Carbone v. Whidden, 2013 ABQB 434

Court of Queen’s Bench of Alberta Citation: Carbone v. Whidden, 2013 ABQB 434 Date: 20130801 Docket: 0401 06241 Registry: Calgary Between: Angela Carbone Plaintiff - and - Dr. Peter Whidden and Peter G. Whidden Professional Corporation Defendants _ ________________________________________ ______________ Reasons for Decision on

Summary Judgment Applications of the Honourable Mr. Justice G. H. Poelman _________________________________________ ______________ I. Introduction [ 1 ] The defendant doctor applies for

summary judgment dismissing the plaintiff’s action for alleged medical negligence. The application requires consideration of the test for

summary judgment and the evidence submitted in support of opposing positions – particularly in relation to

summary judgment applications in medical negligence actions. [ 2 ] The plaintiff, Ms. Carbone, also applies for

summary judgment with respect to part of her claim against the defendant doctor and his professional corporation. II. Pleadings

[ 3 ] Ms. Carbone commenced an action against Dr. Peter Whidden, a medical practitioner specializing in plastic surgery, and his professional corporation alleging battery, breach of contract and negligence in relation to a cosmetic liposuction procedure he performed on March 13, 2003. [ 4 ] Ms. Carbone pleads that Dr. Whidden was to perform liposuction on her hips only, but that during the procedure he performed surgery on her buttocks as well. In addition, she pleads that Dr.

Whidden was aware that she might suffer from body dysmorphic disorder (preoccupation with imagined or minor defect in appearance), and that he should not have performed the surgery without a psychiatric or psychological evaluation. She alleges damages including multiple subsequent surgeries, permanent defects and pain and suffering. [ 5 ] In his statement of defence, Dr. Whidden pleads that he saw Ms.

Carbone on five occasions before performing the surgery; that he discussed the risks with her including possible surgical asymmetry, scaring and other complications and that she gave full and informed consent to the procedure; that he performed bilateral trochanteric (hip area) liposuction surgery on March 13, 2003 and that all surgery was confined to her trochanteric regions, with no surgery performed on her buttocks. The statement of defence makes no specific reference to body dysmorphic disorder (which Ms. Carbone pleaded by amendment after Dr. Whidden filed his statement of defence). III.

Summary Judgment Applications [ 6 ] Each party seeks

summary judgment under rule 7.3(1) [1] of the Alberta Rules of Court which provides that a party may apply for

summary judgment if there is no defence to a claim or to part of it, there is no merit to a claim or part of it, or the only real issue is the amount to be awarded. Dr. Whidden’s application was filed November 7, 2012 and seeks the dismissal of Ms. Carbone’s claim. Informal notice of a forthcoming application was given at the end of February 2012. [ 7 ] Ms. Carbone seeks

summary judgment in relation to her claims regarding body dysmorphic disorder – primarily because Dr. Whidden’s defence does not deal specifically with her allegations on that point. [ 8 ] The parties rely on three affidavits. Dr. Whidden swore an affidavit on March 16, 2012 (filed on November 7, 2012, with his application). It attaches a letter dated June 29, 2011 written by another plastic surgeon, Dr. G. L. W. Lobay, to Dr. Whidden’s lawyer. Ms. Carbone relies on affidavits sworn on April 19, 2013 and June 6, 2013, attaching various documents and transcript excerpts from her questioning of Dr. Whidden. IV. Legal Principles A. Test for

Summary Judgment [ 9 ] The parties agree that the overarching test for

summary judgment is whether it is plain and obvious that the action or the defence cannot succeed, or is bound to fail, or has no prospect for success. [2] Often this overriding principle is presented in two stages: first, the applicant has the onus of filing evidence to demonstrate that the claims against him or her are hopeless and the matter is beyond doubt, [3] in other words, that there is no genuine issue of material fact requiring trial. [4] If this onus is met, to avoid

summary judgment the respondent must file evidence to show “a real chance of success” [5] or that a triable issue remains. [6] [ 10 ] In my view, the correct reading of the authorities is that if the applicant’s evidence shows that there is no genuine issue of material fact requiring trial, then the respondent must show by evidence that there remains a triable issue or arguable merit to the case.

