



COURT OF APPEAL FOR ONTARIO

CITATION: Hirchberg v. Branson Drug Store, 2017 ONCA 62

DATE: 20170125

DOCKET: C62626

Cronk, van Rensburg and Pardu JJ.A

BETWEEN

Terry Hirchberg

Self-Represented Plaintiff
(Appellant)

and

The Branson Drug Store/North York General
    Hospital and Odette Cancer Centre Pharmacy/Sunnybrook Health Sciences Centre
    and MD Mary Doherty - Odette Cancer Centre and MD Todd Mainprize - Sunnybrook
    Hospital and MD Ken Peckham - Sunnybrook Hospital and MD Michelle Hart - Baycrest
    Hospital

Defendants
(Respondents)

Terry Hirchberg, acting in person

Chris Hubbard and Alexandre Blanchard, for the
    respondents Dr. Mary Doherty, Dr. Todd Mainprize, Dr. Ken Peckham and Dr.
    Michelle Hart

Logan Crowell, for the respondents North York General
    Hospital and Sunnybrook Health Sciences Centre

Heard: January 20, 2017

On appeal from the judgment of Justice Wendy M. Matheson
    of the Superior Court of Justice, dated August 2, 2016.

ENDORSEMENT

[1]

The appellant appeals the summary dismissal of a medical malpractice
    action. The action was brought as a result of the death of the appellants
    common law spouse, Ms. Dubins, who passed away after she was diagnosed with
    terminal brain cancer. At the core of the appellants claim is a concern about
    Ms. Dubins treatment with the drug dexamethasone, commonly used to reduce
    cerebral swelling associated with brain tumours. In particular, the appellant
    alleges that the drug was terminated without tapering off, and that, having
    regard to the various risks associated with the drug, informed consent to its
    use was not obtained.

[2]

Summary judgment motions were brought after a significant amount of
    documentary and oral discovery had taken place. The moving parties relied on
    affidavits of some of the defendant treating physicians as well as three expert
    reports to the effect that the defendant physicians met the requisite standard
    of care and that Ms. Dubinss death was not caused by any of the alleged breaches
    of the standard of care, but was the result of her brain cancer. In response to
    the summary judgment motions the appellant delivered two expert witness
    declarations of Dr. Mark Levin, answering certain questions about the drug
    dexamethasone.

[3]

The action was dismissed after the motion judge concluded that there was
    no genuine issue requiring a trial as against the respondent physicians or
    institutions.

[4]

The appellant raises a number of issues that can be grouped into three
    main grounds of appeal.

[5]

First, the appellant contends that the motion judge erred in her
    treatment of his expert evidence. The appellant says that the motion judge
    struck out Dr. Levins declarations, without a motion to strike, and
    that he was therefore deprived of due process. He asserts that the motion judge
    ought to have permitted him to have obtained a further expert opinion, as the
    time for delivery of expert reports under the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194, had not expired. Further, he says that the motion judge
    erred in failing to consider evidence in the form of a declaration with respect
    to what occurred in another case.

[6]

We do not give effect to this ground of appeal. In this complex medical
    malpractice case, it was incumbent on the plaintiff to provide expert opinions
    on standard of care and causation. Contrary to the appellants assertions, the
    motion judge did not strike Dr. Levins declarations. Rather, she considered
    whether Dr. Levin was qualified to provide an expert opinion on standard of
    care and causation, and she considered the content of his opinions. The motion
    judge did not err in her conclusion that Dr. Levin was not qualified to provide
    such opinions, and further that his two declarations (that consisted of answers
    to questions about the drug in question), did not address the particular
    circumstances of the case and did not speak to the issues of standard of care
    or causation. Similarly, the other declaration, about what happened in another
    case, was clearly not an expert opinion and could have no bearing on the issues
    of standard of care and causation in the appellants action.

[7]

As for the contention that the time had not expired for the delivery of
    expert reports, the obligation on the appellant, in responding to a summary
    judgment motion, was to put forward all the necessary evidence to establish
    that there was a genuine issue requiring a trial. This means that the motion
    judge was entitled to assume that all the evidence he was relying on to oppose
    the motion was before the court. The appellant did not seek an adjournment or
    additional time to obtain a further expert opinion; consequently, there was no
    basis for the motion judge to dismiss or adjourn the motions so that the
    appellant could obtain another medical report.

[8]

Second, the appellant contends that the motion judge erred in her
    conclusions about informed consent. He asserts that she ignored the evidence he
    put forward as to the risks of the subject drug, and contends that there was no
    evidence that all such risks had been communicated in Ms. Dubinss case.

[9]

Again, there was no error of law or principle in the motion judges
    findings on this issue. The evidence was that Ms. Dubins and her four powers of
    attorney for personal care were advised of and understood the material risks of
    treatment, including the risks of the subject drug, and provided their fully
    informed consent. Contrary to the appellants submissions during oral argument,
    the transcript of the cross-examination of Ms. Dubinss son, who was one of her
    powers of attorney, does not undercut this conclusion, nor was his evidence on
    this point hearsay. Accordingly, there was no conflict on the evidence on this
    issue that would require a trial.

[10]

Third, the appellant says that other issues and causes of action raised
    by his statement of claim (described at para. 26 of his factum) were not
    considered by the motion judge, and ought not to have been dismissed summarily.
    We disagree. The function of the motion judge in dealing with a summary
    judgment motion is to consider the evidence, and not simply the pleadings. What
    was relied on as expert evidence by the appellant was limited to concerns about
    the risks and use of the drug dexamethasone, and although other matters may
    have been pleaded, there was no expert evidence to address such issues.

[11]

In the end, the appellant led no expert opinion evidence on the
    respondents summary judgment motions to establish a breach of the standard of
    care by any of the respondents or causation. By contrast, the respondents led
    expert evidence to establish that the respective standards of care were met,
    and to negate causation. Further, we see no procedural unfairness in the
    conduct of the hearing, nor any breach of the appellants constitutional
    rights. In these circumstances the motion judge was entirely justified in
    granting a summary dismissal of the action.

[12]

The appeal is therefore dismissed. The appellant shall pay costs to the
    physician respondents in the sum of $5,000 and to the hospital respondents in
    the sum of $4,000, both amounts inclusive of disbursements and applicable
    taxes.

E.A. Cronk J.A.

K. van Rensburg J.A.

G. Pardu J.A.


