Grivicic v Alberta Health Services (Tom Baker Cancer Centre), 2015 ABQB 811

Court of Queen’s Bench of Alberta Citation: Grivicic v Alberta Health Services (Tom Baker Cancer Centre), 2015 ABQB 811 Date: 20151221 Docket: 0901 09939 Registry: Calgary Between: Stephanie Grivicic Plaintiff/Appellant - and - Alberta Health Services operating as Tom Baker Cancer Centre, Dr. Lyle Galloway, Dr.Aynharan Sinnarajah, Dr. Siraj M. Husain, and Dr. R.P.

Wilkin Defendants/Respondents Corrected judgment: A corrigendum was issued on January 12,2016; the corrections have been made to the text and thecorrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice G.A. Campbell _______________________________________________________ Appeal from the Decision by J.T. Prowse, Q.C., Master in Chambers Dated the 23rd day of July, 2014 (2014 ABQB 444 , 2014 ABQB 0444, Docket: 0901 09939) 1. Introduction

[1] This is a medical malpractice action. Mrs. Grivicic commenced an action (the “Action”) pursuant to the Fatal Accidents Act(Alberta) for the alleged wrongful death of her husband Mike Grivicic. Mrs. Grivicic alleges medical negligence by physicians Dr. LyleGalloway, Dr. Aynharan Sinnarajah, Dr. Siraj M. Husain, and Dr. R.P. Wilkin who each provided medical treatment to Mr. Grivicic priorto his death and negligence by Alberta Health Services (“AHS”) operating as Tom Baker Cancer Centre (the “TBCC”) (collectivelyreferred to as the “Defendants”). [2] The Defendants applied for

summary dismissal of the action under Rule 7.3 of the Alberta Rules of Court (the “Rules”). [3] On July 23, 2014, Master Prowse issued his memorandum of decision (the “Master’s Decision”) wherein he granted theapplication of Dr. Lyle Galloway, Dr. Aynharan Sinnarajah and Dr. Siraj M. Husain (collectively referred to as the “Respondents”)summarily dismissing the Action against them, partially granted the application of Dr. Wilkin and denied the TBCC’s application. [4] Stephanie Grivicic appeals the part of the Master’s Decision that granted the Respondents

summary dismissal of her Actionagainst them. [5] Dr. Wilkin appeals the part of the Master’s Decision that found a triable issue as to whether he was responsible for arrangingto meet and discuss with Mr. Grivicic the changing of ureteral stents and whether the failure to change the stents resulted in an earlierdeath for Mr. Grivicic than would otherwise have occurred. [6] The TBCC appeals the part of the Master’s Decision denying its application for

summary dismissal. 2. Applicable Law A. Standard of Review [7] The standard of review on an appeal of a decision from a Master to a Justice is correctness on all issues: Bahcheli v YorktonSecurities Inc., 2012 ABCA 166 , 524 AR 382. Such an appeal is an appeal de novo for which no deference is owed in thecircumstances. Thus, this court considers an application for

summary judgment as a new hearing on the merits. [8] Rule 6.14(3) of the Rules provides the court with broad authority to admit new evidence on an appeal from a Master. The testfor relevance and materiality under rule 6.14(3) has since been described as “a very lax test”: Boyd v Cook, 2013 ABCA 266 atpara 5. B.

Summary Judgment [9] Rule 7.3 of the Rules permits a party to apply to the Court for

summary judgment if it can be established that there is nomerit to a claim or part of it. [10] Our Court of Appeal recently ruled that the modern

summary judgment test requires the court to determine whether a fair andjust disposition to both parties can be made on the existing record without a trial. The relevant question is whether there is a genuineissue of merit requiring a trial and not merely that the evidence discloses a triable issue: Windsor v Canadian Pacific Railway, 2014ABCA 108 at para 13. An applicant need no longer demonstrate that it is plain and obvious or beyond doubt that there is no genuineissue of material fact requiring trial. [11] The evidentiary burden at all times rests with the party seeking

summary judgment to establish that there is no genuine issueof merit for trial. Once the applicant establishes that there is no genuine issue requiring trial, then it is left to the responding party, unlessthey choose to risk a dismissal, to adduce sufficient evidence to establish that there remains a genuine issue of merit for trial: Rai v1294477 Alberta Ltd, 2015 ABQB 349 at paras 25-27. [12] Each party is expected to put its “best foot forward” on a

summary judgment application and “a motion must be judged onthe basis of the pleadings, and materials actually before the judge not on suppositions about what might be pleaded or proved in thefuture.” Milavsky v Milavsky, 2011 ABCA 231 at para 16, 513 AR 282. That is, speculating that better evidence might beavailable at trial is not sufficient to establish that there is a genuine issue of merit for trial: Windsor at para 21 [13] The Court may draw a negative inference from the failure of a party faced with an application for

summary judgment toadduce evidence of a genuine issue of merit requiring trial: Lozowy v Trillium Health Centre, 2007 CarswellOnt 2049 (Sup Ct

J) at para25. C. Medical Negligence [14] To succeed in a medical negligence action, the plaintiff has the onus of proving, on a balance of probabilities, that thefollowing four elements are present: (

a) The physician or hospital owed the plaintiff a duty of care (which is not an issue in this case); (

b) The physician or hospital breached the applicable standard of care established by law; (

c) The plaintiff suffered an injury or loss; and (

d) The physician’s or hospital’s failure to comply with the applicable standard of care was the actual and legal cause of the plaintiff’sloss or injury.

[15] This is a sequential test. In applying this test, the court is to determine whether the plaintiff has proved each of the elements inthe order in which it is set out in the test.

If the plaintiff fails to prove one of the elements, in the order in which a Court examines them,then the plaintiff’s action fails, obviating the need for the court to proceed on with a determination on the remaining elements: Tailleur(Next Friend of) v Grande Prairie General and Auxillary Hospital, 1999 ABCA 2 at para 15 leave to appeal refused, (1999) 255 AR 397(SCC); McArdle (Estate of) v Cox, 2003 ABCA 106 at para 25; [16] Thus, once the plaintiff has proved that the physician or hospital owed a duty of care then the Court moves on to considerwhether the physician or hospital breached the applicable standard of care.

If the physician or hospital is found to have breached theapplicable standard of care, the plaintiff must then prove the loss or injury was caused by the physician’s or hospital’s failure to meet theapplicable standard of care: Lauzon v Davey, 2006 ABQB 499 at paras 81-83. [17] The general test for causation is the “but for” test, which requires a plaintiff to prove that the injury or loss would not haveoccurred but for the physician’s or hospital’s negligent act.

Causation is not proved in cases in which the injury or loss would haveoccurred whether the physician was negligent or had met the standard of care: Lauzon at para 81; Sohal v Brar, 1998 ABQB 177 at paras184-187, appln to extend time to appeal dismissed, 1998 ABCA 375; Cottrelle v Gerrard, (ON CA), 2003CarswellOnt 4154 (CA) at paras 33, 35 and 38, leave to appeal dismissed, 2004 CarswellOnt 1622 (SCC). 3. Common Issues to the Appeals A. Medical Expert Opinion Evidence Required [18] Mrs.

