



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Magdalena v. Vancouver Coastal Health Authority,









2016 BCCA 16




Date: 20160111

Docket: CA42500

Between:

Gavrieal
Magdalena, also known as Keyvan Economi

Appellant

(Plaintiff)

And

Vancouver Coastal
Health Authority, operating a Public Hospital
under the name and style of Vancouver Hospital and Health Sciences Centre
U.B.C. site, and Dr. Andrzej Buczkowski

Respondents

(Defendants)




Before:



The Honourable Madam Justice Saunders

The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Fitch




On appeal from: an
order of the Supreme Court of British Columbia dated
December 11, 2014 (
Magdalena v. Vancouver Coastal Health Authority
,
Vancouver Registry No. S106678)

Oral Reasons for Judgment




Appellant appearing In Person:









Counsel for the Respondent:



J. Woznesensky





Place and Date of Hearing:



Vancouver, British
  Columbia

January 11, 2016





Place and Date of Judgment:



Vancouver, British
  Columbia

January 11, 2016








Summary:

The appellant appeals the
dismissal of his action following a summary trial. The appellant alleged that
the advice given to him during a pre-surgical medical consultation was
negligent. The appellants action was dismissed because he failed to adduce
expert evidence concerning the standard of care that the respondent failed to
meet and he failed to adduce any evidence that his current difficulties were
caused by the surgery. Held: Appeal dismissed. The summary trial judge
correctly held that the appellants failure to adduce expert evidence regarding
the applicable standard of care was fatal to his claim.

[1]

FITCH J.A.
: The appellant, Gavrieal Magdalena, appeals the
dismissal of his action following a summary trial heard December 11, 2014.

[2]

The respondent is a general surgeon. He removed the appellants
gallbladder in a surgical procedure performed October 10, 2008. Since that
procedure, the plaintiff says he has suffered from chronic diarrhea and related
symptoms that have substantially reduced his quality of life.

[3]

The action arose not out of the surgery itself, but out of a
pre-surgical medical consultation that occurred on September 19, 2008 in the
respondents office.

[4]

The appellant alleged that the advice given to him during the
pre-surgical consultation was negligent. Specifically, the appellant alleged
that the respondent: (1) failed to inform him of other less invasive forms of
treatment that could have relieved or significantly alleviated his pain,
including lithotripsy, a procedure in which ultrasound is used to break up
gallstones into smaller particles that can be passed by the body; and (2)
failed to correctly inform him of the long-term risks associated with
gallbladder removal, including chronic diarrhea and loss of the ability to
control bowel functions.

[5]

The appellants action was dismissed primarily on two grounds. First, he
failed to adduce any evidence that the respondent failed to meet the standard
of care applicable in the circumstances. Second, he failed to adduce any
evidence that his current difficulties were caused by the surgery.

[6]

The appellant submits that the summary trial judge erred in a number of
ways, including by:

1.

Finding that it
was necessary for him to tender expert evidence to prove his claim;

2.

Refusing to
grant him leave to cross-examine the respondents expert on a report prepared
by the expert and filed pursuant to Rule 9-7(5)
Supreme Court Civil Rules
;

3.

Finding that
portions of the affidavit evidence relied on by the appellant were
inadmissible;

4.

Giving too much
weight to the pre-surgical consent form signed by the appellant on September
19, 2008 and insufficient weight to his evidence about the discussions he had
with the respondent at the time of the initial consultation and on the day of
the surgery;

5.

Finding there
was no evidence upon which a reasonable conclusion could be reached that, with
more time, the appellant would be in a position to put evidence before the
court in support of his claims;

6.

Making a final
order without being satisfied that s. 5 of the
Health Care Costs Recovery
Act
, S.B.C. 2008, c. 27 had been complied with; and

7.

Failing to
recognize the significance of the potential evidence that might be given by the
only other person present at the time of the pre-surgical medical consultation
- a medical student working in the respondents office.

[7]

The procedural history of this matter and background facts may be
briefly stated.

