Trim v Braun, 2023 ABCJ 242

In the Alberta Court of Justice Citation: Trim v Braun, 2023 ABCJ 242 Date: 20231115 Docket: 2090302644 Registry: Edmonton Between: Mary Alice Trim Plaintiff / Respondent - and - Theodore Braun and Alberta Health Services Defendants / Applicants AND Docket: 2090302375 Mary Alice Trim Plaintiff / Respondent - and – Michael John Orth and Leduc Community Hospital Defendants / Applicants AND Docket: 2090302402 Mary Alice Trim Plaintiff / Respondent - and – Khurram Jahangir and Strathcona Community Hospital Defendants / Applicants

Reasons for Decision of The Honourable Justice G.W. Sharek Application for

Summary Dismissal [ 1 ] These are applications by several Defendants for

summary dismissal of the Plaintiff’s claims against them. [ 2 ] The Plaintiff, Mary Trim, commenced 3 separate actions all alleging negligence of medical practitioners including emergency department doctors and nurses and alleging vicarious liability of medical staff and facilities of the hospitals that she visited. [ 3 ] The 3 actions and a

summary of the Plaintiff’s medical attendances relating to these actions are: 2090302644 against Theodore Braun and Alberta Health Services (“AHS”) [ 4 ] AHS owns and operates the Westview Health Centre. [ 5 ] Theodore Braun was the doctor who attended to the Plaintiff in the emergency department at the Westview Health Centre in Stony Plain, Alberta on May 30, 2018. The Plaintiff had previously undergone root canal treatments by Dr. Yasini, the dates of which are unclear from the affidavit evidence and she subsequently complained of right lower jaw pain. Dr.

Yasini had prescribed antibiotics, but her pain persisted and Dr. Yasini suggested she attend upon a doctor. [ 6 ] In her affidavit Ms. Trim suggests that she told Dr. Braun on May 30 that she needed to go for a bone scan and he refused. Dr. Braun’s affidavit and the medical records make no reference to this request. She was wondering if she was on enough antibiotics. [ 7 ] Dr. Braun prescribed a different antibiotic than had been prescribed by Dr. Yasini, and she was discharged. [ 8 ] Dr. Braun saw Ms. Trim for a second and last time on July 19, 2018 at the same facility.

She continued to complain of ongoing right lower jaw pain from her root canal two months prior and that the antibiotics prescribed earlier were not helping. She requested a bone scan, but Dr. Braun concluded that it was not indicated based on her physical examination and test results and he again prescribed antibiotics which she refused. [ 9 ] Dr. Braun was not involved in her care thereafter. 2090302375 against Michael John Orth and Leduc Community Hospital [ 10 ] Dr. Orth attended upon Ms.

Trim when she attended at the Leduc Community Hospital emergency department on June 19, 2018. [ 11 ] She complained that the pain in the right side of her jaw was worsening with time and requested further blood work to check for infection. She alleges in her affidavit that her lymph nodes were swollen and that she told Dr Orth that she had a bone infection, and that she needed to go for a bone scan. [ 12 ] Dr.

Orth was never served with the Civil Claim, and hence the action against him “expired” as prescribed in s. 4(1) of the Provincial Court Civil Procedure Regulation , as it then was, and this action is not proceeding against Dr. Orth. [ 13 ] However, this action continues against Leduc Community Hospital, one of the applicants in this

summary dismissal application. 2090302402 against Khurram Jahangir and Strathcona Community Hospital [ 14 ] Dr. Jahangir attended upon Ms. Trim in the emergency department of the Strathcona Community Hospital in Sherwood Park, Alberta on June 24, 2018. [ 15 ] She had had a right lower molar extracted that same day, and she presented with right lower jaw pain. She complained of “ongoing dental infection” and wanted to be prescribed IV antibiotics. [ 16 ] Dr. Jahangir diagnosed her with TMJ disorder, a diagnosis with which Ms. Trim disagreed. [ 17 ] Again, the Civil Claim was not served upon Dr.

