Balan v Warshawski, 2016 ABQB 488

Court of Queen’s Bench of Alberta Citation: Balan v Warshawski, 2016 ABQB 488 Date: 20160902 Docket: 0803 01220 Registry: Edmonton Between: Vasile Balan and Her Majesty the Queen in Right of Alberta Plaintiffs - and - Robert Warshawski, James McMillan, Sandy Dong, Eddie Chang, Kunal Banerji, John Doe, Medical Imaging Consultants, and Capital Health operating a hospital known as the Royal Alexandra Hospital Defendants _______________________________________________________ Reasons for Judgment of R.P.

Wacowich , a Master of the Court of Queen’s Bench of Alberta _______________________________________________________ Introduction [ 1 ] The Applicants/Defendants, Dr. James McMillan, Dr. Robert Warshawski, Dr. Sandy Dong, Dr. Eddie Chang, and Dr. Kunal Banerji (collectively, the “Defendant Physicians”) and Medical Imaging Consultants (the “Defendant MIC”) seek an Order for

summary dismissal of the Plaintiff’s claim against them on the basis that there is no merit to the Plaintiff’s claim. [ 2 ] There is also an application by the Defendant, Capital Health operating a hospital known as the Royal Alexandra Hospital (properly named “Alberta Health Services owning and operating the Royal Alexandra Hospital”), (the “Defendant Hospital”). The Defendant Hospital also applies for

summary dismissal of the Plaintiff’s claim against it on the basis that there is no merit to the Plaintiff’s claim. [ 3 ] The undisputed expert evidence before the Court establishes that all Defendants met the standard of care required of them. The Defendants’ experts provided affidavits setting out the facts upon which they relied to opine that the Defendants met the standard of care required of them. [ 4 ] Mr. Balan’s only purported expert information is a copy of a draft unsigned letter on letterhead of a radiologist and an email exchange with his former counsel. Facts

[ 5 ] The Plaintiff sustained multiple injuries, including a fractured left ankle, in a motor vehicle crash in Romania in 1999. [ 6 ] On January 27, 2006, he attended at a diagnostic radiology clinic, MIC, where the Defendant Dr. Warshawski injected his left ankle with corticosteroid and local anaesthetic for the management of osteoarthritis. [ 7 ] On February 14, 2006 at 1854h, the Plaintiff presented to the Emergency Department at the Defendant Hospital complaining of moderate pain in his left ankle. [ 8 ] At 2130h, he was assessed by emergency physician Dr. Sandy Dong. Dr.

Dong took a history, performed an examination, and ordered an X-ray of the left ankle. The Plaintiff was given ibuprofen and Tylenol. The X-ray showed findings consistent with a past (“remote”) fracture, and early osteoarthritis. Dr. Dong diagnosed osteoarthritis of the ankle, ordered a brace strap and air cast, and discharged the Plaintiff. [ 9 ] On February 16, 2006 at 0125h, the Plaintiff returned to the Emergency Department complaining of worsening pain in his left ankle, and that he was now unable to ambulate.

His vital signs were taken at 0230h, at which time his temperature was 37.5°C. [ 10 ] At 0235h, he was assessed by emergency physician Dr. Eddie Chang. Dr. Chang took a history, in which he noted the past history of a fracture to the ankle and a three-day history of pain and swelling, now worsening. Dr. Chang also reviewed the Plaintiff’s Netcare file (the electronic health record) of his prior attendance at the Defendant Hospital. [ 11 ] Dr. Chang ordered some blood tests: CBC (complete blood count) and “sed rate” (erythrocyte sedimentation rate, or ESR), which were drawn at 0235h.

That specimen was received in the laboratory at 0240h. Results of this testing included a white blood cell count (WBC) of 14.0 x 10 9 cells/L, which was elevated, and an ESR of 10 mm/hr, which is normal. Dr. Chang also ordered some Percocet for pain relief, and requested an orthopedic consultation. [ 12 ] The consultation was conducted by Dr. Kunal Banerji. Dr. Banerji took a history and examined the Plaintiff. His consultation report indicates that he was aware of the Plaintiff’s recent Emergency visit, as well as the January 27 steroid injection. It shows that he noted the results from the blood work. Dr.