Grivicic asserts that the issues involved in this lawsuit are not technical issues for which the Court needs guidance fromexperts but that these issues can be determined by “common sense and fairness” on which the Court is competent to rule. Mrs. Grivicicsubmits that the Court can reject expert evidence on the applicable standard of care and make its own findings as to the appropriatestandard of care in the circumstances. [19] Expert evidence is not required where the trier of fact is in as good a position as the expert to determine what should havebeen done.

However, where the standard of care applicable to a defendant and causation is not obvious, expert evidence is required:Stoddard v Montaque, 2006 ABCA 109 at paras 18-20; Gayton v Rinholm, 2012 ABQB 232 at para 10. [20] Thus, cases involving allegations of medical negligence will require expert evidence to assist the trier of fact in resolvingissues outside ordinary knowledge and experience: Stoddard at para 20. [21] The issues of medical negligence in this case are anything but matters of ordinary common sense. Mr. Grivicic had anadvanced and aggressive form of prostate cancer and a history of heart issues.

Over the years, Mr. Grivicic received treatment for hismulti-system diseases from cardiologists, cardiovascular surgeons, radiation oncologists, medical oncologists, urologists and palliativecare physicians. Each of these separate areas of speciality were brought together to treat Mr. Grivicic’s multiple conditions. Mrs. Grivicicchallenges the appropriateness of the care provided to her husband in the treatment of his cancer and the treatment provided during thefinal stages of his life. The medical standard of care required in the treatment of Mr.

Grivicic is neither obvious nor within the ordinaryknowledge and experience of the trier of fact. [22] Master Prowse correctly ruled that the issues in this case are “medically complex”, which cannot be ruled on by a trier of fact“without the aid of expert testimony”. [23] It is also not self-evident whether the TBCC breached its applicable standard of care and that if it did, whether its actionscaused an earlier death for Mr. Grivicic. The standard of care required in the treatment of Mr. Grivicic for the TBCC involves complexissues. Mrs.

Grivicic has identified the TBCC’s breach of the standard of care as being its failure to provide the care that otherwisewould have been made available to Mr. Grivicic because of budgetary reasons. As with the case with the Defendant physicians, expertevidence is required to identify the TBCC’s fundamental obligations and its applicable standard of care – what treatment programs anddrugs must a hospital such as the TBCC make available to prostate cancer patients like Mr. Grivicic and what, if any, do financialconsiderations play in these administrative and policy decisions.

In considering this issue, it would be expected that the trier of factwould be provided with expert evidence to assist it in determining the applicable standard of care and causation. For example expertevidence would assist the trier of fact in understanding what is the appropriate allocation of financial resources among various treatmentprograms, what clinical trials, if any, should have been made available in Alberta and to Mr. Grivicic; what criteria should be used indetermining who is admitted those trials; was Mr.

Grivicic rightly or wrongly denied admission to available trials; what drugs ortreatment should have been made available to cancer patients in Alberta during the relevant time period; were the treatment and drugsallegedly not provided to Mr.

Grivicic for budgetary reasons or medical reasons or both; what were the differences between the treatmentand drugs provided versus those that allegedly could or should have been provided; is cost an appropriate consideration for a hospital indetermining what facilities, equipment, systems and staff it must provide; and, what authority or role does the hospital have in reviewingor overriding treatment decisions made by physicians with hospital privileges. This is not knowledge that is within the knowledge of thetrier of fact. [24] As was the case before Master Prowse, Mrs.

Grivicic provided “her personal opinions on these complicated medical issues”and that the TBCC did not provide the treatment and drugs her late husband needed because it wanted to save money for the Albertahealth care system. Mrs. Grivicic is a layperson with no formal medical or hospital administration training or qualifications. MasterProwse correctly concluded that Mrs. Grivicic’s “medical opinions are not of any evidentiary value” or of assistance to a court indetermining whether any of the physician Defendants were negligent in their treatment of Mr. Grivicic. Neither are Mrs.

Grivicic’s or herdaughter Ana Grivicic’s opinions and conclusions of any evidentiary value or of assistance to the court in determining whether theTBCC was negligent in the care provided to her husband. The Court is not assisted by Mrs. Grivicic’s

interpretation of medical literature. [25] Mrs. Grivicic asserts that other physicians are unwilling to provide her with opinions because of professional loyalty. Mrs.

Grivicic’s assertion does not accord with the common experience of professional debate between medical experts that regularly takes place in medical malpractice litigation. B. Use of Medical Expert Opinion Evidence without Expertise in the Standard of Care in Alberta [ 26 ] To succeed in her Action, Mrs.

Grivicic must establish, through expert evidence, the appropriate standard of care of a reasonably competent physician practising in the respective speciality in Canada. [ 27 ] The Defendant physicians each submitted expert reports from Canadian physicians in the relevant respective speciality to support their respective position that their conduct met the relevant standard of care. [ 28 ] Mrs. Grivicic submitted affidavits from two American physicians who have no expertise on the standard of care required of physicians in Canada or in the relevant speciality. Mrs.

Grivicic argues that there is no law that there is a different standard of care in the United States from that in Canada. [ 29 ] But there is such a legal principle. A physician’s duty is to carry out their treatment of their patients in accordance with the conduct of a prudent and diligent physician in the same circumstances.

Thus, the standard of care expected of a physician in Canada is to be commensurate with that of other physicians who possess a reasonable level of knowledge, competence and skill expected of physicians in Canada, in the same field: Gayton at para.10. [ 30 ] A person who has no expertise as to the appropriate standard of care in the relevant speciality or in the relevant jurisdiction will have no evidentiary value and be given no weight: Gayton at para 16 . [ 31 ] The learned Master was correct in deciding that “the expert reports provided by Mrs.

Grivicic do not have any evidentiary value insofar as they purport to discuss the standard of care required of the four physician defendants in this case”. 4. The Appeals A. Dismissal of the Action against the Respondents

i) The Parties’ Positions and Evidence [ 32 ] The first appeal is whether the Master erred in summarily dismissing the action against the Respondents. [ 33 ] Mrs. Grivicic appeals on the basis that the Master did not give sufficient weight to the evidence she has adduced in support of her Action. Mrs. Grivicic asserts that her responsive expert evidence raises sufficient evidence to establish a genuine issue of merit requiring trial as to the negligence of the Respondents in their care of Mr. Grivicic. [ 34 ] The Respondents submit that Mrs.