Jahangir and this action is not proceeding against him. However, the action continues against Strathcona Community Hospital. [ 18 ] The actions that remain and are the subject of these

summary dismissal applications are against the Strathcona Community Hospital, the Leduc Community Hospital, AHS (Westview Health Centre) and Dr. Braun. I will refer to Leduc Community Hospital,

Strathcona Community Hospital and Westview Health Centre, now AHS, as “the Hospitals”. [ 19 ] In

summary, between May 30 th 2018 and July 19 th 2018 the Plaintiff attended on four occasions upon three different emergency ward doctors in three different hospitals each time complaining of jaw pain. All three doctors concluded that a bone scan as requested by the Plaintiff was not warranted and she was placed on different regimes of antibiotics. [ 20 ] It is apparent that during this period of time, as a result of her jaw pain, dentists extracted molars 46 and 47 in an effort to address the pain, without success. [ 21 ] A bone scan was eventually ordered by a fourth doctor, Dr.

Bhanot on July 26, 2018, a bone infection was identified, and the Plaintiff was placed on IV antibiotics for a period of 8 weeks. [ 22 ] The IV antibiotic treatments eventually resolved the bone infection, and also largely resolved the issue of jaw pain from which the Plaintiff was suffering. [ 23 ] Essentially, the Plaintiff is alleging that she ought to have been referred for a bone scan as early as May 30 th 2018 when first seen by Dr. Braun, or subsequently by Dr. Orth or Dr. Jahangir or Dr.

Braun on June 19 or June 24 or July 19 respectively. [ 24 ] She therefore alleges that she endured an additional two months of severe jaw pain as a result of not being sent for a bone scan as early as May 30 th 2018, and also that she unnecessarily had molars 46 and 47 removed during that interim period in an attempt to address the jaw pain, and that she now endures “dry sockets” where those molars had been removed. [ 25 ] She claims $50,000 general damages in each of the three actions. [ 26 ] These three actions, while not consolidated, were previously case managed concurrently, and these

summary judgment applications were heard at the same time. The case management order of Justice Young dated March 17, 2023 directed that the subject three actions would be tried at the same time, and scheduled the trial of these matters for 3 days commencing October 17, 2023. Subsequently, by Order dated September 13 th 2023 Justice Young adjourned the trial and directed that these

summary dismissal applications be heard concurrently on October 17, 2023. [ 27 ] The pretrial conference and case management orders, all of which were orders of Justice Young were applicable to all three of the subject actions, and specifically addressed the issues of experts reports as follows: [ 28 ] The Order of March 2 nd 2022 directed that the Plaintiff provide to the Defendants the reports of her experts no later than June 30 th 2022. [ 29 ] The Order of May 16, 2022 reiterated the previous Order regarding experts reports and confirmed that the Plaintiff was to provide experts reports to the Defendants, including the provision of the qualifications of the experts, by June 30 th 2022. [ 30 ] The Order of August 16, 2022 extended the deadline for the Plaintiff to provide experts reports to December 16, 2022. [ 31 ] On January 26, 2023 the Plaintiff applied to extend the deadline for provision of experts reports to the Defendants, and that application was adjourned. [ 32 ] The Order of March 17, 2023 confirmed on the record that the Plaintiff was withdrawing her application to extend the deadline for production of experts reports.

That Order also required the Defendants to provide any reports of those experts they intended to call at the trial, along with qualifications of those experts, by June 30 th 2023. That Order also scheduled the trial for three days commencing October 17, 2023. [ 33 ] At the case management hearing on September 13, 2023 the trial of the matters scheduled for October 17 th for three days was adjourned, and the Defendants’ applications for

summary dismissal of the Plaintiff’s actions were scheduled for October 17, 2023. The Defendants had previously filed affidavits in support of their applications, attaching experts reports, and the order directed that the Plaintiff was to serve on the Defendants any affidavit opposing the

summary dismissal applications by October 6, 2023. [ 34 ] On October 5, 2023 the Plaintiff filed an affidavit opposing the applications for

summary dismissal, and she attached as an exhibit to her affidavit a one-page letter dated September 14, 2023 from Dr. Romi Rajput which in its entirely stated: “The bone scan report shows that Mary had Osteomyelitis in her lower jaw bone at the time the bone scan was done on July 26 th 2018. Early diagnosis and treatment of Osteomyelitis is beneficial for the patient. It appears Mary did not receive the best possible medical care available as quickly as possible. Mary was seen on May 30 th 2018 in the Emergency at the Westview Health Centre.

