Waller v. Nelson, 2023 BCPC 109

Citation: Waller v. Nelson 2023 BCPC 109 Date: 20230428 File No: 18030 Registry: New Westminster IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: SHARON YVONNE WALLER CLAIMANT AND: REBECCA A. NELSON and DR. REBECCA NELSON INC. DEFENDANTS CORRIGENDUM TO THE RULING ON APPLICATION TO STRIKE CLAIM REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. SUDEYKO Counsel for the Claimant: Sharon Yvonne Waller Counsel for the Defendants: D. Froese Place of Hearing: New Westminster , B.C. Date of Hearing: April 4, 2023 Date of Judgment: April 28, 2023

A Corrigendum was released by the Court on May 29, 2023. The corrections have been made to the text and the Corrigendum is appended to this document. INTRODUCTION [ 1 ] This is an application brought by the defendant, Dr. Rebecca Anne Nelson (“Dr. Nelson”) to strike the claim of Sharon Yvonne Waller (“Ms. Waller”), who alleges medical negligence against Dr. Nelson. [ 2 ] Dr. Nelson performed an abdominoplasty (“tummy tuck”) on Ms. Waller. Ms. Waller had to undergo a number of painful post- operative procedures, and now has a significant scar on her abdomen. There is no dispute that Ms.

Waller has suffered a very poor result. [ 3 ] Ms. Waller, self-representing, brought a medical negligence action against Dr. Nelson, seeking general and special damages up to the $35,000 maximum limits. In her Reply, Dr. Nelson denies she was negligent. [ 4 ] In this pre-trial application to strike, Dr. Nelson says that in order for Ms. Waller to prove her case, she must produce an expert medical opinion report regarding the standard of care in regard to her treatment, and that Dr. Nelson was in breach of that standard, resulting in Ms. Waller’s loss. [ 5 ] Ms.

Waller has been unable to obtain such a report, citing the unwillingness of doctors to provide that, particularly to an unrepresented claimant. However, she has now produced some documentation that she proposes to be expert evidence sufficient for the matter to proceed to trial. Dr. Nelson says that is insufficient and submits that the Court should exercise its “gatekeeper function” and strike the claim. [ 6 ] The issue is whether, based on the evidence, the court could not determine that Dr. Nelson was negligent, such that the matter should not proceed to trial. BACKGROUND Abdominoplasty Surgery [ 7 ] Ms.

Waller was unhappy with the size of her tummy and breasts and sought the assistance of Dr. Nelson, a plastic surgeon. Dr. Nelson agreed to perform an abdominoplasty and a mammaplasty. The operations were performed on March 24, 2015. Ms. Waller brings no complaint about the mammoplasty. [ 8 ] However, with respect to the abdominoplasty, that surgery was followed by infection and a number of additional procedures and lengthy aftercare, leaving her with a significant scar. The Notice of Claim [ 9 ] On September 30, 2019, Ms. Waller, self-representing, brought a Small Claims court action against Dr.

Nelson. [ 10 ] In the Notice of Claim, Ms. Waller says she experienced significant problems with the abdominoplasty incision, including that it “became extremely infected”, and she required “numerous painful debridement procedures” [and] “approximately 75 painful nursing and/or related procedures”, particularly in the first six months. [ 11 ] She says that Dr. Nelson advised her to wait two years before making any final assessment as to the permanent results of the abdominal incision, or on possible corrective treatment. Dr.

Nelson performed a final procedure on March 29, 2018, but it was around that time she told Ms. Waller she could do nothing further to fix what Ms. Waller describes as the “unsightly abdominal scar and damaged surrounding areas”. [ 12 ] Ms. Waller pleads that Dr. Nelson “did not provide the expected standard of care to the claimant after the surgeries” and that it was the “lack of care” that resulted in the numerous painful debridement procedures and treatment of the resulting infections. The damages claimed, including both general and special, total $35,000. The Reply [ 13 ] In her Reply, Dr.

