2011 QCCQ 11182, 2011 QCCQ 11182

Ngo c. Baré 2011 QCCQ 11182 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-115221-097 DATE: September 21, 2011 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ AN V. NGO […] Montréal Québec […] Plaintiff v.

SABRINA BARÉ […] Montréal Québec […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] An V. Ngo is suing Dr. Sabrina Baré for $4,439, alleging professional malpractice. He is seeking reimbursement of fees paid and damages. Defendant denies the claim. By amendment, Mr. Ngo withdrew the amount of $1,011 from his claim. The question in litigation: [ 2 ] Did Dr. Baré commit a professional fault in her treatment of Mr. Ngo? The evidence: [ 3 ] Mr. Ngo had root canal treatment carried out by Dr.

Baré on May 11, 2006. Dr. Baré then planned to put a crown on that tooth. According to Mr. Ngo, Dr. Baré quoted a price of $800. [ 4 ] Mr. Ngo alleges that despite having paid $820, she refused to finish the job. As a result, he developed an infection. In addition, he claims that she had not put a pivot in his tooth but had charged him for this procedure. [ 5 ] He was subsequently treated by another dentist, who prepared a crown for the tooth and charged $1,011. [ 6 ] Dr. Baré maintains that the tooth was sealed by a temporary crown, which is good for several weeks.

Initial work was done to prepare the final crown, namely the area was cleaned, X-rays were taken, measurements were carried out and an impression was made. Mr. Ngo had another appointment, which Dr. Baré cancelled. Since Mr. Ngo had not paid for the work done to date, Dr. Baré did not send the impression of his tooth to the laboratory to have the permanent crown prepared and would not continue to provide dental services. Analysis: [ 7 ] Dr. Baré testified that an appointment had been made to pursue Mr. Ngo’s dental work but he failed to leave a deposit to cover the work already done.

She had charged $272 for the pivot and $933 for the crown. The major part of the work for the crown had already been done.

[ 8 ] Mr. Ngo claims he paid for the crown work. With respect to Mr. Ngo's alleged payment, he submitted a cheque for $115.50, made to the order of Dr. Baré, which was cashed in New Jersey, U.S.A.. He presented a bank statement showing the withdrawal of $100 as well as a receipt for $392. In addition, Mr. Ngo stated he paid $220 in cash. [ 9 ] Dr. Baré denied having received a cheque for $115.50. She has no bank account in New Jersey. Although Mr. Ngo’s bank statement shows a withdrawal of $100, there is no indication as to the purpose of the withdrawal or to whom it was paid.

With respect to the receipt of $392.50, Mr. Ngo signed the document himself. It was countersigned by one of Dr. Baré's assistants. According to Dr. Baré, that assistant does not handle money and has no dealings with accounting. [ 10 ] The only amount Dr. Baré received from Mr. Ngo is $220, which is shown in her account statement. The statement also indicates that Mr. Ngo owes $1,057 for treatments carried out in 2005 and 2006. [ 11 ] Mr. Ngo's claim that he paid the entire amount owed for the crown work is not supported by the evidence. Furthermore, Mr. Ngo sent Dr.

Baré a card, dated October 23, 2006, in which he admits owing her $835 and was enclosing $220 in cash towards his arrears. In another card, he sent Dr. Baré, dated July 7, 2007, Mr. Ngo indicates he owes her $825. Both cards show that Mr. Ngo recognized he owed Dr. Baré money. [ 12 ] Mr. Ngo’s request for the reimbursement of $820, which he alleges he paid to Dr. Baré, is not granted. Mr. Ngo has not established that he paid this sum. He only paid $220, which covers part of other work done. [ 13 ] Mr. Ngo alleged that Dr. Baré failed to install a pivot in tooth number 37 and also failed to make a crown. Dr.

