NEWSLETTER

Williams v. Wai-Ping

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

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CHRISTINE WILLIAMS, SHAWN WILLIAMS, PATRICIA SCANLON, MAUREEN MACINNIS, KATHY CHANEY, AND PATRICIA JENKINS

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Mr. P. Harte and Mr. J. Colangelo, for the Plaintiffs

 

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Plaintiffs

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ERROL S. WAI-PING, LEANNE A. KERR, ERNEST A.T. SALMON AND ROUGE VALLEY HEALTH SYSTEM

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Mr. D. Cruz, Ms. S. Batner and

Mr. C. Hubbard, for the defendant Wai-Ping

 

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Defendants

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HEARD:  September 15, 20, and 21, 2005 at Barrie, Ontario

 

And in the following 12 actions:

Bisson et al v. Wai-PingCourt File 35036/05 ( Whitby)

Brown et al v. Wai-Ping et al         Court File 36210/05 ( Whitby)

Ciancio et al v. Wai-Ping               Court File 35033/05 ( Whitby)

Casson v. Wai-Ping      Court File 35034/05 ( Whitby)

Escobar et al v. Wai-Ping et al              Court File 36208/05 ( Whitby)

Gagne et al v. Wai-Ping et al           Court File 36206/05 ( Whitby)

Heaton et al v. Wai-Ping                Court File 35035/05 ( Whitby)

Hunter et al v. Wai-PingCourt File 35032/05 ( Whitby)

Keoghan et al v. Wai-Ping et al       Court File 36205/05 ( Whitby)

Mellor et al v. Wai-Ping et al           Court File 35037/05 ( Whitby)

Molloy et al v. Wai-Ping                 Court File 36207/05 ( Whitby)

Shirley et al v. Wai-Ping et al         Court File 36209/05 ( Whitby)

 

REASONS FOR DECISIONS ON EIGHT SUMMARY JUDGMENT MOTIONS

R. MacKINNON, J.:

A.  BACKGROUND

[1]          The plaintiffs initially sought partial summary judgment against the defendant, Dr. Wai-Ping in each of these 13 medical malpractice actions.  Subsequently the motions in the Brown and Mellor actions were withdrawn while those in Casson, Hunter and Heaton resulted in consents to judgment on liability.  The plaintiffs now pursue judgment only for liability in the remaining eight actions.  In each the plaintiffs filed their own fact affidavit, an Affidavit of Documents, and an expert medical affidavit opining that the care provided by Dr. Wai-Ping was substandard.  The defendant doctor filed no affidavit of his own in any of the eight cases.  He filed an expert medical opinion affidavit in only the Keoghan, Gagne and Molloy actions.  I am mandated by Rule 20.04(2)(a) to grant summary judgment in an action if I am satisfied in that action that there is no genuine issue for trial with respect to a claim or defence.

[2]          The moving parties each seek judgment against Dr. Wai- Ping based on his alleged individual acts of negligence.  The quantum of damages to which they may each be entitled are genuine issues for trial.  At the outset of argument, counsel for the plaintiffs significantly narrowed the scope of the motions by seeking judgment only on the specific allegations which are detailed at Schedule “A” to these reasons.  If any plaintiff is successful on this motion, counsel advised that she will not pursue any other liability allegations against Wai-Ping.  The central allegation in each of the eight cases now before me on motion is that the doctor performed an unnecessary hysterectomy.  He also performed a tubal ligation on Elizabeth Bisson, which she alleges was as well unnecessary.

[3]          These eight motions are contained in one omnibus notice of motion.  They involve allegations by from eight of his former patients of his substandard medical treatment.  Each involves its own unique set of facts and evidence.  I dealt only with the specific restricted allegations and not with any other allegations in any of the statements of claim.  Evidence relating to each of the eight plaintiffs was considered individually.  I was mindful that affidavit evidence relating to one plaintiff cannot be used, commingled, or considered on the motions of any of the others.

B.  PRELIMINARY ISSUES

(i)  Procedural Fairness

[4]          Pleadings remain open in most of these actions.  Documentary and oral examinations for discovery have not yet been fully conducted.  These motions are nonetheless permitted under Rule 20.01 because Wai-Ping had earlier delivered his own notice of motion.  His counsel argued that the plaintiffs’ summary judgment motion at this time limited their ability to defend him and to put his best foot forward.  I disagree.  The defendant doctor and his lawyers have been aware of the plaintiffs’ claims for several years.  In 2002, he and his lawyers were provided with the names and addresses of the principal plaintiffs in these motions and notified of their intention to pursue claims.  In the spring of 2004, they were given additional materials which set out details of the allegations of his negligence and of their claims for damages.  His counsel have had the plaintiffs’ eight expert opinions for over a year.  The Williams action was commenced in 2001.  All other moving plaintiffs issued their claims between January and March 2005.  Ultimately, I was appointed as a Rule 37.15 judge.  The defendant doctor was provided many, many months ago with the plaintiffs’ sworn Affidavits of Documents in each of the claims together with copies of all Schedule “A” documents – including the eight patients’ medical records which formed the foundation of each of the plaintiffs’ expert medical opinions. 

[5]          The defendant doctor made no request to adjourn these motions and filed no responding affidavits of his own.  His counsel argued that the plaintiffs had not provided them with notice of the exact specifics of these motions until when they received the plaintiffs’ facta.  They complained as well that the plaintiffs’ refocused negligence allegations were first provided to them during oral argument.  None of the defendant’s fairness complaints have merit.  The defendant doctor knew full well the case he had to meet.  It is clear to me that in no case has he been at all prejudiced in his ability to respond to any part of the summary judgment motions.  The plaintiffs’ refocusing of their allegations simply narrowed the scope of inquiry which saved significant motion time.   Except for one amendment to each of the Escobar and Williams claims, no new allegations were added.  Defence counsel were, individually and collectively, permitted surrebuttal after the plaintiffs’ reply.  They were in no way restricted in argument or at all surprised by any of the refocused allegations.

[6]          During argument, and in response to a defence submission that neither the Escobar or Williams claims contained specific allegations of unnecessary surgery, counsel for the plaintiffs amended those claims pursuant to Rule 26.02(a) of the Rules to add paragraph 29(i.1) to the Escobar claim and paragraph 26(j.1) to the Williams claim.  Defence counsel argued they were prejudiced.  I disagree.  Assertions of unnecessary hysterectomy were clearly part of the moving parties’ position and included in their facta in all eight cases.  The amendments were made to accord form with substance in the plaintiffs’ argument.  The defence legal team was in no way prejudiced.  They knew full well the extent of the case they had to meet.

