2017 ONSC 6579, 2017 ONSC 6579

CITATION : Latulippe v. Greenspoon, 2017 ONSC 6579 COURT FILE NO.: CV-12-1653-00 DATE: 2017 11 02 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Lise Latulippe, Plaintiff AND: Dr. Mark Greenspoon and Dr. Gloria Chudnow and Dr. Nagi Shams and Greenspoon Pain Management Centre, Defendants BEFORE: Van Melle J. COUNSEL: Daisy Bygrave, for the Plaintiff Jacqueline Cole, for the Defendants HEARD: October 25, 2017 ENDORSEMENT [ 1 ] This is the defendants’ motion for

summary judgment. They seek dismissal of the plaintiff’s claim against them for negligence. [ 2 ] They bring this motion on two grounds: 1) That the claim was commenced after the expiry of the limitation period; and 2) that the plaintiff has failed to serve any expert reports addressing standard of care or establishing causation. BACKGROUND [ 3 ] Between September 2004 and November 2008 the plaintiff was treated with therapeutic Botox for pain management by Dr. Chudnow and Dr. Greenspoon. Although the plaintiff was initially referred for treatment by Dr. Ho, Dr.

Shams was the plaintiff’s family physician during the relevant period. The plaintiff alleges that the defendants were negligent in their treatment of her. [ 4 ] The defendants argue that there is no genuine issue for trial because the plaintiff alleges negligence but has not presented expert evidence to demonstrate that the defendants did not meet the applicable standard of care or that their treatment caused her symptoms.

The defendants also argue there is no genuine issue for trial because the action is statute barred based on the Limitations Act . [ 5 ] The plaintiff argues that she could not be expected to discover her claim until she received her medical records.

She also argues that expert evidence is not required until the pre-trial conference and that this court should not accept the evidence of the defendants’ expert because there are errors in his report. [ 6 ] The plaintiff deposes that her previous lawyer, Raj Nepal, informed her that her claim could only be properly prepared and formulated when copies of her medical files and charts were available for review. She argues that she could not start an action without grounds to suggest that the actions of the doctors met the negligence threshold.

She also argues that even upon obtaining her records, her claims were not immediately discoverable. She states that her claim could only be discoverable once she obtained the medical records. [ 7 ] The defendants argue that the plaintiff knew the underlying material facts of her claim against the defendants within the presumptive two-year limitation period. She brought her claim three years and five years after the last day of her Botox injections. The defendants state that the plaintiff’s claim against Dr.

Shams was discoverable on December 22, 2009, when she stated in a written request that she had lost all confidence and faith in Dr. Sham’s ability to handle her health without prejudice and that she could “no longer stay in his care knowing that Dr. Shams doesn’t believe in my ability to tell the truth”. [ 8 ] Pursuant to section 5(1) of the Limitations Act a claim is discovered on the earlier of when the person with the claim first knew and when a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known. 5 ( 1) A claim is discovered on the earlier of, (

a) the day on which the person with the claim first knew, i. that the injury, loss or damage had occurred, ii. that the injury, loss or damage was caused by or contributed to by

an act or omission, iii. that the act or omission was that of the person against whom the claim is made, and iv. that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(

b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a). 2002, c. 24 , Sched. B, s. 5 (1). [ 9 ] Section 5(2) states there is a presumption that a claim was discovered on the day it occurred and there is an onus on the plaintiff to prove otherwise:

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (

a) on the day the act or omission on which the claim is based took place, unless the contrary is proved. 2002, c. 24 , Sched. B, s. 5 (2). [ 10 ] The test for when a claim has been discovered is based on the plaintiff’s knowledge of material facts, as stated by the Ontario Court of Appeal in Lawless v. Anderson, 2011 ONCA 102 , at para. 23 : Determining whether a person has discovered a claim is a fact-based analysis. The question to be posed is whether the prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant.

If the plaintiff does, then the claim has been “discovered”, and the limitation begins to run. [ 11 ] The record demonstrates that the plaintiff was aware of the material facts upon which her claim is based shortly after her Botox treatment concluded. The plaintiff’s last therapeutic Botox injection was November 11, 2008. Her allegations in this action are that the Botox treatment was negligently administered by Dr. Chudnow and Dr. Greenspoon, which caused her to suffer an adverse reaction.

Therefore, she is presumed to have discovered her claim on or around the day of her last injection. [ 12 ] The record demonstrates that the plaintiff had actual knowledge of the material facts on which her claim is based – and took steps or considered taking steps in respect of that knowledge throughout 2008 and 2009. [ 13 ] She authored an on-line blog where she reported in a post dated September 29, 2004, that “it (reactions) started in August 2008 and since then it seemed like every time I have a ray of hope the doors slam before me; Back in 2009 and on I tried to reach out to many press and talk shows since they have better resources than I do …” [ 14 ] On February 26, 2009 the plaintiff attended a medical appointment with Dr.

