Case Citation: Trim v. Braun, 2023 ABCJ 242 Written By: Mohit Malhotra, Associate Background: In this case, the Plaintiff, Mary Alice Trim (the “Plaintiff / Respondent”), initiated three separate legal actions alleging negligence against medical practitioners, including emergency department doctors and nurses, and claiming vicarious liability of medical staff and facilities of the hospitals she visited. The essence of the Plaintiff’s claims revolves around four instances between May 30, 2018, and July 19, 2018, during which she sought medical attention from three different emergency ward doctors across three different hospitals, each time complaining of jaw pain. Despite her request for a bone scan, the doctors opted for antibiotic treatment. Subsequently, the plaintiff underwent molar extractions to address the pain, without relief. A bone scan, ordered by a fourth doctor on July 26, 2018, revealed a bone infection, leading to eight weeks of IV antibiotic treatment, resolving the issue. Representing herself, the Plaintiff asserts that the failure to refer her for a bone scan earlier resulted in prolonged severe jaw pain and unnecessary molar extractions. She claims $50,000 in general damages for each of the three actions. The Defendants[1], Dr. Theodore Braun (“Dr. Braun”), and the hospitals, Leduc Community Hospital, Strathcona Community Hospital, and Alberta Health Services (the “Hospitals” and collectively the “Defendants / Applicants”), sought summary dismissal, citing the absence of expert reports from the plaintiff and contending that their own experts demonstrated adherence to the standard of care. Plaintiff’s Arguments: On October 5, 2023, the Plaintiff submitted an affidavit opposing the applications for summary dismissal, accompanied by a letter dated September 14, 2023, from Dr. Romi Rajput. The letter asserted that the bone scan conducted on July 26, 2018, revealed Osteomyelitis in the Plaintiff’s lower jawbone, emphasizing the significance of early diagnosis and treatment. Dr. Rajput expressed concern that the Plaintiff did not receive optimal and prompt medical care. The letter listed multiple dates on which the Plaintiff sought emergency care, highlighting consistent symptoms of jaw pain and signs of infection. However, both the Plaintiff’s affidavit and Dr. Rajput’s letter lacked explicit qualifications for Dr. Rajput, with only the designation “MD” appearing in the signature line. Importantly, Dr. Rajput’s letter did not delve into the issue of the standard of care provided by the Defendants in the case and no expert reports were produced within the specified deadlines. Interestingly, despite filing actions against nurses and other hospital staff, the Plaintiff did not specifically allege negligence against any nurse or the Hospitals in her pleadings. During the proceedings, she explicitly stated that she harbored no concerns about the nursing staff, asserting they followed doctor’s directives. Considering this, the Plaintiff essentially presented a vicarious liability argument against the Hospitals—although not explicitly framed in those terms in her pleadings. Defendants Arguments: The Defendants argued that they have presented expert evidence supporting their positions and applications, suggesting that there is no merit to the Plaintiff’s claims. They contend that the appropriate standards of care have been met by these Defendants, whereas the Plaintiff has failed to produce expert reports in response, thus bearing the burden of “putting her best foot forward” and failing to meet that burden. Dr. Braun, in support of his application for summary dismissal presented the report of Dr. Andrew Robert Anton, an emergency medicine specialist, who opined that the standard of care was met in Dr. Braun’s interactions with the Plaintiff. Furthermore, Dr. Anton concluded in his report that as there was no clear indication of osteomyelitis at the time of Dr. Braun’s encounters with the Plaintiff, it was not the standard of care to initiate IV antibiotics at the time of his assessments. Specifically, in relation to the request for the “bone scan”, Dr. Anton concluded: “… it was entirely reasonable for Dr. Braun to defer further investigation and to advocate for follow up with her dentist. During this visit to the Hospital, Ms. Trim requested a CT scan be performed. However, it was entirely reasonable for Dr. Braun to deny this request, as it was not indicated based on Ms. Trim’s physical examination and test results.” The Hospitals submitted affidavits from Heather Durstling and Susan Kotyk, supporting their application for summary dismissal. Ms. Durstling, Executive Director of Suburban Hospitals, Edmonton Zone at AHS (Alberta Health Services), clarified the independent contractor status of physicians. Ms. Kotyk, registered nurse at Sunnybrook Health Sciences Centre with a specialization in emergency and trauma, attested that the nursing staff adhered to accepted practices when they cared for the Plaintiff, and they met the standards of care. Issues: The focal point of these applications revolves around determining whether