Grivicic has failed to produce any relevant expert evidence indicating negligence on the part of any of the Respondents. In the result, they have each met their burden in establishing that there is no issue of merit that genuinely requires a trial. [ 35 ] Each of the Respondents filed affidavits in support of their

summary dismissal application before Master Prowse and were cross examined on their affidavits by Mrs. Grivicic. [ 36 ] In support of their application before Master Prowse, the Respondents Aynharan Sinnarajah and Lyle Galloway also provided the expert opinions of Dr. Romayne Gallagher, a palliative care specialist from Vancouver, B.C. and Dr. Paul Greenwood, a cardiologist from Edmonton, Alberta. In her affidavit, Dr. Gallagher provided her expert opinion regarding the standard of care expected of a palliative care physician and whether Dr. Sinnarajah and Dr. Galloway met that standard. Dr.

Greenwood did not opine on the standard of care of a palliative care physician but opined on whether the palliative care team managed Mr. Grivicic’s cardiac condition appropriately. [ 37 ] In support of his application before Master Prowse, the Respondent Dr. Siraj M. Husain provided the independent expert opinion of Dr. Charles Catton, a radiation oncologist and professor of radiation oncology from Toronto, Ontario and of Dr. Greenwood. In his affidavit, Dr. Catton provided his expert opinion regarding the standard of care expected of a radiation oncologist and whether Dr. Husain met that standard. Dr.

Greenwood did not opine on the standard of care of a radiation oncologist but opined on whether Dr. Husain’s treatment in relation to Mr. Grivicic’s cardiac status. [ 38 ] Mrs. Grivicic did not cross-examine any of these experts on their affidavits. [ 39 ] Mrs. Grivicic swore three affidavits in opposition to the Respondents’

summary judgment applications. Mrs. Grivicic also provided the affidavit of Dr. Carl Warren Adams, a specialist in cardiovascular, thoracic and trauma surgery and surgical critical care licensed in Colorado and California and the affidavit of Dr. Mark Levin, an internal medicine and medical oncology physician licenced in New York and New Jersey. In his affidavit, Dr. Adams provided his opinion on the standard of care provided by Dr. Sinnarajah, Dr. Galloway and Dr. Husain. In his affidavit, Dr. Levin provided his opinion on the standard of care provided to Mr. Grivicic by Dr. Wilkin and Dr.

Husain. [ 40 ] For this appeal, Mrs. Grivicic also filed a further affidavit sworn by her (the “New Grivicic Affidavit”) and an affidavit sworn by her daughter, Ana Grivicic (“Ana Grivicic’s Affidavit”). The New Grivicic Affidavit contains a letter from a Mr. Sean Lake of Active

Professionals. In his letter, Mr. Lake advises that the specialist reviewing Mr. Grivicic’s medical records was on vacation. Mrs. Grivicic in her brief provided a second letter of April 2015 from Mr. Lake in which he advises that the specialist had returned from vacation but was unwilling to sign the affidavit provided to him. [ 41 ] The result is that Mrs. Grivicic has provided no new expert evidence in support of her appeal. ii) The Sinnarajah and Galloway Action [ 42 ] Dr. Sinnarajah and Dr. Galloway are physician specialists in palliative care. [ 43 ] Dr. Sinnarajah was Mr.

Grivicic’s attending palliative care physician between June 4 and 6, 2007 and June 18 to July 9, 2007 (excluding the weekends he did not work). When Dr. Sinnarajah initially assumed care of Mr. Grivicic, his primary focus was to balance pain control, delirium and fluid levels to keep Mr. Grivicic comfortable while prolonging his life as long as medically appropriate for a terminally ill patient. [ 44 ] Dr. Galloway treated Mr. Grivicic as the on-call palliative care physician over the weekend of July 7 and 8, 2007. Dr. Galloway knew that Mr.

Grivicic was suffering from advanced heart disease and advanced prostate cancer and was terminally ill. On Monday morning July 9, 2007, Dr. Sinnarajah resumed care of Mr. Grivicic. Mr. Grivicic died almost five hours later. [ 45 ] In her Amended Statement of Claim, Mrs. Grivicic alleges that these two Respondents failed to provide her husband with proper palliative care. Her primary allegation is that each of them failed to properly continue the use Lasix to control her husband’s fluid levels, which ultimately caused her husband’s death. Mrs. Grivicic’s allegations against Dr.

Sinnarajah also include that he overprescribed medication to Mr. Grivicic and failed to consult with Mr. Grivicic’s cardiology team. Mrs. Grivicic’s allegations against Dr. Galloway also include that he failed to pay attention to water build-up in Mr. Grivicic’s lungs and he should have drained them; that he improperly diagnosed a mild heart attack instead of a “water attack”; that he failed to treat blood in his left kidney bag; that he failed to increase Mr. Grivicic’s oxygen; and that he allowed Mr. Grivicic to overdose. [ 46 ] As discussed above, Mrs. Grivicic must prove that the treatment provided by Dr.

Sinnarajah and Dr. Galloway fell below the standard of care of a reasonably competent palliative care specialist practising in Canada. [ 47 ] Dr. Sinnarajah and Dr. Galloway provided Dr. Gallagher’s expert opinion in support of their position that they had met the standard of care expected in Canada of palliative care physicians. [ 48 ] As discussed by Master Prowse, Dr. Gallagher’s report discusses in detail each of Mrs. Grivicic’s complaints against the palliative care received by Mr. Grivicic. Dr.

Gallagher opined that there was no need for these physicians to consult a cardiologist about the use of Lasix because the balance between medication and hydration is within a palliative care physician’s expertise. Dr. Gallagher opined that it was within the standard of care to give oxygen by face mask for a patient with chest pain of cardiac origin. Dr. Gallagher opined that Dr. Galloway had appropriately diagnosed, treated and consulted regarding Mr.

Grivicic’s potential heart attack on July 7 and that his steps in not using a defibrillator was appropriate in the circumstances of a patient with two terminal illnesses. Dr. Gallagher found no evidence of drug overdose in Mr. Grivicic. Dr. Gallagher opined that Dr. Galloway’s monitoring of blood in the nephrostomy bag was appropriate and that no therapy would change the course of Mr. Grivicic’s disease. [ 49 ] Dr. Gallagher expressly addressed Mrs. Grivicic’s primary complaint that these two physicians did not properly monitor Mr. Grivicic’s fluid levels and properly use Lasix as a means of controlling fluid.

She stated that: It was appropriate for Lasix to be stopped on June 17 by the physician on-call and then again by Dr. Sinnarajah on June 20, because it was causing more confusion by dehydrating him. Dr. Sinnarajah and Dr. Galloway did not drain any fluid from Mr. Grivicic’s chest because it would not have changed the course of his disease nor made him more comfortable and may have caused more discomfort or complications. Similarly, it would not have been appropriate to re-start Lasix, as this would result in delirium. [ 50 ] Dr.

Gallagher concluded that there was no evidence of negligence in the palliative care provided by Dr. Galloway and Dr. Sinnarajah and that care provided by Dr. Galloway and Dr. Sinnarajah to Mr. Grivicic was competent, respectful and meeting the standard of care of a palliative care physician. Dr. Gallagher opined that she did not “see that Dr. Galloway or Dr. Sinnarajah could have done anything more or different to extend Mr. Grivicic’s life”. [ 51 ] In response to this evidence, Mrs. Grivicic provided the affidavit evidence of Dr. Adams. As Master Prowse correctly concluded, Dr.