The respondent cannot simply rely on the allegations in his or her pleadings, or on the possibility that further evidence may be available at trial. [7] The characterization in some cases of the respondent’s onus, when the evidentiary burden has shifted, as one requiring the establishment of “a real chance of success” creates uncertainty as to the final test to be applied. The authorities are clear, however, that the ultimate question is always whether there is a genuine issue for trial; thus the respondent need not show more than this to defeat a

summary judgment application. [8] B.

Summary Judgment in Medical Negligence Actions [ 11 ] Ms. Carbone’s action will be resolved under the well-established principles applicable to actions loosely described as “medical negligence” – actions by patients against their physicians in the torts of negligence and battery, and contracts for professional services. Very briefly, in negligence Ms.

Carbone must establish a duty of care (not in dispute), a breach of the standard of care, an injury or loss and a causal link between that injury or loss and the defendant’s breach of the standard of care. [9] Battery may be established where surgery or treatment has been performed without consent, or clearly beyond the scope for which consent was given. [10] [ 12 ] Central to this case is the degree to which expert evidence is required in medical negligence actions in general and on

summary judgment applications in particular. The Court of Appeal has stated, in the context of a

summary judgment application to dismiss a medical negligence action in which the defendant doctors filed detailed evidence of their consultations and treatment and expert evidence, that “where the allegation of negligence involves issues outside the ordinary knowledge and experience of the trier of fact,

summary dismissal of the plaintiff’s claim is appropriate when the plaintiff has failed to adduce any supportive expert opinion.” [11] Similarly, Ross J. held that there will be an onus on a plaintiff respondent to provide expert evidence “where the claim by its nature depends on expert evidence and where the defendant/applicant produces expert evidence that the claim is without merit.” [12] There are numerous cases to similar effect. [ 13 ] As is evident from the above, plaintiffs in medical negligence actions will usually require expert medical opinions to succeed and this will often mean those opinions are necessary to defeat an application for

summary dismissal. However, the plaintiff’s obligation to supply expert evidence only applies where the nature of the claim depends on such evidence. This point was emphasized in The Law of Torts by John G. Fleming, [13] quoted with approval by the Supreme Court of Canada in ter Neuzen v. Korn . [14] Fleming stated the following, as quoted by court: Common practice plays its most conspicuous role in medical negligence actions. Conscious at once of the layman's ignorance of medical science and apprehensive of the impact of jury bias on a peculiarly vulnerable profession, courts have resorted to the safeguard

of insisting that negligence in diagnosis and treatment (including disclosure of risks) cannot ordinarily be established without the aid of expert testimony or in the teeth of conformity with accepted medical practice. However there is no categorical rule.

Thus an accepted practice is open to censure by a jury (nor expert testimony required) at any rate in matters not involving diagnostic or clinical skills, on which an ordinary person may presume to pass judgment sensibly, like omission to inform the patient of risks, failure to remove a sponge, an explosion set-off by an admixture of ether vapour and oxygen or injury to a patient's body outside the area of treatment. [15] [ 14 ] Thus, there is no general rule that a plaintiff must always have an expert opinion to succeed against a defendant doctor or to defeat a defendant doctor’s

summary judgment application. Whether an expert opinion is required will depend on the type of claim, usually whether issues such as standard of care and causation are capable of being determined by a lay trier of fact. [ 15 ] In Legal Liability of Doctors and Hospitals in Canada , Ellen I. Picard J.A. explains that expert evidence is not required for claims in battery where the issue is whether treatment went beyond the scope of consent: “Battery affords the patient a number of advantages compared to the tort of negligence.

