2018 QCCQ 435, 2018 QCCQ 435

Di Matteo c. Harandian 2018 QCCQ 435 COURT OF QUEBEC (Small Claims Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-139683-132 DATE: January 26, 2018 ______________________________________________________________________ BEFORE THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ Christina Di Matteo Plaintiff v. fereidoun harandian -and- CLINIQUE DENTICARE INC.

Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims damages of $4,800 from Dr. Fereidoun Harandian and his dental clinic, Clinique Denticare inc. (“ Denticare ”), for negligence in the installation of a crown and in the execution of a root-canal treatment. She seeks compensatory damages of $2,800 representing the amount that she paid to remedy the pain and discomfort felt as a result of Dr. Harandian’s dental work and punitive damages of $2,000. [ 2 ] Defendants deny that Dr.

Harandian was negligent in any respect and seek the dismissal of the claim. questions in issue [ 3 ] The case raises the following questions:

a) Did Dr. Harandian commit a fault giving rise to liability?

b) If so, is Plaintiff entitled to the damages claimed? FACTUAL CONTEXT [ 4 ] On November 10, 2008, Plaintiff consulted Dr. Harandian to replace a broken crown on tooth #37. Dr. Harandian examined the tooth and noted a deep caries, but the tooth was not sensitive to hot, cold or pressure. After discussing options with Plaintiff, he removed the caries, filled the tooth and installed a newly-created Cerec crown. [ 5 ] A few days later, Plaintiff developed pain around the tooth and consulted Dr. Harandian again. After examining her on November 17 and again on November 20, 2008, Dr.

Harandian recommended a root-canal treatment, which he carried out on December 8, 2008. To do this, he drilled a hole in the new crown. [ 6 ] Plaintiff claims that she also complained that the crown was not fitting properly as there was an excessive gap between tooth #37 and the adjoining tooth, which required her to floss each time she ate. [ 7 ] In June 2009, Plaintiff consulted Dr. Harandian again, complaining that the pain had not subsided after the root-canal treatment. The possibility of Dr. Harandian redoing the treatment was discussed, but Plaintiff indicated that she wanted to consult another dentist.

Dr. Harandian initially suggested that he was prepared to pay for corrective work, but later insisted that she consult Dr. Herb Borsuk rather than a dentist of her choice. Plaintiff consulted Dr. Borsuk, who advised her that pain from a root-canal treatment could last up to a year. She decided to wait. [ 8 ] In November 2009, the Cerec crown broke. Dr. Harandian examined the tooth again and replaced the broken crown, this time with a porcelain-fused-to-metal crown.

Plaintiff claims that this was also ill-fitting with a similar gap and that the pain and discomfort persisted. [ 9 ] At the beginning of 2011, Plaintiff decided that she had enough and consulted another dentist, Dr. John A. Petrucelli. He referred her to Dr. Shapiro, a root-canal treatment specialist at Endodontie Montréal, who informed her that Dr. Harandian’s root-canal treatment had not been carried out properly and needed to be redone. Dr. Shapiro did so and Plaintiff paid $1,375 for his work. [1] Afterwards, Dr.

Petrucelli provided and fitted a replacement crown at a cost of $1,425. [2] [ 10 ] According to Plaintiff, the pain and discomfort subsided completely after these treatments and have not returned.

[ 11 ] On February 28, 2011, Plaintiff demanded payment from defendants of the $2,800 paid to Dr. Petrucelli and Dr. Shapiro. [3] Defendants denied any liability. [4] [ 12 ] On March 25, 2011, Plaintiff complained to the Ordre des dentistes du Québec (the “ ODQ ”) regarding the dental work done by Dr. Harandian. [5] An inquiry was conducted and eventually led to the filing of a complaint with the Conseil de discipline of the ODQ. [6] [ 13 ] Plaintiff filed her claim in the instant case on August 22, 2013. ANALYSIS

a) Did Dr. Harandian commit a fault giving rise to liability? [ 14 ] To succeed, Plaintiff must prove by preponderant evidence [7] that Dr. Harandian committed a fault which caused her to suffer injury. [ 15 ] Regarding the standard or duty of care, it is now well established law that dentists are held to an obligation of means towards their patients and not an obligation of result.

