In a dental malpractice claim, the defence moved for summary judgment after the Defendant’s (the dentist) examination for discovery had taken place and expert reports had been exchanged. After reviewing the evidence, Justice Hood dismissed the motion, finding genuine issues for trial, including whether one of the “experts” was qualified to give an expert opinion.
The Plaintiff attended her dentist’s office complaining of jaw pain, headaches, and dizziness. The dentist prescribed antibiotics. The Plaintiff returned to the same clinic the next day with ongoing complaints of jaw pain. At this visit, she was seen by the Defendant. The Defendant removed one of her wisdom teeth (#18) and sent her home.
She continued to have complaints of jaw pain. After attending at the hospital twice, she was admitted with an infection diagnosis and underwent dental surgery.
The Plaintiff sued the Defendant dentist for negligence. At his examination for discovery, the Defendant gave evidence that “could be viewed as differing from his notes.” His discovery evidence indicated that tooth #48 was more infected than tooth #18 and should have been removed.
The defence relied on two expert opinions suggesting that the Defendant met the standard of care and that his actions were not causally related to the Plaintiff’s subsequent problems. However, these experts had not reviewed the Defendant’s discovery transcript, as counsel had chosen not to provide them.
The Plaintiff relied on a competing expert opinion obtained from an oral and maxillofacial surgeon who concluded that the Defendant fell below the standard of care and that the defendant’s treatment was causally connected to the Plaintiff’s eventual issues. The defence argued that the surgeon was not qualified to provide expert opinion in this case, as he was not a practicing dentist.
Justice Hood reviewed the principles for summary judgment motions set out by the Supreme Court in Hyrniak v. Mauldin, 2014 SCC 7. He noted that the Court will find no genuine issue for trial when it is able to reach a fair and just resolution on the matters. He also noted that the motions judge should only base her decision on the evidence before her and without the fact-finding powers in Rule 20.04 (2.1) of the Rules of Civil Procedure.
The motions Judge must be confident that she can find necessary facts and apply them to the relevant legal principles to fairly resolve the dispute without a trial.
In this case, given the conflicting expert evidence before him, Justice Hood was not confident that a resolution could be reached fairly.
The expert’s qualification question, the question of the evidence reviewed and not reviewed by the respective experts, and the Defendant’s arguably conflicting evidence, all raised genuine issues for trial and were better left to the discretion of the trial judge: “At trial, the trial judge can determine these issues following voir dires to determine qualifications, the admissibility of the various expert opinions, and ultimately the weight of the opinions given, if admitted.”
Furthermore, Justice Hood noted “at a trial the expert reports do not go in as evidence. The experts, once qualified, give their opinion through testimony. . .It is more appropriate that these medical expert witnesses give their evidence at trial in the witness box. . .It is more appropriate for the trial judge to see and hear the fact witnesses, such as the plaintiff and defendant and perhaps some of the treating doctors, so as to determine the facts upon which the expert opinions will be based.”
Where there is a question with respect to expert qualification and conflicting opinions based on disputed facts, there exists a genuine issue for trial.
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