) ) KELSEY WOODS, a person under disability by her litigation guardian, MICHAEL WOODS, KARLI WOODS, BERNICE BOOTH v. MICHAEL, 2013 ONSC 519

CITATION : Woods et al v. Jackiewicz et al, 2013 ONSC 519 COURT FILE NO.: 3846/11 DATE: 2013-01-23 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) KELSEY WOODS, a person under disability by her litigation guardian, MICHAEL WOODS, KARLI WOODS, BERNICE BOOTH and MICHAEL WOODS, personally Plaintiffs – and – DR. ALLAN JACKIEWICZ and DR. RONIT MESTERMAN Defendants ) ) ) ) ) ) ) ) ) Paul Cahill, Counsel for the Plaintiffs Dena Verah, Counsel for the Defendant Dr. Jackiewicz ) ) ) HEARD: January 9, 2013 ENDORSEMENT MURRAY J. [ 1 ] The amended statement of claim asserts that the defendant, Dr.

Allan Jackiewicz, a specialist in gynaecology and obstetrics, was negligent in the provision of antenatal care to the plaintiff, Bernice Booth, in 1991 while she was pregnant with twins. The essence of the case is that the twins suffered from twin to twin transfusion syndrome and that Dr. Jackiewicz negligently failed to diagnose this syndrome in utero. [ 2 ] The defendant, Dr. Allan Jackiewicz, brings a motion in which he seeks to strike paragraph 18(

e) and paragraphs 19(a) (iii) and ( iv) of the amended statement of claim. [ 3 ] Paragraph 18(

e) of the plaintiffs’ amended statement of claim reads as follows: He made similar serious errors in judgment in his management of his patients, and such errors were brought to his attention, and to the College of Physicians and Surgeons. The plaintiffs are aware of allegations that Dr. Jackiewicz failed to maintain the standard of practice of the profession, is incompetent and engaged in disgraceful, dishonourable or unprofessional conduct in his care, treatment and record-keeping for 22 other patients. The plaintiffs therefore intend to rely on similar fact evidence as it relates to this defendant. [ 4 ] The defendant argues that paragraph 18(

e) of the amended statement of claim reproduced above is objectionable and should be struck for a number of reasons: it contains references to alleged errors of judgment and other supposed deficiencies in clinical skills in matters unrelated to the care of the plaintiff; that there is an inappropriate reference to alleged similar fact evidence; and that it contains an impermissible reference to proceedings before the College of Physicians and Surgeons of Ontario. [ 5 ] The defendant also attacks paragraphs 19(a)(iii) and (iv) of the amended statement of claim.

Paragraph 19 reads as follows: The plaintiffs further plead that the relationship between the defendant Dr. Jackiewicz, and the plaintiffs was one of trust and confidence. This defendant had a position of superior knowledge and power relative to the plaintiffs and he owed the plaintiffs a fiduciary jury duty to act with utmost good faith and loyalty. He was obliged to advise and act for the good of and in the best interest of the plaintiffs without regard for his own personal interests. He failed to discharge his fiduciary duties. The particulars of his failures are as hereinafter set out:

a) at all material times, Dr. Jackiewicz knew or ought to have known that he had deficient clinical skills and abilities relevant to the care and treatment of the plaintiffs. The plaintiffs did not know and had no way of knowing about his clinical skills. Notwithstanding his deficient clinical skills, Dr. Jackiewicz failed to:

i. take any steps to remediate his deficient clinical skills prior to treating the plaintiffs; ii. advise the plaintiffs of his clinical skills and his alarmingly high rate of gynaecological andobstetrical complications; iii. advise the plaintiffs of the numerous complaints made against him to hospitals and TheCollege of Physicians and Surgeons of Ontario; iv. advise the plaintiffs of the numerous lawsuits commenced against him for complicationsarising from gynaecological and obstetrical services provided by him; v. obtain a second opinion with respect to his treatment of the plaintiff; and/or vi. refer the plaintiffs to another obstetrician.