(ii)  The Test on Summary Judgment in a Malpractice Action

[7]          Where a court is satisfied that there is no genuine issue for trial it shall grant summary judgment under Rule 20.  The burden is on each of the moving parties to satisfy the court that the requirements of the rule have been met in their case.  The court’s function at this stage is not to resolve issues of fact, but to determine whether a genuine issue exists as to material facts which requires a trial.  A motion for summary judgment is not an adequate substitute for a trial.  In such a ruling the court will never assess credibility, weigh evidence, or find facts.  The defendant, however, must put his best foot forward.  He cannot merely rest on allegations contained in his pleadings.  I am entitled to assume that the motion records contain all the evidence which the parties would present if there was a trial.  The defendant is not entitled to sit back and rely on the possibility that more favourable facts may evolve at trial.  The burden of demonstrating no genuine issue is on the plaintiffs as moving parties.  However, if their individual onuses are met, the defendant as responding party must then establish in each case that he has a real chance of success.  There is no legal onus on the defendant.  Where the evidence presented by the plaintiffs prima facie establishes that there is no genuine issue for trial and they are accordingly entitled to summary judgment as a matter of law, the defendant assumes the evidentiary burden of presenting evidence which is capable of supporting the positions advanced by him. 

[8]          To establish a cause of action in negligence, a successful plaintiff must establish that Dr. Wai-Ping owed her a duty of care, that he breached that duty, and that his breach caused her at least some harm.  The doctor is only liable in negligence if he failed to apply the degree of skill, care and learning ordinarily possessed by a physician in similar circumstances.  His conduct must be considered in light of the information that should reasonably have been within his possession at the relevant time.  His medical conduct must not be scrutinized retrospectively with the benefit of hindsight.  In order to fairly evaluate a particular exercise of judgment, the doctor’s limited ability to foresee future events when determining his medical course of conduct must be kept in mind. 

[9]          Actions alleging medical malpractice that involve issues to be decided that are not within the ordinary knowledge and experience of a trier of fact will require an expert opinion from a doctor in the same field as the defendant doctor.  Courts do not ordinarily have the expertise to tell professionals that they are not behaving appropriately in their specialized field. 

(iii)  Partial Judgment

[10]      Partial summary judgment is permitted.  Rule 20.01(1) provides that the plaintiffs may move for summary judgment on all or part of the claims in a statement of claim.  Defendant’s counsel argue that, given the interplay between the component elements of the negligence claims in each case, partial summary judgment on any one element of negligence is inappropriate.   Relying on HSBC Securities (Canada) Inc. v. Davies et al, (2004) O.J. No. 3806, they also argue that partial summary judgment in any of these actions is inappropriate as it would not finally dispose of an action and would not decide the litigation commenced by that plaintiff.  Summary judgment was denied in HSBC Securities both because it did not go so far as to decide liability but also because its granting would not have had any material beneficial effect on the trial. 

[11]      I do not read HSBC Securities as prohibiting summary judgment on part of a claim in an appropriate case.  These potentially are such cases.  The moving parties seek summary judgment solely on liability.  If granted, the court’s determination will fully dispose of that discrete matter.  Discoveries would be shortened and trial time would be reduced.  As counsel for the plaintiffs correctly point out, the gynecologists could then stay in their offices and not be required as liability witnesses at trial.  That alone would result in a significant and material beneficial effect on these trials.

(iv)  Adverse Inference

[12]      Rule 20.02 provides for an inference to be drawn where a party fails to file evidence of persons having personal knowledge of contested facts.  In none of the eight motions did the defendant physician file any fact evidence or swear any affidavit of his own.  Wai-Ping must put his own best foot forward.  Where evidence relating to events is contested and no explanation is offered for a defendant’s failure to provide affidavit evidence on a Rule 20 motion, it may be appropriate to draw such an inference.

[13]      The plaintiffs filed Dr. Wai-Ping’s medical records as part of their case to support the opinions of their medical experts.  As such, they are raw data.  Some are in indecipherable handwriting.  Some are not.  I have no sworn evidence from the doctor to explain his records or his handwriting or to support that his records were created contemporaneously with the recorded events.  The records were called “abysmal” by Dr. Shier, the plaintiffs’ medical expert in the Escobar case.  Notwithstanding, they potentially may provide some fact basis for consideration on these motions.  They do not, however, constitute expert evidence capable of assisting the court in determining whether Wai-Ping was negligent and whether he breached his standard of care in the Bisson, Ciancio, Escobar, Shirley and Williams cases where he filed no defence expert opinions.

[14]      His records are not the best evidence.  His affidavit would be.  They constitute some “other evidence” within the meaning of Rule 20.01(1).  Evidence to interpret them is only admissible through witnesses, not through counsel.  A physician’s notes made or dictated some time later after an event may not qualify as contemporaneous and will not be available for the truth of their contents.  They may, however, be helpful to an expert to understand and opine on the earlier contemporaneous notes.

[15]      Counsel for the doctor collectively argue that an affidavit from him would not provide any further assistance to the court in that the plaintiffs had already filed all of his medical records for all eight patients.  Accordingly the defence asserts that the court now has all the required evidence about his version of events.  They contend that the medical records are his evidence and that no adverse inference should be drawn.  In cross-examination each of the plaintiffs’ experts were asked to confirm that they did not have the benefit of Dr. Wai-Ping’s “side of the story”.  His counsel now assert that his affidavits would not provide any further assistance to the court.  I disagree.  It was open to this doctor to file his own affidavits attesting to material fact evidence that was uniquely available to him.  He did not.  He took a risk in not tendering that evidence on material contested points – the risk that the court may draw an adverse inference.  It is reasonable to infer, and I do, that he is unable to swear to any material facts as are required to rebut the plaintiffs’ claims and to make out his stated defence.

(v)  Material Facts and Credibility

[16]      Both sides filed expert medical opinions on the three alleged no informed consent cases.  Only the plaintiff filed expert medical opinions on the five alleged unnecessary surgery cases.   I keep in mind that issues which turn on credibility cannot be determined by summary judgment.  However, when the contested issue is not material, or if the question of credibility is not genuine, summary judgment will be granted.  Rogers Cable TV Ltd. v. 373041 Ontario Ltd. , (1994), 22 O.R. (3d) 25.

[17]      Material facts about the relevant allegations in Schedule “A” are limited to those facts which would impact an expert’s opinion.  The defendant doctor can succeed on the motion without providing a supportive expert opinion if he undermines the foundation of the plaintiffs’ expert opinions in a material way.  However it is not, in my view, sufficient for defence counsel to point at conflicting facts unless they can also demonstrate that the plaintiffs’ expert relied on those facts as the basis of his opinion.

 (vi)  No Defence Expert Opinion

[18]      There is no categorical requirement that a defendant in a medical malpractice suit must present expert evidence to support his or her defence.  Expert evidence is not required where a court is in as good a position as the expert to determine what ought to have been done.  However, in these eight cases where expert knowledge, care and experience is required to determine what ought to have been done and the plaintiffs have filed relevant expert medical opinions which may otherwise meet their prima facie onus, the defendant has a resulting evidentiary onus to establish that his defence has a real chance of success.  This is not a legal burden but rather one of presenting evidence which is capable of supporting the positions advanced on his behalf.  Inconsistencies or gaps in the plaintiffs’ expert opinions can be used to support the theory of defence counsel about the medical standard of care.  However, in the absence of expert opinions attesting to the significance of those observations to contradict the plaintiffs’ experts, the defendant will not have demonstrated a capacity to provide evidence from which a trier of fact could properly find in favour of the positions being advanced on his behalf.  In Claus v. Wolfman52 O.R. (3d) 673 at 677 that court inferred that no such evidence would be forthcoming.