Shams at which time Dr. Shams wrote a detailed note. His note reflects that the plaintiff attributed her symptoms to the Botox treatment and had concluded that the physicians at the clinic were responsible. His note reads: The pt is convinced the Greenspoon clinic overdosed the Botox.

She does not want to go to another pain clinic as she does not want to clear Greenspoon from the responsib [sic] She added – she asked in another pain clinic and was told the dose she was given is more than the dose usually given to MS. [ 15 ] On March 18, 2009: She is very angry from Greenspoon Clinic and blames them for all the symptoms and she believe [sic] she was overdosed. [ 16 ] In 2009, the plaintiff attended various medical appointments with specialists in connection with some of the symptoms at issue in this action.

The specialist recorded that the plaintiff was convinced that the Botox had caused her symptoms. [ 17 ] In August 2009 and October 2009 the plaintiff filed complaints with Health Canada. Part of her Health Canada complaint was that she received a high dose of Botox and had experienced adverse symptoms which she believed were associated with the treatment. [ 18 ] On February 18, 2010, the plaintiff executed and delivered to Dr. Shams a “declaration” stating that she was suffering from adverse severe side effects and reactions from Botox injections and that Dr.

Shams refused to acknowledge this fact. [ 19 ] In a blog post dated October 31, 2014, the plaintiff stated that “On March 1, 2010 I walk into the Brampton police station and tried to talk to a detective so I can press charges against the doctors involved in poisoning my system!” [ 20 ] The plaintiff states that the limitation period did not begin to run until May 5, 2010 when she received a complete copy of the medical chart of her family physician.

She states that this was necessary to advance negligence claims. [ 21 ] In Lawless , the Court of Appeal considered the issue of whether a patient’s medical records were required for the plaintiff to have knowledge of the facts necessary to discover their claim.

The Court stated that the case law: “does not provide that obtaining the patient charts and a medical opinion are necessary to discover a claim where the charts and medical opinion add nothing of significance to the plaintiff’s knowledge.” While medical records may be necessary in some cases, the critical factor is whether the underlying facts disclosed in the medical records are otherwise known to the plaintiff before he or she receives the records. [ 22 ] In this case, the plaintiff had actual knowledge of the material facts. She repeatedly advised medical professionals that she

believed she suffered from adverse effects of her Botox treatment, which she attributed to the high dosage she had received. She soughtcounsel, she attempted to engage the media as a result of the purported wrong-doing, tried to press charges against the defendantphysicians and complained about them to Health Canada. [23] Nowhere in her materials does she explain what new information she obtained from the medical records; information that she didnot already have. [24] I agree with the defendants that the plaintiff’s actions is statute barred by the Act.

However, in case I am mistaken, I will dealwith the issue of the plaintiff’s failure to produce expert evidence to support her claim. [25] The defendants take the position that the plaintiff’s failure to produce expert evidence to support her claim, is on its own, asufficient basis on which to dismiss this action by way of

summary judgment. The plaintiff takes the position that expert evidence is notrequired at this stage of the proceedings. She states that pursuant to Rule 50.11 of the Rules of Civil Procedure an expert report is notrequired until a pre-trial conference. She relies as well on Sanzone v. Schechter, 2016 ONCA 566, where the Court held that

summaryjudgment should not be granted easily against a self-represented litigant. In the Sanzone case the Court held that because there wereshortcomings with the defendant’s expert, the plaintiff should be allowed to continue her action against the defendants. The Court heldthat to obtain

summary judgment in a medical malpractice case, the defendants must put their best foot forward by submitting expertevidence. In Sanzone the plaintiff had obtained a report, however, the report was for various reasons, inadmissible. [26] The plaintiff on this motion relies on mistakes made by the defendant’s expert, Dr. Levine. She relies on a monograph and a hairshaft drug screen report. She has also obtained a recent cholinesterase test. [27] The standard of care of a physician is not in the ordinary knowledge of the trier of fact. Expert evidence is required to establishthe standard of care to which a medical practitioner will be held. Courts have consistently granted

summary judgment in medicalmalpractice cases where the plaintiff has not served any expert reports to support their theory of the standard of care or causation. SeeSuserski v. Nurse, 2008 ONCA 416, at para. 23; Claus v. Wolfman (1999), (ON SC), 52 O.R. (3d) 673, at paras. 3 -4; McNeil v. Easterbrook, [2004] O.J. No. 3976 at para. 16; Richmond v. Balakrishnan, 2010 ONSC 5888, at para. 22; Markowa v.Adamson Cosmetic Facial Surgery Inc., 2012 ONSC 1012, at para. 11. [28] The Court may infer that the plaintiff has not delivered an expert report because she is unable to secure a report critical of thedefendants.