Further particulars of the breach of Dr. Jackiewicz's fiduciary duties are within the knowledge of Dr. Jackiewicz. [6] The defendant argues that paragraphs 19(a)( iii) and ( iv) should be struck on the basis that they are irrelevant and notprobative, and are scandalous, prejudicial and an abuse of process. Analysis [7] In Wilson v. Lind, [1985] O.J.

No. 535, Justice O’Brien held: “our courts have held for a long time, and for good reason,that prior negligence of a party is generally irrelevant to proof of subsequent negligence.” Similar fact evidence is an exception to thisgeneral statement. [8] Similar fact evidence is presumptively inadmissible because of the prejudice – both reasoning prejudice and moralprejudice – which results. (See: Ontario (Attorney General) v. $5,545 in Canadian Currency (In Rem), [2011] O.J.

No. 2190, at para.26 and following.) A general allegation that there is similar fact evidence is insufficient to justify its inclusion in the amended statementof claim. Similar fact evidence has sometimes been pleaded in medical malpractice cases. Williams v. Cai-Ping, [2005] O.J. No. 1940 isone such case. In Williams v. Cai-Ping, specific cases of repetitive negligence were set out in the statement of claim and in each casethere were striking similarities before the Court.

As Justice MacKinnon said at para. 15 of his decision: Where there is a real and substantial nexus or connection between the allegations made and the facts relating to previous transactionswhich are sought to be given in evidence, then those facts have relevancy and are admissible not only to rebut defenses such as accidentbut also to prove the facts of the acts or allegations made. [9] In Williams, the alleged propensity was focused on specific circumstances similar to the activity which gave rise to thelitigation.

As the Court said, there was a “real and substantial nexus or connection” between the allegations made and the facts relatingto previous transactions.” [10] The principles applicable to pleading similar facts have been set out in Prism Data Services Lid. v. Neopost Inc., [2003]O.J. No. 2994 (Ont. Master) as the relevant principles to apply when a party seeks to plead allegations of similar facts. They are: (

a) Such allegations are proper as long as the added complexity resulting therefrom does not outweigh the probative value; (

b) Similar acts are not probative if there is not a sufficient degree of similarity; (

c) The similarity must be provable without prolonged inquiry, although inevitably, the litigation process will be lengthened to someextent as a result of proper similar fact allegations; (

d) The added complexity should not lead to undue oppression or unfairness; (

e) If a system or scheme of conduct is alleged, the past similar acts must have sufficient common features to constitute the systemor scheme. [11] In the case at bar, there is no basis upon which it can be concluded that there is a real and substantial nexus between thesimilar facts and the allegations of negligence made in this case against Dr. Jackiewicz. Prior acts of negligence are not probative in theabsence of a high degree of similarity and cannot be used to prove negligence in the claim before the court.

There is no basis upon whichit can be concluded that are common features in other cases which would constitute a pattern of conduct in this doctor’s practice. Thereis no basis upon which it can be concluded that the similar fact evidence referred to by the plaintiff is logically probative to an issue inthe case. [12] The case of Garwood Financial Ltd. v. Wallace, (1997), (ON SC), 35 O.R. (3rd) 280 relied on by theplaintiffs it is not inconsistent with Williams. Justice Epstein held that a failure to plead similar facts in appropriate cases could prejudicethe defendant.

As justice Epstein stated, the purpose of the pleadings is to define the issues for the Court and to provide sufficientinformation to allow the other side to know the case to be met. The amended pleadings in this case do nothing to advance thedefendant’s knowledge of the similar fact evidence he has to meet.

Nothing in Garwood Financial Ltd. stands for the proposition thatsimilar fact allegations are relevant and probative in the absence of a high degree of similarity. [13] Although it is not clear from the amended statement of claim, based on the factum of the plaintiffs filed in this motion, theplaintiffs assert that they have uncovered numerous claims of other plaintiffs for gynaecological and obstetrical complications from 1999to the present. The alleged negligence in this case occurred in 1991. Subsequent negligence is irrelevant to proof of prior negligence.