[8]

Before being referred to the respondent by his family doctor, the
appellant had been experiencing very painful epigastric symptoms that, on at
least one occasion, led to his hospitalization.

[9]

In August 2008, he was diagnosed with gallstones and referred to the
respondent for a surgical consultation.

[10]

That consultation occurred September 19, 2008.

[11]

It is common ground that the respondent told the appellant lithotripsy
was not a reasonable option for him. The respondent deposes that lithotripsy
was not an accepted treatment for the management of symptomatic gallstone
disease in 2008. His evidence on this point is confirmed by the evidence of the
respondents expert who said in his report that the routine treatment of
gallstones with lithotripsy was abandoned in British Columbia more than 25
years ago due to complications arising from that procedure.

[12]

The appellant and respondent provided different accounts about the
discussions they had concerning the risks and post-surgical complications that
could potentially arise following removal of the gallbladder. On examination
for discovery, the appellant agreed the respondent told him that removal of the
gallbladder can result in a change in bowel functions but that it normally
lasts for no longer than about six months. The appellant says he was told that
a very small percentage of patients, mostly older people, have long-lasting
bowel complications, but that it was very unlikely he would experience post-surgical
symptoms of this kind. In his affidavit filed for use on the summary trial
application, the appellant deposed that the respondent told him the only
possible side effect of the surgery would be diarrhea for three to six months,
that this was an extremely remote possibility which affected one in 1,000
patients, and that it would never happen to him.

[13]

The respondent deposed he told the appellant he could experience
post-surgical bloating and diarrhea-like symptoms but that this normally
resolves within three to six months. He said he also told the appellant that a
small percentage of patients may experience diarrhea for longer than six
months.

[14]

Following the pre-surgical consultation, the appellant signed a generic
consent form agreeing to the surgery. The consent form did not address risks
specifically associated with gallbladder removal.

[15]

The appellant underwent the surgical procedure on October 10, 2008. He
says he attempted to alert the respondent to his ongoing concerns on the date
of the surgery but by the time the respondent arrived to perform the procedure
he was heavily sedated.

[16]

The appellant commenced the action on October 8, 2010.

[17]

Beginning in June 2012, and on multiple occasions thereafter, the
respondents lawyer gave notice to the appellants lawyer and to the appellant
personally, that expert evidence respecting the applicable standard of care was
required and that if the appellant failed to produce such evidence, the
respondent would bring a summary trial application to have his claim dismissed.

[18]

In July 2012, the action was, by consent, dismissed against the defendant,
the Vancouver Coastal Health Authority.

[19]

On July 4, 2013 the respondent filed a notice of trial setting the trial
for January 26, 2015. The deadline for the exchange of expert reports was
November 2, 2014.

[20]

On September 17, 2013 the respondent served a supportive expert report
on the appellant.

[21]

The parties agreed that the respondents proposed summary trial
application would be set down for hearing on August 22, 2014.

[22]

In late June and early July of 2014, the appellants lawyer took steps
to withdraw as counsel of record.

[23]

On July 7, 2014, the appellant was personally served with notice of the
respondents summary trial application.

[24]

On August 22, 2014 the respondents summary trial application was
adjourned at the appellants request on the basis that he was unrepresented and
seeking legal counsel. The matter was reset for November 10, 2014. On the
return date, the matter was again adjourned at the appellants request to
December 11, 2014. This date was marked as being peremptory on the appellant.

[25]

On December 3, 2014 the appellant sent an email to counsel for the
respondent requesting that the respondents expert witness attend for cross
examination at the summary trial.

[26]

The appellant did not file a response to the summary trial application
but did file affidavits on December 8 and December 10, 2014. The appellant did
not file an application for leave to cross-examine the respondents expert in
advance of the return date, nor did he seek a further adjournment of the
summary trial application.