[19]      One of the significant issues on this omnibus motion is whether the defendant’s counsel, by exposing inconsistencies through cross-examination as an alternative to providing an expert opinion, have provided sufficient evidence from which there exists a genuine issue on material facts for trial on liability.  As will be seen, it is my view that they have not.  The question is not whether the defendant can raise weaknesses in the plaintiffs’ expert opinions as an alternative to providing defending expert opinions asserting a contrary view, but whether he can through such an exercise provide sufficient evidence from which this court can find that the plaintiffs have not met their onus of establishing no genuine issue for trial.  As will be seen, it is my view that nothing in the concessions earned by the defendant in cross-examinations of the plaintiffs or their experts provides sufficient evidence even to that limited extent.

(vii)  Adequacy of the Motion Record

[20]      A physician’s medical records should contain all information relevant to his/her decision-making.  Defence counsel argued that the plaintiffs’ medical experts did not review all the plaintiffs’ medical records -- including those which Dr. Wai-Ping did not know about or review.  I was well satisfied that, by the time the motion was argued, plaintiffs’ counsel had provided to defence counsel all of the relevant prior non-Wai-Ping medical records.  A very few of these documents were unavailable at the time of cross-examinations, but were subsequently produced.  Plaintiffs’ medical experts then reviewed them and confirmed that their opinions were unchanged.  That confirmation was communicated to defendant’s counsel prior to the motion and the plaintiffs’ medical experts were offered again for further cross-examination.  That offer was refused.  The plaintiffs’ medical opinions and the relevant medical records on which they were based were first provided to the defence legal team over one year ago.  When Dr. Leyland was questioned by defence counsel on the Ciancio motion, all medical records requested by defence had been produced by plaintiffs’ counsel and were available - but none were put to that expert in cross-examination. 

[21]      During cross-examination of Dr. Arnold on the Molloy motion, Wai-Ping’s counsel questioned that Dr. Arnold had not, before writing his report, reviewed the results of two ultrasounds that had been ordered by a physician other than Wai-Ping.  In re-examination, counsel for the plaintiffs asked Dr. Arnold to review the results and to comment whether or not they would change his opinion.  Counsel for Wai-Ping refused to allow the witness to answer.  Wai-Ping’s legal team now argues that Dr. Arnold did not consider all of the medical records.

[22]      I was well satisfied that, prior to argument, on the motion, plaintiffs’ counsel provided all relevant medical records to defence.  Counsel for the defendant insisted that the plaintiffs’ undertakings to provide documents were fully complied with.  It was incumbent upon defence counsel in these circumstances to put the records to the plaintiff’s experts and to ask whether they would change their opinions.  It is reasonable to infer, and I do, that the record before me was fully adequate in all eight cases and that the plaintiffs’ experts’ opinions would have remained unchanged following their review of the additional few documents.

C.  CAUSATION/DAMAGES

[23]      The plaintiffs must each establish that their treatment or lack of it was the cause of their injuries.  Dr. Wai-Ping’s counsel argue that to complete proof of liability, the plaintiffs must first demonstrate a causal connection to the losses claimed.  In the circumstances of these cases, I disagree.  Loss relates to the dollar amount of damages and is not relevant on a liability-restricted determination.  Counsel for the plaintiffs point to “Personal Injury Damages in Canada” by Cooper-Stephenson where the author writes:

      It therefore seems useful for the purpose of factual causation to again recognize the classification of issues which distinguishes between breach, injury and loss.  This allows identification of the need to establish a causal connection between (a) breach and injury; and (b) injury and loss.  The former is concerned with establishing the existence of liability and the latter with the extent of that liability.  For this classification, “injury” refers to the initial physical impairment of the plaintiff’s person as a result of the unlawful activity, while “loss” refers to the pecuniary or non-pecuniary consequences of that impairment. 

 

[24]      The plaintiffs’ position is consistent with the Supreme Court decision in Blackwater v. Plint (2005) S.C.C. 58 where the Chief Justice at paragraph 78 (QL version) wrote:

      It is important to distinguish between causation as the source of the loss and the rules of damage assessment in tort.  The rules of causation consider generally whether “but for” the defendant’s acts, the plaintiff’s damages would have been incurred on a balance of probabilities. 

 

[25]      In these eight motions, I need only concern myself with causal connection in each case as it relates to the existence of liability.  If the plaintiffs each establish both that there is no genuine issue for trial on their surgeon’s negligence (performance of surgeries in five cases which were allegedly not medically indicated and in three cases allegedly without informed consent), and that his breaches caused at least some injury to them (an unnecessary surgical uterus removal) then the evidentiary burden in each case will shift to the doctor.  That the surgeries were a necessary part of the consequences is obvious.  A plaintiff’s injury may lead to certain losses, both pecuniary and non-pecuniary.  Defence counsel fairly conceded that there will necessarily be at least some resultant damage when a doctor performs uterus removal surgery which is either not medically indicated or performed without informed consent.  In Laferriere v. Lawson , (1991) 1 S.C.R. 541 at 586, the court held:

      In cases where the responsibility has already been established regarding some concrete initial damage, and where the loss of a desired future result is an alleged consequence of the initial damage, then the court’s attention will properly be focused on the real damage represented by the loss of the future result, and questions of probability will only be considered, along with other relevant facts in the evaluation of damages.  

The extent of damages to be awarded for the extent of the damage is for a trial court to assess in each case.  

[26]      It is my view that the evidence presented by these eight plaintiffs prima facie establishes in each case that there is no genuine issue for trial on the issue of causation – i.e. causal connection as it relates to the existence of liability.  Dr. Wai-Ping has not met his resulting evidentiary burden in any case of presenting any evidence which is capable of supporting the opposite conclusion.

D.  POSITIONS OF THE PARTIES

[27]      It is the position of counsel for the plaintiffs that liability is demonstrated in all eight cases-either as breaches of the standard of care (Bisson, Ciancio, Escobar, Shirley and Williams) or as demonstrating no informed consent (Gagne, Keoghan and Molloy).  They correctly argue that, in determining liability, standard of care issues relating to events occurring post-surgery are irrelevant.  They also point out that no defence expert opinion was filed on any of the five standard of care cases.  They argue that in the three informed consent cases the defence medical experts either agree that Wai-Ping was negligent, do not offer an opinion to rebut the plaintiffs’ expert, or hold a position that is untenable in law. 

