Gayton v. Rinholm, 2012 ABQB 232

Court of Queen ’ s Bench of Alberta Citation: Gayton v. Rinholm, 2012 ABQB 232 Date: 20120413 Docket: 0908 00399 Registry: Medicine Hat Between: Judy Gayton Plaintiff/Respondent - and - Larry Ulnar Rinholm Defendant/Applicant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice C.S. Brooker _______________________________________________________ Introduction [ 1 ] This is an application by Dr. Rinholm (hereinafter the “Applicant”) pursuant to Rule 7.3 of the Rules of Court for

summary judgment dismissing the Plaintiff’s claim against him. Background Facts

[2] The Plaintiff filed a medical practice action against the Applicant and three other doctors as well as the Medicine HatRegional Hospital. The Applicant was only involved with the Plaintiff on one occasion, February 28, 2005 when he, as an emergencyroom doctor, saw her in the emergency room of the Medicine Hat Regional Hospital. [3] The Applicant obtained an expert report of Dr. Thomas Rich, an emergentologist which opines on the standard of careprovided to the Plaintiff by the Applicant in the emergency room. Dr.

Rich was of the opinion that the treatment provided by theApplicant to the Plaintiff was appropriate and “met the standard of care of an emergentologist practising in Alberta”. [4] Dr.

Rich’s report was attached to an affidavit sworn by the Applicant on July 27, 2011 and these documents, together withothers as well as the Notice of this application, were served on the Plaintiff on September 13, 2011. [5] It would appear that this application was adjourned a number of times and finally set to proceed on a pre-emptor basis onMarch 29, 2011. [6] On March 28, 2011 the Plaintiff filed and served an expert report of Dr. Peter Breggin. In it, Dr. Breggin opines atparagraphs 218 through 2224, that there were six breaches of the standard of care by the Applicant. [7] Dr.

Breggin is a psychiatrist licenced to practice medicine in New York state. At paragraphs 7 through 20 of his report heoutlines his experience and expertise and notes that he has “ a special interest and expertise in medication adverse affects”. Law [8] There are numerous cases espousing the test to be applied on an application for

summary judgment. The test is convenientlysummarized by Ross J. in Sima v. Hui, 2008 ABQB 104 at paragraphs 20 and 21 (citations omitted): [20]

Summary judgment is appropriate only where it is “plain and obvious that the action cannot succeed”: ...If there is “a genuine issueof material fact requiring trial,” the Plaintiff should not be denied his day in court: ... .On the other hand, there are important reasons togrant

summary judgment where the required standard is met. If the Plaintiff cannot succeed, allowing the case to proceed means a wasteof time and resources for both parties and the court. “The purpose of the Rule is to eliminate hopeless claims and hopeless defences”.... [21] The initial onus in a

summary judgment application is on the applicant to show that there is no genuine issue for trial. Once theapplicant has made this case, the onus then shifts to the respondent to “establish his claim as being one with a real chance of success”: ...The respondent cannot simply rely on the allegations in his pleadings, or on the possibility that further evidence may be available attrial. If the respondent fails to come forward with evidence to prove a meritorious case,

summary judgment will be given againsthim: ....[my emphasis]. [9] I agree with and adopt what Ross J. explains this means in a medical malpractice claim. At paragraph 22 of Sima she writes: [22] In the context of medical malpractice claims, this means there may be an onus on a Plaintiff/respondent who is facing a

summaryjudgment application to provide expert evidence to support his claim. There will be such an onus where the claim by its nature dependson expert evidence, and where the defendant/applicant produces expert evidence that the claim is without merit: Stoddard v. Montague,2006 ABCA 109 , 2006ABCA 109 (“Stoddard”).

Analysis [10] In this case, the appropriate standard of care applicable to the Applicant is not obvious. Expert evidence on this point isrequired: Stoddard, paragraphs 18-20. [11] The Applicant’s expert, Dr. Rich, is a full time emergency physician working in Calgary and licenced to practice in Albertaby the College of Physician and Surgeons of Alberta. He concluded in his expert report: In my opinion, the treatment provided by Dr. Rinholm to Ms. Gayton was appropriate and met [the] standard of care of anemergentologist practising in Alberta. [12] The Respondent’s expert, Dr.

