Date: 19990118 Docket: 94-4422 Registry: Victoria IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: ROLANDE LEAKER PLAINTIFF AND: DR. GEORGE PORTER, GREATER VICTORIA HOSPITAL SOCIETY doing business as ROYAL JUBILEE HOSPITAL, JOHN DOE, JANE DOE, RICHARD ROE AND RENE ROE DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE R.D. WILSON Counsel for the Plaintiff: Douglas H. Christie Counsel for the Defendant: Guy P. Brown Place and Date of Hearing: Victoria, B.C. 6 January 1999 and 8 January 1999 I [1] The defendant, Dr. Porter, applies for a summary determination of the plaintiff's claim, pursuant to Rule 18A of the Rules of Court. The plaintiff says that, by reason of conflicting testimony, this action is not one to be disposed of summarily. II [2] The plaintiff's action is founded upon medical consultations she had with the defendant Porter, a medical doctor, between 30 November 1992 and 7 December 1992. [3] The plaintiff's action was commenced on 22 November 1994. [4] The plaintiff claims that she suffered damages as a result of the negligence of Dr. Porter. Particulars of the alleged negligence are: (a) In not diagnosing an acute appendicitis and performing an appendectomy; and (b) Such further and other particulars which are not known to the plaintiff. [5] The plaintiff has an alternative claim in contract. The plaintiff pleads that Dr. Porter breached a term of an agreement with her in that, he "... failed to exercise reasonable professional care and skill in [his] treatment of [her]. [6] No other particulars of conduct said to constitute negligence, or breach of contract, are pleaded. [7] My understanding of the question to be decided, on this application, is as much a function of the manner in which the application developed, as it is the material I am asked to consider. [8] The first, and most significant, controversy between the parties is their individual recollections of the initial encounter between them of 30 November 1992. [9] Of that event, Ms. Leaker deposed: 6. I distinctly remember my first encounter with Dr. Porter of November 30, 1992. I had been admitted through emergency. After being in emergency some time I was transferred to a semi- private room. Dr. Porter came in several hours later and contrary to his affidavit ... that he treated me and examined me, he performed no such procedures. On that occasion Dr. Porter spoke to me for only three minutes or less. He said "I understand Dr. Ballard sent you and that you have pain in your abdomen". I said "Yes, the pain is right here" and pointed to my right lower abdomen. He then said "We will do x-rays and blood tests". He turned around and left. I never saw him again in the hospital. [10] Of that same event, Dr. Porter deposed, among other things: 6. On November 30, 1992, I examined the plaintiff and her abdomen showed acute tenderness, guarding and localized peritonitis in the right upper quadrant with a probable underlying mass. I surmised she was suffering from an acutely inflamed gallbladder and noted that her pain was less tender in the right lower quadrant and not at all present on the left side. The Plaintiff was admitted to the Hospital with a diagnosis of acute cholecystitis (inflammation of the gallbladder) ... [11] Appended to Dr. Porter's affidavit, among other things, is a Greater Victoria Hospital Society emergency department patient care record form, completed, in part, by Dr. Porter, and a copy of his consultation notes, dictated 30 November 1992 and transcribed 1 December 1992. [12] It is common ground that Ms. Leaker was discharged from the hospital on 3 December 1992; re-admitted 6 December 1992, and a surgical procedure to remove a ruptured appendix, among other things, performed on 7 December 1992. III [13] In the course of preparation for the trial of her action, Ms. Leaker obtained an opinion from a Dr. Warren Gibbs, a medical doctor in Seattle, Washington. Dr. Gibbs' certifications are: Diplomate, American Board of Internal Medicine, 1985 Advanced Trauma Life Support, 1985 Advanced Cardiac Life Support Provider, 1997 [14] Dr. Gibbs' report is dated June 25, 1996. Among other things, Dr. Gibbs said: ... Mrs. Leaker claims that Dr. Porter did not examine her, however that is impossible to prove since he did document a physical exam. [15] Dr. Gibbs went on to say: ... Dr. Porter's fault was in not continuing with the diagnostic work up. A CT scan of her abdomen should have been done. This likely would have shown the abscess. [16] Presumably, Dr. Porter prepared to meet a claim by Ms. Leaker based upon the medical opinion of Dr. Gibbs. Opinions were, therefore, obtained from Dr. Robert M. Baird, a physician and surgeon, of Vancouver, British Columbia, with a specialty in general surgery. And from Dr. Patrick Joseph O'Regan, a physician and surgeon, of Vancouver, British Columbia, with a specialty in general surgery. [17] In the opinions of Drs. Baird and O'Regan, CT scanning was not a standard diagnostic procedure, for appendicitis, in British Columbia, in 1992. Dr. O'Regan said: In the U.S.A. where CT Scanning is more readily available, then certainly this mode of evaluation is used quite frequently. [18] Dr. O'Regan could not recall ever having ordered a CT scan to assist in diagnosing appendicitis in his 23 years of practice in British Columbia. [19] Dr. Baird said: Ct scans are not routinely