[28]      It is the position of counsel for the defendant that in none of the eight cases have the plaintiffs met their onus of establishing that there is no genuine issue for trial concerning their client’s liability for the medical care and treatment he rendered to each of them such that any damages arose.  They argue that there are genuine issues for trial relating to his standard of care, causation, damages, and the defences available to him. 

E.  MEDICAL TREATMENT AND CARE OF THE PLAINTIFFS

i.  Elizabeth Bisson

[29]      The defendant doctor performed a tubal ligation on Ms. Bisson when she was 19 years old.  He also performed a hysterectomy, left and right salpingo-oopherectomies (ovary removals), and repaired her hernia.  The plaintiffs’ expert, Dr. Nicholas Leyland, is Chief of Obstetrics and Gynecology at Toronto St. Joseph’s Health Centre.  He opined, based on the defendant’s medical records, that a tubal ligation was not indicated in a 19 year old except in extraordinary circumstances.  It was a “red flag”, he said, to consider permanent sterilization in a 360-pound woman. He also swore that, before proceeding to hysterectomy, other medical and surgical interventions would have been more appropriate.  He swore that not all reasonable options were given to Ms. Bisson and that this as well resulted in unnecessary surgeries falling below the medical standard of care at that time.

[30]      Dr. Wai-Ping, through counsel, denies that he fell below the standard of care and argues that Ms. Bisson’s tubal ligation was both medically indicated and performed properly with informed consent.  He swore no fact affidavit or supportive defence medical opinion.  The plaintiff seeks liability resulting from her unnecessary surgeries.  Defence counsel argue this is really a consent issue which requires a trial.  There is admittedly conflicting evidence on informed consent.  Ms. Bisson signed a procedural consent form.  Her cross-examination raises issues about the subjective element of her informed consent.  She does not, however, seek judgment solely on the informed consent allegation.  Rather, the refocused motion dealt as well with the standard of care claim of unnecessary surgeries. 

[31]      According to Dr. Wai-Ping’s records, Ms. Bisson was provided with only two options – diaphragm and tubal ligation.  Dr. Leyland opined that there were other reasonable options -  including insertion of an IUD (inter uterine device), trying a different IUD, birth control pills, contraceptive foam, contraceptive gel, contraceptive sponge, cervical cap, condom and vasectomy.  These were not offered to her - according to her and confirmed by the defendant’s records.  There is no material conflict in evidence on that point.  Dr. Leyland opined that his approach was to continue with the IUD.  Ms. Bisson swore in her affidavit that she consented to the tubal ligation on the basis that it was her only alternative.  The only expert medical evidence is from Dr. Leyland – that a tubal ligation was not indicated in a 19 year-old woman except in extraordinary circumstances, and that it was a red flag to offer permanent sterilization in the 360-pound woman.  It is reasonable to infer, and I do, that a reasonable person in Ms. Bisson’s situation would not have agreed to such a procedure.

[32]      Ms. Bisson swore that she saw Dr. Wai-Ping once a year for several years.  In May 1997 she complained to him of stomach pains and she swore he told her that hysterectomy was her only viable option.  He performed that operation when she was age 24.  The subsequent surgical pathology indicated no abnormalities.  Her evidence was that the abdominal pain continued and that he told her that the cause of her pain was an ovarian cist.  He removed her left ovary in October 1997 and her right one in August 1998.  She suffered a post-operative wound infection.  In February 1999 Dr. Wai-Ping recommended surgery to remove the infection and in March 1999 he did so – which removed the infection and fixed a hernia that had developed around the wound.  In total Ms. Bisson had a total of five surgeries performed by this doctor and two other repair surgeries performed by other doctors.  The evidence is clear that after each surgery she was laid up for months at a time and that after removal of each of her ovaries she suffered infection.  She is left with scarring.  It was the unwavering expert opinion of Dr. Leyland that Wai-Ping performed an unnecessary hysterectomy when other medical and surgical interventions would have been more appropriate.  He concluded that all of the subsequent surgeries were a natural result of the unnecessary tubal ligation and hysterectomy.  The defendant doctor’s unsworn consultation note of September 2, 1992 states that Ms. Bisson refused to try a diaphragm, and as a result she presented for tubal ligation.  She swore under oath she never refused a diaphragm.  Defence counsel filed no expert opinion attesting to the significance of this difference, contradicting the plaintiff’s expert, or supporting Wai-Ping’s care.  Dr. Leyland’s opinion was not materially undermined.

[33]      Ms. Bisson’s motion materials fully establish that Dr. Wai-Ping owed her a duty of care, that he breached that duty with respect to the unnecessary surgeries and the unnecessary tubal ligation, and that his breaches caused her at least some harm.  Subject to a consideration of defences available to him, his liability to her as detailed in paragraph 29(e) and (f) of her statement of claim is established.  There is no other genuine liability issue for trial.

(ii)  Elisa Ciancio

[34]      Ms. Ciancio presented to the defendant for urinary frequency, recurrent bladder infections, and abdominal pain.  Dr. Leyland opined, based on Wai-Ping’s records, that the defendant doctor performed a hysterectomy for a condition that was clearly not medically recognized as an indication for this surgery – the impingement of her uterus on her bladder.  Dr. Leyland also opined that the defendant improperly repaired an intra-operative bladder tear.  Wai-Ping filed no fact affidavit.  There is no defence expert medical opinion.  It was Dr. Leyland’s view both that the medical care provided to Ms. Ciancio clearly fell below the standard of care in 1997 and that the hysterectomy was unnecessary.

[35]      Defence counsel argue that Dr. Leyland misunderstood the medical record – specifically that he misunderstood the reason that the hysterectomy was being performed in the first place.  They suggested that the operation was not performed to release the impingement (as stated in Wai-Ping’s records) but rather to treat gynaecologic symptoms caused by fibroids.  I disagree.  There is no evidence that there existed symptomatic fibroids or that Ms. Ciancio had any abdominal pain or gynecologic problems at the time of the hysterectomy.  According to Wai-Ping’s records Ms. Ciancio was offered only a hysterectomy.  The only expert medical evidence is that she should not have had that operation.  Dr. Leyland gave his opinion that Ms. Ciancio was not offered the appropriate range, depth and breadth of options for treatment for her symptoms.  He was also critical of Wai-Ping both for attempting the intra-operative repair when he was unqualified to do so and also for not subsequently testing his repair.  Defence counsel filed no expert affidavit to interpret their client’s record.  Dr. Leyland considered the defence theory in cross-examination and said of Wai-Ping “he’s fallen so far beyond the standard of care that our discussion here is meaningless”.  Dr. Leyland’s opinion was not materially undermined.

[36]      Mrs. Ciancio did sign a consent to treatment.  According to Wai-Ping’s records she was provided only with the hysterectomy option.  The expert evidence was clearly both that the procedure was not medically indicated and also that Wai-Ping improperly repaired her surgical bladder tear.  No one would consent to an unnecessary procedure.  No one would consent to improper medical repair falling below the medically accepted standard of care.