Mary was seen June 19 th 2018 in the Emergency at Leduc Community Hospital. Mary was seen June 24 th 2018 in the Emergency at the Sherwood Park Community Hospital. Mary was seen on July 19 th 2018 in the Emergency at Westview Health Centre. Mary was seen on July 22 nd 2018 in the Emergency at the Sherwood Park Community Hospital. Mary was presenting similar symptoms, pain her lower jaw bone and signs of an infection at all visits.” [ 35 ] Neither the affidavit of the Plaintiff nor the letter from Dr. Rajput provided any qualifications of Dr.

Rajput other than “MD” which appeared in the signature line. [ 36 ] The letter from Dr Rajput did not address the issue of standard of care of any of the present Defendants. [ 37 ] None of the case management or pretrial conference orders, particularly those imposing deadlines for experts reports and provision of the experts’ qualifications, were appealed.

[ 38 ] Other than the letter from Dr. Rajput, the Plaintiff produced no experts reports pursuant to the deadlines and extended deadlines set out in the pretrial and case management orders. [ 39 ] The Plaintiff did not request any further extension for provision of experts reports in the event her opposition to these

summary judgment applications succeeded, nor did she request or suggest that she would be obtaining further experts reports prior to any upcoming trial. [ 40 ] The applicants, the Hospitals and Dr. Braun argue that experts reports have been produced by the remaining Defendants suggesting that the standard of care of each Defendant has been met, and in the absence of any experts reports on behalf of the Plaintiff, the Plaintiff’s claims should be summarily dismissed. [ 41 ] The Plaintiff’s reply is that her “expert’s report” of Dr.

Rajput suggests that she “did not receive the best possible medical care available as quickly as possible” and that furthermore, the doctors and the Hospitals were negligent in not following her directions to order a bone scan of her jaw when she requested it. [ 42 ] The Plaintiff made no direct complaint or allegation of negligence either in her pleadings or in the application, against a specific nurse, any nurses generally who may have cared for her, or the Hospitals that may have employed the nurses or other staff. [ 43 ] In her submissions during the course of these applications, the Plaintiff acknowledged that she had “no problem at all regarding the nursing staff”.

She said the nurses and Hospital staff were following the directions of the doctors and she suggested that therefore they, the Hospitals, ought to be responsible. [ 44 ] Paragraph six of the affidavit of Heather Durstling dated August 29, 2023 states: “the physicians who provided medical treatment to the plaintiff at the defendant hospitals are independent contractors granted privileges to work within the defendant hospitals and are not employees of AHS or the defendant hospitals” [ 45 ] That affidavit was not cross examined on, nor was that allegation challenged by the Plaintiff during the course of the

summary dismissal applications. [ 46 ] As against the Hospitals and the nurses employed by them, the Plaintiff is essentially presenting a vicarious liability argument - although not presented in those terms by her. [ 47 ] The issue on these applications is whether the applicants, Dr. Braun and the Hospitals, have met the necessary criteria for the granting of

summary judgment dismissing the claims of the Plaintiff. The associated issue is whether the Respondent Plaintiff has met the case of the Applicants and established that a trial of these matters is required.

In particular, the Applicants argue that they have produced expert evidence in support of their positions and applications, suggesting that there is no merit to the Plaintiff’s claims, and that the appropriate standards of care have been met by these Defendants, whereas the Plaintiff has produced no experts reports in response, having been placed with the burden of “ putting her best foot forward” and failing to meet that burden. [ 48 ] Ultimately, one of the questions is whether a triable issue exists, that is, whether it is a breach of the standard of care for a doctor to not follow a patient’s specific instructions.

Here, Ms. Trim clearly was in pain when she attended upon Dr. Braun on both occasions on May 30, 2018 and July 19, 2018. While the affidavit evidence is not clear that she requested a bone scan on her first attendance with Dr. Braun, it is clear that she asked or suggested on July 19, 2018 that a bone scan be done to determine whether she had a bone infection, and he declined to order one. Eventually, when a bone scan was done on July 26, 2018 she was found to have a bone infection, which was ultimately successfully treated by administration of intravenous antibiotics. [ 49 ] The Defendant Dr.