Nelson denies she was negligent. [ 14 ] On December 11, 2019, Dr. Nelson, through her legal counsel, sent a letter informing Ms. Waller that, under Rule 7(9) of the Small Claims Rules, B.C. Reg.261/93 (“ Rules ”) , she will be required to file a Certificate of Readiness, along with all medical reports (and records of expenses), within six months of the filing of the Notice of Claim. [ 15 ] Also in that letter, Dr. Nelson’s counsel expressed her position that, based on case law (referred to in the letter), Ms.

Waller will need to produce a medical expert opinion from a suitably qualified physician that sets out the standard of care required by Dr. Nelson in regard to the abdominoplasty, that there was a breach of that standard, and that the breach caused her damages (a “Medical Expert Opinion Report”). [ 16 ] That was followed up with letters on March 11, July 13, September 1, and October 13, 2020, which included a similar warning that Ms. Waller would need such a report, or face an application to strike her claim. Certificate of Readiness [ 17 ] Ms.

Waller filed a Certificate of Readiness in July 2020, with extensive clinical records and reports (and pictures), related to her

treatment by Dr. Nelson, including pre-surgery, surgery, and aftercare. [ 18 ] Those clinical records include a Pre-Operative appointment (“Pre-Op”) she attended at Eagle Ridge Hospital on March 17, 2015, a week before the surgery. It was during this Pre-Op that, among other examinations and evaluations, and under the heading “Pre- operative Baseline Risk Screen and Action”, her body mass index (“BMI”) was identified at 41, putting her in the “morbidly obese” category.

It is clear from those records that the Pre-Op is not only to prepare the patient for scheduled surgery, but to assess the risk in regard to that proposed surgery. [ 19 ] She was seen by the anaesthesiologist during that Pre-Op and advised of the risks with respect to that part of the surgery. She was not seen by Dr. Nelson at that time, or at any time after the Pre-Op and before the surgery on March 24, 2015. Application to Produce Expert Medical Evidence before Trial [ 20 ] On January 28, 2021, Dr. Nelson filed an Application to Produce Expert Medical Evidence before Trial , seeking an order requiring Ms.

Waller, within 120 days, to produce any expert report she intends to rely upon in advance of trial (“ Application to Produce ”). That Application to Produce did not immediately proceed, as the matter was referred for a Settlement Conference, which took place on a number of occasions throughout 2021, without success. [ 21 ] The Application to Produce finally came before me on December 21, 2021. At that time, Ms.

Waller was primarily focussing on what she believed was negligence related to her aftercare, but expressed her general unhappiness with the results of her abdominoplasty surgery. [ 22 ] After reviewing the medical material filed with Certificate of Readiness, I concluded that a court would be unable to assess the issue of medical negligence unless there was some expert evidence. I allowed Ms.

Waller an opportunity to produce such evidence within 180 days. [ 23 ] In my oral reasons, I stated as follows: It may be that there is documentation in the field that establishes what should happen and did not happen and that will be sufficient. Again that is up to the trial judge. But there needs to be something that would allow a court to be able to assess whether, on that evidence, and the evidence of yourself, your documents and perhaps in response, Dr.

Nelson, would allow the judge to be able to assess whether the standard has been met or not, and to establish whether your loss is as a result of the failure to meet that standard. (Oral Reasons of December 21, 2021 para. 4) Application to Strike the Claim [ 24 ] On November 1, 2022, beyond the 180 days provided in my Order, Dr. Nelson filed this Application to Strike the Claim of Ms. Waller. The Application to Strike came before Judge Alexander on January 10, 2023, but she extended the time for Ms.

Waller to produce expert evidence for another 60 days, placing the matter on the court list for March 14, 2023. [ 25 ] In the meantime, on February 28, 2023, Ms. Waller filed various documents as “Supporting Materials”, which she submits should allow the matter to proceed to trial. Supporting Materials [ 26 ] The Supporting Materials, in the order of presentation, was as follows: 1. Google search under the heading “bmi for Abdominalplasty” with various headings of sources; 2.