Adams’s opinion carries no evidentiary weight. First, as an American cardiologist, Dr. Adams has no expertise in the standard of care expected of a Canadian physician and no expertise in the area of palliative care. Second, as noted by Master Prowse, there are questionable opinions expressed by Dr. Adams. Not only did Dr. Adams apparently not review Dr. Gallagher’s affidavit that “exonerated” these two physicians and provide some response to Dr. Gallagher’s contradictory conclusions, but Dr.

Adams provided two contradictory opinions — one in his first affidavit, the second in his second affidavit — as to the cause of Mr. Grivicic’s death. [ 52 ] Master Prowse reviewed all the evidence provided by the parties to assess whether there was any evidence indicating negligent palliative care by either Dr. Sinnarajah or Dr. Galloway or in any way challenged the evidence of Dr. Gallagher that there was no negligence on the part of either of these physicians. Like Master Prowse, my review of that same evidence leads me to conclude that after all this time, now some eight years, Mrs.

Grivicic has still not provided any evidence to show negligent palliative care on the part of either Dr. Sinnarajah or Dr. Galloway. I can only infer that Mrs. Grivicic cannot find an expert who supports her position. [ 53 ] Mrs. Grivicic has had extensive opportunities to substantiate her claims of negligence against Dr. Sinnarajah and Dr. Galloway. Dr. Sinnarajah and Dr. Galloway have presented a detailed opinion from an expert whose credentials are unquestioned and whose unchallenged evidence was that each of them had met the standard of care expected of them in their palliative care of Mr. Grivicic.

In short, Mrs. Grivicic has provided no relevant expert evidence to support her claim. I find no error in Master Prowse’s finding that the case against them is hopeless and for that reason, granting

summary dismissal of the Action against them.

[54] Mrs. Grivicic’s appeal of this part of the Master’s Decision is dismissed. iii) The Action against Dr. Husain [55] The Respondent Siraj Husain is a physician specialist in radiation oncology. [56] Mr. Grivicic, who had been diagnosed with a very advanced and aggressive prostate cancer, was referred to Dr. Husain fortreatment. Dr. Husain’s initial examination of Mr. Grivicic confirmed at least a clinical stage T3c prostate cancer. A CT report inNovember 2004 confirmed that Mr. Grivicic had stage 4 prostate cancer with dire prognosis. [57] Dr. Husain provided treatment to Mr.

Grivicic from October 2004 until November 2005, ending some 20 months prior to Mr.Grivicic’s death. Dr. Husain treated Mr. Grivicic exclusively with hormone therapy, although he advised Mr. Grivicic that radiationtherapy might be possible if Mr. Grivicic’s PSA level reduced sufficiently with treatment. [58] In her Amended Statement of Claim, Mrs. Grivicic alleges that Dr. Husain did not provide treatment applicable to the standardof care to be expected of a Canadian radiation oncologist and that if he had provided treatment in accordance with that standard of care,then Mr.

Grivicic would have survived longer than July 2007. [59] Mrs. Grivicic asserts that treatments other than hormone therapy should have be provided to her husband and that, if thosetreatments had been undertaken initially or during the course of treatment by Dr. Husain, her husband would have lived longer than hedid. Specifically, Mrs. Grivicic’s asserts that Dr. Husain made two critical errors: (

i) He mistakenly concluded that Mr. Grivicic’s cardiac health was much worse than it actually was, which led Dr. Husain torule out treatments that he believed were unsafe due to Mr. Grivicic’s heart condition; and (ii) He mistakenly concluded that Mr. Grivicic’s cancer had spread beyond the prostate, which led Dr. Husain to rule out morelocalized treatments such as surgery or radiation on the prostate itself. [60] As discussed earlier, Mrs. Grivicic must prove that the treatment provided by Dr. Husain fell below the standard of care of areasonably competent radiation oncologist practising in Canada. [61] Dr.

Husain provided Dr. Catton’s expert opinion in support of his position that he had met the standard of care expected inCanada of a radiation oncologist. [62] As discussed by Master Prowse, Dr. Catton’s report discusses in detail each of Mrs. Grivicic’s complaints against thetreatment carried out by Dr. Husain. Dr. Catton discusses how Dr. Husain properly took into account Mr. Grivicic’s underlying complexmedical condition of an extremely compromised heart and extremely adverse presentation of prostate cancer. Dr.

Catton discussedhormonal treatment for prostate cancer, including testosterone suppression and the use of Eligard. Dr. Catton discussed in detail thetreatment provided by Dr. Husain and the standard of care of a Canadian radiologist in 2004-2005. Dr. Catton also provided his opinionon Mr. Grivicic’s heart disease and its impact on decision making, therapy and outcome. [63] Dr. Catton’s overall conclusion as to Dr. Husain’s treatment of Mr. Grivicic was that: Dr. Husain provided exemplary care that fully met the standard of care for Mr. Grivicic’s presentation and properly took into accountMr.

Grivicic’s underlying medical condition. In my opinion, none of the allegations made by the Plaintiff in her statement of claim are inany way supported by my review of Dr. Husain’s care. [64] In response to this evidence, Mrs. Grivicic provided the affidavit evidence of Dr. Levin and Dr. Adams. Master Prowsecorrectly concluded that all that Mrs. Grivicic’s expert evidence had to do was provide sufficient evidence to prevent Dr. Husain frommeeting the burden on him to establish that there is no genuine issue of merit requiring a trial. [65] Master Prowse reviewed in detail the reports provided by Dr. Levin and Dr.

Adams. He found that their reports were “shortand superficial”. Master Prowse found that neither of these physicians’ opinions were of any evidentiary value because:

(1) Neither Dr. Levin nor Dr. Adams were radiation oncologists with the expertise to comment on the standard of care of a radiationoncologist and do not have any relevant Canadian experience. They therefore cannot comment, nor do they purport to comment on thestandard of care required of a radiation oncologist in Canada in 2004/2005; and

(2) Both reports are so lacking in quality and substance that their opinions amount to a bare assertion, which case law has determined isnot sufficient in itself to create a triable issue in the absence of detailed facts and supporting evidence: Guarantee Co. of North America vGordon Capital Corp., (SCC), [1999] 3 SCR 423, 1999 CarswellOnt 3172. [66] A review of the respective credentials of Dr. Levin and Dr. Adams support the conclusion reached by Master Prowse. Dr.Levin is an American licensed internist and medical oncologist and Dr. Adams is an American licensed cardiovascular surgeon.