Braun, in addition to his own affidavit setting out the basic facts relating to this matter, also presented the affidavit of Dr. Andrew Robert Anton which included the report of Dr. Anton. The report of Dr. Anton was provided to the Plaintiff on June 30 th 2023, within the deadline set by the case management Orders. The report of Dr. Anton attached his curriculum vitae. [ 50 ] No cross-examination on the affidavit of Dr. Anton took place. [ 51 ] Dr. Anton is a medical doctor specializing in emergency medicine in Calgary, Alberta. The Plaintiff did not challenge the qualifications of Dr.

Anton during the course of this application. [ 52 ] In preparation of his report, amongst other records, he reviewed the records of Westview Health Centre, including Dr. Braun’s notes, the bone scan report of July 26, 2018 and other medical records and reports dated between August 1, 2018 and September 17, 2018. [ 53 ] Dr. Anton’s conclusion as stated in his report was that Dr. Braun met the standard of care in his treatment of Ms. Trim on May 30, 2018 and July 19, 2018. [ 54 ] Dr. Anton in his report stated: In

summary, Dr. Braun had two encounters with Ms. Trim, both of which involved chronic dental pain which had multiple medical and dental interventions. Ms. Trim was subsequently diagnosed with possible osteomyelitis for which she underwent a prolonged course of intravenous antibiotics. I believe Dr. Braun met the standard of care in treating Ms. Trim. Dr. Braun performed appropriate examinations of Ms. Trim, ordered appropriate clinical tests and made appropriate and reasonable diagnoses based on the information available to him during Ms.

Trim’s attendances at the Hospital on May 30, 2018 and July 19, 2018. [ 55 ] Furthermore, Dr. Anton concluded that as there was no clear indication of osteomyelitis at the time of Dr. Braun’s encounters with Ms. Trim, it was not the standard of care to initiate IV antibiotics at the time of his assessments. He also concluded that the clinical benefits of initiating IV antibiotics earlier was questionable, based on the fact that she had previously undergone several months of oral

antibiotics, which Dr. Anton stated (based on studies he attached to his report), were equally effective to IV antibiotics in the treatment of osteomyelitis. [ 56 ] Dr. Anton also addressed the “standard of care when the patient requests further testing, such as a CT scan, whether or not it is indicated”. It is important to quote the entirety of Dr. Anton’s conclusion on this point, as Ms. Trim requested Dr. Braun order a bone scan on her second visit to him on July 19 and he declined to do so.

This is a significant foundation for her claim and is justifiably an issue of considerable concern to her. [ 57 ] Specifically, and as it relates to the “bone scan”, Dr. Anton concluded that: “... it was entirely reasonable for Dr. Braun to defer further investigation and to advocate for follow up with her dentist. During this visit to the Hospital, Ms. Trim requested a CT scan be performed. However, it was entirely reasonable for Dr. Braun to deny this request, as it was not indicated based on Ms.

Trim’s physical examination and test results”. [ 58 ] The Hospitals produced the affidavit of Heather Durstling in support of the

summary dismissal application. Ms. Durstling is the Executive Director of Suburban Hospitals, Edmonton Zone at Alberta Health Services and deposes that: “the physicians who provided medical treatment to the plaintiff at the defendant hospitals are independent contractors granted privileges to work within the defending hospitals and are not employees of AHS or the defendant hospitals.” [ 59 ] No cross examination on that affidavit was undertaken, nor was that allegation challenged by the Plaintiff during the course of the application. [ 60 ] The Hospitals also provided the affidavit of Susan Kotyk in support of their application for

summary dismissal. Ms. Kotyk is a registered nurse practicing in the emergency and trauma department at the Sunnybrook Health Sciences Centre, Toronto, Ontario. [ 61 ] A curriculum vitae was provided in her affidavit and set out that she worked as a registered nurse from 1993 to the present including being a clinical care leader in the emergency department at Sunnybrook Health Sciences Centre with a specialization in emergency and trauma. [ 62 ] In addition to reviewing the pleadings in these actions, she reviewed the records of the hospitals and identified individual nurses who attended to Ms. Trim.