[14] Paragraph 18(

e) contains bare allegations of poor judgment and inadequate skills. As Epstein J. (as she then was) stated inGeorge v. Harris, [2000] O.J. No. 1762, at para. 20: It is clear that a document that demonstrates a complete absence of material facts will be declared to be frivolous and vexatious. Similarly, portions of a pleading that are irrelevant, argumentative or inserted for color, or that constitute bare allegations should bestruck out as scandalous. [15] The language of Justice Epstein is applicable in this case. The allegations in para. 18(

e) of the statement of claimdemonstrates a complete absence of material facts and is frivolous and vexatious. In addition, the paragraph under attack is irrelevant,argumentative or inserted for colour and contains bare allegations and should be struck on the basis that it is scandalous. [16] I agree with the defendant that any reference to complaints or proceedings before the College of Physicians and Surgeonsmust be struck because of s. 36(3) of the Regulated Health Professions Act, 1991, S.O. 1991, c.

R8 which provides as follows: No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document orthing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civilproceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceedingrelating to an order under

section 11.1 or 11.2 of the Ontario Drug Benefit Act. 1991, c. 18, s. 36 (3); 1996, c. 1, Sched. G, s. 27 (2). [17] As a complaint against the defendant made by any person to the College of Physicians and Surgeons of Ontario is adocument under section 36(3) and any discipline proceeding against him is also a proceeding under that section. As was stated by LaskinJ.A. in M.F. v. Sutherland, (ON CA), [2000] O.J. No. 2522, at para. 31, section 36(3) of the Regulated HealthProfessions Act, is one of a number of legislative provisions whose broad objective is to keep College proceedings and civil proceedingsseparate.

In Sutherland, the defendant argued that the admissibility of documents was a matter for the trial judge and the challenged partof the pleading should not have been struck on a motion. Relying on Roman Corp. Ltd. v. Hudson's Bay Oil & Gas Co., [1972] 1 0.R.444, aff’d at (SCC), [1973] SCR 820, Laskin J.A. held that if a paragraph in the parties’ pleading pleads fact thatcannot be proved at trial or pleads documents that cannot be admitted at trial then that paragraph may be struck.

The pleading ofdocuments that are not admissible at trial will prejudice or delay the fair trial of an action and the pleading is irrelevant to the action. [18] Finally, a party ought not to frame a pleading broadly to allow for an overbroad examination for discovery. (See: Bridgev. Dominion of Canada Gen. Insurance Co., [2000] O.J. No. 5349 at para. 6.) There can be little doubt in this case that to allow para.18(

e) to remain in the pleadings will lead to fishing expeditions and extensive prolongation of discovery. [19] For the above reasons, paragraph 18(

e) shall be struck from the amended statement of claim. [20] As set out above, the plaintiffs plead that the defendant, Dr. Jackiewicz, failed to discharge his fiduciary duties as allegedin paragraph 19(

a) of the amended statement of claim. [21] The relationship between the physician and his patient has been called a hybrid where some but not all obligations existingbetween a doctor and his patient is fiduciary. A doctor's failure to use the care and skill expected of a reasonably competent doctor is aquestion of negligence.

I refer to the statement of McEachern C.J.B.C., approved by the Supreme Court of Canada, in Norberg v.Wynrib, (SCC), [1992] 2 SCR 226, as follows: If the defendant breached a duty to the plaintiff in this case it was a breach of the duty which a physician owes to his patient to treat herprofessionally and, unless the breach relates to an improper disclosure of confidential information or something like that, it adds nothingto describe the breach as a fiduciary one. [22] The defendant concedes that a pleading for breach of fiduciary duty can succeed and not merely be a dressed-upnegligence claim in some circumstances.

For example, the defendant says that a breach of fiduciary duty could arise in circumstanceswhere a physician had knowledge of the inadequacies of his skill to perform the procedures and to provide care for his patient and failedto take steps to remediate his skills. This is consistent with the finding of the Divisional Court in Williams v. Wai-Ping, [2005] O.J. No.6186. In commenting on the alleged claim for breach of fiduciary against the doctor, the Divisional Court in Williams held that: We agree with MacKinnon J. that the impugned allegations are not "dressed up negligence claims".

