2016 QCCQ 9728, 2016 QCCQ 9728

Soussan c. Caro 2016 QCCQ 9728 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-143043-141 DATE: August 25, 2016 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ JOSEPH SOUSSAN Plaintiff v. DR.

SYLVIO CARO -and- FONDS D’ASSURANCE-RESPONSABILITÉ PROFESSIONNELLE DE L’ORDRE DES DENTISTES DU QUÉBEC (FARPODQ) Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Joseph Soussan sues Dr. Sylvio Caro, a prosthodontist, and the Fonds d’assurance-responsabilité professionnelle de l’Ordre des dentistes du Québec (“ Liability Insurer ”) for $15,000 for malpractice. Dr. Caro and the Liability Insurer deny any malpractice or liability with respect to Mr. Soussan. Questions in Issue 1) Has Dr.

Caro committed any act of dental malpractice with respect to Mr. Soussan? 2) Is Mr. Soussan’s claim prescribed? Context [ 2 ] In 1985, Mr. Soussan was a patient of Dr. Caro when the latter was a dental resident at a Montreal hospital. Six years later, namely in 1991, after Dr. Caro opened a private dental clinic, Mr. Soussan became his patient. Mr. Soussan was seen by Dr. Caro at his clinic in 1993, 1994, 1996 and 1999. Mr. Soussan subsequently moved to Toronto and he consulted with general and specialist dentists there, including an orthodontist, a periodontist, an oral surgeon and a prosthodontist. However, Mr.

Soussan did return to Montreal on occasion and had examinations and treatments at Dr. Caro’s clinic in 2001, 2003, 2004 and each year from 2006 through to 2011. [ 3 ] The exact period in time regarding Mr. Soussan’s claim for malpractice against Dr. Caro relates to the month of June 2002. [ 4 ] In 2001, Mr. Soussan had been considering having an implant placed in the region of tooth 24 of his mouth. He was consulting with several specialists in Toronto in that regard. In July 2002, the implant procedure was performed by a Toronto dentist and a screw was inserted in this region.

[ 5 ] It is the contention of Mr. Soussan that on June 5, 2002, Dr. Caro shaved tooth 23 in order to make space for the upcoming implant procedure in region of tooth 24 (July 24, 2002). [ 6 ] Mr. Soussan states that, at that time, there was a defect in tooth 23. He states that it was negligent of Dr. Caro not to have noticed that defect and not to have done an x-ray on that tooth before carrying out the shaving procedure in order to evaluate its suitability for shaving. [ 7 ] Mr. Soussan contends that Dr.

Caro was also negligent in not warning him that there was a great risk to the health of tooth 23 by shaving it in its condition at the time and that he was never advised or warned of these risks. He states that since the implant was a cosmetic intervention, there was a clear and enhanced duty on the part of Dr. Caro to advise him of those risks. As those risks were not disclosed to him, he alleges that Dr. Caro did not obtain his informed consent to the shaving procedure and was also negligent in that regard. [ 8 ] On December 5, 2002, a dentist in Toronto noted that there was a cavity on tooth 23 [1] .

On December 13, 2002, another Toronto area dentist, Dr. Manor Haas, an endodontist, performed a root canal and exploratory surgery on tooth 23 [2] . That dentist noted that there was a “sub-gingival resorptive defect” under or below tooth 23. Dr. Haas advised Mr. Soussan that the resorptive defect gave rise to a substantial risk that Mr. Soussan could lose tooth 23. At the time, Dr. Haas confirmed as follows: “As such, Mr. Soussan has been notified that the prognosis for such a case is, at best, guarded, due to the aggressive and inflammatory nature of such resorptions.” [ 9 ] In February 2003, a colleague of Dr.

Caro, Dr. Myron Stein replaced the filling of tooth 23 with a more durable material as the previous product used was breaking down. This procedure was successful and Mr. Soussan has kept tooth 23 up to the present time, some 13 years later. [ 10 ] In March 2003, Dr. Caro put the crown on the implant placed in the region of tooth 24. [ 11 ] In September 2011, Toronto periodontist Dr. Andrew Kay recommended to Mr. Soussan that, in order to maintain and keep tooth 23, he should have regular maintenance appointments at three month intervals regarding that tooth [3] . [ 12 ] Mr.

