IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131213

Docket: S093967

Registry:
Vancouver

Between:

Mahnaz Gyahi
Foomani

Plaintiff

And

Alan K. Baggoo,
Vancouver Coastal Health Authority
operating from Lions Gate Hospital, Lions Gate Hospital,
John Doe Physicians 1 through 5,
John Doe Medical Assistants or Nurses 1 through 5

Defendants

Before:
The Honourable Mr. Justice Ehrcke

Reasons for Judgment

INTRODUCTION

[1]            
This is a summary trial application brought on by the defendant, Dr. Alan
Baggoo, to have the plaintiff’s case against him dismissed on a summary trial
pursuant to Rule 9-7 of the Supreme Court Civil Rules.

[2]            
The plaintiff, Mahnaz Foomani, commenced this law suit against Dr. Baggoo
and other defendants by way of a writ of summons filed May 29, 2009. She was
granted an order renewing the writ for one year on May 26, 2010. Dr. Baggoo
was served on May 27, 2011.

[3]            
The defendants took issue with the adequacy of the pleadings, and the
matter was dismissed as against Vancouver Coastal Health Authority on July 19,
2011. Ms. Foomani filed an amended notice of civil claim on February 9,
2012, and Dr. Baggoo filed a response to civil claim on March 9, 2012.

[4]            
The amended notice of civil claim seeks damages against Dr. Baggoo
for alleged negligence in his medical treatment of Ms. Foomani in
2006-2007. In particular, she alleges that the orthopaedic surgeries Dr. Baggoo
performed on June 16, 2006 and July 13, 2007 were performed negligently and
have caused her to suffer right foot pain, side effects from pain killers,
impairment in her walking ability, poor posture and depression.

[5]            
Particulars of the alleged negligence are set out in para. 19 of
the amended notice of civil claim:

19.       The
Defendants, including Dr. Baggoo, breached their duty of care owed to the
Plaintiff or, in the alternative, their contract with the Plaintiff, or in the
further alternative, their fiduciary duty owed to the Plaintiff. Particulars of
the breaches included, but not limited to, the following:

a.         The
Defendants’, including Dr. Baggoo, recommendation to the Plaintiff to
undergo the First Operation when it was not in the Plaintiff’s best interests
to do so;

b.         The
Defendants’, including Dr. Baggoo, failure to perform the First Operation
in a proper manner, particulars of which include, but not limited to, the
following:

i.          The
failure to properly connect the bones in her right foot, resulting in a gap
between the bones; and

ii.         Insertion
of screws in such a way that they came right through the skin;

c.         The
Defendants’, including Dr. Baggoo, failure to diagnose and advise the
Plaintiff accordingly after the First Operation;

d.         The
Defendants’, including Dr. Baggoo, failure to perform the Second Operation
in a proper manner;

e.         The Defendants’, including Dr. Baggoo,
failure to diagnose, treat and provide medical care to the Plaintiff after the
Second Operation.

[6]            
Ms. Foomani had the assistance of counsel during certain periods
following the commencement of this litigation, but she appeared without counsel
at the hearing of this summary trial application.

THE EVIDENCE ON THIS SUMMARY TRIAL APPLICATION

[7]            
On December 9, 2011, counsel for Dr. Baggoo wrote to Ms. Foomani
about obtaining an expert report and retaining a lawyer. Counsel for Dr. Baggoo
again wrote to Ms. Foomani and the lawyer who was assisting her on June 7,
2012, reminding them of the need to obtain an expert report. That letter
stated:

As I advised previously, my
position is that without an expert report by an orthopedic surgeon in B.C. who
sets out the standard of care required by Dr. Baggoo, that it was breached
and the damages caused by the breach, Ms. Foomani has no reasonable prospect
for success. I had adjourned my prior application because Ms. Foomani told
me she was obtaining such a report from an Alberta doctor. his report, however,
is not critical of Dr. Baggoo.

[8]            
On July 2, 2013, counsel for Dr. Baggoo again wrote to Ms. Foomani
stating:

As I set out in my letter of June 11, 2013, I intend to bring
a summary trial for dismissal of the action against Dr. Baggoo. As I have
advised you since I have obtained this file in 2011, your action against my
client has no reasonable chance of success in the absence of an expert report
which:

1. sets out the standard of care required of Dr. Baggoo;

2. sets out that Dr. Baggoo breached that standard of
care; and

3. establishes his breach caused you to suffer injuries.

