no more than five pages double spaced, along with a bill of costs and offers to settle, within 10 days. The plaintiff shall have 10 days to respond, with the same page limits. There shall be no reply submissions without leave. These submissions may be sent to my judicial assistant at linda.bunoza@ontario.ca.
L. Brownstone J.
Released: August 6, 2024
Schedule A – Ruling on admissibility of Dr. Gryfe’s evidence, delivered April 16, 2024
The plaintiff asks the court to admit the expert reports of Dr. John Gryfe in Dr. Gryfe’s absence.
As stated by Justice Wilson in Dhaliwal v. Sims, 2018 ONSC 6131 at para 9:
In cases where an affiant or an expert who has prepared a report for use at trial becomes unable to testify, the court may be asked to permit the evidence to be filed. This request is usually opposed on the basis that it is unfair to allow that evidence to go in without the opportunity to test its reliability through cross-examination. It is within the discretion of the court to permit the receipt of the evidence but it is a fact driven analysis which must weigh the potential value of the evidence against the prejudice which might be occasioned to the adverse party.
Dr. Gryfe provided two reports on behalf of the plaintiff regarding the care provided to the plaintiff by the defendant dentist. The first report was provided in 2015, the second in 2017. He is the plaintiff’s only expert.
In 2022 the defendant and the court were advised that Dr. Gryfe had been diagnosed with Parkinson's disease, which is a degenerative condition.
The matter has been scheduled for trial three times. It was first scheduled to be heard in April, 2022 but could not be reached by the court. It was adjourned to January, 2023, at which time one of the defendant’s experts was seriously ill and hospitalised. The plaintiff opposed the defendant’s adjournment request and advised that any further delay of the trial would cause prejudice to the plaintiff given Dr. Gryfe’s Parkinson’s diagnosis and the fact that by that time, he was having difficulty speaking. The trial was adjourned to April 2023. On March 22nd, 2023, plaintiff’s counsel learned that Dr. Gryfe was scheduled for eye surgery during the week of April 17, 2023 and could not attend the trial. Plaintiff’s counsel requested a brief adjournment. That request was granted and the trial was scheduled to begin April 15, 2024. The dates were made peremptory on the plaintiff.
On November 2, 2023, the plaintiff learned that Dr. Gryfe’s disease had progressed to the point that he could no longer participate in the case.
A letter from Dr. Gryfe’s physician confirming this was sent to plaintiff’s counsel in early January, 2024. It was provided to defendant’s counsel on February 13, 2024 with a covering letter in which plaintiff’s counsel advised that he had “recently learned that Dr. Gryfe’s medical condition has deteriorated such that he is no longer able to provide testimony.” He advised that he intended to bring a motion to have Dr. Gryfe’s reports entered into evidence.
In 2017, prior to any of the trial dates being set, the defendant had brought a motion for summary judgment. Dr. Gryfe was cross-examined on his two reports in the context of that motion.
On April 24, 2017, Hood J. released his decision and reasons dismissing the defendant’s motion holding that the conflicting evidence, conflicting expert opinions, and the issue of Dr. Gryfe’s expertise were best left to trial.
Since then, the defendant’s experts have delivered two rebuttal reports. Dr. Gryfe has delivered no further reports.
On the issues of necessity and reliability of the evidence intended to be proffered, I find as follows.
Dr. Gryfe became unable to testify on November 2, 2023. These April trial dates were set peremptorily on the plaintiff. The plaintiff considered its options and determined it could not seek a new report at that late stage for three reasons. First, the plaintiff would not be able to comply with the requirements in the Rules that it deliver its expert report 90 days before the pre-trial scheduled for February 27, 2024. Second he did not expect the defence to agree that a new report obtained at this stage was admissible. And third it was unaffordable for his client to retain a new expert at this late stage of the proceedings.
The defendant takes issue with these necessity arguments, and with Dr. Gryfe’s expertise. Dr. Gryfe is a maxillofacial surgeon, and the defendant is a general dentist. Defence counsel points to excerpts of Dr. Gryfe’s transcript from his cross-examination in support of his submission that Dr. Gryfe is unfamiliar with changing standards of general dentistry. Since Dr. Gryfe is not a properly qualified expert, the admission of his evidence is unnecessary.
I acknowledge that courts have approached specialists giving opinions on generalists with caution. The admissibility depends on the subject matter of the opinion and the specialist’s training and experience: Robinson v. The Sisters of St. Joseph of the Diocese of Peterborough in Ontario (1999)., 117 O.A.C. 331 (Ont. C.A.), at para. 1.
I would not rule Dr. Gryfe’s opinion inadmissible on this basis. There may be areas in which his training and expertise does not overlap with that of the defendant. But I am not satisfied based on the submissions to date that there are not also areas of overlap.
I agree with the defendant that the court must exercise a gatekeeping function in respect of expert evidence. But I am satisfied in the particular circumstances of this case that the effect of the specialist/generalist divide should properly be one of weight in particular areas of the evidence.
In terms of the remaining facts on necessity, the plaintiff’s counsel would have done better to make enquiries of other experts as to the timing and cost of the provision of a new expert report when they learned that Dr. Gryfe was unable to testify. They would have done better to ask defence counsel what their position would be on extending the time for service of such a report.
However, in the particular context of this case, I am prepared to find that the admission of the reports of Dr. Gryfe meets the necessity criterion. The litigation is a decade old. It has been on the verge of trial three times before now. The defendant has filed six reports in response to Dr. Gryfe’s two reports. The introduction of a new expert at this stage could be anticipated to set off an entirely new chain of expert reports. And of course, in a case alleging dental negligence, the plaintiff must deliver an expert report 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:
In terms of reliability, Dr. Gryfe has been cross-examined by the defendant. I am mindful that cross-examination in the context of a motion for summary judgment would not be identical to a cross-examination at trial. I am mindful, too, that Hood J. determined that it would be better if all experts in this matter testified at trial. However, the fact remains that Dr. Gryfe has been cross-examined on both of his reports. Not only his report, but the transcript of his cross-examination, will be available to the court.
The defendant objects to the report being admitted on the basis of prejudice. Another gatekeeping function of the trial judge involves weighing the probative value of the report against its prejudicial effects. (White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 SCR 182.)
Since the summary judgment motion, the defendant has served further expert reports, directly rebutting opinions expressed by Dr. Gryfe that had not been earlier addressed by the defence experts. The defence will now have no opportunity to cross-examine Dr. Gryfe on these issues. However, neither will Dr. Gryfe be able to comment on those rebuttal reports in his evidence. Dr. Gryfe’s reports are, as plaintiff’s counsel put it, “frozen in time”.
Given that Dr. Gryfe did not deliver any further reports after the cross-examination occurred, I am satisfied that the prejudice to the defendant is minimized. This is not like the situation in McPherson v. Bernstein [ONSC] where there was no opportunity for cross-examination.
Finally, with respect to the defendant’s argument that Dr. Gryfe’s opinion demonstrate advocacy, not impartiality, I find that this does not rise to the level of inadmissibility, but is better argued as a matter of the weight to be given to his evidence.
I therefore find that the criteria of necessity and reliability are met, and I grant leave to admit the hearsay expert evidence of Dr. Gryfe under s. 52 of the Evidence Act.