[37]      Ms. Ciancio has fully established in her motion material that Dr. Wai-Ping owed her a duty of care, that he breached that duty by performing an abdominal hysterectomy which was unnecessary and not medically indicated, and that the breach caused her at least some harm.  Subject to a consideration available defences, Dr. Wai-Ping’s liability to her as set out in paragraphs 18(e) and (f) of her statement of claim is established.  There is no other genuine liability issue for trial

(iii)  Karen Escobar

[38]      Ms. Escobar swore that Dr. Wai-Ping told her she was in imminent danger of developing cancer and required a hysterectomy.  She suffered severe life-threatening complications.   Dr. Michael Shier is Chief of Gynecology at Sunnybrook Health Sciences Centre and is the plaintiff’s medical expert.  He swore, on review of the defendant’s record, that what Wai-Ping told Mrs. Escobar was untrue.  He clearly opined that “the timing and indications for the hysterectomy were bizarre” and that “the response to a life threatening post-operative complication was abysmal”.  He swore Ms. Escobar did not provide an informed consent.  An emergency operation was necessary.  She nearly bled to death and was transfused with several units of blood.  No fact or medical expert evidence were filed by the defendant doctor.  His lawyers take issue with Dr. Shier’s interpretation of Wai-Ping’s records and of the expert’s failure to examine past medical records.  There is nothing in the defence factum or argument which in my view raises a material, genuine issue for trial on the issue of their client’s liability for breach of his standard of care to Ms. Escobar.

[39]      In preparing his report Dr. Shier did not review the medical records of two physicians with whom Mrs. Escobar had consulted on gynecological issues a number of years prior to her hysterectomy.  Dr. Shier acknowledged in cross-examination that all diagnoses, past treatments and general medical history may impact on an expert’s opinion on whether a hysterectomy was necessary but his clear evidence was that this patient’s past history was unremarkable.  I am not satisfied by any defence submission or from any material before me that a true, genuine issue for trial on material facts has been raised.  Dr. Shier’s opinion was not materially undermined.

[40]      Wai-Ping’s counsel argue that Mrs. Escobar’s evidence about the discussion of her hysterectomy differs from Wai-Ping’s notes.  His handwritten note of August 11, 2000 makes no mention of an offer of cryosurgery.  However, his operative note was created later in time – six days after her office visit to him and after her poor surgical outcome was known.  I am not satisfied on this record that his note was made contemporaneously.  It accordingly is not any evidence of the truth of its contents.

[41]      Ms. Escobar’s motion materials fully establish that Dr. Wai-Ping owed her a duty of care, that he breached that duty with respect to the unnecessary surgery, and that the breach her caused her at least some harm.  Subject to a consideration of available defences, his liability to her as set out in paragraph 29(i.1) of the statement of claim is established.  There is no other genuine liability issue for trial.

(iv)  Patricia Gagne

[42]      Ms. Gagne was treated by the defendant doctor for dysfunctional uterine bleeding.  He performed a hysterectomy.  She swore he failed to inform her of any alternatives.  He was required by law to present her with all reasonable alternatives.  She hemorrhaged during the operation, lost a significant amount of blood, and required a transfusion.  Dr. Wai-Ping’s medical records indicate that the only option provided to her was hysterectomy.  The defendant filed no fact evidence.  The plaintiffs’ expert Dr. George Arnold and the defendant’s expert Dr. Douglas Gare agree that there were other options which should have been provided.

[43]      Counsel for Ms. Gagne seeks liability only for negligence on the basis of no informed consent.  Ms. Gagne swore she didn’t want a hysterectomy.  Her medical expert opined that a majority of women opt for conservative alternatives.  The defence expert opined that Ms. Gagne could avoid a hysterectomy “if that were a goal of hers” but acknowledged that there was a greater than 50% chance that endometrial ablation (the removal of the lining of the uterus not involving hospitalization) would have avoided a hysterectomy.  While the expert opinions of Drs. Arnold and Gare are in conflict with respect to the appropriate standard of care and whether Dr. Wai-Ping breached that standard, the plaintiffs in Ms. Gagne’s case have restricted their allegations on this motion to no informed consent.

[44]      In order to determine whether she provided her informed consent the court must consider whether the doctor-patient consent discussion was sufficient, having regards to what a reasonable person in her position would want to know at that time.  She signed a consent acknowledgment which is at least of some evidentiary value.  The second part of the analysis, mandated by the Supreme Court of Canada in Reibl v. Hughes, (1980) 2 S.C.R. 880, considers whether a reasonable person in this patient’s position would have proceeded with the operation if she had been provided with all material risks that should have been disclosed.  The standard is that of a reasonable person but imports a subjective element about the particular patient’s particular circumstances. 

[45]      Ms. Gagne’s affidavit and cross-examination reveal an insufficient basis to enable the court to sufficiently analyze the subjective element of the test.  Ms. Gagne in cross-examination acknowledged that she didn’t remember what was discussed with Dr. Wai-Ping in an office meeting on September 7, 1999.  Wai-Ping’s notes reflect a discussion with Ms. Gagne about informed consent in which he specifically noted risks discussed with her, including bleeding, infection, and bladder injury.   A trial court must weigh her evidence to assess the subjective element.  Secondly, I do not have, on this motion record, sufficient evidence to evaluate the objective element. Finally the over-arching opinion of the defence expert Dr. Gare, was that the gynecologic management of Ms. Gagne’s case by Dr. Wai-Ping was reasonable.  That by itself raises a genuine issue for trial.

[46]      Without a consideration of defences available to Dr. Wai-Ping, Ms. Gagne’s motion materials fully establish that he owed her a duty of care but do not fully establish that he breached that duty.  The law does not permit summary judgment in her case.  There is a genuine issue for trial on his liability to her for his treatment of her.

(v)  Yvonne Keoghan

[47]      Dr. Wai-Ping recommended a hysterectomy to Ms. Keoghan.  She swore that he told her it would be too risky to wait.  He swore to nothing.  During surgery she suffered bowel and bladder damage that required repair.  She now suffers from bladder incontinence and other bowel problems.  His records confirm, and Ms. Keoghan swears, that he did not offer her either birth control pills or endometrial ablation as options.  Both the plaintiffs’ medical expert, Dr. George Arnold, and the defence medical expert, Dr. Timothy Froats, opined that those were reasonable options.  Had she been given options, Ms. Keoghan testified she would definitely have pursued a different choice.  Both experts were of the view that most women opt for more conservative options rather than hysterectomy.  Wai-Ping’s notes of November 9, 1995, and April 12, 1996 generally refer to some options given.  Ms. Keoghan in her cross-examination acknowledged that she couldn’t recall the content of all of her conversations with Dr. Wai-Ping.  It was the opinion of Dr. Froats that it was not the 1996 medical standard of care to offer endometrial ablation as an alternative.  The evidence of Dr. Gare that there was a greater than 50% chance that endometrial ablation would have avoided a hysterectomy was not before me on Ms. Keoghan’s case but rather on Ms. Gagne’s case.  Dr. Gare’s opinion was offered to support a separate claim with separate facts and is not admissible on the Keoghan issues.