The Court should draw this inference because this action was initiated over five years ago and over two and a half years sincethe plaintiff sought an adjournment of the defendants’ motion for dismissal for delay, so that she could produce an expert report. [29] As well, Dr. Levine’s report was served on the plaintiff in January of 2017. The motion for

summary judgment was alsoscheduled in January of 2017. The plaintiff had enough time to obtain an expert report. In fact, on February 22, she wrote to the lawyerfor the defendants that she was close to obtaining an expert report. She was aware that she had to obtain a report. [30] The plaintiff’s drug screen report is not admissible expert evidence. The report is attached as an exhibit to the plaintiff’s affidavit.The drug screen report does not contain any

interpretation as to the results nor does it speak to the standard of care. Kim v. Choi, [2012]O.J. No. 5755 S.C.J. restates the proposition that the plaintiff must lead expert evidence of a physician practising in the defendant’s areaof medicine stating that the defendant failed to meet the standard of care. [31] The drug screen report also does not support any theory of causation. [32] Also, the expert report must be tendered through direct evidence in a manner that permits cross-examination of the expert. [33] The defendants’ expert, Dr.

Levine, questioned the validity of the drug screen report and was not challenged in cross-examinationon this point. Dr. Levine’s evidence was that the method for botulinum toxin detection used in preparing the report is not wellestablished. [34] Dr. Levine’s evidence is that the sustained duration of symptoms is not supported by the medical literature where there is a four-month limit for the duration of Botox effects. [35] In argument on the motion, the plaintiff made much of the fact that Dr. Levine did not consider the correct dosage units that shehad been given of Botox. Dr.

Levine was cross-examined by Daisy Bygrave, a solicitor assisting the plaintiff at the cross-examinationand on this motion for

summary judgment. Despite the fact that Dr. Levine agreed with Ms. Bygrave that a patient receiving the units ofBotox that the plaintiff had received could have acute effects associated with those doses, he went on to say that the effects would notlast forever. He was not shaken in his opinion that the plaintiff’s symptoms are not the effects of Botox. In his affidavit of June 22, 2017he stated that: “The published scientific literature does not support that association, and the pharmalogical effects of Botox last for onlyfour months or less.” He does not opine on the requisite standard of care as according to him he has no expertise in that area. [36] On a

summary judgment motion a court is entitled to assume it has all the evidence that would be available at trial (PortugueseCanadian Credit Union Limited (Liquidator of) v. Pires, [2011] O.J. No. 5840 and [2012] ONCA 335. [37] Under Rule 20, a defendant may move for

summary judgment to have all or part of a claim dismissed after delivery of astatement of defence. The court is required to grant

summary judgment if it is satisfied that there is no genuine issue requiring a trial withrespect to a claim or defence: Rules 20.01, 20.04. [38] Citing Justice Quigley, M.G.J., from Richmond v. Balakrishnan, 2010 ONSC 5888: In cases where liability issues are technical, such as in medical malpractice cases like this one, a finding of negligence must be based onsupporting expert opinion. The simple reason is that questions of medical negligence are technical questions, not falling within theordinary knowledge or day-to-day experience of unqualified persons.

If the plaintiff in a medical malpractice case does not deliver anexpert opinion in support of the allegations he or she makes that the requisite standard of care was not followed and that this failure

caused his or her injuries, then a genuine issue has not been raised with respect to the material fact and

summary judgment must begranted. Just as negative inferences may be drawn in other cases from a parties’ failure to advance evidence in support of their position,so too the failure of the plaintiff in a medical malpractice case to obtain an expert report permits and invites the court to infer that theplaintiff was unable to obtain an expert report to support their allegations of negligence. (See Klaus v. Wolfman, (ON SC), 1999 52 O.R. (3d) 673, affirmed on appeal 2000, 520 (3d) 680; Barber v. Mustard,[1993] O.J.

No. 2872, at para. 8. [39] In the present case, I do draw an inference that the plaintiff’s failure to serve an expert opinion on the standard of care orcausation is because she is unable to obtain a report critical of any of the defendant physicians. [40] For these reasons, I grant the

summary judgment motion, and dismiss the action. [41] I will entertain brief written submissions on costs (maximum 3 pages not including the costs outline). The defendants are tosubmit their submissions within 10 days and the plaintiff has 10 days to respond to those submissions. Van Melle J. Date: November 2, 2017 CITATION: Latulippe v. Greenspoon, 2017 ONSC 6579 COURT FILE NO.: CV-12-1653-00 DATE: 2017 11 02

SUPERIOR COURT OF JUSTICE - ONTARIO Lise Latulippe, Plaintiff AND: Dr. Mark Greenspoon and Dr. Gloria Chudnow and Dr. Nagi Shams and Greenspoon Pain Management Centre, Defendants BEFORE: VAN MELLE J. COUNSEL: Daisy Bygrave, for the Plaintiff Jacqueline Cole, for the Defendants ENDORSEMENT Van Melle J. Date: November 2, 2017