2013 QCCQ 3451, 2013 QCCQ 3451

Teres c. Revah 2013 QCCQ 3451 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-125169-104 DATE: March 5, 2013 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ JACQUELINE TERES […], Dorval (QC) […] Plaintiff v. Dr.

LAURENT REVAH 78, Donegani, Pointe-Claire (QC) H9R 2V4 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Jacqueline Teres is claiming $7,000 from Dr. Revah, claiming that he installed veneers and crowns that were deficient and failed to inform her of this fact. She submits that her dental work had to be redone. [ 2 ] Dr. Revah was not present at trial.

On January 10, 2013, he asked for a postponement, invoking he would be out of town and his case needed to be analyzed by his Fonds d’assurance responsabilité professionnelle de l’Ordre des dentistes du Québec (FARPODQ) . At the hearing, his wife claimed Dr. Revah had not received the documents filed by Ms. Teres, which he had requested and he was therefore unable to prepare for trial. [ 3 ] The Court dismissed the request to postpone. His wife gave no details regarding Dr. Revah’s absence, saying only that it was personal. As for not having received the documents filed by Ms. Teres, Dr.

Revah could have gone to Court and obtained them. Furthermore, he was aware of all the pertinent exhibits submitted, namely his invoices, correspondence between the parties, an e-mail he wrote to the laboratory and correspondence with the Order of dentists. As well, the action was instituted more than two years ago; the notice of hearing is dated December 19, 2012. Dr Revah had ample time to obtain the documents on file and prepare for trial. The evidence: [ 4 ] Ms. Teres consulted Dr. Revah on October 21, 2009 to have nine veneers and two crowns installed.

She chose veneers since it cost a fraction of the price payable to install crowns and she understood that a lesser portion of the tooth is shaved. [ 5 ] After the work was done, at a cost of $8,340, she noted one of the veneers in front was cracked and another was not symmetrical with the other side of her mouth. She also felt pain in tooth number 16. She returned to the dental clinic on two occasions and Dr. Revah adjusted that tooth. However, the pain persisted. [ 6 ] On January 27, 2010, Ms. Teres consulted Dr. Raviv, Director of Prosthodontics at the Jewish General Hospital.

In his correspondance with the Syndic, he noted a hyper sensitivity in tooth # 16, cracked porcelain laminate veneers on teeth #11 and 22, a midline shift, an uneven incisal line and monochromatic shades of veneers. He suggested replacing the veneers with full crowns. [ 7 ] On January 30, 2010, Ms. Teres sent Dr. Revah a demand letter, asking for a full refund. Ms. Teres submits that Dr. Revah was aware of the defects when he installed the veneers and crown but failed to inform her. She maintains the major part of the work had to be

redone, at a cost of $18,000. [ 8 ] Dr. Revah replied on February 5, 2010, admitting that several problems occurred during the cementing process: #11 cracked in its front aspect, # 21 cracked at the angle and #16 (the crown) did not sit properly leaving a small void, which was filled with a sealant. [ 9 ] Dr. Revah stated, in his letter, that some restorations were to be redone at the beginning of January, when he returned from holiday.

He decided it was not necessary to explain the flaws concerning the aesthetics since only temporary restorations were used, which would be replaced in less than 3 or 4 weeks. [ 10 ] Dr. Revah claims, in his letter, he attempted to reach Ms. Teres to provide a follow up appointment for the veneers on January 14, 2010 but despite having left her a message, Ms. Teres did not return his call. In sum, Dr. Revah acknowledged there had been mistakes and the work needed to be redone.

He wrote that he was willing to complete and correct the defects, at no extra cost. [ 11 ] Mme Teres filed a complaint with the Syndic of the Order of Dentists. Following its investigation, the syndic advised Ms. Teres that no disciplinary procedures would be undertaken. The following are extracts of its decision: “First and foremost substantial evidences (sic) must be produced showing that the dentist in question has acted negligently and/or without the required competence with regard to the practice of dentistry.

