Olivier v. Dr. B. Cervienka Inc. Date:, 2011 BCPC 371

Citation: Olivier v. Dr. B. Cervienka Inc. Date: 20111201 2011 BCPC 0371 File No: 14832 Registry: Quesnel IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: DONALD OLIVIER CLAIMANT AND: DR. B. CERVIENKA INC. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.D. MORGAN Appearing on their own behalf: D. Olivier Counsel for the Defendant: J. Brun Place of Hearing: Quesnel , B.C. Date of Judgment: December 1, 2011 [ 1 ] The claimant, Donald Olivier, filed a notice of claim on March 7th, 2011, alleging the defendant Dr. Cervienka Inc.'s employee, Dr.

Cervienka, was professionally negligent in the manner in which he removed the claimant's tooth, and also for refusing to supply or prescribe the claimant with pain medication. [ 2 ] The claimant is self-represented and claims $25,000 for pain and suffering. [ 3 ] The defendant states in the reply filed that Dr. Cervienka met with the claimant one time only and performed a routine tooth extraction, in accordance with the applicable standard of care. [ 4 ] A settlement conference was commenced before me on September 27th, 2011.

At that conference, the defendant made an application for the claim to be dismissed on the primary basis that the claimant has failed to file or serve with his certificate of readiness a dental-legal report with an opinion that the defendant was negligent in the provision of dental services. [ 5 ] The defendant says this is the type of case that, without a supporting dental-legal report, has no chance of success. The defendant relies on the following jurisprudence: Ince v. Okamura , 2004 BCPC 107 , and Sigurdur v.

Fung & Louie , 2007 BCPC 239 . [ 6 ] Small Claims Rule Number 7(9) reads as follows: In a claim for damages for personal injuries, the claimant must file at the registry, within 6 months after serving the notice of claim and before a settlement conference is held, a certificate of readiness (Form 7) that has attached copies of all (

a) medical reports, and (

b) records of expenses or losses incurred or expected. [ 7 ] The claimant, who is self-represented and not legally sophisticated, filed a certificate of readiness on April 4th, 2011. Attached to the April 4th, 2011, certificate of readiness was a three-page letter written by the claimant, setting out essentially the submissions he

planned on making at trial. Also attached was a letter from the Health Professions Review Board dated November 2nd, 2010, indicating that the claimant had made a complaint regarding Dr. Cervienka and setting out procedural information to the claimant. There was also attached another letter written by the claimant which presumably is a copy of his complaint he sent to the Health Professions Review Board. [ 8 ] The only medical reports attached are as follows:

(1) A copy of Dr. Cervienka's history card report dated April 9th, 2009, the date of the extraction, indicating a simple extraction had been performed and also that the claimant requested Tylenol 3s. It is recorded that Dr. Cervienka suggested trying Advil first, and for Mr. Olivier to call the next day if he was not better.

(2) A medical report dated April 11th, 2009, by Dr. Ellison. The chart notes indicate Mr. Olivier informed Dr. Ellison a tooth extraction had occurred three days previous, and that Mr. Olivier reports he had ongoing pain and was unable to eat. Under the heading "Examination", it was noted, "4/5 removed, socket looks clear." Tylenol 3s were prescribed.

(3) The final attached report is dated April 15th, 2009, from Dr. Ellison. It is noted Mr. Olivier is reporting continued pain and was seeking more pain medication. Examination notes indicated, "Less inflammation, less swelling." Tylenol 3s were again prescribed. [ 9 ] Prior to Mr. Olivier's filing of his certificate of readiness and the above-referenced attachments, the defendant had provided him, by way of a letter dated March 21st, 2011, a request for disclosure.

The defendant also informed the claimant of the requirement to file a certificate of readiness and set out s. 7(9) of the rules. [ 10 ] The defendant also set out in the letter the following information, and I quote from page 2 of that letter: “In dental malpractice claims such as this, the claimant is required to provide a dental-legal report in order for the claim to have any chance of success. To be a proper dental-legal report, the report must be written by a qualified expert and must set out the following: 1. The standard of care to be applied under all of the circumstances; 2.

Whether the standard of care was breached under all of the circumstances; and 3. Whether the alleged damages resulted from that breach. A qualified expert in this case is a general dentist with experience performing the treatment carried out by Dr. Cervienka. That qualified expert is required to produce a written report stating what our client should have done, what he did wrong, and that his negligent actions resulted in the injuries you now allegedly suffer from.