[48]      As is the case in the Gagne and Molloy claims, in order for this plaintiff to prove that there was no informed consent she must establish that:

(a)                The doctor’s informed consent discussion fell below the then current standard of care – that he did not advise her of all of the risks and benefits associated with the procedure; and

(b)                If she had been advised of the risks she would not have given her consent to the surgery; and

(c)                A reasonable person in the plaintiff’s position, if advised of the risks, would not have given her consent to the surgery.

 

[49]      There is, in Ms. Keoghan’s case, a demonstrated debate amongst experts about of the reasonableness of the alternatives.  Dr. Wai-Ping’s records show that some birth control pill discussion was had with her.  Dr. Froats opined that all reasonable alternative treatments do not need to be put to the patient.  That may be inconsistent with case law and with the Health Care Consent Act, 1996.  He also reviewed inadmissible evidence purposefully sent to him by defence counsel, in the form of a case summary opinion from the College of Physicians and Surgeons for Ontario.  That was improper in that it could have created a triable issue by placing inadmissible evidence before the expert.  Although I was urged by plaintiffs’ counsel to accordingly strike all of Dr. Froats’ affidavit pursuant to Rule 25.11 of the Rules of Civil Procedure, I decline to do so as the Froats opinion did not overtly rely on it and it contains nothing about informed consent. 

[50]      Dr. Froats over-arching position supports the view that the defendant doctor did not breach his duty to Ms. Keoghan.  Wai-Ping’s records indicate he discussed with her some risks associated with the hysterectomy including bleeding, infection and bladder damage.  She signed a consent form indicating that she had been informed of and understood the purpose of the procedure and alternative courses of action together with material risks.  She acknowledged in cross-examination that she would have read the release before signing it.

[51]      Without considering defences available to Dr. Wai-Ping, Mrs. Keoghan’s motion materials fully establish that he owed her a duty of care but do not fully establish that he breached that duty such that she was caused at least some harm.  This will ultimately be the function of a trial court after weighing evidence.  There is a genuine issue for trial on the physician’s liability for negligence for his treatment to her.

(vi)  Catherine Molloy

[52]      Dr. Wai-Ping performed a hysterectomy on Ms. Molloy for dysfunctional uterine bleeding.  She swore she believed a hysterectomy was her only real option.  Post-operatively she developed a wound and urinary tract infection.  She seeks a summary judgment finding of medical liability in negligence for not ensuring her decision was made with informed consent.  The plaintiffs’ medical expert, Dr. Arnold, opined that alternatives should have been discussed.  The defence medical expert, Dr. Froats, opined both that his informed consent opinion is inconsistent with the evidence and that telling a patient that a hysterectomy was her only real option is incorrect. 

[53]      Ms. Molloy swore that if she had been offered something other than a hysterectomy she would have taken it.  Dr. Arnold opined that a majority of women opt for conservative alternatives and that the hysterectomy was unnecessary.

[54]      During Ms. Molloy’s cross-examination she conceded she had a discussion with Wai-Ping about the potential complications of hysterectomy and that she signed a consent before the procedure.  She admitted that she understood the contents of the form.  Dr. Wai-Ping’s records disclose that the risks of bleeding, infection and bladder damage were discussed.  Ms. Molloy denies these were discussed with her.  She could not recall on cross-examination whether she saw Dr. Wai-Ping on February 10, 1994 which is one of the office visits recorded in his records.

[55]      There is a demonstrated debate amongst the experts about the spectrum of options offered to Ms. Molloy.  Dr. Froats also reviewed inadmissible evidence purposefully sent to him by defence counsel in the form of an opinion summary of the College of Physicians and Surgeons for Ontario.  That was improper.  Although I was urged by plaintiffs’ counsel to strike all of Dr. Froats’ affidavit pursuant to Rule 25.11 of the Rules of Civil Procedure, I decline to do so as the summary was not material to the issue of informed consent.  Dr. Froats over-arching position supports the position that the defendant doctor did not breach his duty to Ms. Molloy.   Wai-Ping’s records disclose that some options were discussed.

[56]      This case requires the evidence to be weighed at trial.  Leaving aside a consideration of defences available to the doctor, Mrs. Molloy’s motion materials fully establish that Dr. Wai-Ping owed her a duty of care, but do not fully establish that he breached that duty such that she was caused at least some harm.  The law does not permit the granting of summary judgment in her case.  There is a genuine issue for trial on his liability for his treatment of her.

(vii)  Shirley Shirley

[57]      The defendant doctor performed a hysterectomy on Ms. Shirley because of her dysfunctional uterine bleeding.  She swore he provided no other viable treatment options and performed no testing.  She developed post-operative hemorrhage, required a blood transfusion, and was discharged with significant infection.  Dr. Nicholas Pairaudeau is the plaintiffs’ expert gynecologist.  He opined, on the basis of Dr. Wai-Ping’s records, that the defendant exercised “poor judgment in deciding to opt for a hysterectomy when a simpler procedure such as a hysteroscopy might have done the trick”.  He swore that Ms. Shirley’s hysterectomy was unnecessary. 

[58]      The defendant filed no fact or expert medical evidence but argued, through counsel, both that the plaintiff’s doctor misinterpreted Wai-Ping’s records and that he did not have all prior patient medical records.  There is no evidence of an alternative medical interpretation to that of Dr. Pairaudeau.  All additional medical records were available to counsel at the time of the doctor’s cross-examination but were not put to him by defence. 

[59]      Dr. Wai-Ping’s lawyers also argue there may have been alternative indications to the surgery.  No evidence was before me which would support that these other indications would have led to a hysterectomy for Ms. Shirley.  Dr. Pairaudeau was cross-examined for more than four hours over two days.  He was asked more than 600 questions and his opinion remained unchanged - that Dr. Wai-Ping performed an unnecessary hysterectomy.

[60]      The defendant’s December 9, 1998 medical record on its face discloses options, alternatives and patient’s choices.  Dr. Pairaudeau opined, however, that a “reasonable practitioner would have at least got a hemoglobin from her, and also an ultrasound…”.  Defence counsel argue that the Shirley case is really one involving a consideration of whether there was informed consent.  I disagree.  The only filed expert medical opinion is that the hysterectomy was unnecessary.  I am entitled to assume that all expert medical evidence is before me.  There is no material conflict in the evidence, including a consideration of the cross-examination of Ms. Shirley.  Dr Pairaudeau’s opinion was not materially undermined.

[61]      Ms. Shirley’s motion materials fully establish that Dr. Wai-Ping owed her a duty of care, that he breached that duty, and that the breach caused her at least some harm.  Subject to a consideration of defences available to him, Dr. Wai-Ping’s liability to her in paragraph 29(h) of the statement of claim is established.  There is no other genuine liability issue for trial.