Information dated November 8, 2022 from a Cosmetic Surgery Practice located in Nashville and Memphis, Tennessee which discusses the risks/benefits of a person’s BMI (Body Mass Index) in relation to Liposuction or Tummy Tuck; 3. Information dated June 21, 2022 from a Cosmetic Surgery practice in Melbourne, Australia of Dr. Rebecca Wyten discussing how weight and BMI impacts Tummy Tuck results; 4. Internet search under “RateMDs” with 10 ratings for Dr. Nelson from March 11, 2019 to February 2, 2023; 5. Information from “Surgical Arts and Aesthetics” and Dr.

Angelina Postoev located in Atlanta discussing BMI and Tummy Tuck; 6. Consultation note from Dr. Jennifer Prince, having seen Ms. Waller on May 1, 2015 at the Jim Pattison Outpatient Care and Surgical Centre discussing a dehisced and debridement area of the wound; 7. Consultation report from Dr. Blackburn of “Plastic Surgery Bellingham”, following Ms. Waller’s attendance on November 18, 2021, regarding the surgery of Dr. Nelson and whether additional surgery would improve her appearance; 8.

An email from North Raleigh Plastic Surgery to [omitted for publication] in response to inquiries about tummy tuck and BMI consideration for surgery; 9. Consultation letter from Dr. Mosher of “YES” Surgery Centre in Langley after Ms. Waller attended there on January 17, 2019 for consideration of her earlier abdominoplasty; 10. 2006 Obesity Guidelines (revised May 2017) for Non-Hospital Medical and Surgical Facilities of the College of Physicians and Surgeons of B.C.;

11. 2009 American Association Society of Plastic Surgeons “Informed Consent-Abdominoplasty Surgery” form; 12. A consultation intake form from Kimberley Waller regarding a “tummy tuck”, and an email dated February 23, 2023 from ThePlastic Surgery Clinic in Mississauga, Ontario, to [omitted for publication] with recommendations for BMI before a procedure; 13. Reasons for Decision dated December 21, 2021; 14. Table of contents for Supporting Materials. College Complaint and Response [27] On May 5, 2022, Ms. Waller had also brought a complaint against Dr.

Nelson with the College of Physicians and Surgeons ofB.C. (“the College complaint”). The complaint form, and Dr. Nelson’s written response (“the Response”) were, with the recognition ofDr. Nelson’s counsel, then properly placed before this court during this Application to Strike. [28] The College Complaint focused on the infections, additional procedures, and long term nursing care, together with Ms. Waller’sposition that her high BMI created a greater risk of complications and that Dr. Nelson failed to consider the additional risk, or to informMs.

Waller of that additional risk, before performing this surgery [29] The Response includes, among other things, an admission by Dr. Nelson that she did not know Ms. Waller’s weight or BMI atthe time she performed the surgery. Her weight and BMI was recorded in several locations in the Pre-Op report, but Dr. Nelson says thatsurgeons “do not routinely get a report from the Pre-Op clinic”, which was the case here. POSITIONS Ms. Waller [30] Ms.

Waller says that the evidence and material before me, which includes the pleadings, the medical and other informationaccompanying the Certificate of Readiness, the Supporting Materials, and the College Complaint and Response, is sufficient for herclaim to proceed to trial. [31] She says that the various plastic surgeon website references, along with the College Obesity Guidelines, provides expertevidence of the additional risks in regard to the abdominoplasty surgery with her BMI at 41, which were never considered and neverexplained to her by Dr. Nelson.

She says that she may not have agreed to the surgery, had that been explained. Dr. Nelson [32] Dr. Nelson argues that the medical information before the court is incapable of providing a basis for a finding in medicalnegligence. She says that the “gate-keeper” function of the court should avoid cases that cannot, on their face, be proven. She refers tothe case law that supports that position, including Cheung v Moorley, 2011 BCSC 1641, Scott v. Dr. Michael Jacoby dba Dr. Jacoby’sOffice, 2017 BCPC 324; Bennett v.

Dr, Charles Colemen Secretan Inc. (unreported), Vernon Registry No. 51828 May 17, 2018(P.C.), and ter Neuzen v. Korn, (SCC), [1995] 3 S.C.R. 674; Sigidur v. Fung and Louie, 2007 BCPC 239; Olivier v.Dr. B. Cervienka Inc., 2011 BCPC 371.