I have given you over a year to obtain such a report and you
have failed to do so.

My summary trial application is
to dismiss your claim against Dr. Baggoo for failing to provide critical
expert evidence.

[9]            
The notice of application for this summary trial was filed on August 22,
2013. The notice advised Ms. Foomani that Dr. Baggoo would be relying
on the following four affidavits:

Affidavit #1 of Dr. Baggoo,
made July 15, 2013,

Affidavit #1 of Dr. Kallman,
made July 19, 2013,

Affidavit #1 of D. Field, made
July 22, 2013, and

Affidavit #1 of S. Van Nierop,
made August 21, 2013.

[10]        
Copies of those four affidavits were delivered to Ms. Foomani on
August 23, 2013 along with the notice of application for summary trial. That
notice also advised Ms. Foomani that if she wished to respond to the application,
she was required, within 8 business days, to file an application response and
to file any affidavits or other documents she intended to refer to at the
hearing of the summary trial.

[11]        
Despite that notice, Ms. Foomani did not file an application response,
and she did not file any affidavits or other documents.

[12]        
Accordingly, on the hearing of this summary trial application, the only
evidence before me for consideration is the four affidavits filed by Dr. Baggoo
and the attachments to those affidavits. These include an expert report by Dr. Dryden,
orthopedic surgeon, dated August 7, 2013 which is supportive of Dr. Baggoo’s
standard of care.

[13]        
I do not have before me any expert report, or indeed any other evidence,
filed by Ms. Foomani, that is critical of the care provided by Dr. Baggoo.
Nevertheless, at the hearing of this summary trial application on October 24,
2013, I heard oral submissions from Ms. Foomani, and I am taking those
submissions into consideration, along with the evidence filed on behalf of Dr. Baggoo,
in deciding this case.

ONUS OF PROOF

[14]        
Although this summary trial application was brought by Dr. Baggoo,
the onus is still on the plaintiff, Ms. Foomani, to prove her case: Steeves
v. Air Canada, [1996] B.C.J. No. 2879 (S.C.) at paras. 17-18.

[15]        
Rule 9-7(15) sets out the powers of the Court on a summary trial
application. It provides:

9-7(15)  On the hearing of a summary trial application,
the court may

(a) grant judgment in favour
of any party, either on an issue or generally, unless

(i)  the court is unable, on
the whole of the evidence before the court on the application, to find the
facts necessary to decide the issues of fact or law, or

(ii)  the court is of the
opinion that it would be unjust to decide the issues on the application,

(b) impose terms respecting
enforcement of the judgment, including a stay of execution, and

(c) award costs.

[16]        
The predecessor to our current Rule 9-7 was Rule 18A. In Harrison
v. British Columbia (Children and Family Development), 2010 BCCA 220, at paras. 40-41, our Court of
Appeal spoke about the circumstances in which judgment ought to be granted on
an application for summary trial, and of the necessity that each party file the
evidence upon which they seek to rely:

[40]      The trial judge was required to grant judgment if
the evidence adduced on the R. 18A application provided the facts necessary to
decide the issue of liability, and it would not have been unjust to do so. It
is not a question of whether a full trial could conceivably “turn something up”
or produce a different result. Rather, as stated by McEachern C.J.B.C in Inspiration
Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202
at 215 (C.A.).

Anything might happen at a trial
and one can never say that the result will always or inevitably be the same. If
the chambers judge can find the facts, then he must give judgment as he would
upon a trial unless for any proper judicial reason he has the opinion that it
would be unjust to do so.

The test for Rule 18A, in my view,
is the same as on a trial. Upon the facts being found the chambers judge must
apply the law and all appropriate legal principles. If then satisfied that the
claim or defence has been established according to the appropriate onus of
proof he must give judgment according to law unless he has the opinion that it
will be unjust to give such judgment.

[41]      When an application
under R. 18A is made, it is the obligation of the parties to take every
reasonable step to put themselves in the best possible position and adduce all
evidence they believe is necessary for judgment: Everest Canadian Properties
Ltd. v. Mallmann, 2008 BCCA 275 at para. 34.