the Defendants have satisfied the necessary criteria for the granting of summary judgment to dismiss the Plaintiff’s claims. An associated concern is whether the Plaintiff has effectively rebutted the case presented by the Defendants, thereby establishing the necessity for a trial in these matters. A pivotal question arises—whether there exists a triable issue, specifically, if it constitutes a breach of the standard of care for a doctor not to adhere to a patient’s specific instructions. Court Analysis: The Court conducted a meticulous analysis of the case, carefully evaluating the arguments presented by both the Plaintiff and the Defendants in the context of the summary dismissal applications. The central issues revolved around the plaintiff’s allegations of medical negligence, the absence of timely expert reports, and the sufficiency of the evidence to warrant a trial. Citing legal precedents, including the Weir Jones[2] decision, the Court outlined the burden of proof in summary dismissal applications. It acknowledged that the Defendants had initially met their burden by presenting expert evidence supporting their positions. In response, the Plaintiff was required to put forward evidence to establish a genuine issue requiring a trial. The Court concluded that the Plaintiff had failed to meet this burden, particularly considering the absence of expert evidence. The scrutiny applied to the letter emphasized its belated submission, the lack of detailed qualifications of Dr. Rajput, and its failure to address the standard of care issue. This scrutiny underscored the importance of adhering to procedural requirements and highlighted the necessity for comprehensive expert evidence in medical negligence cases. Specifically, the Court noted: [64] In most professional liability claims, expert evidence will be required to establish a breach of the standard of care by the professional, with two exceptions. Firstly, when it is possible to reliably determine the standard of care in the absence of expert evidence where the Court is faced with non-technical matters or those of which an ordinary person may be expected to have knowledge. Secondly, standard of care evidence is generally not required where the actions of the professional are so egregious that it is obvious that their conduct has fallen short of the standard of care, even without precisely knowing the parameters of that standard. Shave v Century 21 Assurance Realty Ltd., 2022 BCSC 183. [67] Specifically, regarding summary judgment in medical negligence actions, in Stoddard v Montague, 2006 ABCA 109 the Alberta Court of Appeal summarized the burden of proof for the respondent to an application for summary judgment in a medical malpractice action as follows at para 20: The need for expert evidence for both these issues [standard of care and causation] is obvious. In a medical negligence action, where the allegation of negligence involves issues outside the ordinary knowledge and experience of the trier of fact, summary dismissal of the plaintiff’s claim is appropriate when the plaintiff has failed to adduce any supportive expert opinion. The Court further at paragraph 79 noted: [79] The Plaintiff has failed to demonstrate that there is a genuine issue requiring a trial by providing expert evidence of a potential breach of the standard of care of either Dr. Braun, the nurses or the Hospital staff by not having her undergo a bone scan, or any other treatment for that matter. This is essential for the Plaintiff to meet the third criteria in the Weir Jones case and succeed in defeating these summary dismissal applications. An allegation that an attending emergency room doctor did not comply with a request of a patient to order a certain procedure does not in and of itself establish a breach of the standard of care by that doctor. An allegation in a pleading or affidavit, without more, is not sufficient to establish that there is a genuine issue requiring a trial. Additionally, the Court ruled that the letter from Dr. Rajput does not meet the criteria for an admissible expert’s report: Firstly, it lacks a detailed exposition of Dr. Rajput’s qualifications beyond the generic designation “MD,” failing to establish him as a properly qualified expert, as mandated by the Supreme Court of Canada [1994] 2 SCR 9; Secondly, the content of Dr. Rajput’s letter does not delve into the standard of care pertaining to emergency room doctors like Dr. Braun or the nursing and other staff at the hospitals; and Thirdly, the language used in the letter is somewhat equivocal, stating that “it appears Mary did not receive the best possible medical care available as quickly as possible.” The evaluation criterion is not centered on whether the Plaintiff received the best possible medical care, but rather on whether the care she received aligned with the expected standard of care from the doctors, nurses, or staff at those facilities during the time of her treatment. In summary, following the aforementioned analysis, the Court concluded that the Plaintiff failed to demonstrate the existence of a genuine