[27]

The appellant did not tender any expert opinion evidence to support his
claim that the respondent failed to meet the applicable standard of care. The
appellant attached some medical records to his affidavit, including a
consultation report from a specialist that was sent to his family physician.
That report did not comply with Rule 11-6 and did not, in any event, opine on
the standard of care governing the respondent in his pre-surgical consultations
with the appellant. The appellant also filed some of his own internet research
and summaries of what he said other health professionals had told him about the
risks associated with gallbladder surgery.

[28]

Relying on the respondents examination for discovery, the respondents
expert concluded that the respondent appropriately discussed with the appellant
the risks associated with gallbladder removal in the consultation of September
19, 2008.

[29]

The respondents counsel alerted the summary trial judge to the
appellants request that the respondents expert be made available for cross
examination on the summary trial application. The summary trial judge ruled
that the appellant did not have a right to cross-examine the respondents
expert in the absence of his own expert report that could provide a basis for
informed cross-examination. In coming to this conclusion, the summary trial
judge relied on
Tripp v. Ur
, 2013 BCSC 785 at paras. 13-14 and
Mikhail
v. Northern Health Authority
, 2010 BCSC 1817 at para. 85.

[30]

The summary trial judge gave these reasons for allowing the respondents
application for dismissal of the appellants action:

[31]      In
order to succeed in this case Mr. Magdalena must first prove that Dr.
Buczkowski failed to meet the appropriate standard of care. The test is
conveniently summarized by Mr. Justice Savage in
Tripp v. Ur
, 2013 BCSC
785, at paragraphs 30 and 31 . In medical negligence cases the court must
judge a physician, and, for that matter, other health professionals, based on
the standard of an ordinary average specialist in the same field under similar
circumstances. Except, perhaps, in the most obvious of cases, it is not a
standard that can be determined
a priori
or in an evidentiary vacuum by
a court or tribunal. It is therefore incumbent on the plaintiff to produce
expert evidence of a standard of care that should be imposed on the defendant
or the defendants.



[33]      In
this case, the due date for delivery of any expert reports in connection with
the January 26, 2015 trial date was November 2, 2014. No report has been
delivered by Mr. Magdalena by the due date or in response to the summary trial
application. Although Mr. Magdalena has had several years, for most of which he
was represented by counsel, to assemble opinion evidence to support his case,
and ample notice of Dr. Buczkowskis intention to seek dismissal on a summary
trial, Mr. Magdalena did not submit any expert evidence going to the key issue
of standard of care. He did not submit any expert evidence diagnosing his
current medical condition or conditions and linking those conditions in any way
to the events involving Dr. Buczkowski in 2008.

[34]      There
is no opinion evidence on Mr. Magdalenas side from which I can conclude that
he would or might have been a suitable candidate in 2008 for lithotripsy rather
than laparoscopic cholecystectomy, or that in his handling of Mr. Magdalenas
case, Dr. Buczkowski failed to meet the standard of care of a surgeon
practising in British Columbia in 2008, or that any of Mr. Magdalenas current
problems are likely caused by or the result of negligence on the part of Dr.
Buczkowski.

[35]      Mr.
Magdalena also did not submit any evidence based on which I could reasonably
conclude that, with more time, he would or even might be in a position to put
evidence before the Court to support his claims.



[38]      In
this case, like in
Tripp
, Mr. Magdalena has not met the evidentiary
burden on him to adduce evidence of the standard of care that Dr. Buczkowski
failed to meet. The courts have indicated clearly that the burden is on the
plaintiff to prove that the defendant doctor fell below his or her required
standard of care and to provide evidence to support those allegations. That
simply has not been done in this case.

[39]      Dr.
Buczkowski has gone the extra step of providing evidence, in the form of Dr.
Turners opinion, to show that the standard of care has been met, and there is no
admissible evidence to the contrary. The failure of Mr. Magdalena to present
any expert evidence that Dr. Buczkowski failed to meet the standard of care
required of him is fatal to Mr. Magdalenas case.

[40]      The action is therefore
dismissed against Dr. Buczkowski with costs.