Neitherphysician has any experience as a Canadian radiation oncologist nor any expertise in the area they have expressed comment and offeredopinions. [67] A review of the opinions provided by Dr. Levin and Dr. Adams reveal that not only are they “short and superficial” but theycontain questionable opinions. [68] Dr. Levin in his report formed the opinion that Mr. Grivicic’s degree of cardiac dysfunction did not contraindicate prostateradiation or orchiectomy but expressly noted that his opinion was, surprisingly, based on a non-existent cardiology opinion. Dr. Levin didnot respond to Dr.

Catton’s opinions expressed in his report or discuss the same topics.

[ 69 ] Dr. Adams provides two conclusions. His first conclusion is that, as a cardiologist, chemotherapy and /or radiation therapy was “reasonable” notwithstanding Mr. Grivicic’s heart condition. His second conclusion relies on Dr. Levin’s opinion noted above. Like Dr. Levin, Dr. Adams did not respond to Dr. Catton’s opinions expressed in his report or discuss the same topics. [ 70 ] Master Prowse reviewed all the evidence provided by the parties to assess whether there was any evidence indicating negligent radiation oncology treatment by Dr. Husain or in any way challenged the evidence of Dr.

Catton that there was no negligence on the part of Dr. Husain. Like Master Prowse, my review of that same evidence leads me to conclude that after all this time, now some eight years, Mrs. Grivicic has still not provided any relevant opposing evidence to show negligence on the part of Dr. Husain. Once again, I can only infer that Mrs. Grivicic cannot find an expert who supports her claim. [ 71 ] Mrs. Grivicic has had extensive opportunities to substantiate her claims of negligence against Dr. Husain. Dr.

Husain presented a detailed opinion from an expert whose credentials are unquestioned and whose unchallenged evidence was that Dr. Husain had provided exemplary care to Mr. Grivicic. There is no evidence to suggest that there is any genuine issue of merit for trial. I find no error in Master Prowse granting

summary dismissal of the Action against Dr. Husain. [ 72 ] Mrs. Grivicic’s appeal of this part of the Master’s Decision is dismissed. iv) Result [ 73 ] Mrs. Grivicic’s appeal of the Master’s Decision in which he summarily dismissed her Action against each of the Respondents is dismissed. B. Dr. Wilkin’ Appeal

i) The Parties’ Positions and Evidence [ 74 ] The second appeal is whether the Master erred in not dismissing the Action in its entirety against Dr. Wilkin. [ 75 ] Dr. Wilkin asserts that Master Prowse erred in applying the incorrect test for

summary judgment and finding that there were two triable issues raised in the evidence presented by the parties. The first triable issue is whether Dr. Wilkin was responsible for arranging to meet and discuss the changing of ureteral stents with Mr. Grivicic and if so, did he breach the applicable standard of care. The second triable issue is whether the failure to change the stents resulted in an earlier death for Mr. Grivicic, establishing the required causation element necessary to succeed in a medical negligence claim. [ 76 ] In support of his application before Master Prowse, Dr.

Wilkin provided his own affidavit and the expert opinion of Dr. Laurence Klotz, an uro-oncologist with an interest in prostate cancer from Toronto, Ontario. In his affidavit, Dr. Klotz provided his expert opinion regarding the standard of care expected of a careful and prudent urologist and whether Dr. Wilkin met that standard. [ 77 ] Dr. Wilkin submits that he had presented sufficient unchallenged evidence from his expert Dr. Klotz that Dr. Wilkin had met the standard of care expected of a careful and prudent urologist in Canada. Dr. Wilkin asserts that Mrs.

Grivicic failed to provide any independent expert opinion evidence from a Canadian urologist to contradict Dr. Klotz’s evidence that Dr. Wilkin’s treatment of Mr. Grivicic had met the applicable standard of care. Dr. Wilkin asserts that Master Prowse erred in finding Dr. Levin’s report inadmissible on the standard of care but admissible on the issue of causation. [ 78 ] Mrs. Grivicic asserts that Master Prowse was correct in not dismissing this part of the Action against Dr. Wilkin. She did not appeal his dismissal of the other allegations against Dr. Wilkin. Mrs.

Grivicic relies on her affidavit filed in opposition to Dr. Wilkin’s application before Master Prowse, the New Grivicic Affidavit, the Ana Grivicic Affidavit and the affidavits filed by Dr. Levin and Dr. Adams. ii) Dr. Wilkin’s Treatment [ 79 ] Dr. Wilkin is a physician specializing in urology. [ 80 ] Dr. Wilkin treated Mr. Grivicic between July 20, 2004 and March 29, 2007 on a referral arising from an elevated PSA and a suspicious prostate on palpation. After examination, Dr. Wilkin concluded that Mr. Grivicic had prostate cancer. A biopsy was performed on August 11, 2004. [ 81 ] Dr.

Wilkin met with the Grivicic’s on September 14, 2004 to discuss the results of the biopsy. Mr. Grivicic was advised that he had a very extensive grade 5 tumor throughout the entire prostate. The treatment options discussed were hormone therapy or a combination of hormonal management plus radiotherapy. Dr. Wilkin had recommended against surgery given the presence of an extensive tumor in the prostate. Following this meeting, Dr. Wilkin arranged for the Grivicics to consult with a radiation oncologist. Dr. Wilkin explained to the Grivicics that the radiation oncologist would make the decision whether to treat Mr.

Grivicic with hormone therapy or hormonal management plus radiotherapy. [ 82 ] More than one year later, on or about November 23, 2005, an outpatient bilateral ureteral stent insertion procedure was performed on Mr. Grivicic by Dr. Dushinski. The next day Dr. Wilkin saw Mr. Grivicic at the Rockyview General Hospital emergency room because of complications with the stents. [ 83 ] Dr. Wilkin had a discussion with the Grivicics before Mr. Grivicic’s discharge from hospital on December 2, 2005. Dr. Wilkin has no specific recollection about what was discussed at the time of discharge.

His standard practise is to change stents on a regular time interval depending on the patient’s condition. Mrs. Grivicic says that Dr. Wilkin did not advise her and her husband that the kidney stents needed to be changed regularly.

[ 84 ] As indicated by Master Prowse, there may have been a miscommunication. Dr. Wilkin may have indicated to the Grivicics that the stents were permanent, meaning that Mr. Grivicic would always need kidney stents, while the Grivicics may have understood the statement about the stents being permanent to mean that the stents already inserted would remain, with no need to change them at any time. [ 85 ] Dr. Wilkin continued to see the Grivicics from time to time to discuss various treatment options for Mr. Grivicic. [ 86 ] Dr. Wilkin last saw Mr. Grivicic accompanied by Mrs.

Grivicic on March 29, 2007 for an office discussion regarding chemical castration with Eligard versus by an orchiectomy. Dr. Wilkin does not recall discussing stents at this meeting. iii) Requisite Standard of Care [ 87 ] In the Action, Mrs. Grivicic alleges that Dr. Wilkin either failed to change the kidney stents or to advise the Grivicic’s that the stents needed to be changed regularly and that this contributed to Mr. Grivicic’s death. [ 88 ] Dr. Wilkin’s expert Dr. Klotz addressed the issue of the kidney stents, and specifically the failure to change the stents. Dr.