She reviewed the triage procedures, assessments and treatments with respect to each nurse, and her report concluded that the Hospitals and nursing staff conducted themselves in accordance with generally accepted practices when they cared for the Plaintiff and that they met the standard of care. [ 63 ] The Respondent, Ms. Trim has not provided experts reports pursuant with the requirements of the case management orders regarding disclosure of experts reports and qualifications, despite having been given extensions of time.

The final deadline imposed by Justice Young for the Plaintiff to provide experts reports was in the Order of August 16 th 2022 which set a deadline for the Plaintiff to provide to the Defendants, experts reports by December 16 th 2022. While Ms. Trim did file an application for extension of that deadline, she ultimately abandoned that request which is confirmed in the Order of March 17 th 2023. [ 64 ] Ms. Trim did provide, attached as an exhibit to her affidavit in opposition to these applications, the one-page letter from Dr.

Rajput dated September 14, 2023 which opined that “it appears Mary did not receive the best possible medical care available as quickly as possible”. I have concluded that the letter does not meet the requirements of an expert report as stipulated in the various case management and pretrial conference orders, or otherwise. It was not only provided late, well beyond the deadlines and extended deadlines stipulated, it does not provide any information about the qualifications of Dr. Rajput, and does not with any specificity outline the factual background relied upon for any “opinion”.

Indeed, it has not addressed the standard of care of either a doctor or the Hospital Defendants that remain in this litigation. [ 65 ] The Plaintiff has produced no expert evidence to suggest that failure by Dr. Braun to order a bone scan was in breach of the standard of care of an emergency department physician practising in that location at that time.

The Plaintiff has also not produced any expert report to suggest that the care provided by the nurses or Hospitals which employed them did not meet the requisite standard of care. [ 66 ] In most professional liability claims, expert evidence will be required to establish a breach of the standard of care by the professional, with two exceptions. Firstly, when it is possible to reliably determine the standard of care in the absence of expert evidence where the court is faced with non-technical matters or those of which an ordinary person may be expected to have knowledge.

Secondly, standard of care evidence is generally not required where the actions of the professional are so egregious that it is obvious that their conduct has fallen short of the standard of care, even without precisely knowing the parameters of that standard. Shave v Century 21 Assurance Realty Ltd., 2022 BCSC 183 . [ 67 ] Specifically, regarding

summary judgment in medical negligence actions, in Stoddard v Montague, 2006 ABCA 109 the Alberta Court of Appeal summarized the burden of proof for the respondent to an application for

summary judgment in a medical malpractice action as follows at para 20: “The need for expert evidence for both these issues [standard of care and causation] is obvious. In a medical negligence action, where the allegation of negligence involves issues outside the ordinary knowledge and experience of the trier of fact,

summary dismissal of the plaintiff’s claim is appropriate when the plaintiff has failed to adduce any supportive expert opinion”. See also see Balan v Warshawki, 2016 ABQB 488 . [ 68 ] The Alberta Court of Appeal in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd ., 2019 ABCA 49 has set out the four-part test to be considered for

summary disposition as follows:

1. Is it possible to fairly resolve the dispute on a

summary basis, or do uncertainties in the facts, the record or the law reveal a genuineissue requiring a trial? 2. Has the moving party met the burden on it to show that there is either no merit or no defence in the respondent’s position and thatthere is no genuine issue requiring a trial? 3. If the moving party has met its burden, the resisting party must put its best foot forward and demonstrate that there is a genuine issuerequiring a trial. 4.

