2017 QCCQ 3599, 2017 QCCQ 3599

O'Brien c. Université McGill 2017 QCCQ 3599 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-147188-157 DATE: March 15, 2017 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ ROBERT O’BRIEN Plaintiff v.

UNIVERSITÉ MCGILL Defendant _____________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Robert O’Brien, who was treated at the McGill University Dental Clinic (the “Clinic” ) sues McGill University (“McGill”) for prejudice he alleges flowed from the non-completion of dental work that was begun following a Dental Treatment Plan dated September 26, 2014.

These services were interrupted and then terminated by the professionals working within the Clinic on November 18, 2014. [ 2 ] The claim, for the amount of the monetary limit of the Small Claims Division, $15,000, is made up of specific amounts related to payments made by Mr.

O’Brien for the work billed by the Clinic ($456), for an alleged overpayment of an amount of $185 for tooth extractions which were performed at the Montreal General Hospital with which McGill is affiliated, for work that was subsequently done by a dentist and a periodontist in private practice ($4,966 and $75 respectively), for estimated costs of prospective work ($3,500), and for an estimate for labor material and laboratory work for crowns ($4,000). [ 3 ] Mr.

O’Brien asks that whatever specific amounts he recovers be topped up to the total of $15,000 by an award for trouble and inconvenience, financial prejudice and moral and exemplary damages. [ 4 ] Essentially, the allegation is that the Clinic’s interruption and termination of the treatment was wrongful as was the referral which resulted in an increase to the costs incurred at the Montreal General Hospital. [ 5 ] Much of the claim is made up of the actual cost of completing the work elsewhere.

The Clinic, because it performs services through the work of students as part of their pedagogical programme, provides these services at a much lower cost as compared with similar services performed by practicing dentists. [ 6 ] McGill contests the recourse taking the position that it was within its rights to cease treating Mr. O’Brien because of his inappropriate conduct with the staff and students of the Clinic, conduct which resulted in the relation of trust and mutual respect necessary for the patient-doctor relationship to be breached.

It alleges as well that its decision to end the patient relationship with Mr.

O’Brien was ethically correct, as the decision was made after a consultation with the Syndic of the “ Ordre des dentistes du Québec ” (“Ordre”) . [ 7 ] McGill also points out that the Plaintiff, as part of the process of informed consent, understood that there was no guarantee of success, that modification to the treatment plan might be necessary, that the fees listed were only an estimate and that the Clinic was at liberty in every case to refer the patient to another clinic as it had no obligation to provide treatment. [ 8 ] The evidence the Court heard took the issues a little bit further than the technical joinder of issues that can be derived from a reading of the Demand and the Contestation.

Taking into account this broadened scope, it is possible to state the case in terms of the following questions : 1. Is McGill responsible because of a fault committed by the dentists or the students operating the Clinic :

a) Because of the failure to obtain informed consent to the services provided?

b) Because of fault in the manner in which the services were performed?

c) By virtue of the termination of the services including the manner in which the services were terminated? 2. If the answer to any of the above questions is affirmative, what financial and moral prejudice resulted therefrom? 3. In the case where the Court finds fault should McGill be condemned to punitive damages? FACTS [ 9 ] To become a patient of the Clinic, Mr. O’Brien filled out and signed a Patient Application Form on December 17, 2013. The form included a medical questionnaire in which Mr. O’Brien gave fairly extensive information about his medical history, medications that he was taking and the like.

In addition to signing the medical questionnaire he also signed a General Consent Form that explains the process including the statement that : After a thorough examination, a treatment plan will be presented to the patient. The risks, benefits, costs and purpose of the treatment, as well as the availability of alternate treatments will be explained before any treatment is begun. Patients are encouraged to ask questions before agreeing to have dental work done.

Even if the patient agrees to all of the above, the McGill Undergraduate Teaching Clinic is not obligated to provide treatment in every case and the patient may be referred to another clinic. [ 10 ] The concept of the obligation of means and not of result is summarized in the General Consent Form as follows : No Guarantee of Success In dental treatment, as in any medical care, there is no guarantee of the success of a particular treatment.

