Weaver v. Dr. Gabor Balogh Inc. et al. Date:, 2012 BCPC 205

Citation: Weaver v. Dr. Gabor Balogh Inc. et al. Date: 20120508 2012 BCPC 0205 File No: 07-18719 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: NONNA MARILYN PATRICIA WEAVER CLAIMANT AND: DR. GABOR BALOGH INC., GABOR BALOGH and ALAN ROBERT KEIL DEFENDANTS EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. J. RODGERS Appearing on their own behalf: N. Weaver

Counsel for the Defendant: J. Halperin Place of Hearing: North Vancouver , B.C. Date of Judgment: May 8, 2012 [ 1 ] THE COURT: Nonna Weaver has commenced an action against the defendants, Dr. Balogh Inc., Dr. Balogh in his personal capacity, and Dr. Keil in his personal capacity. Dr. Keil is associated with both Dr. Balogh and the corporate entity, Dr. Gabor Balogh Inc., at dental offices located on Bellevue Avenue in West Vancouver. [ 2 ] Ms. Weaver alleges that in May of 2005, Dr.

Keil performed dental surgeries without her consent on two of her teeth which are identified by the dental numbering system as tooth four-four and tooth four-five. Ms. Weaver further alleges that in September of 2005, Dr. Keil performed dental surgery without her consent on six teeth by filling cavities. [ 3 ] Ms. Weaver is a registered nurse. She has held those qualifications since 1960. She has received specialized training in nursing sciences. Throughout the trial she was able to demonstrate her understanding of medical practices and procedures. [ 4 ] In 2005, Ms. Weaver had been a patient of Dr.

Balogh's clinic for many years. She had attended for routine examinations and treatments. Her dental chart, which was introduced as evidence, shows that from time to time Ms. Weaver did not maintain her dental health. [ 5 ] In the Spring of 2005 Ms. Weaver began to experience pain in her lower jaw. In early May she attended upon Dr. Keil who performed a thorough examination of Ms. Weaver's dental health. Dr. Keil's notes of May 6 th refer to lower jaw problems. It was first necessary to thoroughly clean Ms. Weaver's teeth. After that had been done, Dr. Keil took a series of photos of Ms.

Weaver's mouth and teeth. [ 6 ] Ms. Weaver testified that when she attended upon Dr. Keil in the latter part of May 2005, she expected to receive dental surgical treatment to a tooth identified as four-seven. She said that was the tooth that was causing her pain. She said that she had discussed her tooth problem with Dr. Keil and she expected this one tooth to be the subject of dental surgery. Following the surgery, Ms.

Weaver discovered that the teeth numbered four-four and four-five had been subject to dental surgery and that nothing had been done with respect to four-seven. [ 7 ] In September of 2005, she again attended upon Dr. Keil. She expected to have one cavity filled. After the treatment had concluded, she found that in fact six cavities had been filled. [ 8 ] The evidence of Dr. Keil is similar to that of Ms. Weaver only so far as it pertains to the initial consultations. He agrees that on the 6 th of May he discussed Ms. Weaver's dental health after hearing her complaint of lower jaw pain.

In his professional opinion, multiple procedures would be necessary as part of an overall plan of dental restoration. He testified that he discussed the plan of dental restoration with Ms. Weaver and told her these multiple procedures were necessary to correct the problems. He was certain that Ms. Weaver had agreed to the multiple procedures and when Ms. Weaver later in May attended upon him it was for the purpose of getting started on the restoration work. [ 9 ] Dr.

Keil testified that in his opinion the proper starting point for this restoration was to deal with the issues presented by teeth four-four and four-five. Accordingly, he proceeded to put crowns on those two teeth. When Ms. Weaver attended upon him in September of 2005, he believed that she intended to continue with this restoration work. Accordingly, he proceeded to fill six cavities which required attention. [ 10 ] The first point to be considered is whether or not the work undertaken by Dr. Keil was necessary. There is no dispute on that point. All of the work which was done by Dr.