Soussan stated to the Court that he is not happy with the costs of these sessions. He is unhappy with the current state of tooth 23 and the fact that he may eventually lose it. [ 13 ] In September 2013, Dr. Kay said that the prognosis for tooth 23 was “guarded” [4] . [ 14 ] That was the same diagnosis of tooth 23 that Mr. Soussan received in December 2002 from Dr. Haas. [ 15 ] In January 2014, Mr. Soussan had his Toronto attorneys send a Demand Letter to Dr. Caro claiming $9,000 in damages [5] . [ 16 ] On June 10, 2014, Mr. Soussan instituted the present legal proceedings against Dr.

Caro in the Small Claims Division of the Court of Quebec. [ 17 ] In December 2015, Toronto area prosthodontist, Dr. Yoav Finer, gave Mr. Soussan three treatment options for tooth 23: the first was to have no treatment; the second was to redo the implant crown at a cost of $2,900; the third was to carry out bridge implant work on teeth 23 and 24 at a cost of $5,200.

[ 18 ] Mr. Soussan filed as an exhibit [6] a CD containing recorded conversations between him and Dr. Caro after receipt by the latter of the Demand Letter of January 2014. The recordings were made without the authorization or knowledge of Dr. Caro. In fact, during the conversations, Dr. Caro asked if the conversations were being recorded. Mr. Soussan falsely told him that they were not. [ 19 ] The recordings do not show Mr. Soussan in a favourable light. He speaks abusively to Dr. Caro. He threatens to use his “power” against Dr. Caro unless the latter agrees to settle his claim and to pay him money. If Dr.

Caro refused to settle his claim, Mr. Soussan threatens to destroy the reputation of Dr. Caro by going door to door in Westmount with pamphlets and declaring to everyone that Dr. Caro is dishonest and unethical. [ 20 ] Rather, the recordings show Dr. Caro in a favourable light. He responded calmly to what appeared often as abusive threats. [ 21 ] Mr. Soussan acknowledges that he sued at least two Toronto area dentists regarding the damage to tooth 23 and that he received out of court settlements which he states were for small amounts. The Defendant Liability Insurer requested that Mr.

Soussan provide access to the dental files of the other dental specialists used by Mr. Soussan in Toronto. Mr. Soussan refused to provide such access. Dr. Caro and his Liability Insurer’s position [ 22 ] Dr. Caro states that he never shaved Mr. Soussan’s tooth 23. He has reviewed his charts and he has no record of ever shaving Mr. Soussan’s tooth 23 in June 2002 or on any other date. [ 23 ] Dr. Caro has filed into the Court Record his complete chart [7] on Mr. Soussan and there is no entry at all from May 8, 2001 to February 10, 2003.

The entries on these two dates are side by side so it is not possible that any pages are missing. It should be noted that, according to Mr. Soussan’s argument, the shaving of tooth 23 would have been performed in June 2002 in order to provide additional space for the implant space in the region of tooth 24. [ 24 ] Contrary to Mr. Soussan’s representations, there is either no proof or insufficient proof of any tampering by Dr. Caro or his staff of Mr. Soussan’s patient chart or his x-rays.

According to the rules of evidence [8] , the Court concludes that there has been no modification to them before they were filed into Court. [ 25 ] Mr. Soussan refers to an x-ray allegedly dated May 8, 2001 which he states was taken by Dr. Caro and which he states indicates a “dark spot” which was, in Mr. Soussan’s view, the beginning of some sort of defect or cavity. This is denied by Dr. Caro. Mr. Soussan offered no expert evidence to support his layman’s

interpretation of the x-ray. Dr. Caro also stated that the x-ray in question was not taken by his office and instead was probably taken by one of Mr. Soussan’s other dental professionals at an undetermined time. [ 26 ] Dr. Caro states that, in any case, and irrespective of such an x-ray, the fact remains that he never carried out any shaving procedure on tooth 23 (or tooth 25). [ 27 ] Dr. Caro also states that the claim presented by Mr. Soussan is wrongly described and erroneous in fact. Dr. Caro states that the cause of the deterioration of the tooth 23 is the root resorption lesion identified by Dr.