The presiding judge must be left with sufficient confidence in the state of the record, that is the facts, evidence, and law, to exercisejudicial discretion and summarily resolve the dispute. [69] Pursuant to Weir Jones, it is incumbent on the Defendants, the applicants in this

summary dismissal application, to initiallyestablish that there is no merit to the claim of the Plaintiff and that there is no genuine issue requiring trial. It is not mandatory for therespondent in the

summary judgment application to proffer evidence to establish her claim until the applicant has met its burden ofshowing that there is no merit to the claim. [70] The Defendants have produced the affidavits of Dr. Anton, and Susan Kotyk, both of whom, in

summary, opine that thestandard of care of Dr. Braun and the nursing staff, respectively, were met. Thus, these Defendants have initially met the burden of proofthat there is no merit to the Respondent’s position, and that there is no genuine issue requiring trial. With the Defendants having met thatburden, the Respondent must then put her best foot forward and demonstrate that there is a genuine issue requiring trial. [71] The decision of whether to order a bone scan under any given circumstance is not one about which an ordinary person can beexpected to have knowledge. Nor was the conduct of Dr.

Braun so egregious that it is obvious that he did not meet the required standardof care. As stated in Stoddard v Montague, the need for expert evidence is obvious. [72] That said, is it sufficient at this

summary judgment stage, in the absence of evidence supporting the proposition, for theRespondent to suggest that there is merit to her case and that a trial is required because she requested a bone scan which was notadministered and which ultimately proved to be helpful in her diagnosis and treatment? [73] This is not only a case where the patient says: “in retrospect the doctor should have administered this procedure and did not”,but rather one where the patient also said, “I want you to administer this procedure” and the doctor did not. [74] The Plaintiff suggests that the bone scan report, July 26 2018, which is Exhibit 3 to Dr.

Braun’s affidavit establishes that shehad a bone infection requiring IV antibiotics, conclusively proving that Dr. Braun was wrong i.e. negligent in not prescribing a bone scanwhen she first asked for it. [75] Reviewing that July 26, 2018 bone scan report, I conclude that while it may well go part way to establishing that she mayhave had a bone infection, it says “findings suspicious for osteomyelitis”, which falls well short of establishing that the standard of careof Dr. Braun was breached. [76] The question is addressed in Dr.

Anton's report at para 4: While it is important that patients be given the opportunity to advocate for themselves and their family members, this must be weighedagainst the fact that they often lack the clinical knowledge or experience to determine which tests are most appropriate in thecircumstances. It is the physician’s responsibility to ensure that tests are ordered in a way to, firstly, do no harm and secondly, tomaximize the likelihood of accurate and timely diagnosis. Furthermore, there is increasing emphasis on physicians being the custodiansof healthcare spending by choosing diagnostics wisely.

Specific to the issue of a CT scan, this is a test which involves radiationexposure. While a single or even occasional scan is considered low risk, clinicians must be mindful that repeated use of such tests mayincrease an individual’s lifetime cancer risk. The standard of care involves the physician performing an appropriate history and physicalexam and ordering testing based on established clinical practice standards and guidelines. These standards would supersede the patient’sperceived testing requirements. In my opinion, Dr. Braun met the standard of care in this case by taking Ms.

Trim’s history, performingappropriate physical exams and ordering appropriate and relevant tests in the circumstances. [underlining added] [77] The affidavit of Ms. Trim makes clear that she endured considerable pain in her jaw over a number of weeks and months,which ultimately was mostly resolved after she underwent a bone scan and administration of 8 weeks of IV antibiotics. She also allegesin her affidavit that she unnecessarily had 2 molars extracted in an unsuccessful effort to alleviate her pain, all as a result of not havingbeen administered the bone scan earlier. [78] The letter from Dr.

Rajput does not qualify as an admissible expert’s report. Firstly, it does not set out the qualifications of Dr.Rajput beyond “MD”, so as to ensure that he is a “properly qualified expert" as required by the Supreme Court of Canada in R v Mohan, (SCC), [1994] 2 SCR 9. Secondly, the letter of Dr. Rajput does not address the issue of standard of care of either anemergency room doctor, such as Dr. Braun, or nursing or other staff of the Hospitals. It merely states, somewhat equivocally, that “itappears Mary did not receive the best possible medical care available as quickly as possible”. The test is not whether Ms.

Trim receivedthe best possible medical care, but rather whether the care that she did receive met the appropriate standard of care expected of thedoctors, nurses or staff in these facilities at the time she was treated. [79] The Plaintiff has failed to demonstrate that there is a genuine issue requiring a trial by providing expert evidence of a potentialbreach of the standard of care of either Dr. Braun, the nurses or the Hospital staff by not having her undergo a bone scan, or any othertreatment for that matter.