Banerji ordered morphine and Gravol. [ 13 ] Dr. Banerji performed an ankle aspiration under sterile technique and obtained approximately 5 cc of sanguinous fluid. The fluid was submitted to the laboratory for cell count, crystal analysis, Gram stain and culture & susceptibility testing. [ 14 ] Laboratory analysis of the ankle aspirate fluid showed a white blood cell count of 3,222 x 10 6 cells/L. Crystal examination was positive for calcium pyrophosphate crystals. The Gram stain result showed 2+ WBC, 4+ RBC and no bacteria seen. This result was phoned to the Emergency department at 0745h.

The bacterial culture result was ultimately “no growth in 72 hours”. [ 15 ] Dr. Banerji concluded that the Plaintiff did not, at that time, have septic arthritis or gout. He suggested that the Plaintiff follow up with his own orthopedic surgeon, Dr. McMillan, for a possible fusion. [ 16 ] Following the consultation, Dr. Chang discharged the Plaintiff with Percocet for pain control, crutches, instructions to weight bear as toleration, and direction to follow up with Dr. McMillan. [ 17 ] On February 17, 2006, the Plaintiff attended upon Dr. McMillan at the cast clinic at the Misericordia Community Hospital. Dr.

McMillan performed a second ankle aspiration. This time, the aspirate culture was positive for Staphylococcus aureus . The Plaintiff was therefore admitted to the Misericordia Hospital for treatment of the infection. Issue [ 18 ] Should this action be summarily dismissed pursuant to rule 7.3(1) of the Alberta Rules of Court on the basis that the Plaintiff’s claim does not raise an issue of merit that genuinely requires a trial?

Law [ 19 ] The Court’s authority to summarily dismiss a claim is found in rule 7.3 of the Alberta Rules of Court . [ 20 ] Rule 7.3(1) of the Alberta Rules of Court , Alta Reg 124/2010 states as follows: 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. [ 21 ] The test to grant a

summary judgment application was clarified by the Supreme Court of Canada in the often cited Hryniak v Mauldin , 2014 SCC 7 . There have been numerous subsequent cases of our Court of Appeal and other Courts of Appeal on this issue. [ 22 ] Guidance on the approach to be taken on a

summary judgment application is set out by our Court of Appeal in the case of 776826 Alberta v Ostrowercha , 2015 ABCA 49 :

[9] From the process perspective,

summary judgment can be given if a disposition that is fair and just to both parties can be made on theexisting record by using that alternative method for adjudication: Hryniak v Mauldin, 2014 SCC 7, [2014] 1 SCR 87. [11] Stated another way, in order for the non-moving party’s case to have merit, there must be a genuine issue of a potentially decisivematerial fact in the case which cannot be summarily found against the non-moving party on the record revealed by the “fair and justprocess”. The mere assertion of a position by the non-moving party that something will turn up at trial, does not suffice.

The key iswhether the circumstances require viva voce evidence in order to properly resolve the case: see Canada v Lameman, 2008 SCC 14 atparas 10 to 11, [2008] 1SCR 372. [23] The Plaintiff must satisfy the following criteria in order for a medical professional to be found liable in Alberta: (

a) the Defendant must have owed the Plaintiff a duty of care; (

b) the Defendant must have breached the standard of care established by law; (

c) the Plaintiff must have suffered an injury or loss; (

d) the Plaintiff must have established that the harm or damage was caused by a failure to meet the standard of care; and (

e) a finding of liability requires that all criteria be met. Grivicic v Alberta Health Services (Tom Baker Cancer Clinic), 2015 ABQB 811; Tailleur v Sendziak, 1999 ABCA 2; Ellen I Picard & Gerald B. Robertson, Legal Liability of Doctors and Hospitals in Canada, 4th ed (Toronto: Carswell, 2007) at 212. [24] In matters involving special skill or knowledge, expert opinion evidence is necessary to educate the Court and allow it to drawinferences from the facts in evidence. Expert evidence in medical negligence matters is required where standard of care and causation arenot ordinary matters of common sense.

Grivicic, supra, Ter Neuzen v Korn, (SCC), [1995] 3 SCR 674. Standard of Care [25] Physicians have a duty to conduct their practices in accordance with the conduct of a prudent and diligent doctor in the samecircumstances. The doctor’s conduct must be assessed in light of the conduct of other ordinary and average practitioners in his field. [26] To succeed in a medical negligence action, the Plaintiff must establish, through expert evidence, the appropriate standard ofcare of a reasonably competent physician practicing in Canada in the same specialty as the Defendant.