FACTS

[17]        
Based on the evidence that has been filed, I am able to make certain
findings of fact.

[18]        
Dr. Alan Baggoo is an orthopaedic surgeon practicing in British
Columbia. From his affidavit and the affidavit of Dr. Kallman, I make
these findings.

[19]        
Ms. Foomani was treated by a podiatrist, Dr. Tammy Kallman, in
Vancouver on November 21, 2000 regarding right ankle and toe pain complaints. Dr. Kallman
provided splinting for the plaintiff. On December 2, 2000, Dr. Kallman
wrote a letter summarizing her assessment to Dr. Rubin, Ms. Foomani’s
family doctor.

[20]        
In July 2005, Dr. Rubin referred Ms. Foomani to Dr. Baggoo
regarding right foot pain.

[21]        
Dr. Baggoo first saw Ms. Foomani in his office on November 7,
2005. Ms. Foomani told him about a gunshot wound she received in Iran in
1979 causing a fracture of her femur and sciatic nerve injury. She underwent
multiple operations including sciatic nerve repair and internal fixation of the
femur due to non-union. She also had tendon transfers that were unsuccessful. Ms. Foomani
reported pain in her forefoot over her first, second, third and fourth toes.
She also complained bitterly of ankle pain. She told Dr. Baggoo to explore
surgical options so she could get rid of her brace as it was awkward to wear
and she detested it.

[22]        
Dr. Baggoo’s impression was that Ms. Foomani suffered from a
flail right foot and ankle secondary to a sciatic nerve injury, and he told her
that she had both operative and non-operative options. Non-operative options
included continuing to wear the brace and wearing accommodating shoe wear or
having a new brace made. He also described the option of isolated toe
procedures.

[23]        
Dr. Baggoo explained the option of fusing the ankle and explained
the risks involved. He told her she may still need to wear the brace and could
have pain, even after this procedure. She could also require more surgery.

[24]        
Ms. Foomani elected to proceed with an ankle fusion in combination
with forefoot reconstruction and signed a consent form on December 5, 2005.

[25]        
On June 8, 2006, Ms. Foomani had an x-ray taken of her right ankle
and foot. Some mild pes planus was present.

[26]        
On June 16, 2006, Dr. Baggoo performed a right ankle fusion and
forefoot reconstruction surgery on Ms. Foomani at Lions Gate Hospital. She
was seen by a physiotherapist at the hospital. She was discharged on June 20,
2006.

[27]        
On June 29, 2006, Ms. Foomani saw Dr. Baggoo for follow-up. Her
cast was removed and replaced with a fiberglass non-walking cast. Dr. Baggoo
instructed her not to put weight on her foot.

[28]        
 On July 27, 2006, Dr. Baggoo removed the pins from Ms. Foomani’s
toes and checked her progress.

[29]        
Dr. Baggoo saw Ms. Foomani again on September 7, 2006. X-rays of
her foot were taken and compared with the images taken on June 17, 2006. Dr. Baggoo
explained the risk of non-union to Ms. Foomani.

[30]        
Dr. Baggoo saw Ms. Foomani in follow-up on October 5, 2006. An
x-ray was taken showing multiple screws transfixing the tibiotalar as well as
distal tibiofibular articulation. The x-ray showed complete healing of the
ankle joint. Ms. Foomani had been weight-bearing on the ankle contrary to
his instruction due to shoulder pain. He told Ms. Foomani she could expect
to experience pain in the ankle for the next two to three months, but he hoped
it would resolve. Her gait should progress and her prognosis was good. He told Ms. Foomani
to return in two months for follow-up.

[31]        
On December 7, 2006, Ms. Foomani saw Dr. Baggoo. An x-ray of Ms. Foomani’s
foot indicated the ankle joint was fused in anatomic alignment. She complained
of pain near her talonavicular joint. Dr. Baggoo’s impression was that
this was caused by stress transfer. He gave her a heel lift which seemed to
improve her pain.

[32]        
On February 1, 2007, Ms. Foomani saw Dr. Baggoo at the cast
clinic regarding her left shoulder and knee. An MRI of her left shoulder was
taken.