The patient does not have to find medical experts to testify since the issue is not whether the doctor exercised reasonable care but rather whether the treatment was performed without consent.” [16] V. Findings: Dr. Whidden’s Application for

Summary Judgment [ 16 ] As can be seen from my brief

summary of the pleadings, Ms. Carbone’s allegations against Dr. Whidden fall into two broad categories. First, she pleads that the liposuction procedure was to be on her hips only, and specifically not on her buttocks, but that in fact her buttocks were involved in the surgery. Second, she pleads that Dr. Whidden should not have conducted any procedure without adequately exploring the existence of possible body dysmorphic disorder. [ 17 ] Thus, for Dr. Whidden to be granted

summary dismissal, he must first establish that there is no genuine issue of material fact requiring trial. This requires consideration of his affidavit, the only evidence he submitted on this application. [ 18 ] Dr. Whidden’s affidavit is brief. It may be summarized as follows: a. Dr. Whidden saw Ms. Carbone on August 8, 1995 about cosmetic liposuction to her trochanteric areas. “This surgical procedure and the risks of surgery, including possible surgical asymmetry, scaring and other complications” were subsequently discussed with her on four other dates in 2002 and 2003. b. He provided Ms.

Carbone with detailed written materials and obtained her written consent for “bilateral trochanteric liposuction surgery.” Those documents are not exhibited to his affidavit. c. He performed bilateral trochanteric liposuction surgery upon Ms. Carbone on March 13, 2003. d. He is advised by his counsel that she obtained an expert report from Dr. Lobay, which is attached to his report. “I have reviewed Dr. Lobay’s expert report which concludes that I met the standard of care of a plastic surgeon practicing in Alberta in respect of my treatment of Ms. Carbone.” (Dr.

Whidden does not depose to the truth of anything in Dr. Lobay’s letter, nor agreement with his opinion.) [ 19 ] The proferred “expert report” of Dr. Lobay is a letter written on June 29, 2011 addressed to Dr. Whidden’s counsel, with an attached curriculum vitae. The letter is not lengthy. Its main points can be summarized as follows: a. Dr. Lobay reviewed a “memorandum” and the examinations for discovery for Ms. Carbone and Dr. Whidden. He also reviewed “multiple consults” from other doctors and photographs. (None of the documents were put into evidence by Dr. Whidden.) b. Dr. Lobay states that Ms.

Carbone was well-informed of the risks, provided with written information, and “would have known exactly what she was facing.” c. “She had a good understanding that she was obtaining a subtle reduction to her hips. Dr. Whidden performed the procedure and dictated this appropriately.” d. “The patient had the perception that there was excess fat removed that she had not agreed to. This left her with some residual deformity according to her requiring fat grafting by Dr. Perron.” e. Dr. Whidden “appropriately informed” Ms.

Carbone of the risks, and “utilized an accepted operative technique and removed an appropriate amount of fat from each side.” f. Liposuction procedure is imperfect and Dr. Lobay comments on how some procedures with certain results are “normal” for this type of operation. g. “In any respect, according to the patient, she had a somewhat unfortunate result. However, this was described to her in detail as a possibility prior to surgery. The actual surgery, pre- and post-operative care and operative care were all acceptable and within the standard of care.” h. Dr.

Lobay described body dysmorphic disorder and stated that “if Dr. Whidden had truly thought this, he would not have operated on her.” Rather, “he would have referred her for appropriate psychiatric assessment.” [ 20 ] As can be seen, Dr. Lobay specifically addresses the body dysmorphic disorder issue. He says nothing, however, about Ms. Carbone’s initial and most basic complaint that the liposuction procedure extended to her buttocks, against her express instructions. (It is not in dispute that a hip liposuction should not include the buttock area. This was confirmed through Dr.

Whidden’s discovery questioning, which can be put into evidence only by Ms. Carbone – and, as I will address later, is included as an exhibit to her affidavit.)

[ 21 ] Dr. Whidden’s counsel submitted that I should infer from Dr. Lobay’s report that there was no involvement of the buttocks in the surgery. I am unable to see a basis for that inference in the very general statements Dr. Lobay makes in his letter. [ 22 ] Further, it would be unsafe and improper for me to generously draw inferences from Dr. Lobay’s report in favour of Dr. Whidden’s position. Dr. Lobay’s letter is not sworn or affirmed evidence of the first-hand nature normally expected on a

summary judgment application. [17] Further, when Ms. Carbone requested Dr. Whidden’s counsel to make Dr. Lobay available for cross- examination, she was met with the response that “we will not produce Dr. Lobay for cross-examination on his expert report as there is no obligation to do so, having not filed an affidavit.” When she applied to the court under rule 5.37 to cross-examine Dr. Lobay, Dr.