The McGill Undergraduate Teaching Clinic cannot guarantee the life expectancy of a specific treatment for an individual patient. [ 11 ] Of note as well is the following text concerning the patient’s right to terminate the services : Withdrawal of Consent A patient may withdraw consent and stop treatment at any time. [ 12 ] On March 26, 2014 Mr. O’Brien underwent an examination, the results of which are written in an Oral Diagnosis Screening Form filled out by the student and signed by the supervisor. There was also on the same day a Radiology Report and a Needs Assessment.

Among other things, the Needs Assessment Form refers to operative dentistry, less than five teeth, partial denture treatment, endodontic treatment 35 re-do, and extractions 16, 17. Under the heading Patient Identification is noted “ 65-yo male with multiple missing teeth and fractured restoration in upper right quadrant ”. [ 13 ] Treatment began October 6, 2014. The Treatment Plan (P-4) sets out the problem, states the benefits of treatment and lists each procedure, such as root-canal treatments, extractions, etc.

The benefits of treatment are: “ To restore form, function and esthetics. ” The patient signs after a text which read as follows : I accept the proposed treatment plan. I have been explained the purpose of this treatment, the risks and benefits of this treatment and any alternatives including the option of no treatment at all. I understand that there is no guarantee of success and that modification to this treatment may be necessary.

I understand that the fees listed above are only an estimate. [ 14 ] While the document seeks to obtain from the client an admission that the risks and benefits of the treatment have been explained to him, the general and specific risks are not spelt out and the Clinic’s file does not document which risks and benefits were explained to the Mr. O’Brien nor by whom. [ 15 ] Initially the treatment went well. Root-canal treatments were carried out at the clinic by a dental student and three dentists on October 24, October 27, and October 29, 2014. Extra strong Advil was prescribed because of pain.

On Thursday, October 30, 2014, Mr. O’Brien underwent two extractions of teeth numbers 16 and 17. The amount that had been estimated in the treatment plan was $55 for tooth 16 and $40 for tooth 17. Mr. O’Brien was in fact billed $280 for these services by the Montreal General Hospital where he was sent for the procedure. [ 16 ] Jeffrey Myers, the representative of McGill at the hearing, explained that, as it turned out, the extractions were fairly complicated. Mr. O’Brien was referred by the Clinic to the hospital, a different legal entity. Around this time Mr.

O’Brien experienced numbness in his lower lip, a great deal of swelling on the left side of his mouth, cheek and jaw and, excruciating pain. In all of his correspondence, he attributes these symptoms to the root-canal work. [ 17 ] There is no evidence that there was permanent damage, though Mr. O’Brien suggested there would be when the symptoms first presented.

[ 18 ] Pictures taken November 3, 2014 show the very impressive swelling and it is not hard to imagine that the pain must have been, as Mr. O’Brien reports, excruciating. He was seen at the Clinic on an emergency basis.

Antibiotics were prescribed to treat the infection and OxyContin for the pain. [ 19 ] On November 17, 2014, the pain and swelling had subsided and an appointment was scheduled for November 18, 2014 for a resumption of the treatments. [ 20 ] It was during the appointment of November 18, 2014 that the therapeutic relationship broke down leading to the termination of the services by the Clinic. [ 21 ] The parties speak essentially of the same facts that occurred during this meeting albeit from two very different points of view. [ 22 ] According to Mr.

O’Brien, he was treated in a way that was intolerable by the student dentist and by two dentists associated with the Clinic, Dr. Basel Kano and Dr. Robert David. [ 23 ] First, in respect of the student, Mr. O’Brien complains of defensiveness, that the student was trying to establish that he had previously informed Mr. O’Brien of the potential side effects of the root-canal treatments which include the type of pain and swelling Mr. O’Brien was experiencing. Mr. O’Brien took exception to this because his recollection was that he had not been advised of these possible complications. [ 24 ] Second, Mr.

O’Brien objects to the interaction he had that day with Dr. David, stating that the latter refused to answer a question that he put to Dr. David specifically as a reaction to the student’s insistence that he ask more questions about the procedures. [ 25 ] Mr. O’Brien complains that Dr. Kano also refused to answer the same question when the student brought him into the meeting. Instead of answering, Dr. Kano smirked and asked if Mr. O’Brien was considering a lawsuit. Mr.