Haas in December 2002. Any shaving of the tooth, which hypothetically in Dr. Caro’s view would have been carried out by a Toronto area dentist professional used by Mr. Soussan, would be a procedure above the gum. [ 28 ] In Dr. Caro’s opinion, the cause of the deterioration of tooth 23 is the root resorption lesion that occurred and is continuing below the gum. [ 29 ] Furthermore, Dr. Caro states that he has reviewed all of his x-rays taken of tooth 23 from 1991 to 2001, and there is no sign of

root resorption or any cavity until well after the implant was placed, namely in February 2003. Dr. Caro was only informed of the root resorption lesion in December 2002 by the letter of Dr. Haas, referred to above. [ 30 ] Therefore, Dr. Caro states that even had he shaved tooth 23, which he vigorously denies, such act is distinct and unrelated to the present cause of the deterioration of tooth 23 and the damages claimed by Mr. Soussan. [ 31 ] Both Dr. Caro and the Liability Insurer state that Dr. Caro’s services were performed in accordance with the applicable dental standards and that Dr.

Caro has not committed any professional fault. [ 32 ] Lastly, Dr. Caro and the Liability Insurer state that Mr. Soussan’s claim is prescribed. Analysis and Decision 1) Has Dr. Caro committed any act of dental malpractice with respect to Mr. Soussan? [ 33 ] Mr. Soussan’s claim is long and detailed with respect to allegations but is essentially without proof of professional negligence, malpractice or liability on the part of Dr. Caro. [ 34 ] For his part, Mr.

Soussan states that the entire theory that the cause of the deterioration of his tooth 23 arises from a root resorption lesion is attributable to a quasi-conspiracy or cover-up of dentists who treated him and that the real cause is the shaving of his tooth. [ 35 ] However, Mr. Soussan has no proof that Dr. Caro actually even shaved his tooth 23. He only has evidence that he came to Montreal in June 2002. [ 36 ] The preponderance of the evidence is that, if such shaving did occur, it was not done by Dr. Caro but instead by another dental professional retained by Mr.

Soussan, most likely in Toronto. [ 37 ] Since Dr. Caro did not carry out the shaving, there can be no issue that he did not obtain the informed consent of Mr. Soussan or that he performed any act of malpractice with respect to something that he did not do. [ 38 ] In fact, Mr. Soussan’s Demand Letter of January 27, 2014 does not even allege that Dr. Caro shaved tooth 23. It only states that Mr. Soussan “had tooth 23 shaved” “upon your [Dr. Caro] advice”. This allegation is repeated in the judicial demand filed by Mr.

Soussan. [ 39 ] With regard to the standard of the duty of care owed by a dentist, it has long been established that it is an obligation of means [9] . A dentist is required to practice his or her profession in conformity with the standard of a prudent and diligent dentist acting in the same circumstances. In order to establish fault or malpractice of Dr. Caro, Mr. Soussan was required to prove that Dr. Caro, by way of action or omission, had violated that standard.

[ 40 ] It should be noted that, even if the Court was to decide that Dr. Caro did in fact shave tooth 23, there is no independent, scientific or other compelling proof to support the proposition that doing so was the cause of the future deterioration of that tooth. Given the state of the record, there is only unsubstantiated layman speculation to support such a proposition. [ 41 ] There was no proof before the Court that, as of the last appointment of Mr. Soussan at Dr.

Caro’s clinic (May 8, 2001) before the alleged shaving incident (June 2002), there was any existing sign of a cavity or other anomaly on any x-ray taken by Dr. Caro up to that time (May 8, 2001) on tooth 23. [ 42 ] Furthermore, there is no proof that the shaving of tooth 23, if it did occur, was done contrary to or in violation of the applicable standards of dentistry practice. [ 43 ] Making the same assumption, there is no proof that Mr. Soussan’s informed consent was not obtained since there is no proof that the shaving procedure gave rise to a general or particular risk in light of the facts known to Dr.