Whidden argued that the rule only applies to the questioning of experts before trial, on expert reports prepared and served as required by the Alberta Rules of Court – a position which was, based on the plain wording of the rule, accepted by the case management justice. [ 23 ] If an applicant relies on an opinion as a central part of his case, but chooses not to have it adduced as sworn evidence and objects to all attempts to have it tested, it is not worthy of generous

interpretation. Perhaps on questioning Dr. Lobay would have clarified his opinion on Ms. Carbone’s chief complaint that the surgery extended to her buttocks. Now we can only guess. [ 24 ] In my view, Dr. Whidden has failed to meet the onus of showing that there is no genuine issue of material fact requiring trial. Ms. Carbone’s claim is very simple: she agreed with Dr. Whidden to have liposuction surgery performed on her hips, but expressly excluded any surgery on her buttocks. Contrary to her instructions and their agreement, Dr. Whidden allegedly operated on her buttocks. That claim is met by Dr.

Whidden’s statement of defence that he did not perform surgery on her buttocks. However, he adduced no evidence on this point. [ 25 ] The defendants are not entitled to rely on the simple fact that they have attached an expert letter as shifting the evidentiary onus. For that to occur they must adduce expert evidence that squarely and credibly addresses the plaintiff’s specific claims. In my view, while I have not relied on this point, it is even doubtful that Dr. Lobay’s opinion is evidence of the nature a defendant must bring to meet the first stage of the

summary judgment test. It is unsworn, hearsay fact and opinion tendered through Dr. Whidden, who does not even affirm its truth or his agreement with it. [18] Further, Dr. Whidden’s affidavit is general and conclusory, failing to set out sufficient facts to be of much probative value. As the Supreme Court of Canada has stated, “a self-serving affidavit is not sufficient in itself to create a triable issue in the absence of detailed facts and supporting evidence.” [19] [ 26 ] In light of my finding that Dr. Whidden has not met the evidentiary onus on an application for

summary judgment, it is not necessary for me to consider whether Ms. Carbone’s evidence would establish that a triable issue remains. However, it may be helpful for me to do so provisionally. [ 27 ] In her affidavits, Ms. Carbone deposes at length about her consultations with Dr. Whidden, the surgery he performed, and her subsequent consultations and treatment by other surgeons. For present purposes, I summarize her evidence as follows: a. She advised Dr. Whidden on several occasions that she did not want liposuction in the area of the buttocks.

One of her consultations was held specifically to address this concern because of a telephone call with one of Dr. Whidden’s staff members suggesting to Ms. Carbone that he was considering removing fat from her hips and buttocks. b. During the March 13, 2003 surgery, Dr. Whidden operated on her buttocks. That has led to deformities and depressions in her buttocks. c. She had five corrective surgeries performed to her buttocks and hip areas over the period from November 2003 through May 2007. [ 28 ] Ms. Carbone attached a number of documents as exhibits to her affidavits.

They include a June 9, 2003 letter from Dr. Mark Haugrud to another physician who had referred Ms. Carbone. Dr. Haugrud advised the referring physician as follows: This lady had some cosmetic liposuction done in the spring and is actually quite distraught by the result that she has. She describes having quite a round shape to her buttocks previously which she did not want touched. She simply had some thickening over the lateral part of her thighs that she wanted removed. It appears that fat on the lateral part of her buttock might have been removed at the same time.

This does not produce an abnormal appearance but it is different than what Angela was anticipating. There is a bit more flattening on the left side than there is on the right. [ 29 ] Ms. Carbone also exhibited a series of operative reports and pre-operative forms prepared by Dr. Wayne Perron, the surgeon who performed the subsequent procedures. In each case, they described the “pre-op diagnosis” as “bilateral buttock deformities” and the corrective procedures as involving the buttocks. [ 30 ] Ms. Carbone supplied chart notes and “informed consent” documents to which Dr.