O’Brien considered this to be rude and unprofessional. [ 26 ] Finally, though a follow-up meeting was scheduled by the student the meeting never took place, as, by then, the Clinic had begun the process of terminating the relationship. [ 27 ] What ensued was a three-way interaction with Mr. O’Brien dealing with both McGill and the Ordre, and with the Ordre dealing both with Mr. O’Brien and McGill. The interaction was not satisfactory from Mr. O’Brien’s point of view and this claim ensued. ANALYSIS (

A) Informed consent [ 28 ] Mr. O’Brien denies having received, when he first consented to the treatment or thereafter, any information about the risks of his suffering which occurred after the surgical removal of his teeth, i.e. infection, acute swelling and intense pain. [ 29 ] Apart from the documents signed by Mr. O’Brien, the Clinic provides no written or testimonial evidence of the specific information given to Mr. O’Brien, nor by whom it was given. However, according to the testimony of Mr.

Myers, the task of obtaining informed consent is generally assigned to the students. [ 30 ] Doctrinal authority [1] places the obtaining of informed consent as the first of four main obligations owed to the patient in the doctor-patient relationship: 2-45 – Généralités – Le médecin assume quatre grandes catégories d’obligations à l’endroit de son patient. La première est d’obtenir son consentement libre et éclairé, ce qui entraîne de sa

part l’obligation de satisfaire à son devoir d’information. La seconde est de poser un diagnostic juste sur la condition du patient. La troisième est de lui prescrire et de lui administrer un traitement adéquat.

La quatrième, enfin, est de respecter le secret professionnel. […] [ 31 ] Within the obligation to obtain informed consent exists a distinction between the duty to inform as to the general risks and as to the special risks associated with a given procedure. [ 32 ] A general risk, because it is so common, and generally known, does not necessarily have to be mentioned by the practitioner because the patient is presumed to know of them : 2-57 – Risques des conséquences de l’échec – On peut en retracer deux grandes catégories, soit les risques généraux et les risques spéciaux.

Les risques généraux sont communs à un même type d’intervention. Tels sont, par exemple, les risques inhérents à toute anesthésie générale, ou ceux d’infection postopératoire. Ayant un caractère de généralité, on peut presque dire que le médecin (sauf circonstances spéciales ou interrogation particulière de son patient) n’a pas nécessairement à les dévoiler puisqu’ils sont, la plupart du temps, soit présumés connus, soit non nécessairement significatifs.

Cette règle n’est toutefois pas absolue [...] [2] [ 33 ] A general risk is distinguished from a special risk, i.e. that which attaches specifically to a given intervention and are not generally known but that can occur in a certain number of cases. [ 34 ] In the present case, it would be common knowledge that pain, swelling, and even infections are risks normally associated with dental work. Presumably, a middle-aged, educated gentleman, such as Mr. O’Brien, would, as a question of ordinary life experience, be aware of these general risks. This was not a case of special risk.

[ 35 ] Even when the risk actually played out, in this case after the root-canal treatments and around the same time as the extractions of teeth, Mr. O’Brien was quite willing to continue to be treated at the Clinic, which tends to show that he was not caught unaware when the symptoms developed, though he may have been surprised at the degree of pain he suffered. [ 36 ] For the purposes of argument, even if it were established that the professionals at the Clinic were at fault for not informing Mr.

O’Brien of the risks, the Clinic is only liable if causality can be established between this omission and the swelling, pain and discomfort that occurred. [ 37 ] In Québec civil law, when medical injury is involved, a distinction is made between material causality and juridical causality. The test that was defined by the Court of Appeal in Chouinard v. Landry [3] can be expressed in the following way : would this patient, had the degree of risk of a painful, but perfectly treatable infection been thoroughly explained, have nevertheless consented to the procedure?

If not, the damages suffered, in this case the inflammation and pain, would be considered causally related to the fault. [ 38 ] The Court’s assessment of the test in the present case is that there is not a causal relationship in the juridical sense. The risk of an infection after services such as root-canal treatments and extraction of teeth is a normal and fairly remote risk. When this risk comes about, it is easily and routinely treated, as was the case here, with antibiotics and painkillers. [ 39 ] The Plaintiff had agreed to a very extensive series of treatments including implants.