THE LAW Statutory [33] Under s. 2(1) of the Small Claims Act R.S.B.C. 1996, c. 430 (“SCA”), claims are to be “concluded in a just, speedy, inexpensiveand simple manner”. [34] There is no statutory requirement in either the SCA or the Rules that an expert medical opinion report be produced for a claim inmedical negligence. [35] Under Rule 7(9) of the Rules, in cases involving a personal injury, (usually inclusive of a medical negligence claim), aCertificate of Readiness, along with all medical reports (and expenses), is required to be filed within 6 months of the notice of claim.

Case law Standard of Care The Supreme Court of Canada (“SCC”), in ter Neuzen v.

Korn (SCC), [1995] 3 S.C.R. 674 (”Korn”), sets out the dutyof care for a physician in that they must conduct their practice: …. in accordance with the conduct of a prudent and diligent doctor in the same circumstances”… [with a] “specialist … assessed inlight of the conduct of other ordinary specialists, who possess a reasonable level of knowledge, competence and skill expected ofprofessionals in Canada. (para. 33) Proving the Case – Expert Medical Opinion Evidence [36] Also in Korn, the SCC states as follows: It is generally accepted that when a doctor acts in accordance with a recognized and respectable practice of the profession, he or she will

not be found to be negligent. That is because courts do not ordinarily have the expertise to tell professionals that they are not behaving appropriately in their field. In a sense, the medical profession as a whole is assumed to have adopted procedures which are in the best interests of patients and are not inherently negligent. (para. 38) [ 37 ] The SCC went on to quote with approval from Professor Fleming (The Law of Torts 7 th ed. 1987) with respect to standard practice, at p 109: Conformity with general practice, on the other hand, usually dispels a charge of negligence.

It tends to show what others in the same “business” considered sufficient, that the defendant could not have learnt how to avoid the accident by the examples of others… All the same, even a common practice may itself be condemned as negligent if fraught with obvious risks . (emphasis added) (para.39) And then with respect to the medical profession in particular, Professor Fleming noted, at p 110: Common practice plays its most conspicuous role in medical negligence actions.

Conscious at once of the layman’s ignorance of medical science and apprehensive of the impact of jury bias on a peculiarly vulnerable profession, courts have resorted to the safeguard of insisting that negligence in diagnosis and treatment (including disclosure of risks) cannot ordinarily be established without the aid of expert testimony or in the teeth of conformity with accepted medical practice. However, there is no categorical rule.

Thus an accepted practice is open to censure by a jury (nor expert testimony required) at any rate in matters not involving diagnostic or clinical skills, on which an ordinary person may presume to pass judgment sensibly, like omission to inform the patient of risks , failure to remove a sponge, an explosion set-off by an admixture…. (emphasis added) (para. 40) At para. 41 , the SCC summarizes as follows: It is evident from the forgoing passage that while conformity with common practice will generally exonerate physicians of any complaint of negligence, there are certain situations where the standard practice itself may be found to be negligence.

However, this will be where the standard practice is “fraught with obvious risks” such that anyone is capable of finding it negligent, without the necessity of judging matters requiring diagnostic or clinical expertise” (emphasis added) And finally at para. 51, the SCC says: I conclude from the foregoing that, as a general rule, where a procedure involves difficult or uncertain questions of medical treatment or complex, scientific or highly technical matters that are beyond the ordinary experience and understanding of a judge or jury, it will not be open to find a standard medical practice negligent.

On the other hand, as an exception to the general rule, if a standard practice fails to adopt obvious and reasonable precautions which are readily apparent to the ordinary finder of fact, then it is no excuse for a practitioner to claim that he or she was merely conforming to such a negligent common practice. (emphasis added) ANALYSIS [ 38 ] An application to strike a claim before trial must be clear and unequivocal.

It must be based on a claim that does not exist in law (and where the expansion of the law to recognize a new claim is not reasonable), or, as alleged in this case, where there is no possibility for the claimant to be able to prove their case. [ 39 ] I do not reach the conclusion that Ms. Waller cannot possibly prove her case at trial.