When you produce such a report, we will then seek a report from another expert to provide a second opinion and the Court will determine whether you are entitled to compensation largely on the basis of these two reports. In relation to the above, we refer you to the decisions of the Court in Ince v. Okamura , 2004 BCPC 107 ; and Sigurdur v. Fung , 2007 BCPC 239 , copies of which are enclosed for your consideration. Please be advised that if you fail to file a proper dental-legal report from a qualified expert in accordance with the above, we will be making an application to have your claim dismissed.

Finally, we urge you to seek independent legal advice with respect to the comments we have made in this letter. We act only for Dr. B.

Cervienka Inc. in this matter and are not in any way giving you legal advice.” [Emphasis in original] [ 11 ] After receiving the claimant's certificate of readiness, the defendant again wrote to the claimant on May 4th, 2011, setting out again the information contained in the March 21st, 2011, letter, and also informing the defendant that because he did not provide a dental-legal report, among other things, the defendant would be applying at the settlement conference to have his claim dismissed. [ 12 ] In a third letter from the defendant to the claimant, the defendant again reiterated the information that had been set out in the first two letters, and again informed the claimant the defendant would be applying for dismissal of the claim, primarily on the basis that no dental-legal report had yet been filed. [ 13 ] The claimant filed, on August 22nd, 2011, an amended certificate of readiness with several additional attachments.

The attachments are primarily copies of correspondence regarding Mr. Olivier's complaints to the Health Professions Review Board against several other medical professionals. [ 14 ] One of the central themes of his complaints is in regards to the medications that were or were not prescribed to him by the various doctors. Mr. Olivier has concluded there is a conspiracy against him by members of the medical profession that is being spearheaded, in his words, by the Ministry of Health. He has threatened to bring lawsuits against at least two other doctors for slander and defamation of character. [ 15 ] Mr.

Olivier has still not filed a dental-legal report. [ 16 ] At the September 27th, 2011, hearing of the defendant's application to dismiss, Mr. Olivier stated he understood and agrees with the need, in these circumstances, for a dental-legal report to support his claim; however, he says he has been unable to find a doctor who will provide one. [ 17 ] Although he is of limited means, his lack of money is not currently the barrier to obtaining the report. The barrier is finding a qualified medical professional who will provide a supporting opinion to Mr. Olivier.

The Jurisprudence [ 18 ] In Ince v. Okamura , the defendant dentist in a dental malpractice suit applied for dismissal of the claim on the basis that the claimant had not filed any supporting expert reports. Judge Meyers noted the application was properly brought (see paragraph 32), but granted the claimant a short period of additional time to file the reports.

The additional time was granted because the claimant honestly but incorrectly believed the evidence he was intending to call was not expert opinion evidence. [ 19 ] At paragraphs 10 and 11, Judge Meyers states the following: “The case law which was provided by both counsel for Dr. Okamura and by Mr. Ince himself, clearly show that as a general rule, expert evidence is required in malpractice or negligence suits against doctors or dentists.

The rule is, that any malpractice or negligence case, and I am using the terms as meaning the same thing, is that first there has to be established what is the standard of care for that particular doctor or dentist. Second, did the doctor or dentist breach that standard of care; and third, did damages result directly from a breach of the standard of care.

Normally, first, in order to establish what is the standard of care, requires another expert in the field of dentistry to be able to [satisfy] as to what is the standard of care for a prudent general practitioner dentist doing this type of work, and secondly, to have examined the work that was done, the procedures used and the materials used, and to come to an opinion that his or her work was negligently performed, that is, that it did not meet the accepted standards of practice required of general dentists acting prudently in the circumstances.

Third, the expert would normally testify that as a direct result, pain and suffering occurred or remedial work was required due to the dentist not meeting that standard of care.” [ 20 ] In Sigurdur v. Fung , above, Judge Skilnick dealt with the defendant dentist's application pursuant to Rule 7(14) to dismiss the dental malpractice claim against them.

The basis for the application was, in part, a failure of the claimant to file an expert report that is critical of the dental procedures performed by the defendant dentist. [ 21 ] I adopt Judge Skilnick's reasoning as set out in paragraphs 21 and 22, wherein he states the following: “In exercising the function of a gatekeeper determining which cases merit the allocation of the resource of trial time, judges in settlement conferences are permitted to first determine if a claimant has prima facie evidence to support an allegation that a professional person has failed to meet the requisite standard of care for their profession.