(viii)  Christine Williams

[62]      The defendant doctor performed a hysterectomy on Ms. Williams.  She swore he told her it was her only viable option.  The operation was to have been performed through the vagina but needed to be converted to a fully open procedure due to complications.  She experienced significant hemorrhaging and required blood transfusions.  The plaintiffs’ medical expert is Dr. Michael Shier.  He opined that this hysterectomy was both not medically indicated and unnecessary.  He swore both that the defendant doctor clearly fell below the standard of care and that the indications and timing of the hysterectomy were very questionable.  Dr. Wai-Ping filed no opposing fact or expert medical affidavit.  Nothing in either oral argument or the defence factum casts doubt on the credibility or reliability of the evidence of the plaintiff.  Nowhere is there demonstrated a genuine issue for trial on Dr. Shier’s credibility or on the weight of his evidence.  His opinion was clear.  He was provided with all the records that Dr. Wai-Ping had when he made the decision to perform the hysterectomy.  A plain reading of the prior non-Wai-Ping records demonstrates they are not probative of any issue on this motion.

[63]      The defendant’s counsel argue that additional evidence is required to fully determine Ms. Williams’ circumstances when the operation was being discussed with their client.  They assert that a trial court must hear both her evidence and that of Dr. Wai-Ping - yet they elected not to file his affidavit.  They also argue that the key issue in her case is really one of informed consent.  I disagree.  The clear opinion of Dr. Shier was that the procedure was unnecessary as not medically indicated.  Who would consent to an unnecessary hysterectomy?

[64]      Ms. Williams’ motion materials fully establish that Dr. Wai-Ping owed her a duty of care, that he breached that duty with respect to the unnecessary surgery, and that the breach caused her at least some harm.  Subject to a consideration of available defences, Dr. Wai-Ping’s liability to her in paragraph 26(j.1) of the statement is established.  There is no other genuine liability issue for trial.

F.  DEFENCE – LIMITATION OF ACTION

[65]      On May 30, 2001 plaintiffs’ counsel commenced the Oostrom action pursuant to the Class Proceedings Act, 1992 against Dr. Wai-Ping and others.  While it has not been certified as a class proceeding, pursuant to section 28 its commencement has the effect of suspending in favour of any class member any limitation periods which had not already then expired.  All eight plaintiffs are potential class members.

[66]      The Health Professions Procedural Code provides in section 89(1) that no person who is or was a health profession member is liable to any action arising out of negligence or malpractice in respect of professional services unless the action is commenced within one year after the date when the person commencing the action knew or ought to have known the fact or facts upon which the negligence or malpractice is alleged.  The defendant doctor was such a member.

[67]      The defence argues that there is a limitation defence in all cases except for Mrs. Escobar’s surgery.  No other defence was advanced and detailed in the defendant’s facta or argument.

[68]      The Ontario Court of Appeal held in McSween v. Luis , [2000], 132 O.A.C. 304 (C.A.) that the limitation period begins to run the moment a plaintiff knows or ought to know enough facts to form the basis of an allegation of negligence or malpractice.  The section requires neither full definitive information about the allegation nor knowledge of the precise cause of the injury.  The defendant argues that where the impugned treatment in the seven cases was provided by Dr. Wai-Ping at any time prior to May 30, 2000, (one year before the claim issuance in Oostrom) there is a prima facie limitation defence and the resulting discoverability issue is a genuine issue for trial. 

[69]      Discoverability postpones the running of the statutory period until the plaintiff knows, or by reasonably diligence could have known, the material facts upon which to bring an action.  The Ontario Court of Appeal in Findlay v. Holmes(1998) O.J. No. 2796 held that it is a question of fact, depending on the circumstances of each case as a whole, as to when knowledge of the material facts could reasonably have been acquired by a plaintiff.  In some cases the facts will become known only upon receipt of a medical opinion about the appropriate standard of care.  There will also be cases where a patient will have actual or deemed knowledge of the material facts either immediately after the surgery/treatment or at some later time or after reading the clinical history.

[70]      The question is when a plaintiff knew or ought to have known the facts upon which the specific allegation of negligence is based.  If a fact is not material to an action, in the sense that that the result of the proceeding does not turn on its existence or non-existence, then it cannot relate to a “genuine issue for trial”.  I am entitled to assume that the motion records contain all discoverability evidence to be presented at trial.  I have only the plaintiffs’ affidavits.  In the five unnecessary surgery cases, the material facts could clearly only have become known to those plaintiffs when a medical opinion was obtained. 

(i) Ms. Bisson’s claim was commenced January 13, 2005 in relation to both her tubal ligation on September 2, 1992 and to her four other surgeries in 1997 and 1998.  Her affidavit is silent on the discoverability issue and she was asked no questions on cross-examination relating to the limitations defence.

(ii)                Ms. Ciancio’s claim was commenced January 13, 2005 in relation to her hysterectomy on June 25, 1997.  She testified she was concerned at that time that Dr. Wai-Ping had negligently punctured her bladder.  On cross-examination she testified that she realized it was unnecessary only after she spoke to a lawyer following her reading of Toronto Star newspaper articles about Dr. Wai-Ping in May of 2001.  Her evident in that regard was not materially undermined in cross-examination.  General concern about Dr. Wai-Ping’s negligent surgery cannot equate to knowledge of material facts about his unnecessary surgery on her.  On this record, how could she possibly have known her surgery was unnecessary before May 2001?  She could not and has met her evidentiary onus in respect to the allegations in paragraph 18(e) of the Statement of Claim.  The defendant doctor has not demonstrated a capacity to provide material evidence from which this court could find otherwise.  That said, Ms. Ciancio has not met her limitation period evidentiary onus in respect to the allegation in paragraph 18(f) of the claim on this motion record.

(iii)                Ms. Gagne’s claim was commenced March 11, 2005 in relation to her hysterectomy on September 15, 1999.  On cross-examination she testified that she first consulted with a lawyer when she read the Toronto Star newspaper articles in May of 2001 and had no concern with her care prior to that time.  There is no evidence that she knew or could have known she might not have been provided with reasonable options before the media articles reported that Dr. Wai-Ping performed unnecessary surgeries.  Nothing in her cross-examination reveals otherwise.

(iv)               Ms. Keoghan’s claim was commenced March 11, 2005 in relation to her hysterectomy on May 8, 1996.  Her affidavit is silent on the discoverability issue and she was asked no questions in cross-examination on that point.

(v)                Ms. Molloy’s claim was commenced March 11, 2005 in relation to her hysterectomy on March 2, 1994.  On cross-examination she testified that she first consulted a lawyer when she read the Toronto Star newspaper articles in May of 2001 and prior to that date she had no concern with her care.  Nothing in her cross-examination reveals otherwise.

