Scott v. Dr. Michael Jacoby dba Dr. Jacoby’s Office, 2017 BCPC 324 (CanLII)
Citation: Scott v. Dr. Michael Jacoby dba Dr. Jacoby’s Office Date: 20171101
Registry: Kamloops
IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
Small Claims
BETWEEN:
DEVRA LEE SCOTT
CLAIMANT
AND:
DR. MICHAEL JACOBY dba DR. JACOBY'S OFFICE
DEFENDANT
REASONS FOR JUDGMENT
OF THE
HONOURABLE JUDGE S.D. FRAME
Appearing on her own behalf: Ms. Devra Scott
Counsel for the Defendant: Mr. Daniel J. Kozera
Place of Hearing: Kamloops, B.C.
Date of Hearing: October 3, 2017
Date of Judgment: November 1, 2017
[1] This is an application to dismiss Ms. Scott’s claim against the Defendants for continued failure to comply with the requirement that a proper expert report be filed with the Certificate of Readiness.
[2] The underlying claim is in malpractice for abdominal surgery performed in July 2014 and 2015. The Reply denied negligence.
[3] Ms. Scott has filed a report with her Certificate of Readiness prepared by Dr. Nancy Van Laeken, a doctor of plastic, cosmetic and reconstructive surgery. Mr. Kozera accurately described that report as largely outlining the history and impact on Ms. Scott. The report concludes the following:
Based on the documents that were forwarded to me, her original surgeon did provide at least via way of documentation what appears to have been a good instructive consultation with an explanation of the risks and benefits of the surgery. The patient reports that she did not feel he paid attention to her procedure because she was not marked preoperatively in the upright position. He did not take any before pictures so she has none for comparison and she sees this as his negligence and appropriate [sic] attention to detail.
[4] This outlines how the patient felt, not what the standard of care was for Dr. Jacoby or whether he met that standard of care.
[5] The report continues:
The documents would confirm that he did arrange for his colleague to do follow-up in his absence while on vacation. He does document clearly all of the postoperative visits. There is no indication in the documentation that he has not met the standard of care from the perspective of reviewing the documents that have been provided.
The critical issue here is the patient’s perception and understanding of informed consent, the risks and particular complications that she had, and the lack of support that she felt she required while she was struggling through the prolonged period of wound healing. She felt neglected and that she was not being listened to and that there was no caring concern about the dilemma that she was in. This is the patient’s perception and for her it is of the critical importance. The physical deformity that has occurred postoperatively is also a concern.
Ms. Scott has endured pain and suffering. Ms. Scott has been left with a post-operative deformity.
[6] Again, this deals with Ms. Scott’s perception, not Dr. Jacoby’s medical obligations, standard of care, or whether he was negligent in any way. While Dr. Laeken also observes physical deformities, she makes no assessment of whether the deformities should be expected as an informed risk, or whether Dr. Jacoby’s treatment fell below the requisite standard of care.
[7] At no point in the report does Dr. Van Laeken identify what the care, procedure and post-operative care ought to have been for Ms. Scott; whether Dr. Jacoby failed to meet the standard of care of a professional in his field; or what damages were related to any such shortcoming. These are essential elements to a successful claim in malpractice. Without these, a malpractice claim must fail.
[8] Mr. Kozera argued that Dr. Van Laeken’s report goes so far as to say that Dr. Jacoby did meet the standard of care. The report does not quite go that far. She said that, based on the documentation, Dr. Jacoby seems to have met the standard of care. Claiming malpractice cannot succeed merely on a patient’s perceptions of what care she ought to have received during surgery or what support she ought to have received post-operatively. That there must be expert evidence establishing the standard of care in medical malpractice cases is a long-standing principle from the Supreme Court of Canada in ter Neuzen v. Korn, 1995 CanLII 72 (SCC), [1995] 3 S.C.R. 674.
[9] There are a great many cases which have dealt with preliminary applications to dismiss a claim in circumstances such as this where the Claimant has failed to file the appropriate expert evidence by way of Certificate of Readiness in Provincial Court. In the application before me, counsel relied on: Cheung v. Moorley, 2011 BCSC 1641 (CanLII), 2011 B.C.S.C. 1641, Cleugh v. Jones, 2011 BCSC 1880 (CanLII), 2011 B.C.S.C. 1880, Michell v. Emond, 2007 BCPC 295 (CanLII), 2007 B.C.P.C. 295, Morgan v. Royal Inland Hospital et al (26 May 1989), Vancouver CA010451 (C.A.), Olivier v. Dr. B. Cervienka Inc., 2011 BCPC 371 (CanLII), 2011 B.C.P.C. 371, Sigurdur v. Fung, 2007 BCPC 239 (CanLII), 2007 B.C.P.C. 239, and Szczurowski v. Strien, 2009 BCPC 40 (CanLII), 2009 B.C.P.C. 40.