Secondly…solid proofs (sic) must be given to demonstrate that the respondent dentist, by his conduct, has showed an evident lack of professional probity. Considering the results of our inquiry, nothing that we came across permits us to conclude that Dr Revah made himself guilty of any of the above-mentioned professional infraction while you were under his care. (…) …you had the unquestionable right to receive from Dr Revah the highest quality treatment possible, which we acknowledge was not the case. That fact happens to be recognized by Dr.

Revah in a letter dated February 5, 2010… …even though some flaws were found in the prothodonctic treatment rendered by Dr. Revah , there is no indication that a major professional fault was committed in the instance. More then (sic) a professional infraction, a breakdown in communication wherein Dr. Revah failed to address your needs adequately appears to be the element that sparked off your insatisfaction (sic) and lost (sic) of confidence. (…)’’ (the underlining is ours) Analysis: [ 12 ] Ms. Teres invoked two grounds in support of her action; first that Dr.

Revah committed a professional fault in carrying out his dental treatment and secondly, he failed to provide adequate information. The treatment: [ 13 ] Ms. Teres alleges Dr. Revah committed a fault by using defective veneers and crowns on her teeth. She also alleges a lack of proper follow-up. [ 14 ] She outlined her dissatisfaction with her dental treatment, in a demand letter dated January 30, 2010. Dr. Revah, in his reply, said he had only carried out a temporary restoration and was aware of various problems that had occurred.

He stated he had contacted the laboratory to have certain work redone and was willing to correct the defective veneers and crown, at no extra cost. [ 15 ] To succeed in obtaining damages, Ms. Teres must first establish fault on the part of Dr. Revah, damages and a causal link between the two. [ 16 ] Ms. Teres did not provide the Court with any expertise to establish that Dr. Revah committed a professional fault. Although there were defects in the restorations he had provided, the evidence indicates the restorations were temporary and Dr. Revah intended to re-do certain aspects of the dental work.

However, before doing so, Ms. Teres had already consulted another dentist [ 17 ] The Court also notes that Ms. Teres did not have her veneers redone. She opted for crowns to be installed, which is an entirely different treatment. [ 18 ] Ms. Teres has the burden of proof. She has not established to the satisfaction of the Court the allegations of her claim. Accordingly, no damages are granted for this aspect of her action. The obligation of information:

[ 19 ] Ms. Teres claims Dr. Revah was aware of the problems associated with his dental procedures but withheld the information from her in the hope she would not notice the apparent defects. In essence, she is alleging Dr.

Revah’s failure to inform her of the existing defects in the dental work performed. [ 20 ] The Syndic of the Order of Dentists, while rejecting her complaint regarding a professional fault, noted a breakdown in communication between the parties. [ 21 ] Doctors and dentists are required to provide their patients with information, which must be simple, objective and sufficient with respect to the following elements: the diagnosis, alternative treatment, consequences of the refusal of treatment, the extent, modalities and the cost of treatment and the extent of complications that can occur during and after treatment [1] . [ 22 ] A medical professional must provide all information that a reasonable patient would need to know and must also divulge special risks that are normally foreseen in the type of intervention contemplated.

The failure to respect this obligation may be sufficient to result in medical responsibility, independent of any competent execution of the work involved. [ 23 ] The evidence shows that Dr. Revah noted the defects and planned to re-do the work but failed to inform Ms. Teres as to the temporary nature of the restorations, the flaws that existed and what he intended to do. Ultimately, the lack of this information led her to seek another opinion and have her dental work redone. [ 24 ] In addition, it does not appear that Dr. Revah provided Ms.

Teres with sufficient information about alternate procedures, namely placing crowns on her teeth rather than veneers. Following her consultation with Dr. Raviv, Ms. Teres decided upon having her teeth crowned, despite the extra cost. [ 25 ] The Court concludes that Dr. Revah failed in his duty of information and is liable for such a breach. In its discretion, the Court awards Ms. Teres $1,500, as a result of the lack of information provided, which resulted in having her dental work redone.

FOR THESE REASONS, THE COURT: GRANTS , in part, Plaintiff’s motion to institute proceedings; CONDEMNS Laurent Revah to pay Jacqueline Teres $1,500 plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil code of Quebec since January 30, 2010 plus judicial fees of $159. __________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: January 28, 2013