Klotz explained that ureteral stents are typically changed approximately every three to six months but that it is acceptable to leave a patient’s stents in longer if they are continuing to function. Dr. Klotz states that for patients with a very limited life expectance, it may be reasonable to leave the stents in place for the duration of the patient’s life. Dr. Klotz also noted that an existing, functioning stent may be left in longer than six months to avoid an unnecessary and potentially traumatic procedure that may be a more invasive procedure requiring an external drainage bag. Dr.

Klotz noted that this decision must be made balancing the risk of the stent becoming difficult to remove due to calcification. [ 89 ] Dr. Klotz then set out the standard of care regarding the decision to change stents: This decision (as to whether to change the stent or leave it in place) would normally be taken in conjunction with the patient. The urologist managing this patient’s stents should have arranged for him to return between 3 and 6 months after the stent was inserted to discuss changing it. ... It isn’t clear from the record why Dr. Dushinski, rather than Dr.

Wilkin, was the urologist who inserted the stents. Followup instructions for stent replacement should have been provided to the patient. Follow up with whichever urologist was primarily responsible for the patient would normally have been arranged for 3-6 months after the stents were inserted for reassessment and possible stent change. ..... Thus, I consider the failure to arrange for stent change to be an error .... [ 90 ] It appears that it was Dr.

Klotz’s opinion that in the circumstances in which stents are inserted in a patient’s kidney, the applicable standard of care requires the urologist managing the patient’s stents, at a minimum, toarrange for a follow up meeting with the patient for reassessment and to discuss possible stent change. [ 91 ] Contrary to Dr. Wilkin’s assertion, Dr. Klotz did not opine that Dr. Wilkin had met this standard of care. Dr. Klotz, while setting out the requisite standard of care, made no determination as to whether it was Dr. Wilkin or Dr.

Dushinski who was responsible for carrying out this obligation to meet with the Grivicics for reassessment and discuss changing the stents. Dr. Klotz left this question unanswered. [ 92 ] Dr. Klotz’s opinion is that while there is a duty of care to meet with a patient to reassess and discuss stent replacement and that it was an error not to do so, because this failure did not have any significant consequences for the patient, it was not negligent conduct. Dr.

Klotz’s conclusion is influenced by the benefit of hindsight — what ultimately happened with not changing the stents — and not by whether the care at the time met the standard of care. [ 93 ] Dr. Klotz’s opinion that as long as the stents were functioning normally and the patient’s renal function remained stable, it did not fall below the standard of care to leave Mr.

Grivicic’s stents in place in light of his limited life expectancy and avoided a painful and possibly unsuccessful procedure again, incorporates hindsight and does not assess what was the requisite standard of care that existed at the relevant time. [ 94 ] What Dr. Klotz is addressing in both these statements is causation not standard of care. He is opining that because it turned out that, in his opinion, the failure to change the stents did not cause Mr. Grivicic’s demise, then there was no negligent conduct.

This does not mean that there was a failure to meet the applicable standard of care at the time of treatment. The physicians’ actions are to be judged, not in the light of hindsight but at the time of the relevant diagnosis and treatment. [ 95 ] I agree with Master Prowse that the evidence suggests that is it is arguable as to whether it was Dr. Wilkin who should have met with the Grivicics to discuss stent replacement either at three to six months after the stents were inserted or at one of their subsequent meetings. This is a triable issue as described by Master Prowse and, as the modern test for

summary judgment describes it, a genuine issue of a material fact requiring trial. If it was Dr. Wilkin who was responsible for meeting with Mr. Grivicic to reassess and discuss stent replacement and he did not, then he did not meet the requisite standard of care described by Dr. Klotz. Dr. Wilkin has not provided sufficient evidence for a Court to conclude that he did not breach his duty of care in his treatment and care of Mr. Grivicic’s stents. [ 96 ] Master Prowse was correct that because Dr.

Wilkin’s own expert acknowledged that, at a minimum, a meeting should have been arranged to reassess and discuss the changing of the stents with the Grivicic’s, there is a genuine issue of a material fact as to

whether this responsibility was that of Dr. Wilkin’s and if so, did he fail to meet this standard of care. There is no need in such circumstances for Mrs. Grivicic to provide her own independent expert opinion as to the requisite standard of care because this is sufficient evidence to prevent Dr. Wilkin from establishing that there is no genuine issue of merit for a trial. [ 97 ] This then leads to a consideration of the next element that must be established. Did the failure to change the stents result in an earlier death for Mr. Grivicic? iv) Causation [ 98 ] Master Prowse correctly determined that while Dr.

Levin cannot provide expert opinion as to the requisite standard of care he can opine on the issue of causation. Thus, there are two expert opinions before the court on the issue of causation. [ 99 ] In support of Mrs. Grivicic’s claim, Dr. Levin opined that “it is also my opinion that the failure to change the stents led to kidney dysfunction and directly caused increased pain and kidney failure which directly contributed to increasing heart failure and caused Mr. Grivicic’s demise”. [ 100 ] In support of Dr. Wilkin’s position, Dr.

Klotz provided the contrary opinion: The critical point is that the stents functioned effectively for the remainder of the patient’s life. The patient’s renal function remained stable at the level of 150-170. Although he developed right hydro nephrosis ["water inside the kidney" — refers to distension and dilation of the renal pelvis and calyces, usually caused by obstruction of the free flow of urine from the kidney] about 18 months later, his left kidney and stent remained unobstructed. The failure to change the stents in a more timely fashion did not contribute in any way to the patient’s illness or demise.

In fact, arguably, he benefited by not undergoing several additional potentially traumatic procedures to change the stents every 3-6 months. Had this occurred, it would not have altered the outcome significantly [ 101 ] This is conflicting evidence offered by two experts, one for the Plaintiff, one for the Defendant Dr. Wilkin. [ 102 ] Dr. Wilkin asserts that Dr. Levin’s opinion is so lacking in quality and substance and amounts to a bare assertion that it should not be admissible or have any evidentiary value on the issue of causation. [ 103 ] This is an application for

summary dismissal and the onus rests with Dr. Wilkin to establish that there is no genuine issue of a material fact for trial. While is clear that Dr. Levin does not have the expertise to opine on the applicable standard of care, he may, as an internist and medical oncologist, be qualified as an expert at trial to give opinion evidence on the issue of causation. It is also possible that notwithstanding the frailties of his current opinion, a trial judge hearing Dr. Levin’s evidence may find it persuasive and prefer it over that offered by Dr. Klotz, who has provided a contrary opinion.