(vi)               Ms. Shirley’s claim was commenced March 11, 2005 in relation to her hysterectomy on December 12, 1998.  She testified on cross-examination that she discovered that it was unnecessary only after she spoke to a lawyer following the May 2001 Toronto Star newspaper article.  Her evidence on cross-examination in that regard was not materially undermined.  She swore that she had earlier consulted a lawyer in 1999 about Dr. Wai-Ping’s treatment because she felt he had “made a lot of errors” and “might be negligent”.  However she also swore testified that the first time she realized that Dr. Wai-Ping had performed an unnecessary hysterectomy was the day after the May 2001 Toronto Star article first appeared in print.  Her earlier general non-specific concern cannot equate to knowledge of material facts about his unnecessary surgery on her.  On this record how could Ms. Shirley possibly have known her surgery was unnecessary before May 2001?  Clearly she could not.  She has met her evidentiary onus.  The defendant has not demonstrated a capacity to provide evidence from which a trier of fact could find otherwise.

(vii)             Ms. Williams’ claim was commenced May 11, 2001 in reference to her hysterectomy on February 3, 1999.  Her evidence on cross-examination was that she first became concerned with Dr. Wai-Ping’s care after she read the Toronto Star article in May 2001.  Her evidence in that regard was not materially undermined in cross-examination.

[71]      The Ontario Court of Appeal in MacMillan v. McDermid70 O.R. (3d) 252 held that it is generally inappropriate to grant summary judgment where discoverability is central to the resolution of the limitation issue.  However in five of these seven cases the evidence is clear and unambiguous.  The plaintiffs have met their limitation period evidentiary onus in Ciancio, Gagne, Molloy, Shirley and Williams but not with respect to the Bisson and Keoghan surgeries.  There is no defence responding material to meet Wai-Ping’s resulting evidentiary onus to establish that his limitation defence has a real chance of success.  There is not demonstrated a genuine issue for trial on the limitations defence in any of the actions except those relating to the Keoghan and Bisson surgeries.  Those two plaintiffs did not meet their limitation period evidentiary onus as they presented no evidence at all to deal with the discoverability test.

G.  CONCLUSION

(i) The motion is dismissed in relation to Ms. Bisson’s claim.  There is on this record a genuine issue for trial on the discoverability issue in relation to the limitation of action defence.

(ii)                Ms. Ciancio shall have summary judgment for liability against Dr. Wai-Ping limited to the allegation in paragraph 18(e) of her Statement of Claim.

(iii)                Ms. Escobar shall have summary judgment for liability against Dr. Wai-Ping limited to the allegation in paragraph 29(i.1) of her Statement of Claim.

(iv)               The motion is dismissed in relation to the relief sought by Ms. Gagne, Ms. Keoghan and Ms. Molloy.

(v)                Ms. Shirley shall have summary judgment for liability against Dr. Wai-Ping limited to the allegation in paragraph 29(h) of her Statement of Claim.

(vi)               Ms. Williams shall have summary judgment for liability against Dr. Wai-Ping limited to the allegation in paragraph 26(j.1) of her Statement of Claim.

H.  COSTS

[72]      If the parties cannot agree on the issue of costs within 30 days of the issuance of these Reasons, I may be contacted through the Barrie Trial Co-ordinator.  The party/parties seeking costs shall, within that time, deliver a bill of costs and written submissions to me at Barrie.  Responding submissions shall be delivered within 15 days thereafter.  Reply submissions, if at all, shall be received within a further seven days.  I will then arrange to hear oral submissions from all parties by telephone conference call after I have considered counsel’s materials.

 

___________________________

R. MacKinnon, J.

 

 

Released:       December 9, 2005

 

SCHEDULE “A”

PLAINTIFFS’ REFOCUSED ALLEGATIONS

(Paragraph references are to the statement of claim of that plaintiff)

 

Elizabeth Bisson

 

With respect to the 4 unnecessary surgeries:

 

a) [Wai-Ping] failed to adequately obtain and interpret Ms. Bisson’s medical history (paragraph 29(c));

 

b) [Wai-Ping] failed to provide Ms. Bisson a realistic appreciation of the options available to her, including less invasive treatment options and other more conservative surgical options; (paragraph 29(e));

 

c) [Wai-Ping] carried out a tubal ligation, hysterectomy, …and wound debridement when these procedures were unnecessary and not medically indicated (paragraph 29(f));

 

d) [Wai-Ping] failed to obtain an informed consent from Ms. Bisson prior to performing a …hysterectomy, …and wound debridement (paragraph 29(h)); and

 

e) [Wai-Ping] performed a debridement surgery he was not properly qualified to perform (paragraph 29(j)).

 

Elisa Ciancio

 

a) [Wai-Ping] performed a abdominal hysterectomy which was unnecessary and not medically indicated (paragraph 18(e)); and

 

b) [Wai-Ping] failed to carry out the hysterectomy with adequate care or skill, causing injury to Ms. Ciancio, in particular he …(2) employed an inappropriate technique for bladder repair; and (3) failed to obtain an intra-operative consultation from a urologist prior to undertaking the repair (paragraph 18(f)).

 

Karen Escobar

 

a) [Wai-Ping] failed to recognize and diagnose Mrs. Escobar’s post-operative complications in a timely manner (paragraph 29(k));

 

b) Wai-Ping performed an unnecessary hysterectomy (paragraph 29(i.1).

 

Patricia Gagne

 

a) [Wai-Ping] failed to provide to Mrs. Gagne a realistic appreciation of the options available to her, including less invasive treatment options and other more conservative surgical options (paragraph 25(d));

 

b) [Wai-Ping] failed to obtain an informed consent from Mrs. Gagne prior to performing an abdominal hysterectomy (paragraph 25(f)); and

 

c) [Wai-Ping] performed an unnecessary abdominal hysterectomy (paragraph 25(h)).

 

Yvonne Keoghan

 

a) [Wai-Ping] failed to provide to Ms. Keoghan all of the options available to her, including medical therapy and conservative surgical options (paragraph 19(d));

 

b) [Wai-Ping] failed to obtain an informed consent from Mrs. Keoghan prior to performing the vaginal hysterectomy (paragraph 19(f));

 

c) [Wai-Ping] performed an unnecessary vaginal hysterectomy (paragraph 19(g));

 

Catherine Molloy

 

a) [Wai-Ping] failed to provide to Mrs. Molloy a realistic appreciation of the options available to her, including less invasive treatment options and other more conservative surgical options (paragraph 18(f));

 

b) [Wai-Ping] failed to obtain an informed consent from Mrs. Molloy prior to performing an abdominal hysterectomy (paragraph 18(g)); and

 

c) [Wai-Ping] performed an unnecessary abdominal hysterectomy (paragraph 18(h)).

 

Shirley Shirley

 

a) [Wai-Ping] performed an unnecessary vaginal hysterectomy (paragraph 29(h)).

 

Christine Williams

 

a) [Wai-Ping] performed an unnecessary hysterectomy (paragraph 26(j.1)).