[10] I have also been provided with the decision of Stone v. Insurance Corporation of British Columbia, 2008 BCPC 383 (CanLII), 2008 B.C.P.C. 383 (CanLII) through counsel on a limited retainer to Ms. Scott.
[11] The parties also referred to s. 2 of the Small Claims Act which provides for a just, speedy, and inexpensive determination of the proceedings; Rules 7(9), of the Small Claims Rules which requires a Certificate of Readiness in personal injury cases to attach medical reports; and Rule 16(6) which permits this application where a party has failed to obey a rule.
[12] While the rules specifically require that medical reports must be provided with the Certificate of Readiness, there is no specific direction that identifies what must be contained in such reports. This has been established through the case law. In the case before me, Ms. Scott has argued that she has a report, she has the deformity, and she does not have the finances to have a fulsome report prepared. The brief provided pursuant to the limited retainer identifies the importance of relaxing the requirements in Small Claims court because of the need for a just, speedy, inexpensive and simple manner of proceeding. The Stone, supra case addressed the principle that “no evidence” motions or similar applications should be discouraged as being in conflict with that principle. What the decision and the submission do not address is that s. 2 applies to both parties, not just the Claimant.
[13] To that end, Morgan, supra specifically identifies prejudice suffered by keeping a doctor “on tenter-hooks” and that such actions are a horrendous burden on doctors. This is also reflected in Cleugh, supra.
[14] To assist in determining how that conflict should be measured, I have the decision of Sigurdur, supra of Judge Skilnick in this court. He described the Settlement Conference as a cursory test of the merits of the claim. The judge is to “keep out those claims which have no merit, those which are unsupported by any evidence (without weighing the existing evidence) and those whose outcome can be easily determined without a significant expenditure of the court’s time and resources, such as on a point of law.”
[15] This application for dismissal was first brought at the Settlement Conference. An order was made providing the Claimant with 30 days to file an opinion with respect to diagnosis, prognosis and standard of care. This becomes important in assessing the appropriate remedy on this application, should it be allowed.
[16] In Sigurdur, Judge Skilnick addressed the origins of the requirement that the Certificate of Readiness contain a report setting out the standard of care of the professional, how that standard of care was breached and how that breach resulted in damages. Following the citations of Rodvick v. Estey [1997] B.C.J. No. 1199 (B.C.P.C.); and Cohen v. Kirkpatrick, [1993] B.C.J. No. 94 (B.C.S.C.), Judge Skilnick says:
[21] In exercising the function of a gatekeeper determining which cases merit the allocation of the resource of trial time, judges in settlement conferences are permitted to first determine if a claimant has prima facie evidence to support an allegation that a professional person has failed to meet the requisite standard of care for their profession. It is insufficient for a claimant merely to allege that a professional such as a dentist has been negligent or has breached a contract by failing to provide professional services according to the requisite standard, without some supporting evidence. Judges have required this to be provided prior to trial under rule 7. This is so for a number of reasons:
(a) An accusation of negligence or failure to meet a professional standard cuts a wide swath. Fairness dictates that a person accused of such ought to be told what case he or she has to meet at trial in order to gather together the necessary evidence to meet such claim;
(b) An accusation against the reputation of a professional person is a serious matter and one which should not be publicly tried only on the strength of suspicion, hope of proof materializing at trial, innuendo or anger;
(c) The amount of court time required in cases of professional negligence should not be allocated without some indication as to how the claimant intends to prove the case. To set aside this resource of court time where no evidence exists, in the hope that the proof will be found between the date of the settlement conference and the trial, is unfair not only to the Defendants, but also to other litigants in the cue waiting for court time and for the taxpayer generally.
[17] He continues at paragraph 23:
[23] Clearly, the authorities support the proposition that a judge at a settlement conference can set aside a claim for failure to provide evidence showing that the professional has not met the requisite standard. Counsel for the Defendants go farther and argue that such evidence must be adduced before the matter can proceed to trial. In support of this, they cite Curtenau v. Kapusianyk [2001] B.C.J. No. 1855 (B.C.S.C.); Bossy v. Kelowna Dental Centre Inc. and Delgruchy, an unreported decision of the Honourable Judge Meyers of this court dated May 28, 2004 in Kelowna court file C61482.