These are matters more properly left to be decided by the trial judge. [ 104 ] In my view, Dr. Wilkin has not satisfied the burden on him to demonstrate that the evidence establishes that on the issue of causation there is no genuine issue of merit requiring a trial.

v) Conclusion [ 105 ] Like Master Prowse, I find that there is sufficient evidence to indicate that there is a genuine issue as to whether it was Dr. Wilkin who was responsible for arranging to meet and discuss the changing of stents with the Grivicics and, if so, whether he met the applicable standard of care. I also find that given the conflicting evidence as to causation, the question of whether the failure to change the stents resulted in an earlier death for Mr.

Grivicic is also a genuine issue of merit requiring trial. [ 106 ] In all these circumstances this is not a case in which this court is able to reach a fair and just determination on the merits. Dr. Wilkin has not established that Mrs. Grivicic will be unable to establish all the elements required to prove that Dr. Wilkin was negligent in his treatment of Mr. Grivicic. [ 107 ] I see no error made by Master Prowse in his decision not to grant

summary dismissal of the allegations against Dr. Wilkin regarding the stents. [ 108 ] Dr. Wilkin’s appeal is dismissed. C. The TBCC Appeal

i) The Appeal [ 109 ] In this final appeal, the TBCC appeals the part of the Master’s Decision in which the Master denied its application for

summary dismissal of Mrs. Grivicic’s claim that the TBCC did not provide the care that would otherwise have been available to Mr. Grivicic for budgetary reasons. The Master found that the TBCC had not put forward any evidence supporting its position that there was no merit to Mrs. Grivicic allegation against it. [ 110 ] The parties accepted the Master’s decision during the hearing of the

summary judgment application that the TBCC was not vicariously liable for the negligence of any physicians. There has been no challenge by either of the parties to this finding of the Master. This is no longer an issue in the Action. ii) New Evidence

[ 111 ] The TBCC provided new evidence, the affidavit of Dr. Peter Craighead, in support of its appeal. As discussed earlier, new evidence may be considered on the hearing of an appeal of a Master’s decision if it is relevant and material. The TBCC’s new evidence helps to support its claim that there is no merit to Mrs. Grivicic’s claim against it. As such, this new evidence meets the relatively low threshold of being relevant and material. [ 112 ] Mrs. Grivicic relies on her affidavit filed in opposition to the TBCC’s application before Master Prowse and the affidavits filed by Dr. Levin and Dr. Adams. Mrs.

Grivicic also filed new evidence discussed earlier. The New Grivicic Affidavit included a copy of the AHS’s “Clinical Practice Guideline Version 5 ‘Prostate Cancer Effective Date: October, 2014’”; and extracts from AHS “Medical Staff Rules Approved and Effective 28 February 2011”. However, this information is neither relevant nor material because it does not address the reason for physician choice of treatment for Mr. Grivicic and, more significantly, these policies came into effect many years after the treatment provided to Mr. Grivicic.

In the result, this information was not considered on this appeal. [ 113 ] Because of the new evidence, this appeal is based on different facts than were before Master Prowse. iii) The Claim Against the TBCC [ 114 ] The claim advanced is that the TBCC was negligent because Mr. Grivicic’s care and treatment was negatively impacted by budgetary considerations imposed by the TBCC and because of this, he did not receive the treatment he should have received. [ 115 ] In her argument before Master Prowse and on appeal, Mrs.

Grivicic particularized her complaints against the TBCC as including: • “The hospital was negligent in refusing treatment and delaying (chemotherapy seven months) for Mike Grivicic and failing to ensure he had the proper care.” • Mrs. Grivicic has provided evidence at how she had to plead with physicians and the TBCC Director for Casodex, Flutamide and chemotherapy. • Trial treatments were promised but later denied. • “The Plaintiff also has witnessed with her late husband, Mike Grivicic all of the negativities surrounding his treatment and care just to save money for the Health Care System.

The physicians at the Hospital guaranteed the patient Mike Grivicic treatments and later made false statements not to proceed”. • The decision to stop Mr. Grivicic’s chemotherapy at dose eight even though he was to have 10 treatments of chemotherapy, was “negligent and against the rules of the Alberta Health Care Act and lied not to do chemotherapy numbers 9 and 10 and to save money on the patient’s life”. • In January 2007, Dr. Craighead [director of TBCC] had told the Plaintiff that her “husband had already received $15,000 of treatment”; “... Dr.

Craighead believed that $15,000 to treat a patient Mike Grivicic was sufficient” • “The Plaintiff and Mike Grivicic witnessed the physicians’ intimidation from the authorities of the Hospital when they have requested for treatments and medications. Dr. Wu refused to give Casodex 150 mg which would have helped the patient. He put his arms in the air and said ‘I do not know what will Alberta Health Care would say’. Because of Dr. Wu’s comment the patient and his wife had to seek another oncologist. Dr.

Angayfi, the physician in the palliative care unit, Mike Grivicic begged for his life for the physician to LET him live one more year. Dr. Angayfi replied “if I do then I would be fired or sued.” Mrs. Grivicic asked Dr. Angayfi “does a doctor get a bonus when saving money for the health care system?” • “The Plaintiff had to go to extreme lengths and persistence for treatment and care for her late husband Mike Grivicic. All because of costs for the Hospital to care and treat Mike Grivicic.” • Mr. Grivicic should have been transferred to another facility that had the treatment and drugs that Mrs.

Grivicic had asked be given to her husband. Mrs. Grivicic asked her husband be given Herceptin, Zometa, Strontium and Lupron but they were refused and lied to when they were told these drugs were not in Calgary as they were available in Calgary. An orchiectomy was to be performed on Mr. Grivicic but the physician later decided not to perform the surgery. • A physician referred to the Grivicic’s only having Blue Cross coverage and then refused to give Mr. Grivicic the drug Strontium. • In March 2007 immunotherapy and bisphosphonates were discussed as possible treatments but were not given to Mr.

Grivicic. iv) Evidence as to Standard of Care and Causation [ 116 ] The standard of care for a hospital is to take reasonable care in providing adequate facilities, equipment, and systems for the operation of its various departments. [ 117 ] The TBCC relies on the evidence of Dr. Craighead who responded to many of Mrs. Grivicic’s complaints regarding budgetary constraints that might affect treatment of patients in Alberta. Dr. Craighead was a practising radiation oncologist at the TBCC from 2004 to 2007.

From 2003 to 2004 he was the acting director of the TBCC and the acting vice president of the Alberta Cancer Board. In 2007 he was appointed Vice President of the Alberta Cancer Board, responsible for Southern Alberta and the Tom Baker Cancer Centre. [ 118 ] Dr. Craighead provided information about the relationship between the TBCC and physicians who use its facilities and services. He discussed the independence of physicians in Alberta to make decisions regarding appropriate care and that physicians with

hospital privileges are able to offer any drug or treatment available in Alberta, can offer patients more than one form of treatment when appropriate and if treatment is not available at a particular facility, to transfer the patient for treatment to another facility anywhere in Alberta where the care can be provided. Dr. Craighead stated that AHS does not interfere with physicians’ decisions regarding the appropriate care for a patient, unless there is evidence of unsafe practices. Dr.

