Expert Witness (Dental)

Guerrero v Trillium Dental Centre, 2014 ONSC 3871

[11] The issue in the present case of whether the whitening procedure constituted medical malpractice does not eliminate the need for the plaintiff to tender expert evidence. It is a question of whether a lay expert may be qualified to provide the necessary opinion evidence, which is required in any event.

[12] A respondent faced with a motion for summary judgment must lead trump or risk losing. The plaintiff has known for months that the defendants contended that expert evidence was required. Its absence dooms the plaintiff’s claim that the procedure was incompetently performed, as well as the allegations of breach of contract, to failure. (See Claus v. Wolfman, 1999 CanLII 14824 (ON SC), [1999] O.J. No. 5023 (Ont. S.C.J.) at paras. 4, 12 and 23; aff’d 2000 CanLII 22728 (ON CA), [2000] O.J. No. 4818 (Ont. C.A.).

Larusson v Wein, 2016 ONSC 3283 (CanLII)

[15] The defendant rightly points out that expert evidence is an essential ingredient for the plaintiff to succeed in a dental or other medical negligence claim. In Ryabikhina et al v. St. Michael’s Hospital, 2011 ONSC 1884, Belobaba J. granted summary judgment against the plaintiff in a medical malpractice case because the plaintiff was unable to obtain an expert report to support her allegations of negligence. He stated (at paras. 27-31, footnotes omitted):

In cases where liability issues are technical such as determining the standard of care in medical malpractice cases, a finding of negligence must be based on a supporting expert opinion.

Where the plaintiff in a medical malpractice case does not deliver an expert opinion in support of the allegations that the requisite standard of care was not followed and that this failure caused the plaintiff’s injuries, a genuine issue has not been raised with respect to a material fact and summary judgment should be granted.

…

Where the plaintiff has failed to obtain an expert report, the court may draw the inference that the plaintiff was unable to obtain an expert report to support the allegations of negligence.

Given the absence of an expert report from the Plaintiffs, I agree with the Hospital Defendants that there is no genuine issue requiring a trial with respect to the allegations of negligence.

See also: Cassibo v. Bacso, 2010 ONSC 6435 at para. 14; Whiteman v. Iamkhong, 2013 ONSC 2175 at para. 111; Damallie v. Ping, 2014 ONSC 5562, at para. 14; Sanzone v. Schecter, 2015 ONSC 4829 (CanLII), 2015ONSC 4829 at paras. 10 and 11.

[16] In Drougov v Apotex Inc., 2015 ONSC 2896, Perell J. stated (at para. 21):

For a plaintiff to succeed in a medical professional negligence action, a plaintiff requires evidence, typically expert evidence, to establish: (1) the standard of care; (2) whether there was a breach of the standard of care; and, (3) causation and on a summary judgment motion, if this evidence is not presented, there is no genuine issue for trial and summary judgment may be granted dismissing the plaintiff’s action.

[17] This has been recently affirmed by the Ontario Court of Appeal in the case of Liu v. Wong, 2016 ONCA 366, at para. 14:

Medical malpractice cases are complex – even where they may appear simple to the eye of a layperson – and judges and juries lack the expertise necessary to assess difficult questions such as causation, standard of care, and breach of the standard of care, without the assistance of expert reports. For that reason, this Court and others have stated that aside from “the clearest of cases” the absence of an expert evidence in support of the plaintiff’s medical malpractice claim is fatal: see Larman v. Mount Sinai Hospital, 2014 ONCA 923.

[18] In Cassibo, supra, Hourigan J. concluded (at para. 20) that there is no obligation on the defendant to file an expert report to support its motion for summary judgment since that would “effectively reverse the evidentiary burden” and lead to a difficult situation for defendants “who would be forced to obtain costly medical expert opinions to respond to a case which has not been fully articulated by the plaintiff”.

[19] In the present case Mullins J., ordered the plaintiff to file her expert affidavits in response to the summary judgment motion by January 2, 2016.