[18] This decision was applied with approval by the Supreme Court in Cheung, supra.
[19] Judge Skilnick concluded that it is not necessary in all cases to dismiss the claim where an adjournment and order of costs may be the appropriate remedy. However, in his case, he highlighted that fairness must be shown to both parties. To delay the proceedings to allow the Claimant to address something she had been told to address would not be just or speedy for the Defendant.
[20] In the case before me, counsel for Dr. Jacoby wrote to Ms. Scott less than a month after she commenced the proceedings highlighting her obligations under Rule 7(9) and specifically advising her what her expert report would have to contain. He went so far as to cite three decisions to support his correspondence to her.
[21] Having not received such a report, counsel wrote again four additional times in the months following reminding the Claimant of her requirement for support of expert reports. On each occasion, he repeated the reference to the Rules and the cases, and forewarned Ms. Scott that counsel would be bringing an application to dismiss her claim if she did not file her Certificate of Readiness by December 17, 2016 with the requisite report. I pause here to say that there is no obligation to write such a letter at all. However, this is an entirely appropriate strategy used by counsel to ensure that there can be no question the Claimant understands her obligations, the authority for counsel’s expectations, and the forewarning that such an application for dismissal would be brought at the settlement conference if she failed to comply. I also observe that it is unnecessary to send five such letters before the time has expired for producing such a Certificate of Readiness. However, at the end of the day, Ms. Scott cannot profess to misunderstand what her obligations were in order to advance her claim against Dr. Jacoby. Nor can she argue that she did not have adequate time upon learning her obligations from counsel.
[22] On December 8, 2016 the Claimant was granted an order extending the time for filing her Certificate of Readiness until April 2017. It was on April 28, 2017 that she filed the Certificate of Readiness and attached Dr. Van Laeken’s report which I have already highlighted.
[23] The report failed to meet the minimum requirements and, indeed, suggested that Dr. Jacoby had met the standard of care. Despite this, on June 23, 2017 the court granted Ms. Scott a further opportunity to file a doctor’s opinion on June 23, 2017. Following that Settlement Conference, Mr. Kozera wrote to the Claimant again referring to the same authorities and again advising that an application to dismiss the claim would be brought if the Certificate of Readiness was not filed by the time provided for in the order.
[24] A second report was provided by Dr. Van Laeken dated July 28, 2017. In response to the specific question “Did Ms. Scott’s care under the direction of her attending surgeon, meet the standard of care?”, Dr. Van Laeken said:
Based on the information I was given by Ms. Scott, and a review of the documents provided to me, there are periods of her post-operative recovery where care was insufficient and did not meet the standard of care.
[25] The report still does not contain a description of the standard of care Dr. Jacoby was to meet, how he breached that standard of care or how that breach resulted in any injury or harm to Ms. Scott.
[26] In other words, to grant a further extension to Ms. Scott to provide a report which she says she cannot obtain in any event, would neither be just to Dr. Jacoby, nor speedy to the parties.
[27] There are also cases which have determined that, even if the Certificate of Readiness does not contain a report entirely within the expectations set out by these cases, a proceeding may continue successfully if the circumstances are so obvious that a lay person could determine negligence. That is not the case before me. The reports provided are equivocal about whether Dr. Jacoby has met the standard of care, without ever identifying what that standard of care may be. Ms. Scott’s claim cannot succeed on such evidence, or lack of it.
[28] Ms. Scott is expected to conduct this case in accordance with the Rules and Act. The Rules require that she provide a Certificate of Readiness within six months of filing her claim which is to attach medical reports. The jurisprudence has dictated that those medical reports must set out very specific factors about which counsel forewarned Ms. Scott on several occasions both before and after her Certificate of Readiness was due.
[29] Ms. Scott was then provided two extensions in order to comply with the expectations for her Certificate of Readiness and medical reports. Her medical reports have fallen short of the standard required. Indeed, as I have said, they are equivocal about whether Dr. Jacoby has failed to meet the standard of care, how he failed to do so or what injury or harms flow from such failings. I would not be inclined to grant Ms. Scott a further extension in view of the correspondence and orders granted to date. It would not matter if I did. She expressly admitted at this hearing that she was not going to obtain a report to meet those requirements. There is no prima facie case before me and, accordingly, I dismiss Ms. Scott’s claim. The Defendants shall have their reasonable costs to be assessed by the Registrar.
______________________________
S.D. Frame
Provincial Court Judge