It is insufficient for a claimant merely to allege that a professional such as a dentist has been negligent or has breached a contract by failing to provide professional services according to the requisite standard, without some supporting evidence. Judges have required this to be provided prior to trial under rule 7. This is so for a number of reasons: (

a) An accusation of negligence or failure to meet a professional standard cuts a wide swath. Fairness dictates that a person accused of such ought to be told what case he or she has to meet at trial in order to gather together the necessary evidence to meet such claim; (

b) An accusation against the reputation of a professional person is a serious matter and one which should not be publicly tried only on the strength of suspicion, hope of proof materializing at trial, innuendo or anger; (

c) The amount of court time required in cases of professional negligence should not be allocated without some indication as to how the claimant intends to prove the case. To set aside this resource of court time where no evidence exists, in the hope that the proof will be found between the date of the settlement conference and the trial, is unfair not only to the Defendants, but also to other litigants in the cue waiting for court time and for the taxpayer generally. I note that in this case, part of the claim is framed in negligence and

part is framed as a breach of contract. However the alleged breach is the failure to perform the dental services "in accordance with accepted practices and procedures of the College of Dental Surgeons of the Province of British Columbia and with the level of skill reasonably expected of a member of the College of Dental Surgeons of the Province of British Columbia." The Claimant can not give evidence herself about what those practices and skill level are. Someone with sufficient expertise will be required to give this opinion.

In my view, both causes of action allege a failure to meet a professional standard and the same considerations regarding supporting evidence apply in this case whether the claim is brought in tort or in contract.” [ 22 ] In Mr. Olivier's claim, it is implicit he is arguing that the defendant did not apply the level of skill reasonably expected of a dentist practising in B.C. Mr.

Olivier is not able to give evidence as to what the reasonable skill level and accepted practice of a licensed B.C. dentist is in regards to tooth extraction and pain medication, nor will the court be able to take judicial notice of those skills and practices. [ 23 ] The court is left with Mr. Olivier's belief the defendant was negligent in regards to the accepted standard of care of a licensed dentist for the procedure of tooth extraction and pain medication and the defendant's denial. Of the two, the defendant is the professional. [ 24 ] There is, in Mr.

Olivier's particular circumstances, no chance he will be successful at trial. This case is similar in that regard to the case of Bossy v. Kelowna Dental Centre Inc. and DeGruchy, unreported, May 28th, 2004, Kelowna Registry File Number C61482, cited with approval at paragraph 24 in Sigurdur v. Fung . [ 25 ] In Bossy , Judge Meyer stated at paragraph 3 of that case: “There is nothing in what you have told me today or in the affidavit material that I have read from Dr.

DeGruchy or in the nature of your notice of claim that leads me to believe other than that, without an expert to testify, there is no reasonable prospect of your success. To allow you to go to trial on June 16th means that a dentist will have to appear, he will have to have his counsel, he will have to shut down his practice, he will go through a day in court, all ultimately to have the case dismissed against him.

You will have taken your time, the dentist's time, you will have used up a full day of court time in Kelowna which some other litigant who has a case that has some reasonable prospect of success will not be able to get on as early. Also, to put balance on this matter, if the case were to go to court and if you were to lose your case as I expect you will, the trial judge may order up to a $2000 penalty to be paid by you. It does not make sense

to me to set you up for further penalty.” [ 26 ] I also agree wholly with Judge Skilnick's determination in Sigurdur that not every case where the requisite expert evidence is lacking will a dismissal of the claim be mandated.

Sometimes an adjournment with costs will be appropriate: see paragraph 25. [ 27 ] However, in cases where the claimant is repeatedly advised in a timely manner by the defendant of the need for a supporting expert's report and does not provide the necessary supporting expert opinion, notwithstanding there was sufficient time to do so, an adjournment will not be a fitting remedy: see Sigurdur , paragraph 26 . [ 28 ] In Mr. Olivier's case, although an adjournment occurred due to running out of court time, and the reason for the adjournment was for decision, I did tell Mr.

Olivier if he was able to obtain an expert report by the date set by the judicial case manager for my decision, that I would take that fact into consideration. [ 29 ] Unfortunately, Mr. Olivier remains unable to obtain an expert from a qualified person that would support his belief that Dr. Cervienka was negligent. He has made serious but unsuccessful efforts and has concluded that there is a conspiracy against him and vows he will see all the dentists he has approached in court. [ 30 ] I am persuaded it is appropriate, and in fact beneficial to both parties, given that Mr.

Olivier will not be exposed to further orders of costs against him upon losing a trial, for me to dismiss his claim pursuant to Rule 7(14)(i), and I hereby do so. [ 31 ] The defendant has asked for costs. Costs are normally awarded to the successful party. There has not been a detailed submission or any evidence as to what the defendant's costs were, even under the limited costs that are available in Small Claims Court. I am also very cognizant of the claimant's personal situation; that being that he is a person of limited means.

I have concluded that an adjournment for submissions as to costs is not appropriate. [ 32 ] However, I will grant the defendant's request to the limited extent of awarding costs for the defendant's filing of his reply. That amount is to be determined by the registrar. (REASONS CONCLUDED)