[33]        
Dr. Baggoo received a fax from Dr. Rubin dated April 13, 2007,
requesting that he see Ms. Foomani regarding the right ankle.

[34]        
On May 3, 2007, Dr. Baggoo ordered more x-rays of Ms. Foomani’s
ankle, which was solidly fused.

[35]        
On May 16, 2007, Ms. Foomani saw Dr. Baggoo and reported pain
localized over the talonavicular joint. He diagnosed her with a small dorsal talonavicular
spur after reviewing films. Dr. Baggoo described that he could make a
small surgical incision over the talonavicular joint to remove the dorsal spur.
He told Ms. Foomani this may decrease the impaction she experiences when
she tries to “toe-off’.

[36]        
On July 13, 2007, Ms. Foomani signed a form consenting to a second
surgery by Dr. Baggoo, and he performed the surgery that day at Lions Gate
Hospital.

[37]        
On July 26, 2007, Dr. Baggoo removed the stitches from Ms. Foomani’s
right ankle. X-rays showed solid fusion.

[38]        
On September 6, 2007, Ms. Foomani saw Dr. Baggoo in follow-up
for her right ankle. She reported some noticeable improvement.

[39]        
On February 20, 2008, Dr. Rubin requested that Dr. Baggoo see Ms. Foomani
again regarding right ankle pain. Dr. Baggoo put Ms. Foomani on his
waitlist.

[40]        
On June 5, 2008, Ms. Foomani was seen in the emergency room for the
visible pin in her right third toe, which was swollen and red. She was taking
Keflex, but it was not helping. Dr. Baggoo removed the pin.

[41]        
On June 26, 2008, Ms. Foomani saw Dr. Baggoo in follow-up. The
toe looked very good with no evidence of infection. Dr. Baggoo advised her
to treat her pain with rocker bottom shoe wear and to modify her activities. He
discussed the use of pain medications and offered to refer her to Dr. Wing,
a foot and ankle surgeon for a second opinion, as he did not believe further
surgery would help her.

[42]        
Dr. Baggoo spoke with Dr. Rubin after this date and advised
him that he could not offer the plaintiff any surgical options and recommended
that she be seen by a non-surgical care provider.

[43]        
On April 17, 2009 and May 7, 2009, a lawyer wrote to Dr. Baggoo
asking if he would see Ms. Foomani again. On May 20, 2009, Dr. Baggoo
wrote to the lawyer advising he could not comment on Ms. Foomani without a
written authorization signed by the patient.

THE EXPERT REPORT OF DR. DRYDEN

[44]        
The expert report of Dr. Peter Dryden dated August 7, 2013 is
attached as an exhibit to the affidavit of Stephanie Van Nierop filed on this
summary trial application. Dr. Dryden is an orthopedic surgeon whose
clinical practice involves the assessment and treatment of primarily foot and
ankle pathology. He reviewed the pleadings and the clinical records, and he
offered his opinion that Dr. Baggoo did meet the standard of care of a
reasonable orthopaedic surgeon during the treatment of Ms. Foomani.

[45]        
More specifically, Dr. Dryden opined that:

·                
the recommendation for the June 2006 surgery was appropriate; the
June 2006 surgery was performed adequately;

·                
the follow-up care after the June 2006 surgery was acceptable;

·                
the recommendation for the July 2007 surgery was appropriate;

·                
the July 2007 surgery was performed in an adequate fashion;

·                
the follow-up care after the July 2007 was acceptable;

·                
Dr. Baggoo’s recommendation for non-operative care post July
2007 was appropriate; and

·                
the protrusion of a screw or pin from Ms. Foomani’s toe in
June 2008 was not an uncommon occurrence and was dealt with in an acceptable
manner.

NO BREACH OF THE STANDARD OF CARE

[46]        
In ter Neuzen v. Korn, [1995] 3 S.C.R. 674 the Supreme Court of
Canada discussed the appropriate standard of care in medical malpractice
litigation at paras. 33–34:

33        It is well settled that physicians have a duty to
conduct their practice in accordance with the conduct of a prudent and diligent
doctor in the same circumstances. In the case of a specialist, such as a
gynaecologist and obstetrician, the doctor’s behaviour must be assessed in
light of the conduct of other ordinary specialists, who possess a reasonable
level of knowledge, competence and skill expected of professionals in Canada,
in that field. A specialist, such as the respondent, who holds himself out as
possessing a special degree of skill and knowledge, must exercise the degree of
skill of an average specialist in his field: see Wilson v. Swanson,
[1956] S.C.R. 804, at p. 817, Lapointe v. Hôpital Le Gardeur,
[1992] 1 S.C.R. 351, at p. 361, and McCormick v. Marcotte, [1972]
S.C.R. 18.

