Wilde v. Langton, 2012 ABQB 742

Court of Queen ’ s Bench of Alberta Citation: Wilde v. Langton, 2012 ABQB 742 Date: 20121130 Docket: 0703 16395 Registry: Edmonton Between: Lilli Wilde and Her Majesty the Queen In Right of Alberta Plaintiffs - and - Dr. Stephen R. Langton, Dr. Daniel Birch and Capital Health Defendants Corrected judgment: A corrigendum was issued on December 3, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] This is an application for

summary judgment in favour of the Defendants Dr. Stephen R. Langton and Dr. Daniel Birch pursuant to Rule 7.3 of the Alberta Rules of Court which reads:

7.3(1) A party may apply to the Court for

summary judgment in respect of all or part of a claim on one or more of the following grounds: (

a) there is no defence to a claim or part of it; (

b) there is no merit to a claim or part of it; (

c) the only real issue is the amount to be awarded.

(2) The application must be supported by an affidavit swearing positively that one or more of the grounds described in subrule (1) havebeen met or by other evidence to the effect that the grounds have been met.

(3) If the application is successful the Court may, with respect to all or part of a claim, and whether or not the claim is for a single andundivided debt, do one or more of the following: (

a) dismiss one or more claims in the action or give judgment for or in respect of all or part of the claim or for a lesser amount; (

b) if the only real issue to be tried is the amount of the award, determine the amount or refer the amount for determination by a referee; (

c) if judgment is given for part of a claim, refer the balance of the claim to trial or for determination by a referee, as the circumstancesrequire. [2] The grounds for making this application are that there is no merit to the Respondent’s claim; that there is no genuine issueto be tried; and there are no facts that would substantiate the Respondent’s claim against those Defendants. [3] In addition to the pleadings in this matter, affidavits were filed from Dr. Langton and Dr. Birch in which their expertwitnesses concluded that their care met the standards expected of a practicing gynecologist in the case of Dr.

Langton, and in the case ofDr. Birch the standard of care required for a general surgeon, in Canada. [4] Counsel submits the governing law is found in the case of Stoddard v. Montague 2006 ABCA 109 at para. [20] whichreads: "The need for expert evidence for both these issues is obvious. In a medical negligence action, where the allegation of negligenceinvolves issues outside the ordinary knowledge and experience of the trier of fact,

summary dismissal of the plaintiff's claim isappropriate when the plaintiff has failed to adduce and supportive expert opinion: Claus v. Wolfman (1999), (ONSC), 52 O.R. (3d) 673 at para. 12 (S.C.J.), aff'd (2000), (ON CA), 52 O.R. (3d) 680 (C.A.); Tamimi v. TorontoHospital (Western Division) (1999), (ON CA), 123 O.A.C. 182 at para. 2, leave to appeal to S.C.C. ref'd (2000), 256N.R. 198n. If all the plaintiff does is assert that evidence will or may come out at trial and that the pleadings and allegations made duringargument support issues for trial, he or she will not be successful in preventing

summary dismissal in the face of overwhelming evidencethat the alleged perpetrators were not negligent, did not cause the injuries complained of, and met the relevant standard of care: Brown v.Northey (1991), 1991 ABCA 75 , 115 A.R. 321 at para. 11 (C.A.); Jager Industries Inc. V. Canadian Occidental PetroleumLtd. (2000), 273 A.R. 1, 2000 ABQB 592 at para. 21; Dawson v. Rexcraft Storage and Warehouse Inc. (1998), (ONCA), 164 D.L.R. (4th) 257, 111 O.A.C. 201 at para. 17. [5] The Statement of Claim describes how the Plaintiff Ms.