They are expected to practice their profession as a prudent and diligent dentist placed in similar circumstances would do. [8] Their obligations fall into different categories and include the obligation to choose appropriate treatment and to provide said treatment in a competent and diligent manner. [9] [ 16 ] Plaintiff argues that Dr. Harandian’s conduct was not that of a prudent and diligent dentist placed in similar circumstances. She relies in this regard on the expert testimony of Dr. Pierre Lafleur, Assistant Syndic of the ODQ. Dr.

Lafleur’s opinion is based on his inquiry and analysis of Plaintiff’s file, which led him to file a complaint against Dr. Harandian before the ODQ’s disciplinary committee. [ 17 ] In Dr. Lafleur’s opinion, Dr. Harandian’s conduct was not that of a prudent and diligent dentist because he did not follow scientific standards generally recognized in dentistry: [10]

a) By installing the Cerec crown on tooth #37 in November, 2008 despite the fact that a lesion at the root of tooth was visible on the x-rays [11] and without conducting further testing (such as vitalometric testing or fraisage ) to ensure that the tooth was healthy enough to do so without a root-canal treatment;

b) By drilling through the Cerec crown to perform a root-canal treatment after he concluded that it was needed, thereby weakening the crown;

c) By doing a root-canal treatment poorly (“short”), which is why the lesion on tooth #37 was not resorbed despite the treatment;

d) By installing the second crown in November 2009 when x-rays showed that there was still a lesion at the root of the tooth; [12]

e) By not fitting the second crown properly, leaving a large gap between tooth #37 and the adjacent tooth, which could cause bacteria and infection. [ 18 ] Dr. Harandian contends otherwise. Firstly, he claims that he proposed a root-canal treatment before installing the initial crown and that Plaintiff flatly refused. This is denied by Plaintiff and the Court prefers her testimony to that of Dr.

Harandian. [ 19 ] Secondly, he argues that installing the Cerec crown without doing a root-canal treatment was justified at the outset because Plaintiff’s tooth was asymptomatic and, when it later became evident that a root-canal treatment was needed, that he performed the treatment in accordance with recognized standards. In his opinion, the treatment did not fail because of negligence on his part, but simply because Plaintiff’s condition fell within the 10% failure rate known for root-canal treatments. [ 20 ] After careful consideration, the Court prefers the testimony of Dr. Lafleur to that of Dr. Harandian.

Dr. Lafleur provided detailed and credible explanations during his testimony regarding his conclusions; he also provided frank answers and nuances in response to the questions put forward by Dr. Harandian’s representative. [ 21 ] The Court accepts his opinion and concludes, on the facts, that Dr. Harandian committed a fault in the installation of the crowns and in the root-canal treatment on Plaintiff.

f) Is Plaintiff entitled to the damages claimed? [ 22 ] Defendants are liable and must compensate Plaintiff for the injury caused as a direct result of Dr. Harandian’s fault. [13] [ 23 ] Plaintiff is entitled, as compensatory damages, to the reimbursement of the $2,800 paid to Dr. Petrucelli and Dr. Shapiro. The Court is satisfied, on a balance of probabilities, that the dental care they provided was necessary to remedy the pain and discomfort resulting from Dr. Harandian’s fault. Under the particular circumstances of the case, Plaintiff could not be expected to ask Dr.

Harandian to do the corrective work rather than go to another dentist. [ 24 ] Plaintiff is not, however, entitled to the $2,000 in punitive damages that she claims. Punitive damages can only be awarded in limited situations, where their award is specifically provided for by law. [14] No provision of law justifies the award of punitive damages in the circumstances of this case. [ 25 ] Plaintiff’s claim for punitive damages must therefore be dismissed. FOR THE REASONS, THE COURT:

GRANTS the action in part. CONDEMNS Dr. Fereidoun Harandian and Clinique Denticare inc., solidarily, to pay the sum of $2,800, plus interest at the annual rate of 5% and the additional indemnity provided for by

article 1619 of the Civil Code of Québec as of February 21, 2011 [15] . WITH LEGAL COSTS of $136 representing the judicial fees on the Application. __________________________________ DOMINIQUE GIBBENS, J.C.Q. Date of hearing: April 4, 2016, October 31, 2016 and November 6, 2017 [16]