Keil was necessary for the dental health of Ms. Weaver. [ 11 ] The second point to be considered is whether the work was done properly. Again, there is no dispute. All of the dental work carried out by Dr. Keil was done properly. [ 12 ] The third point to be considered is whether the dental work was done by mistake. Dr. Keil agrees he deliberately undertook the dental surgery on the teeth in question. There was no mistake in this regard. [ 13 ] Ms. Weaver said nothing about these incidents until the Spring of 2007. In cross-examination Ms.

Weaver was asked why it was that she delayed almost two years before complaining about the treatment she had received from Dr. Keil. Her explanation was that she was concerned with other matters in her life: her mother had recently died; she was involved in complex estate and probate issues. In her own words, Ms. Weaver said, "I just didn't have the time." [ 14 ] A principal submission of the defendants is that Ms.

Weaver raised the issue of unnecessary work or work done without her consent only when the clinic refused any more treatment until the bill had been paid. [ 15 ] The receptionist for the dental clinic was called to testify concerning her interactions with Ms. Weaver following the dental surgery in 2005. Ms. Weaver's account was outstanding and the receptionist raised on several occasions the question of payment. She knew that while Ms. Weaver always paid her accounts however, they were frequently delinquent. [ 16 ] The issue before the Court is to determine whether Ms. Weaver consented to the work which was done.

She says that she was not informed as to what was to be done. She says if she had been advised, she would not have consented. Ms. Weaver points to the provision of the Health Care Consent Act which requires the consent of the patient before any work is being carried out. The principles enunciated in that Act are also found in the Common Law.

[ 17 ] The issue of consent was recently considered in the case of Glaholt v . Ross and others found at 2011 BCSC 1133 . The issue in that case also concerned consent to medical treatment. At paragraph 187, Justice Gray set out the appropriate test: whether a battery or assault occurs will depend on whether the physician reasonably believed the patient had consented to treatment. At paragraph 188, Justice Gray said: The question is therefore whether a reasonable person in Dr. Ross’s position would have thought that Ms. Glaholt consented to the injection of Avastin.

Justice Gray went on to refer to a number of cases which support the principle she enunciated. [ 18 ] Accordingly, the appropriate test in this case is to determine whether or not Dr. Keil has proven on a balance of probabilities that he reasonably believed Ms. Weaver had consented to the treatment. [ 19 ] As noted previously, Dr. Keil had made a careful analysis of the work to be done prior to undertaking the surgery of which Ms. Weaver complains and I conclude there was some discussion between Dr. Keil and Ms.

Weaver regarding multiple procedures which would be necessary for the restoration work. [ 20 ] I cannot overlook the fact that Ms. Weaver did not complain concerning the work which had been done until two years had passed and she was being pressed for payment of her account. Her explanation for not raising this serious question of non-consensual dental surgery at an earlier stage is difficult to accept. I also take into consideration that Ms. Weaver is a trained nurse with great experience in medical procedures. [ 21 ] Applying the test set out in the Glaholt v . Ross case, I find that Dr.

Keil has proven on a balance of probabilities that it was reasonable for him to believe Ms. Weaver agreed to restoration work which involved multiple procedures. The crowns applied to teeth four-four and four-five and the filling of six cavities was part of such procedures. [ 22 ] I find all of the work was necessary. I find that all of it was carried out to a high level of professional competency. [ 23 ] For those reasons, the Claim of Ms. Weaver against all of the defendants is dismissed. [ 24 ] The Counterclaim alleged that Ms. Weaver had failed to pay a portion of her outstanding account.

The defendants stated at trial that if the claim of Ms. Weaver were to be dismissed, then the Counterclaim would not be pursued. Had it not been for that submission, then I would have found that the defendants were entitled to judgment against Ms. Weaver for the amount of her outstanding account. [ 25 ] In the circumstances, there will be no order as to Costs. [REASONS FOR JUDGMENT CONCLUDED]