This is essential for the Plaintiff to meet the third criteria in the Weir Jones case and succeed in defeating thesesummary dismissal applications. An allegation that an attending emergency room doctor did not comply with a request of a patient toorder a certain procedure does not in and of itself establish a breach of the standard of care by that doctor. An allegation in a pleading oraffidavit, without more, is not sufficient to establish that there is a genuine issue requiring a trial.

[ 80 ] The evidence is clear that the Plaintiff was in considerable pain for a number of weeks or months, and also that she had requested a " bone scan”, which was not administered. However, the expert opinion of Dr. Anton was that Dr. Braun acted reasonably in deferring further investigation and advocating follow up with her dentist. Dr. Anton also opined that it was entirely reasonable for Dr. Braun to deny the request for a bone scan as it was not indicated based on the physical examination and test results. This is not contradicted by Dr.

Rajput, or any other expert on behalf of the Plaintiff. [ 81 ] I do not see how the Plaintiff can succeed in her action against Dr. Braun without a report of a qualified expert rebutting the conclusions of Dr. Anton and opining that Dr. Braun’s care did not meet the requisite standard of care. She has failed to provide any such expert’s opinion and has confirmed that she would not be retaining any further expert should this matter proceed to trial. [ 82 ] The Supreme Court of Canada in Hryniak v Mauldin , 2014 SCC 7 not only emphasizes that a judge at the

summary judgment stage must consider proportionality in determining whether a matter should proceed to trial or should be summarily dealt with, but also whether a just and fair result can be achieved at an early stage. In this case the litigants are faced with a trial of at least 3 days duration, with the testimony of at least 3 experts likely to be called by the Defendants. The costs, even taxable costs, of the parties would be significant; certainly in the thousands of dollars. Pursuant to the general rules regarding payment of costs and

section 38 of the Court of Justice Civil Procedure Regulation , the costs would likely be borne by the unsuccessful party to the litigation. Given the totality of the evidence presented in these applications, and the representations made by the parties as to expert evidence likely to be presented, the risks of the potential costs that might be payable by the unsuccessful party to a lengthy trial warrant that this matter be dealt with summarily. [ 83 ] I am mindful that Ms.

Trim is self represented, and may not have the resources, financial or otherwise, to have retained the expert evidence needed to rebut the Defendants’ experts’ reports and meet the third criteria of the Weir Jones test to establish that she has a genuine issue requiring trial. The resources of the doctors and hospitals and particularly their insurers are considerable; not only from a financial perspective but from the perspective of access to potential expert witnesses.

Litigants in medical negligence cases must not only be able to fund, identify and locate experts qualified in that particular area of practice, they must also succeed in retaining an expert who is willing to testify on their behalf. This is a task much more easily undertaken by the medical Defendants and their insurers than by a self represented litigant such as Ms.

Trim. [ 84 ] But that said, the rules of evidence and the binding authorities of Weir Jones and Stoddard v Montague apply equally to all litigants, self-represented or not. [ 85 ] Furthermore, the argument presented by the Hospitals that the doctors, including Dr. Braun, were independent contractors and not employees has not been rebutted. Therefore, any suggestion that the Hospitals might be vicariously liable for the negligence of Dr. Braun, Dr. Orth or Dr. Jahangir fails.

This, in addition to the reasons already provided, demonstrates that there is no genuine issue requiring a trial as against the Hospitals. [ 86 ] The 3 actions against the Hospitals are therefore summarily dismissed. [ 87 ] For the reasons previously given, I find that the Plaintiff has also failed to demonstrate that there is a genuine issue requiring trial regarding the alleged negligence of Dr. Braun. The action against Dr. Braun is therefore also summarily dismissed. Dated at the City of Edmonton, Alberta this 15 th day of November, 2023. G.W.

Sharek A Justice of the Alberta Court of Justice Appearances: Plaintiff / Respondent Self-represented. Kirshen Singh Bennett Jones LLP

for the Defendant / Applicant Theodore Braun Katherine Fu Field LLP for the Defendant / Applicant Hospitals