Wilde attended at the hospital for surgery to remove a cyst in herovaries, and alleges that during the surgery Dr. Langton removed a portion of the Plaintiff’s microsigmoid: but not her ovaries, as a resultof which the Plaintiff was required to undergo a colostomy for a period of seven and a half months. The Plaintiff alleges that she sufferedsome scaring, high blood pressure from shock, extreme pain, nausea and vomiting; and since her surgery she has had to wear a girdle and

suffers from a weak bladder, insomnia and anxiety. [ 6 ] The Plaintiff/Respondent Ms. Wilde indicates that she recently parted ways with her lawyer and has been forced to represent herself until she is able to obtain new legal counsel. Additionally the Respondent asked for an adjournment of an indefinite nature to obtain legal counsel before this matter should be heard. [ 7 ] I declined to grant an indefinite or any adjournment as it appeared that Ms. Wilde had no imminent or even real possibility of obtaining counsel at this time. Ms. Wilde submits in her defence of this

summary judgment application that she does have an expert report, and various other materials which she has later produced to the Court with the agreement of Applicant ’ s counsel. [ 8 ] I have reviewed the other materials most of which are irrelevant to the present application. There is however a relevant report authored by an obstetrician and gynecologist. That opinion indicates that Dr. Langton fell below the required standard of care in four relevant areas. [ 9 ] Counsel for the Applicant objects to Ms. Wilde ’ s report because it is not properly in evidence, in the proper form, and as such cannot be relied on in resisting the

summary judgment application. [ 10 ] I have decided not to grant the

summary judgment application with respect to Dr. Langton, however I will grant the

summary judgment application with costs with respect to Dr. Birch. [ 11 ] Although the expert report provided by Ms. Wilde is not in the appropriate form, it is provided by a licensed physician specializing in obstetrics and gynecology, and it does discuss four areas of negligence in some detail with respect to Dr. Langton. [ 12 ] Accordingly I conclude that there is some evidence before me that deals with Dr. Langton,. However there is no evidence before provided by the Plaintiff that deals with Dr. Birch. As such the claim against Dr. Birch is struck, but the claim against Dr.

Langton will continue. [ 13 ] The Applicant further submits that the Court should issue an Order requiring the Plaintiff to serve any and all expert reports to be relied on this matter in Form 25, by no later than December 31, 2012 in order to allow this matter to progress. Even though the

summary judgment application was not allowed, the Applicant submits that Dr. Langton is entitled to some finality in this matter, and furthermore the Applicant seeks costs of the

summary judgment application, including disbursements, because this matter should never have proceeded to a hearing. The Applicant submits that the Respondent should have requested an adjournment in advance and provided the expert report that she had, rather than waiting to provide it after the court hearing. [ 14 ] It is correct that the Court allowed the Respondent to provided her report after the fact, and that she was not properly prepared for the hearing. In addition to not knowing what she was doing, she did not understand the application and the very serious consequences that she was facing.

I am also satisfied that the Respondent is in no position by the end of the year to file and serve her expert reports in the proper form. [ 15 ] I conclude that the Respondent requires approximately four months (less the Christmas break) to complete this task reasonably in her present circumstances. Accordingly I give the Respondent until April 30 th , 2013 to serve all of her expert reports in Form 25. Form 25 reads as follows: Form 25 [Rule 5.34]

Clerk ’ s stamp: COURT FILE NUMBER COURT OF QUEEN ’ S BENCH OF ALBERTA JUDICIAL CENTRE PLAINTIFF(

S) DEFENDANT(

S) DOCUMENT EXPERT ’ S REPORT ADDRESS FOR SERVICE AND CONTACT INFORMATION OF PARTY PREPARING THIS DOCUMENT EXPERT REPORT OF [NAME] [An expert ’ s report must contain, at a minimum, (

a) the expert ’ s name and qualifications, (

b) the information and assumptions on which the expert ’ s opinion is based, and (

c) a

summary of the expert ’ s opinion.] DATE: SIGNATURE OF EXPERT PRINT NAME [ 16 ] The costs of this application will be in the cause. Heard on the 26 th day of October, 2012. Dated at the City of Edmonton, Alberta this 29 th day of November, 2012.

Donald Lee J.C.Q.B.A. Appearances: Lilli Wilde for the Plaintiffs Karen O ’ Keeffe Gowlings LaFleur Henderson LLP for the Defendants _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Mr. Justice Donald Lee _______________________________________________________ Corrected spelling of Defendant counsel ’ s last name