Caro at the alleged time of the shaving procedure (June 2002). [ 44 ] It should be noted that if an inappropriate shaving procedure did occur and was carried out by the Toronto area dentists sued by Mr. Soussan, the latter has already received compensation as a result of the settlements concluded with them. The lack of cooperation and disclosure by Mr. Soussan of the treatment records of his dental professionals in Toronto further weaken the proof presented by Mr.

Soussan in that regard. [ 45 ] Another theory raised in the evidence is that the cause of the damage to tooth 23 occurred at the time of the placement of the implant in the region of tooth 24 in July 2002 in Toronto. If that is the case, Dr. Caro did not carry out that procedure and thus cannot be held responsible for any damages caused thereby. There is no allegation or proof that the placing of the crown on the implant in the region of tooth 24 by Dr.

Caro could have caused the damage to tooth 23. [ 46 ] The preponderance of the evidence before the Court is to the effect that the real cause of the progressive deterioration of tooth 23 is a root resorption lesion. There is no evidence that that root resorption lesion was present during the period that Mr. Soussan was Dr. Caro’s patient from 1991 to May 8, 2001. Accordingly, there was nothing that Dr. Caro could detect during that time in that regard.

Such a tooth resorption lesion appears to have commenced further to the placing of the implant by another dentist and was only identified some five months later, namely in December 2002. [ 47 ] As stated, Mr. Soussan was not an active patient undergoing treatment of Dr. Caro from May 8, 2001 to February 10, 2003. The cause of the damage to tooth 23, be it shaving, root resorption lesion or a cavity or a combination thereof, therefore would have all commenced from June 2002 to December 2002 when Mr. Soussan was not being evaluated, treated or followed as a patient by Dr. Caro at his clinic. 2) Is Mr.

Soussan’s claim prescribed? [ 48 ] In light of the previous findings, namely that Dr. Caro did not undertake the shaving procedure and that he did not commit any professional fault regarding Mr. Soussan with respect to any act that he did perform, it is not necessary to rule upon the additional defence of prescription. [ 49 ] Nonetheless, it should be noted that Mr. Soussan was first informed of the deterioration of tooth 23 and the cause of the deterioration (root resorption defect) on December 20, 2002.

He was told then that the condition could result in the eventual loss of his tooth. [ 50 ] Thirteen and half years later, namely on June 10, 2014, he instituted the present legal proceedings. The courts are lenient in the application of the three years deadline to sue when the damage is progressive and gradual. In those circumstances, it has been long established that the limitation period only begins to run from the moment that the claimant could reasonably have known of the seriousness and extent of the damage [10] .

[ 51 ] Here, Mr. Soussan complains today about the same result of a possible loss of his tooth 23 and the cost of maintenance of which he has been fully aware for at least thirteen years before instituting his claim. [ 52 ] Nevertheless, since the moment in time that Mr. Soussan became aware of the extent of the damage may be debatable, the Court bases its dismissal on the absence of proof of malpractice on the part of Dr. Caro. [ 53 ] Mr.

Soussan asked that his claim be amended from $9,000 to $15,000 in light of the increase of the monetary jurisdiction of the Small Claims Division of the Court of Quebec since January 1, 2015. As the Court is of the view that the entire claim of Mr. Soussan is unfounded in fact and in law, it is not necessary to dispose of this request for amendment. [ 54 ] In

summary, the Court is of the view that the claim of Mr. Soussan against Dr. Caro is unfounded in fact or in law. There is no proof of any professional fault. The claim will be dismissed with costs. FOR THESE REASONS, THE COURT: DISMISSES Plaintiff Joseph Soussan’s judicial demand; WITH LEGAL COSTS against Plaintiff Joseph Soussan in favour of both Defendants Dr. Sylvio Caro and the Fonds d’assurance- responsabilité professionnelle de l’Ordre des dentistes du Québec. __________________________________ Jeffrey Edwards, J.C.Q.

Date of hearing: May 27, 2016 Initial written additional representations of Joseph Soussan: June 6, 2016 Supplemental written representations and exhibits of Joseph Soussan: June 30, 2016 Supplemental written representations of reply of Dr. Sylvio Caro: July 13, 2016