There is a difference, althoughperhaps a subtle and novel one. It is not alleged that Wai-Ping failed to inform the plaintiffs of the material medical risks of theprocedures he performed. See, Reibl v. Hughes, (SCC), [1980] 2 S.C.R. 880 (S.C.C.). Rather, it is alleged that he hadknowledge of the inadequacies of his skills to perform the procedures and to provide medical care for his patients, but failed to disclosethis, failed to take any steps to remediate his skills and failed to obtain second opinions or supervision for his surgical procedures.

Theseallegations seek to expand the physician's obligations with respect to informed consent, but it is not plain and obvious that they cannotsucceed as claims for breach of fiduciary duty rather than as claims based on contractual obligations or negligence. This is a matter forthe trial judge. See, McDonald-Wright (Litigation Guardian of) v. O'Herlihy (2005), (ON SC), 75 O.R. (3d) 261(Ont.

S.C.J.) at 280. [23] I shall now turn to paragraphs 19(a)( iii) and ( iv) of the amended statement of claim those paragraphs and the defendantsobjections. [24] Paragraphs 19(a)( iii), and ( iv) allege that the defendant was in breach of his fiduciary duty to the plaintiffs by failing toadvise the plaintiffs of numerous complaints made against him to hospitals and to The College of Physicians and Surgeons and ofnumerous lawsuits commenced against him. [25] As noted above, any reference to complaints to the College of Physicians and Surgeons of Ontario - such as the referencecontained in paragraph 19(a)(iii) - should be struck pursuant to section 36(3) of the Regulated Health Professions Act. [26] The allegations of failure to disclose complaints and actions contained in paras. 19(a)(iii), and (iv) - by necessary

implication - must refer to complaints and actions prior to 1991 when the alleged negligence in this case occurred. There is no duty on a physician to disclose to a patient the existence of complaints made against him to hospitals and to the College of Physicians and Surgeons or to disclose lawsuits commenced against him.

The claim that the failure to make such disclosure is a breach of fiduciary obligation is not tenable in law. [ 27 ] In coming to this conclusion, I am mindful that in the Williams decision noted above, evidence of prior instances of negligence was pled to support allegations of breach of fiduciary duty and punitive damages.

As is evident from the above excerpt taken from the Divisional Court decision in Williams , the plaintiff alleged that the physician “had knowledge of the inadequacies of his skills to perform the procedures and to provide medical care for his patients, but failed to disclose this, failed to take any steps to remediate his skills and failed to obtain second opinions or supervision for his surgical procedures.” In Williams , the similar fact evidence was found by the Court to be relevant and probative to the allegation that the physician had knowledge of the inadequacies of his skills to perform the procedures and to provide medical care but failed to disclose such inadequacies.

The Williams decision does not stand for the proposition that the physician has an obligation to make disclosure of prior complaints and actions. I am not aware of any case which compels such disclosure by physician to a patient. The relevant law appears to support a conclusion that there is no duty on a physician to disclose to a patient the existence of complaints made or of lawsuits commenced against him. (See: Turner v. Bederman , [1996] O.J.

No. 1712 ). [ 28 ] Furthermore, to permit the impugned paragraphs to remain in the amended statement of claim would lead to an overbroad examination for discovery and potentially lead to inquiries into all manner of irrelevant procedures, complaints and actions and to and extensive prolongation of discovery. [ 29 ] I agree with the defendant that paragraphs 19(a) (iii) and ( iv) should be struck pursuant to Rule 25.11. Conclusion [ 30 ] This court orders paragraph 18(

e) and paragraphs 19(a) (iii) and (iv) of the amended statement of claim to be struck. MURRAY J. Released: January 23, 2013 CITATION : Woods et al v. Jackiewicz et al, 2013 ONSC 519 COURT FILE NO.: 3846/11 DATE: 2013-01-23 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: KELSEY WOODS, a person under disability by her litigation guardian, MICHAEL WOODS, KARLI WOODS, BERNICE BOOTH and MICHAEL WOODS, personally Plaintiffs – and – DR. ALLAN JACKIEWICZ and DR. RONIT MESTERMAN Defendants ENDORSEMENT MURRAY J. Released: January 23, 2013