Whidden referred in his affidavit but did not attach. None of them suggest that liposuction on the buttocks was contemplated as an expected risk of hip liposuction surgery. Dr. Whidden’s chart notes confirm his understanding that Ms. Carbone did not want the operation to involve her buttocks. [ 31 ] Ms. Carbone attached excerpts from her discovery questioning of Dr. Whidden. On the issue of whether fat was taken from her buttocks, in a very brief exchange, he stated that “I didn’t take any fat from her buttocks. No fat was removed from her buttocks.” In the hearing of the application, Ms.

Carbone (who is self-represented) explained that she included this passage to show that this was a material fact in dispute. [ 32 ] In the result, there is positive evidence under oath from Ms. Carbone that her buttocks were part of the surgery and evidence in exhibited documents from her physicians which is at least as probative as Dr. Lobay’s letter. It is not contested that she expressly instructed Dr. Whidden not to do this, nor is it contested that hip liposuction should not involve the buttocks. (On this point, Dr.

Whidden said in his discovery questioning “the buttock area should not be included in hip liposuction.”) Dr. Whidden’s counsel submits that none of Ms. Carbone’s evidence avails, because she has adduced no expert opinion.

[ 33 ] The question of the plaintiff providing expert opinion evidence only arises if Dr. Whidden has met his initial onus. Even if his evidence (and particularly the attached letter from Dr. Lobay) could be read to suggest that involvement of the buttocks was acceptable in the circumstances or that the buttocks were not part of the surgery, these would still be material facts in dispute because of the evidence put forward by Ms. Carbone. [ 34 ] I am not persuaded that Ms. Carbone needed an expert to establish a triable issue that Dr. Whidden’s procedure involved her buttocks.

Whether surgery was conducted on the buttocks in addition to the hips is a matter on which a lay trier of fact can conclude without the assistance of expert testimony. The passages from Fleming’s Law of Torts and Picard’s Legal Liability of Doctors and Hospitals in Canada quoted earlier support this finding. [ 35 ] In my view, there is sufficient evidence in Ms. Carbone’s sworn affidavits and in the documents from her treating medical professionals to establish a triable issue as to whether the surgery included her buttocks. In light of the evidence that hip liposuction should not involve the buttocks and Ms.

Carbone’s express instructions to Dr. Whidden not to affect her buttocks, there is a triable issue on whether Dr. Whidden breached his obligation not to operate on her buttocks. [ 36 ] The defendant’s application for

summary judgment is therefore dismissed. VI. Findings: Ms. Carbone’s Application [ 37 ] Ms. Carbone applies for

summary judgment relating to her claims involving body dysmorphic disorder. In brief, she submits that the absence of a defence on this issue entitles her to judgment. [ 38 ] Dr. Whidden relies on rule 3.62(5) which provides that a defendant may rely on its unamended statement of defence in regard to an amended statement of claim and rule 13.12(1) which provides that “every fact in a pleading is denied if the fact is not admitted in another pleading filed by a party opposite in interest.” [ 39 ] These rules suffice to meet the main thrust of Ms. Carbone’s

summary judgment application. [ 40 ] Further, I would not grant Ms. Carbone’s

summary judgment on the basis of the evidence before me about body dysmorphic disorder. The evidence from Dr. Whidden’s chart shows that he recognized the disorder as potentially applying in Ms. Carbone’s case, but his discovery evidence states that he ruled it out. More importantly, whether a possible diagnosis of body dysmorphic disorder should have caused Dr. Whidden not to perform liposuction, or refer Ms. Carbone to a psychiatrist or psychologist before surgery, is a matter on which expert opinion evidence would be required. Ms.

Carbone has not put such evidence before the court; even if she had done so, it would be necessary to consider the effect of Dr. Lobay’s letter which also deals with the subject. [ 41 ] For these reasons, Ms. Carbone’s application for partial

summary judgment is dismissed. VII.

Summary of Conclusions [ 42 ] For the reasons given, each party’s

summary judgment application is dismissed. Costs may be spoken to, if the parties are not able to agree on entitlement and amount. Heard on the 17 th and 18 th days of June, 2013. Dated at the City of Calgary, Alberta this 1 st day of August, 2013. G. H. Poelman J.C.Q.B.A. Appearances: Angela Carbone Self-Represented

Ms. Megan L. McMahon/ Alyssa Duke Gowling Lafleur Henderson LLP for the Defendants