Summary Judgment in Medical Negligence Actions [27] In Stoddard v Montague, 2006 ABCA 109, the Alberta Court of Appeal summarized the burden of proof for the Respondentto an application for

summary judgment in a medical malpractice action as follows: The need for expert evidence for both these issues [standard of care and causation] is obvious. In a medical negligence action, where theallegation of negligence involves issues outside the ordinary knowledge and experience of the trier of fact,

summary dismissal of theplaintiff’s claim is appropriate when the plaintiff has failed to adduce any supportive expert opinion. [28] In the same decision, the Court of Appeal held that if the Plaintiff is unable to present any expert evidence that supports theallegations of negligence against the Defendant, then the Court must find that there is no genuine issue for trial and grant an order forsummary judgment dismissing the action. It is not enough for the Plaintiff to argue that the Defendant Physicians and their experts mightnot be believed.

Stoddard, Kravontka v Capital Region Health Authority, 2002 ABQB 652, McNeil v Easterbrook, [2004] OJ No 3976,McFarlane v MacDonald, 2015 NSSC 107. [29] The expert evidence tendered by the Defendant Physicians clearly indicates that they fully met the standard of care required ofthem. Additionally, there is no proper evidence adduced by the Plaintiff to support his claim.

Plaintiff’s Allegations against the Defendant Hospital [30] The Plaintiff’s only allegations against the Defendant Hospital are: • It failed to ensure that the hospital was adequately staffed with properly qualified and competent physicians and staff; • It failed to ensure that the hospital was properly and adequately equipped, in the circumstances; and • It generally failed to live up to the standard of care expected of an Alberta hospital. [31] The Defendant Hospital relies upon the expert opinion of Dr. Brian Goldman, who is an expert in emergency medicine. Dr.

Goldman reviewed the care provided to the Plaintiff at the Defendant Hospital through not only the hospital chart, but also the transcripts of evidence given by all witnesses in this matter, including the Plaintiff. With regard to the specific allegations against the Defendant Hospital: • There is no evidence whatsoever to suggest that the Defendant Hospital was inadequately staffed on either occasion. The Plaintiff was assessed in triage, received a nursing assessment, and was seen by an emergency physician within a reasonable time.

Testing was done as needed. • At all times, the Defendant Hospital took appropriate steps to ensure that the Defendant Physicians were properly qualified and competent. • The Defendant Hospital was adequately equipped to assess and treat the Plaintiff in whatever manner his treating physicians determined was necessary. [ 32 ] With regard to the Defendant MIC, there is nothing in evidence to suggest that it failed to meet its standard of care. [ 33 ] These conclusions are a complete answer to the Plaintiff’s allegations against the Defendant Hospital and the Defendant MIC.

Plaintiff has not Discharged the Onus [ 34 ] The Plaintiff has failed to produce any expert evidence that even hints at any failings on the part of any of the Defendants. [ 35 ] Eight years have elapsed since this claim was commenced, and ten years since the underlying events occurred. The Plaintiff and the two experienced counsel who previously represented him in this action had ample opportunity to obtain expert evidence to support this claim and failed to do so. Conclusion [ 36 ] Proof of a breach of the standard of care is an essential element to the Plaintiff’s claim.

He has provided no admissible evidence, simply some dated copies of letters from doctors which even if they were in evidence have been refuted by the experts of the Defendants. In contrast, the Defendants have provided sworn evidence from medical experts establishing that they met the required standard of care in every respect. The Plaintiff’s claim must fail. The Plaintiff has not provided evidence of a necessary element to prove his case against any of the Defendants/Applicants.

There is no issue of merit that genuinely requires a trial. [ 37 ] The Defendant Physicians, the Defendant Hospital and the Defendant MIC are granted

summary dismissal of the action against them. Costs follow the event. The Defendant Physicians and Defendant MIC have requested and are awarded their costs of defending this action. The Defendant Hospital has specifically not requested its costs. [ 38 ] Rule 9.4(2)(

c) is invoked. Counsel for the Defendants may provide me with an Order with their approval as to form and content. Heard on the 29 th day of August, 2016. Dated at the City of Edmonton, Alberta this 2 nd day of September, 2016. R.P. Wacowich M.C.C.Q.B.A. Appearances: Vasile Balan Self-Represented Litigant

Taryn C. Burnett Gowling WLG (Canada) LLP for the Defendants, James McMillan, Robert Warshawski, Sandy Dong, Eddie Chang, Kunal Banerji and Medical Imaging Consultants Chelsey L. Bailey Field LLP for the Defendant, Capital Health operating a hospital known as the Royal Alexandra Hospital