done, it is an expensive form of investigation and may not be helpful. In this type of case, ultrasound is much more helpful. [20] Dr. Porter did utilize ultrasound as a diagnostic tool in Ms. Leaker's case. IV [21] In a very helpful written brief, Mr. Brown summarized the governing law in medical malpractice actions. [22] In summary, Mr. Brown made these submissions: 1. In a malpractice action, a plaintiff must provide evidence of the standard of care applicable, through expert testimony; 2. That testimony must be provided by an expert knowledgeable of practices and procedures in the community in which the medical services were rendered; 3. Dr. Gibbs does not purport to have knowledge of the standard of care which obtained in Victoria British Columbia in November of 1992. Therefore, Dr. Gibbs' report is not admissible on the trial of Ms. Leaker's claim; 4. The plaintiff having provided no expert testimony on the standard of care her action must fail, and should be dismissed; ... 7. Alternatively, if Dr. Gibbs' report is admissible, then it confirms the opinions of Drs. Baird and O'Regan that computer assisted thermography is a diagnostic tool used in the United States of America, but implicitly confirms their opinions that it is not a tool resorted to in Victoria British Columbia for the purposes of diagnosing appendicitis. V [23] Mr. Christie did not quarrel with any of the principles of law put forward by Mr. Brown. Mr. Christie did not concede that the opinion of Dr. Gibbs was not admissible in this court. He said that there is no general principle, and that each question must be determined according to its own peculiar circumstances. [24] As I understood Mr. Christie, however, the plaintiff's claim is not founded upon Dr. Porter's failure to resort to computer assisted thermography in diagnosing Ms. Leaker's ailment. Rather, said Mr. Christie, Dr. Porter's shortcomings were in his failure to palpate Ms. Leaker's abdomen to isolate the origin of the pain. [25] Dr. Gibbs, Dr. Baird and Dr. O'Regan assumed that such a procedure had been followed by Dr. Porter. Presumably, because he had conducted an examination. Mr. Christie says that is a fact which must be proved by choosing between the testimony of Ms. Leaker on the one hand, and Dr. Porter on the other. It is not appropriate to resolve that controversial issue in a summary proceeding, on affidavit material. VI [26] Mr. Brown contends that there is ample evidence to permit a finding, on the preponderance of probability, that a physical examination was conducted by Dr. Porter on Ms. Leaker. For example, there are several consultation reports completed over the course of Ms. Leaker's attendances. As well, Ms. Leaker's reliability as a historian is suspect, because she has no recollection of an examination of her, by Dr. Erickson on 6 December 1992. And, in any event, the nugget of Ms. Leaker's position is that Dr. Porter failed to follow what she calls the "McBurney point procedure". There is no admissible evidence of the significance, if any, of such a procedure, to any issue in this lawsuit. In result, summary disposition is appropriate in this case. VII [27] The general principle which must govern my disposition of the question of the propriety of a summary disposition of this action is settled in Inspiration Management Ltd. v. McDermid St. Lawrence Ltd.. That principle is stated in these words: 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. In deciding whether the case is an appropriate one for judgement under Rule 18A, the Chambers judge will always give full consideration to all of the evidence which counsel place before him but he will also consider whether the evidence is sufficient for adjudication. For example, the absence of an affidavit from a principal player in the piece, unless his absence is adequately explained, may cause the judge to conclude either that he cannot find the facts necessary to decide the issues, or that it would be unjust to do so. But even then, as the process is adversarial, the judge may be able fairly and justly to find the facts necessary to decide the issue. [28] As I understand the submissions, the fundamental controversy in this action, as Mr. Christie now defines it, is whether or not Dr. Porter performed a McBurney point procedure. [29] There is no admissible evidence before me of the significance of a McBurney point procedure to any issue in Ms. Leaker's lawsuit. I am aware, however, that there may be evidence that such a procedure is relevant to the standard of care in the diagnosis of appendicitis. [30] I am mindful that this application is a trial, and that this is an adversarial proceeding. There is no explanation why Ms. Leaker did not place admissible evidence of the significance of a McBurney point procedure before the court on this application. Nevertheless, in the absence of the evidence, which I understand is available, I think it would be unjust to summarily determine the controversial issues of whether or not there was an examination, and if so, the extent of that examination, and the significance of a McBurney point procedure, on the affidavit evidence currently before me. [31] In result, the application for judgment is dismissed. Costs will be assessed pursuant to the provisions of Rule 57 (12) of the Rules of Court. "R.D. Wilson, J." THE HONOURABLE MR. JUSTICE R.D. WILSON