Baré explained that the pivot she installed was made of fiberglass, which does not show up in an X-ray, as opposed to a metal pivot. [ 14 ] Furthermore, Dr. Baré's records show that on June 7, 2006, she installed the pivot. She also carried out the reconstruction of Mr. Ngo's tooth and the preparation for the permanent crown. [ 15 ] Mr. Ngo submitted that Dr. Baré could not ask for full payment in advance. However, most of the crown work was done. The temporary crown had been installed and all that remained was to replace it with the permanent crown. Dr.

Baré sought payment for the dental work that was completed. [ 16 ] Mr. Ngo is also seeking the reimbursement of $645. He alleged this was the cost to repair his root canal but he failed to establish that his root canal treatment was redone by another dentist. As for his claim for lost work time, litigants are not compensated for preparing or presenting their case in Court. [ 17 ] Mr. Ngo is also seeking punitive damages, alleging that Dr. Baré violated the Code of ethics of dentists [1] , particularly articles 3.02.01, 3.03.02, 3.07.03, 3.08.01, 3.08.03, 3.08.04. These articles read as follows: 3.02.01.

A dentist shall discharge his professional duties with integrity. 3.03.02. A dentist must be objective and honest when a person likely to become a patient asks him for information. 3.07.03. A dentist who, pursuant to the second paragraph of

section 60.5 of the Professional Code (R.S.Q. c. C-26 ), refuses to allow a patient access to the information contained in a record established in respect of that patient shall inform the patient in writing of the reason for the refusal where the disclosure would be likely to cause serious harm to the patient or to a third person. 3.08.01. A dentist shall establish and charge fair and reasonable fees. 3.08.03.

A dentist shall provide his patient with the explanations necessary to the understanding of his fees and of the terms and conditions of payment and, upon request, a detailed statement of his fees. 3.08.04 A dentist shall notify his patient of the approximate cost of his services before beginning the treatment and shall refrain from demanding full advance payment for his services. If projected treatment on which agreement has been reached must be changed, the dentist shall inform the patient without delay of the additional fees that this change will entail. [ 18 ] Mr.

Ngo filed a complaint with the Quebec Order of Dentists. After an investigation, the Syndic concluded as follows: “Based on the results of this exercise, we inform you that nothing we found permits us to conclude that Dr Baré made herself guilty of any professional and/or ethical fault while you were under her care.”. [ 19 ] There remains the question of whether Dr. Baré could cease treatment, considering paragraph 3 of the Code of ethics : 3.03.03. A dentist may not cease treating a patient unless he has sound and reasonable grounds for doing so. 3.03.04.

Before ceasing the treatment of a patient, a dentist must advise him of his intention and ensure that such termination of service is not detrimental to the patient's health. [ 20 ]

Article 3.03.03 was discussed by the Court of Appeal in the case of Mirarchi et al. c. Lussier [2] .

The Court indicated that a restrictive approach must be adopted in the case where a dentist refuses to continue to treat a patient: «… le Code de déontologie des dentistes prévoit que “le dentiste ne peut, sauf pour un motif juste et raisonnable, cesser de traiter un patient (l’art. 3.03.03) et qu’avant de mettre fin au traitement d’un patient, le dentiste doit l’aviser de son intention et s’assurer que cette cessation de service n’est pas préjudiciable à sa santé.” Le refus de traiter est l’émanation de la discrétion du professionnel de la santé qui doit l’exercer dans le respect des Chartes, de l’ordre public et de la loi.

Toutefois, le refus de continuer de traiter un patient alors qu’une relation professionnelle est déjà établie ou, plus sérieux, le refus de continuer un traitement alors qu’une procédure médicale est en

cours, doit être scruté avec rigueur, en adoptant une approche restrictive quant à la liberté professionnelle de la faire. Lorsque ce refus ne tient pas à la relation de soin entre une personne et le professionnel traitant mais s’attache, uniquement, à la marchandisation (sic) des patients, le principe d’ordre public entre alors en jeu… ». [ 21 ] The author, Louise-Hélène Richard, in the

article entitled La responsabilité professionnelle du dentiste [3] , also deals with the responsibility of a dentist to treat a patient, indicating that a dentist may end treatment at a time which is not prejudicial to the health of the patient: «Il ne peut abandonner son patient sans se préoccuper des conséquences que l’interruption de soins pourrait avoir sur sa santé. Il pourra le faire s’il choisit un moment qui ne sera pas préjudiciable à la santé du malade.