Craighead stated that AHS does not provide physicians with any financial incentives for providing or withholding any drugs or treatment or for referring or refusing to refer patients to other care providers. [ 119 ] Dr. Craighead asserted that from his knowledge and review of Mr. Grivicic medical records there is no indication that budgetary or other financial considerations influenced the clinical decision making of any of the physicians involved in Mr. Grivicic’s treatment to deny Mr. Grivicic appropriate care and treatment. Dr. Craighead’s overall conclusion was that there was no merit to Mrs.

Grivicic’s claim against the TBCC and that: ... the level of care provided to Mr. Grivicic at a minimum met, and more likely exceeded, the level of care provided to other patients facing a similar diagnosis between the years 2004 and 2007 in Alberta. Most patients would only see one medical and one radiation oncologist throughout the course of their treatment. The doctors and administration at TBCC made every effort to ensure Mr.

Grivicic received second and third opinions at several stages in his treatments so that he and his family would feel comfortable with his treatment team and the level of his care. [ 120 ] Mrs. Grivicic did not cross examine Dr. Craighead or otherwise challenge his evidence. [ 121 ] The evidence of the Defendant physicians and the expert reports filed on their behalf are supportive of Dr. Craighead’s assertion. There is nothing in the Defendant physicians’ evidence that suggests in any way that their decisions were influenced by AHS budgetary or other financial considerations.

Each Defendant physician gave evidence that the decisions they each made regarding Mr. Grivicic’s treatment and care were based on sound medical rationales. [ 122 ] The TBCC has provided evidence that establishes that Mr. Grivicic was not denied care or treatment based on budgetary considerations and that Mr.

Grivicic, who saw multiple specialists in several disciplines, was offered second and third opinions and prescribed drugs requested by the Grivicics, and was provided with a level of treatment that met or exceeded that provided to other prostate cancer patients being treated at the time at the TBCC. [ 123 ] While Mrs. Grivicic does not have the burden of proving that the TBCC was negligent on this

summary dismissal application, she must provide sufficient evidence to demonstrate that there is no genuine issue of merit requiring trial as shown by the TBCC. [ 124 ] Mrs. Grivicic has provided no evidence in support of her allegations against the TBCC. Many of her allegations concern the choice of treatment and drugs made by the treating physicians. However, as correctly decided by Master Prowse, the TBCC is not vicariously liable for any failure on the part of independent physicians to appropriately treat patients. Mrs.

Grivicic’s conclusions that the physicians denied her husband certain treatment and drugs for budgetary reasons are bare assertions that are not substantiated by any evidence. For example, Mrs. Grivicic attaches medical reports without an affidavit from any of the medical professional who created the report. None of these medical reports, which are hearsay evidence, mention budgetary considerations. Mrs. Grivicic also relies on materials sourced from the Internet and other like sources to reach some of her conclusions.

This material provides general information regarding the treatment of prostate cancer and certain drugs. Such evidence does not assist the court in determining whether the TBCC was negligent in the care provided to Mr. Grivicic at its facilities. This evidence is also of no evidentiary value with no corresponding expert evidence as to what to make of such evidence. No evidence was provided from any physician who treated Mr. Grivicic that support her allegation that they did not provide Mr. Grivicic with the treatment he should have received because of TBCC budgetary reasons. [ 125 ] Mrs.

Grivicic also provided no expert evidence as to what is the applicable standard of care for the TBCC, whether the TBCC breached its standard of care or whether the TBCC caused or hastened her late husband’s death. Neither of her experts, Dr. Levin or Dr. Adams, address these issues nor discuss any concerns they saw with the TBCC’s involvement with Mr. Grivicic’s care and treatment.

v) Summary Dismissal Granted [ 126 ] Mrs. Grivicic has been unable to refute or counter the TBCC’s evidence that Mr. Grivicic received appropriate care and that Mr. Grivicic was not deprived of treatment he should have received because of budgetary considerations. Further, given the complex issues involved in this case, a Court cannot determine whether the TBCC has met the requisite standard of care without the aid of expert evidence comparing the conduct of the TBCC in these circumstances to that of a reasonable hospital in similar circumstances and whether the TBCC actions caused or hastened Mr.

Grivicic’s death. A Court would need such information to decide whether the TBCC acted in accordance with the standard approved practice for a hospital in similar circumstances and if it did not, whether causation can be proved. [ 127 ] The Court may draw an inference that Mrs. Grivicic was unable to obtain an expert report to support her position where she has failed to provide such evidence. I draw such an inference. After more than eight years since this lawsuit began, Mrs.

Grivicic has failed to provide expert evidence to prove two critical elements of her claim of negligence against the TBCC, namely breach of the TBCC’s standard of care and causation. This is her best foot forward for purposes of this

summary dismissal application. [ 128 ] The TBCC has met its onus of establishing that Mrs. Grivicic has no evidence, expert or otherwise, to establish that there has been any negligence on the part of the TBCC. The TBCC has demonstrated that the likelihood that Mrs. Grivicic’s Action against it will succeed is highly unlikely as it has shown that there are no genuine issues of fact to be resolved by trial.

In my view the evidence put forth by the TBCC is sufficient enough to convince me that I am able to reach a fair and just determination on the merits of the Action against the TBCC in the context of this application. The TBCC’s application is granted and Mrs. Grivicic’s claim against the TBCC is summarily dismissed.

Summary of Decisions [ 129 ] While I have great sympathy for Mrs. Grivicic’s loss, there is just no evidence before me on which a negligence claim against the Respondents or the TBCC can be made out at trial. [ 130 ] The Master’s Decision summarily dismissing the Action against Drs. Sinnarajah, Galloway and Husain is upheld and Mrs. Grivicic’s appeal is dismissed. [ 131 ] The Master’s Decision not to summarily dismiss Mrs. Grivicic’s claim against Dr. Wilkin with respect to the kidney stents is upheld and Dr. Wilkin’s appeal is dismissed. [ 132 ] Mrs.

Grivicic’s Action against the TBCC is summarily dismissed against the TBCC and the TBCC’s appeal is granted. [ 133 ] If necessary, costs may be spoken to by contacting the Court to arrange a date within 45 days of this decision. Heard on the 1 st , 2 nd and 5 th of June 2015 Dated at the City of Calgary, Alberta this 21 st day of December, 2015. G.A. Campbell J.C.Q.B.A. Appearances: Stephanie Grivicic Self-represented Plaintiff/Appellant Roxanne M. Davis, Stones Carbert Waite LLP for the Defendant/Respondent Alberta Health Services operating as Tom Baker Cancer Centre Karen J. Pirie For Defendants/Respondents Dr.

Galloway, Dr. Sinnarajah, Dr. Husain and Dr. Wilkin Corrigendum of the Reasons for Judgment of The Honourable Madam Justice G.A. Campbell ____________________________________________________________________________

Page: 20; Appearances: Delete: /Sheena L. Owens