34        It is also particularly important to emphasize, in
the context of this case, that the conduct of physicians must be judged in the
light of the knowledge that ought to have been reasonably possessed at the time
of the alleged act of negligence. As Denning L.J. eloquently stated in Roe
v. Ministry of Health, [1954] 2 All E.R. 131 (C.A.), at p. 137,
"[w]e must not look at the 1947 accident with 1954 spectacles". That
is, courts must not, with the benefit of hindsight, judge too harshly doctors
who act in accordance with prevailing standards of professional knowledge. This
point was also emphasized by this Court in Lapointe, supra, at pp. 362-63:

… courts should be careful not to
rely upon the perfect vision afforded by hindsight. In order to evaluate a
particular exercise of judgment fairly, the doctor’s limited ability to foresee
future events when determining a course of conduct must be borne in mind.
Otherwise, the doctor will not be assessed according to the norms of the
average doctor of reasonable ability in the same circumstances, but rather will
be held accountable for mistakes that are apparent only after the fact.

No issue is taken with this
proposition which was applied both in the trial judge’s charge to the jury and
by the Court of Appeal.

[47]        
The Court went on to say at para. 51:

51        I conclude from the
foregoing that, as a general rule, where a procedure involves difficult or
uncertain questions of medical treatment or complex, scientific or highly
technical matters that are beyond the ordinary experience and understanding of
a judge or jury, it will not be open to find a standard medical practice
negligent. On the other hand, as an exception to the general rule, if a
standard practice fails to adopt obvious and reasonable precautions which are
readily apparent to the ordinary finder of fact, then it is no excuse for a
practitioner to claim that he or she was merely conforming to such a negligent
common practice.

[48]        
Accordingly, where a plaintiff alleges that a medical doctor’s treatment
was negligent, it will usually be necessary for the plaintiff to adduce expert
evidence establishing the standard of care and showing that the defendant
doctor’s care fell below that standard. This is so regardless of whether the
case is heard as a full or as a summary trial. See, for example, Mikhail v.
Northern Health Authority (Prince George Regional Hospital), 2010 BCSC
1817, where Brown J. observed at para. 108:

[108]    I find the plaintiffs
have failed to prove the defendants were negligent. I further find the
plaintiffs failed to prove the defendants’ conduct caused or contributed to the
damages alleged. Professional negligence cases, particularly those involving
medical or other specialized areas of knowledge, always raise questions of
professional standards and practice. Professional reputations may be at stake,
which is not to say physicians or other professionals receive preferential
treatment, but that they are judged based on what the court finds is the
professional standard of care expected of them, not an amorphous ideal.
Plaintiffs in medical malpractice cases, and others like it, must be prepared
to demonstrate at trial, full or summary, the accepted standard of care and the
defendant’s failure to meet it, as supported by the evidence of a qualified
expert-excepting specific situations such as the one which arose in ter
Neuzen.

[49]        
In the present case, Ms. Foomani has presented no expert evidence
to establish the standard of care required or to show that Dr. Baggoo did
not meet that standard of care. On the other hand, the available evidence
presented by Dr. Baggoo is to the effect that his conduct did conform with
the applicable standard of care.

[50]        
In these circumstances, Ms. Foomani’s claim in negligence must be
dismissed.

[51]        
There is no evidence before me of any breach of contract or breach of
fiduciary duty, so those aspects of the claim must also be dismissed.

[52]        
Counsel for Dr. Baggoo argued in the alternative that this claim
must be dismissed for failure to bring the claim within the applicable
limitation period. In light of my findings above, it is not necessary to
address that alternative defence.

CONCLUSION

[53]        
The action of Ms. Foomani against Dr. Baggoo is dismissed with
costs.

The
Honourable Mr. Justice W.F. Ehrcke