2018 QCCQ 4851, 2018 QCCQ 4851

Kim c. Khuon 2018 QCCQ 4851 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU No.: 550-32-700226-175 DATE: June 26, 2018 ______________________________________________________________________ PRESIDING: THE HONOURABLE PATSY BOUTHILLETTE, J.C.Q. ______________________________________________________________________ YURI KIM Plaintiff v. RASMEY KHUON Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ INTRODUCTION [ 1 ] Mr.

Yuri Kim claims $15,000 from Mr. Ramsey Khuon in professional liability. [ 2 ] Mr. Khuon, a dentist, denies having committed a professional fault in providing services to Mr. Kim. BACKGROUND [ 3 ] On July 7, 2016, Mr. Kim was seen at Mr.

Khuon’s clinic for the first time, for a full examination. [ 4 ] The hygienist collected data, took X-rays, and polished his teeth. [ 5 ] Afterwards, the defendant entered the examination room and read the plaintiff’s medical file. [ 6 ] The defendant also asked the plaintiff some questions. [ 7 ] Further to these questions, the defendant learned that the plaintiff had heart problems. [ 8 ] During the exam, the defendant observed cavities and defective restorations that required treatment. [ 9 ] On July 20, 2016, the defendant performed two composite fillings. [ 10 ] On July 21, 2016, the plaintiff’s spouse, Ms.

Legault, cancelled an appointment with the defendant, explaining that the plaintiff had suffered a malaise after the treatment he had undergone. [ 11 ] On August 18, 2016, Ms. Legault closed her file and Mr. Kim’s file at the defendant’s clinic. [ 12 ] On April 19, 2017, the plaintiff filed an action in professional liability against the defendant. ISSUE [ 13 ] The issue is: i. Did the defendant Ramsey Khuon commit a fault in the care he provided to the plaintiff Yuri Kim?

ANALYSIS [ 14 ] Under art. 1458 of the Civil Code of Québec , the plaintiff must prove the following three elements: - fault - injury - causal connection

[ 15 ] Fault is a failure to meet a standard of conduct, that is, what a generally competent dentist would have done in comparable circumstances. Liability must be assessed according to the means adopted to perform the treatment. [ 16 ] For a fault to exist, the defendant dentist’s conduct must have departed from that of a reasonably prudent, diligent and competent but not infallible dentist in the same circumstances. [ 17 ] Fault may be established in a number of ways, including, among others, presumptive evidence.

Presumptions are defined by the Supreme Court as follows: When, in the normal course of things, an event ought not to take pace, but happens just the same, and causes damage to another, and when it is evident [in the sense of probable] that it would not have happened if there had not been any negligence, then it is for the author of this fact to show that there was an unknown cause, for which he cannot be held responsible and which is the source of the damage. [1] [ 18 ] The plaintiff bases his action on presumptions of fact, since direct proof is often difficult to make in this type of case. [ 19 ]

Article 2849 of the Civil Code of Québec allows for a finding of a presumption of fact in “serious, precise and concordant” circumstances. Once the preconditions for such a presumption are established, the burden of proof is shifted from the plaintiff. [2] [ 20 ] The plaintiff submits that the defendant treated two cavities and that he was feverish that evening. Two days later, a blood infection was diagnosed.

According to the plaintiff, the facts demonstrate that the treatment of the cavities is the presumptive cause of the blood infection. [ 21 ] In the view of the Court, the facts related above are not of the “serious, precise and concordant” nature necessary to shift the burden of proof. Moreover, the medical evidence shows that the infection can have multiple causes. [ 22 ] The defence evidence has shown on a balance of probabilities that the defendant committed no fault [ 23 ] The expert evidence demonstrates that the clinical appointment unfolded in an exemplary fashion.

The precautions taken by the defendant were significantly above average in terms of best practices in such situations. [ 24 ] The testimony and documentary evidence shows that the site treated was not infected and that the patient did not present with any condition requiring antibiotic therapy. [ 25 ] The plaintiff bases his claim on, inter alia , the note dated September 7, 2016, from Dr. Shuldiner, who established a “probable” relationship between Mr. Kim’s cellulitis and the dental care provided by the defendant. However, no culture allowing for the identification of any bacteria was done at the hospital.

Moreover, according to Dr. Shuldiner’s statement, the treatment the plaintiff underwent, i.e., an antibiotic therapy, had cured the cellulitis on August 29, 2016. [ 26 ] Because the medical evidence indicates that this type of infection, namely, haematogenous septicemia, usually involves a source infected site, and because the evidence shows that the teeth treated were not infected, it is improbable that the defendant’s treatment caused the infection. [ 27 ] According to the expert who testified at the hearing, far too many elements are missing to confirm the hypothesis submitted by the plaintiff.

Indeed, no infection existed at the site where the local anaesthetic was injected, the patient presented with no risk factors, and there was no culture identifying the bacteria in question. [ 28 ] Moreover, also according to the expert, skin infections leading to cellulitis are usually caused by a local wound or intervention in the area where the cellulitis occurs.

In this case, the plaintiff suffered swelling of the left leg with erythema from the ankle to the thigh. [ 29 ] As for the plaintiff’s claim that the infection could have resulted from poor hygiene of the defendant’s equipment, the expert characterized this allegation as highly improbable. In his opinion, an insect bite is more likely. [ 30 ] The Court concludes on the basis of the evidence that it is very hypothetical and improbable that Dr. Khuon’s intervention was the cause of the cellulitis in Mr. Kim’s lower left limb.

FOR THESE REASONS, THE COURT: [ 31 ] DISMISSES the action, each party paying his own costs. __________________________________ PATSY BOUTHILLETTE, J.C.Q. Date of hearing: March 7, 2018