Breggin, in paragraphs 7 through 21 of his expert report, under the topic “A - Background ofthe Expert” outlines his expertise. The essence of his area of expertise is captured in paragraph 7 where he states: 7. I am a psychiatrist licensed to practice medicine in New York State. I also have inactive licenses in Virginia, Maryland, andWashington DC. I was in the full-time private practice of psychiatry from 1968 to 2002, in Washington, DC and Maryland; and inNovember 2002, I moved to Ithaca, New York, where I have continued all my clinical and forensic activities.

I am a Life Member of theAmerican Psychiatric Association and a member of the Canadian Psychiatric Association. I have a special interest and expertise inmedication adverse effects. [13] I can find no evidence in Dr. Breggin’s report of any experience or expertise as an emergentologist in Alberta or indeed inCanada. [14] In ter Neuzen v. Korn (SCC), [1995] 3 S.C.R.674, the Supreme Court of Canada stated at paragraph 33 that: It is well settled that physicians have a duty to conduct their practice in accordance with the conduct of a prudent and diligent doctor inthe same circumstances.

In the case of a specialist, ..., the doctor’s behaviour must be assessed in light of the conduct of other ordinaryspecialist, who possess a reasonable level of knowledge, competence and skill expected of professionals in Canada, in that field ...[emphasis added]. [15] In this case, liability may be established against the Applicant if the Respondent can prove on a balance of probabilities thatthe Applicant’s conduct fell below the appropriate standard of care. In this regard, the relevant standard of care is that of a reasonablycompetent emergentologist practicing in Alberta: see McNeill v.

Easterbrook 2004 CarswellOnt 3926 at para. 14 and Kivisalu v. Brownet al. 2002 BCSC 1901 at para. 26. [16] While Dr. Breggin opines at paragraphs 217 through 224 of his expert report that the Applicant breached the standard ofcare, he opinion is of no weight because he has no expertise as to the appropriate standard of care in Alberta and in fact, his report doesnot even purport to state that the Applicant breached the standard of care of an emergentologist practising in Alberta.

In the result, theRespondent has no proper evidence before the court to support her allegation that the Applicant’s conduct fell below the standard of careof a reasonably competent emergentologist practising in Alberta. In the face of Dr. Rich’s evidence that the Applicant’s conduct did meetthe relevant standard of care, the Respondent’s claim against the Applicant is bound to fail. Therefore, the application is allowed andsummary judgment granted dismissing the action against Dr. Reinhold.

[ 17 ] Before concluding, however, I must deal with the Respondent’s counsel’s rather bizarre request made towards of her oral submission before the court. At that time she stated that if the court was considering dismissing the Respondent’s claim, she wanted an adjournment so that she can get more expert reports from Dr. Breggin. I decline to grant any such adjournment. This application has been outstanding for many months. In fact, the respondent has had more than six months to prepare for this application. It was finally set to be heard on a pre-emptor basis, on March 29 th , 2012.

Yet, even in those circumstances, the Respondent did not file and serve Dr. Breggin’s report until March 28 th , 2012. Moreover, given Dr. Breggin’s lack of qualifications as an expert emergentologist in Alberta, one cannot imagine what relevant information could come in any additional affidavits he might file. In the result, the situation is akin to those cases where a respondent seeks to avoid

summary judgment and keep the claim alive on the chance that more favourable facts will emerge later or at trial. That argument has been rejected: see for example Gelling Global General Assurance Co. v. Canadian Occidental Petroleum Limited , 1998 ABQB 714 ; Kravontka v. Capital Region Health Authority , 2002 ABQB 652 . Conclusion [ 18 ] In the result, the Respondent’s suggestion that this application be adjourned is rejected. [ 19 ] The application for

summary judgment is granted. The action against Dr. Rinholm is dismissed with costs. Heard on the 29 th day of March, 2012. Dated at the City of Medicine Hat, Alberta this 10 th day of April, 2012. C.S. Brooker J.C.Q.B.A. Appearances: Ms. G. Magnan for the Plaintiff Ms. Burnett for the Defendant