Pour plus de certitude, le dentiste peut mettre un terme au contrat de soins sans crainte de représailles juridiques en adressant une lettre à son client l’avisant de son intention de cesser de le traiter, lui assurant toutefois la continuation des soins d’urgence pendant un délai suffisamment long pour lui permettre d’entreprendre avec un professionnel de son choix de nouvelles relations. L’avis écrit n’est cependant pas nécessaire. » [ 22 ] In the present case, as indicated above, Dr. Baré prepared the tooth in question for a crown, took the impression and installed a temporary crown.

All the work for this stage of the procedure was finished and Dr. Baré was entitled to be paid for her services. All that remained was to send the impression of the tooth to the laboratory, and upon the return of the porcelain crown, cement it in place. [ 23 ] In the interim, Mr. Ngo had a temporary crown fitted in his mouth that could remain in place for a certain period. [ 24 ] Mr. Ngo alleged in his demand letter dated May 2, 2008 that “the tooth where the crown was supposed to be worked upon is now damaged… and need(

s) to be urgently repaired.” [ 25 ] Mr. Ngo ultimately decided to pursue his treatment with Dr. Pierre Ares, another dentist, rather than with Dr. Baré. He presented a bill from Dr. Ares, which included the following: “Cour. Porc/Acryl/Rés sur metal 661.00 Travaux de laboratoire commerc. 350.00 » [ 26 ] Mr. Ngo did not present any report or expertise from Dr. Ares. The invoice only indicates that the laboratory work was done and the permanent crown work was made. This appears to be the work that remained to be carried out, had Mr. Ngo returned to be treated by Dr. Baré. [ 27 ] It is clear that Dr.

Baré finished the work involved in making the temporary crown and she intended to continue her services, if Mr. Ngo paid his bill. [ 28 ] In sum, when Dr. Baré decided not to continue treatment, she had to advise her patient of her intention in this regard and, in addition, she had to assure that ceasing treatment would not be prejudicial to her patient’s health. [ 29 ] There is no evidence that Dr. Baré failed to respect these obligations or committed any professional fault. [ 30 ] Finally, Mr. Ngo complained that Dr.

Baré failed to advise him as to the urgency of the situation or the fact that he had a temporary seal and that a permanent seal was required in the near future. Dr. Baré disputed this allegation, insisting that she had advised Mr. Ngo his crown was temporary and warned him that he had to have a permanent crown installed. Moreover, Dr. Baré, in her letter to Mr. Ngo in May 2008, in response to Mr.

Ngo’s demand letter, re-iterated the risks and consequences involved in leaving a temporary crown in place: « Vous avez été avisé que le délai entre la préparation d'une couronne (réalisée le 07-06-06) et la cimentation devrait être une période de trois semaines. Comme vous ne pouviez pas régler les sommes dues, nous avions convenu que l'empreinte de cette couronne fait e aussi le 07-06-06 serait envoyée au laboratoire dès que le solde serait réglé.

À ce moment et à plusieurs autres occasions par la suite vous avez été avisé des risques et conséquences de laisser en bouche une couronne temporaire qui pouvait se brise, se décimenter et abîmer le pilier de la dent… » (the underlining is ours) [ 31 ] Mr. Ngo, as Plaintiff, has the burden of proof. He must establish his allegations, to the satisfaction of the Court, by preponderant evidence. He has not succeeded in doing so. In the absence of evidence to support his claim, the Court is unable to provide him with the recourse he is seeking. FOR THESE REASONS, THE COURT: DISMISSES the action instituted by An V.

Ngo; THE WHOLE , with costs.

__________________________________ SUZANNE HANDMAN, J.C.Q. Hearing Dates: February 7 and June 13, 2011 [1] c. D-3, r. 4.