[31]

With respect to the appellants first ground of appeal, the onus was on
him to establish the respondent failed to meet the standard of care expected of
an ordinary competent surgeon practicing in British Columbia in 2008 in similar
circumstances. Subject to narrow exceptions not applicable to this case, courts
have consistently insisted that claims of negligence in diagnosis and
treatment, including the disclosure of risks, cannot be established in the
absence of expert evidence:
ter Neuzen v. Korn
, [1995] 3 S.C.R. 674 at
paras. 33 and 40;
Reibl v. Hughes
, [1980] 2 S.C.R. 880 at 895. In my
view, the summary trial judge correctly held that the appellants failure to
adduce this evidence on the summary trial application was fatal to his claim.
In addition, I am of the view that the summary trial judge correctly held that
the appellants failure to adduce any admissible evidence to establish that his
current complaints are the result of the surgery performed by the respondent
was also fatal to his claim.

[32]

With respect to the appellants second ground of appeal, the summary
trial judge concluded that the appellant failed to file an expert report which
could provide a basis for informed cross-examination, and failed to show that
the proposed cross-examination could benefit his case. She accordingly denied
the appellants oral request to cross-examine the respondents expert. The
appellant asserts that he had a right to cross-examine the respondents expert.
He did not. The summary trial judge was obliged to exercise her discretion in
considering whether to grant leave to the appellant to cross-examine the
respondents expert. That discretion is embedded in the language of Rule
9-7(12). In my view, the appellant has not shown that the summary trial judge
erred in the exercise of her discretion in relation to this issue.

[33]

I will deal with the remainder of the appellants grounds of appeal
together. The summary trial judge correctly ruled that some of the evidence
sought to be adduced by the appellant was inadmissible hearsay, while other
portions of the evidence he sought to rely on could not be admitted as opinion
evidence because it was hearsay and because it had not been tendered by a
qualified expert in admissible form. The summary trial judge was fully aware
that the specific risks associated with gallbladder removal were not identified
on the consent form. There was no error in the summary trial judges
determination that the appellant led no evidence upon which she could
reasonably conclude that, if given more time, he would be in a position to put
evidence before the Court to support his claim. Specifically, the appellant has
not shown that the summary trial judge erred in the exercise of her discretion
by determining to proceed with the summary trial application on the basis of
the material before her. With respect to the appellants assertion that the
summary trial judge failed to appreciate that significant evidence might be
given by the respondents medical student, it was the appellants obligation to
secure that evidence if he thought it to be critical to the resolution of the
summary trial. Further, the summary trial judge was aware of the evidence that
medical student might give. There is no evidence that the student could speak
to the standard of care or causation issues or that her evidence would in any
way benefit his case.

[34]

Finally, I cannot give effect to the appellants argument that the
alleged failure to give proper notice under s. 5 of the
Health Care Costs
Recovery Act
is a basis upon which the appeal should be allowed in this
case. This issue was not argued before the summary trial judge. While that fact
is not necessarily fatal to this submission, particularly if it is alleged
there has been a miscarriage of justice in respect to it, the failure to raise
this issue with the judge means there is no evidence in the record of written
advice to the government of the application which would establish s. 5 was
satisfied. We are informed by counsel for the respondent, and I accept her statement
given as an officer of the court, that such written advice was given. Thus, the
failure to raise the issue before the judge has resulted in an incomplete
record, which militates against entertaining the submission. Alternatively, we
could take it, on the advice of counsel, that the section was satisfied. Either
way, this ground of appeal does not provide a basis upon which to interfere
with the order. Last, I would observe that the purposes underlying the
Act
are to protect government in collecting health care costs paid by them
following a finding of wrongdoing. Those interests are not directly engaged in
the circumstances of this case - in other words, the substance of the order
appealed is not affected by any notice issue with the government.

[35]

For the foregoing reasons, I would dismiss the appeal.

[36]

SAUNDERS J.A.
: I agree.

[37]

LOWRY J.A.
: I agree.

[38]

SAUNDERS J.A.
: The appeal is dismissed.

The Honourable Mr. Justice Fitch