That is because the evidence, on the face of it, allows for that possibility. [ 40 ] The “Supporting Material”, specifically the College of Physicians and Surgeons of B.C.’s Obesity Guidelines, buttressed by the information on the websites of various plastic surgeons, suggests that there is a medically-recognized greater risk of complications for a patient undergoing surgery, including an abdominoplasty, with a high BMI, and certainly one greater than 40. [ 41 ] That sort of limited finding, based on less formal expert evidence, is in my view appropriate in the context of Small Claims, where parties are often self-representing and in which there is meant to be a “just, speedy, inexpensive and simple” determination of the proceedings ( s. 2(1) SCA ).

It does not allow the court to make a full determination of negligence. [ 42 ] However, it is the evidence that arises from the College Complaint and indeed the Response of Dr. Nelson that “surgeons do not routinely get a report from the Pre-Op clinic” before performing surgery, followed by her decision to proceed with surgery without that report (and therefore without the warning of additional risk to Ms.

Waller), which may, as per Korn , not require an expert opinion to find negligence. [ 43 ] That seemingly common practice to proceed without that Pre-Op report may appear, even to the untrained eye, to be “fraught with obvious risks” (not just related to a patient’s BMI), and may fail “to adopt obvious and reasonable precautions which are readily apparent to the ordinary finder of fact”. For that reason, no medical expert opinion report may be necessary. [ 44 ] To be clear, I am not making the finding that this common practice, or Dr. Nelson’s conduct, is negligent.

Indeed that will be up to the trial judge, who may indeed find that an expert medical opinion report is necessary in order to determine negligence. It will of course be open to Dr. Nelson, should she be required to meet Ms. Waller’s case, to produce evidence, including expert opinion evidence, in support of her conduct. [ 45 ] But, in my view, on the evidence before me, a finding of negligence is possible, such that it would be inappropriate to strike the claim. I therefore dismiss the Defendant’s application. Application to amend pleadings

[ 46 ] The issue arose that Ms. Waller’s Notice of Claim primarily focussed on “after care” following the surgery, when in fact her complaint is related to the issue of increased risk of complications with an abdominoplasty with a BMI over 40, and Dr. Nelson’s failure to warn her of that risk. [ 47 ] There was some correspondence, in both 2020 and 2021, between Ms. Waller and Counsel, by way of follow up to those Settlement Conferences. Ms. Waller indeed forwarded a number of her letters (some marked “Without Prejudice”) to be filed with the Registry.

Those letters were not part of the material before me in either the Application to Produce or this Application, nor do I consider them. [ 48 ] However, in my view it is appropriate to consider, by way of some notice to Dr. Nelson, that those letters included Ms. Waller’s expressed concern that her high BMI had not been properly considered by Dr. Nelson and that Ms. Waller had not been advised of the additional risks attached to this surgery. This was additional to the negligence claimed in relation to Ms. Waller’s “aftercare”. Ms.

Waller had not sought to add to, or amend, her pleadings; but I accepted her explanation that she was unaware of the obligation to do so, and find there is no prejudice to the defendant. Indeed, Dr. Nelson’s counsel did not argue prejudice or oppose amendment to the pleadings. [ 49 ] Therefore, I grant Ms.

Waller 30 days to amend her Notice of Claim to reflect her position by filing that with the registry, following which she must serve the defendant, allowing the defendant a further 30 days following receipt to file any Reply to that amended Notice of Claim. [ 50 ] Otherwise, following the amendment of pleadings, the parties are at liberty to put the matter on the civil list day in order to set the matter down for trial. ORDERS

(1) Application of the Defendant to strike the claim is dismissed;

(2) Application of the Claimant to amend the Notice of Claim is granted, to be filed within 30 days. _______________________________ The Honourable Judge D. Sudeyko Provincial Court of British Columbia CORRIGENDUM – May 29, 2023 In the Ruling on Application dated April 28, 2023, the following change have been made: [1] On the title page, the Claimant’s name was corrected from Walker to Waller. [2] My Reasons for Judgment are amended accordingly. ____________________ __ The Honourable Judge D. Sudeyko Provincial Court of British Columbia