The extractions were necessary because the teeth were not viable. It follows that they would have been pulled, sooner or later, perhaps after infection set in. Similarly, root-canal treatments are carried out because they are necessary, and if not done, the consequences can be quite serious. [ 40 ] Mr. O’Brien, as an average person setting out for extensive corrective dental work, would have accepted the risk of an infection had he been specifically asked to do so.

This is not to say that he would have accepted the probability of an infection, especially the painful one he suffered, but the likelihood of such an occurrence was not very high. It was the sort of thing that could happen, but not one that would predictably happen. (

B) The manner in which the services were performed [ 41 ] Mr. O’Brien has made no case as to fault in the performance of the services themselves. Up until the root-canal treatments and the extractions at the Montreal General Hospital, the treatment proceeded without incident. The infections cannot be linked to any particular aspect of the dental services, either those of the Clinic or the Montreal General Hospital, though they appear to have followed immediately upon the root-canal work at the Clinic and the extractions at the hospital.

The evidence does not fulfil the burden of showing fault in the performance of the services, nor a causal relationship, between the way in which the services were performed and the infection. (

C) The termination of the relationship [ 42 ] The Court’s view of the termination of the therapeutic relationship is that the Clinic did not commit any fault. In a circumstance where the medical practitioner no longer has confidence in the client, it is hard to imagine that the relationship can continue. In this case, the relationship of confidence had broken down on both sides. Mr. O’Brien was challenging the competence of the Clinic’s professionals and the appropriateness of its procedures.

The dentist with whom he was dealing was not successful in communicating with him and no longer confident that he would obtain informed consent from him. [ 43 ] Both parties, subjectively, had formed the impression that the other party was acting inappropriately, each felt the other was not understanding, and not reacting in the proper manner. [ 44 ] Was the Clinic at fault in this rupture of the relationship of confidence? [ 45 ] Mr. O’Brien, as Plaintiff, has the burden of proof. The Court was not satisfied as to his testimony on the interaction he was having on November 18, 2014.

While, sincerely, he believes the version of events he narrates, the perception he has is subjective and insufficient to establish proof on the balance of probabilities, objectively, of professional fault. [ 46 ] While it took some time for the Clinic to terminate the relationship and the reasons it gave were perhaps vague, it was acting, at least in part, on its understanding of recommendations received from the Order. [ 47 ] It would be easy to second-guess the Clinic’s manner of dealing with the loss of confidence in the midst of the litigious situation that was developing.

In light of the aggressive tone of Mr. O’Brien’s recrimination, and the number of professionals involved, it is difficult to be critical of the Clinic’s tendency to avoid a more engaged involvement in the various issues being raised. [ 48 ] The attitudes that Mr. O’Brien complains of, the defensiveness of the student, the dismissiveness of the two doctors and the avoidance of the Clinic as an institution are subjectively perceived, but not objectively demonstrated. [ 49 ] Mr.

O’Brien was attempting to cope with a situation that he could not control, at a time when he was frustrated and still suffering from the effects of the infection. [ 50 ] Though both parties are open to criticism, the Court does not find fault, in the legal sense, with either party’s comportment as described. [ 51 ] If the Court had found fault on the part of the Clinic in the termination of the therapeutic relationship, as a question of causality and damages, it would have awarded the difference between the estimated cost at the Clinic and the cost of the same procedures incurred elsewhere. [ 52 ] The Court will not comment on moral damages except to say that they are often awarded in cases of professional fault.

[ 53 ] Punitive damages require a specific set of legal and factual considerations which are beyond the scope of the facts of this case and this Judgment. [ 54 ] The extra fees Mr. O’Brien incurred by having the work done elsewhere at prevailing market prices is not causally related to fault on the part of the Clinic. The Clinic was entitled to end the therapeutic relationship, and therefore the economic relationship, and, though it did not refer its patient elsewhere, Mr.

O’Brien found the appropriate practitioner in due course. [ 55 ] The claim made for the difference in cost at the Montreal General Hospital is not warranted: this particular cost was beyond the Clinic’s control since it was unable to perform the services and referred the patient elsewhere. [ 56 ] Given the sincerity of Mr. O’Brien’s claim, there should be no costs awarded as against the Plaintiff. FOR THESE REASONS, THE COURT : DISMISSES the Plaintiff’s demand; WITHOUT costs. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: November 15, 2016