issue necessitating a trial. This failure stems from the absence of expert evidence indicating a potential breach of the standard of care by either Dr. Braun, the nurses, or the hospital staff for not subjecting her to a bone scan or any alternative treatment. Meeting this requirement is crucial for the Plaintiff to fulfill the third criterion[3] outlined in the Weir Jones case and successfully oppose these summary dismissal applications. It is noteworthy that merely alleging that an emergency room doctor neglected a patient’s request for a specific procedure does not inherently establish a breach of the standard of care by that doctor. An assertion in a pleading or affidavit, without additional supporting elements, falls short of establishing the presence of a genuine issue warranting a trial. Despite recognizing the challenges faced by a self-represented litigant, the Court underscored the uniform application of legal standards. The Court recognized the potential financial burden and resource disparities but maintained adherence to the rules of evidence and precedent. Finally, the Court weighed the proportionality of proceeding to trial against the potential costs and resources involved. Citing the Supreme Court of Canada’s emphasis on achieving a just and fair result at an early stage in its decision in Hryniak v Mauldin, 2014 SCC 7, the Court expressed concern over the extensive trial requirements, including expert testimonies, and the associated costs. This consideration further strengthened the Court’s decision to grant summary dismissal, particularly given the Plaintiff’s failure to meet the burden of establishing a genuine issue requiring a trial. The Decision: In summary, the Court’s judgment reflects a comprehensive analysis of legal and evidentiary aspects, underscoring the importance of procedural adherence, the significance of expert evidence in medical negligence cases, and the consistent application of legal standards. The decision to grant summary dismissal was rooted in the Plaintiff’s inability to meet the burden of establishing a genuine issue requiring a trial. Significance and Broader Impact: The court’s decision to grant summary dismissal in the case of Mary Trim’s medical negligence claims against healthcare practitioners and facilities carries several implications. a) Firstly, the decision underscores the critical importance of timely and comprehensive expert evidence in medical negligence cases. The Court emphasized the need for plaintiffs to present qualified experts who can address the standard of care and causation issues. The absence of such evidence can significantly weaken a plaintiff’s case, as demonstrated in this instance. b) Secondly, the Court highlighted the challenges faced by self-represented litigants, acknowledging the potential disparities in financial resources and legal expertise. Despite recognizing these challenges, the Court maintained a consistent application of legal standards, reinforcing the principle that all litigants, regardless of representation, must adhere to procedural requirements and evidentiary standards. c) Thirdly, the decision reflects the Court’s commitment to achieving a just and fair result at an early stage, as outlined in the Supreme Court of Canada’s decision in Hryniak v Mauldin. The Court considered the potential costs and extensive trial requirements, including expert testimonies, in reaching its conclusion. This approach aligns with the broader trend in the legal system to promote efficiency and proportionality in litigation. Overall, the implications of this decision stress the importance of procedural adherence, the necessity of expert evidence in complex medical negligence cases, and the court’s commitment to achieving a fair and efficient resolution of legal disputes. It serves as a reminder to litigants, especially those representing themselves, of the essential elements required to substantiate their claims in medical negligence and similar legal contexts. Questions: If you have any questions with respect to this newsletter, please contact Mohit Malhotra at mmalhotra@parlee.com or 403.294.7098. [1] Dr. Michael John Orth and Dr. Khurram Jahangir were not served with the Civil Claim, leading to the expiration of the action against them as per s. 4(1) of the Provincial Court Civil Procedure Regulation. Consequently, the claims against Dr. Orth and Dr. Jahangir did not proceed. [2] Weir-Jones Technical Services Incorporated v Purolator Courier Ltd., 2019 ABCA 49 [3] “ … c) If the moving party has met its burden, the resisting party must put its best foot forward and demonstrate from the record that there is a genuine issue requiring a trial. This can occur by challenging the moving party’s case, by identifying a positive defence, by showing that a fair and just summary disposition is not realistic, or by otherwise demonstrating that there is a genuine issue requiring a trial. If there is a genuine issue requiring a trial, summary disposition is not available. … ”, Weir-Jones Technical Services Incorporated v Purolator Courier Ltd., 2019 ABCA 49, at para 47.