Lalani v. Lear: No Negligence Without Evidence

Author: Silvia Purcarin

Dental malpractice claims often raise complex questions about the standard of care, causation and proof of damages. In a recent decision, Lalani v. Lear, Madam Justice Marzari dismissed the plaintiff’s action as a result of multiple weaknesses in the claim. As a second chair at trial alongside my colleague, Roger Watts, I had the opportunity to contribute to a decision that illustrates the high threshold for establishing liability in professional negligence cases, the importance of expert opinion, and the paramountcy of building a case on solid factual and legal foundations.

In 2015, the plaintiff sued his childhood orthodontist. The gist of the plaintiff’s allegation is that orthodontic treatment from 1989 led to the development of obstructive sleep apnea in 2013, as a result of which the plaintiff suffered various pecuniary and non-pecuniary losses. Specifically, the plaintiff alleged that his orthodontist failed to advise him and his mother of the adverse risks of wearing cervical headgear, thus vitiating consent to treatment.

The legal issues that the court addressed were as follows:

1. What was the standard of care of an orthodontist in 1989?
2. Did the orthodontist breach that standard of care?
3. Were orthodontists in 1989 required to inform patients about the development of sleep apnea in order to obtain informed consent?
4. Did the orthodontist fail to disclose a known risk to the plaintiff?
5. Did the treatment cause the plaintiff to develop sleep apnea?
6. If so, did sleep apnea cause the plaintiff losses, and if so, how much?

Among other things, this decision dealt with a number of interesting evidentiary issues which were addressed throughout the trial, including during several voir dires on the admissibility of expert reports and hearsay evidence. In oral reasons during the trial, the court excluded from evidence two of the ten reports adduced by the plaintiff – one authored by the plaintiff himself, finding that it lacked the necessary impartiality given his direct involvement in the case, and one authored by a professor of economics and game theory, on the basis that it was irrelevant to the issues before the court.

It is well-established that expert evidence on the issue of standard of care is essential in medical malpractice cases. This, however, was also one of the most problematic aspects of the plaintiff’s case. Of the multitude of experts called, none were Canadian medical or dental practitioners (aside from a family doctor); all were provided with factual assumptions that were either not supported or established by evidence or required expert opinion to prove; and most admitted in cross-examination that the plaintiff provided them with direction and coaching as to what to include in their reports. As the court put it, “during [one expert’s] cross-examination, [the plaintiff] was so concerned that [his expert] would be unfamiliar with one of the journal articles cited in his report, that [he] objected to counsel asking [the doctor] if the article was authoritative. In response to being asked about [the plaintiff] sending him the final draft of the report, [the doctor] responded with words to the effect of ‘yes, but I would only sign if I have read it'.”

Furthermore, the court noted that some of the reports read like a polemic, rendering their contents as inadmissible arguments. Interestingly, one sleep medicine expert shared a draft of his report with an orthodontist friend and then chose to incorporate his friend’s comments only where he personally agreed with them. The court noted this practice was problematic and it stripped the reports of independence, leaving the court with little reliable expert opinion to consider. Additionally, opinions as to what the standard of care ought to have been, or could have been, rather than addressing the standard as it existed in 1989 proved fatal to the plaintiff’s case.

The defence called an expert in orthodontics who opined that the profession in 1989 believed, and continues to believe, that there was no causal connection between properly applied cervical headgear and the development of obstructive sleep apnea.

Overall, the court found that the use of cervical headgear was and is part of the standard practice in orthodontics, and while some orthodontists or related professionals in other parts of the world question the use of cervical headgear, including the plaintiff’s experts in this case, the use of cervical headgear was, and remains, endorsed by the dominant school of thought within the profession. Further, there was no evidence before the court to indicate that the orthodontist in this case deviated from the standard practice at the time he treated the plaintiff.

Further, on the issue of informed consent, the court disagreed with the plaintiff’s suggestion that the orthodontist was required to inform him of the adverse effects of wearing cervical headgear. No evidence was adduced to support a link between the orthodontic treatment and the development of sleep apnea. Therefore, orthodontists in 1989 were not required to discuss a non-existent risk in order to obtain informed consent for the use of the cervical headgear.

Despite the finding that there was no breach of the standard of care, the court went on to consider causation and damages. The court rejected the plaintiff’s lay opinions about physical forces and how they act on human anatomy to narrow airways and cause sleep apnea. Expert opinions on causation were inconclusive – sleep apnea is a complex condition, not yet well-understood, and generally caused by a multitude of factors in any given case. Madam Justice Marzari concluded that the largely theoretical and anecdotal concerns about the cervical headgear did not support the plaintiff’s allegations that it caused or could have caused sleep apnea.

Finally, on the issue of damages, the court concluded that the evidence was speculative and unsupported. The plaintiff did not prove entitlement to non-pecuniary damages. In addition, he made no claim for costs of future care given his success in self-treating his sleep apnea through the development and use of a brace which he surgically implanted into his own head. With respect to loss of past or future income loss, the plaintiff claimed more than $100 million as a result of missed opportunities to become a successful venture capitalist. He argued that the sleep apnea hindered his ability to attend meetings on time, remain awake at work and generally be a reliable employee.  After hearing evidence from lay employment witnesses, a venture capitalist expert and an economist, the court was not persuaded that the plaintiff established an entitlement to income loss, especially in light of his greatly improved health. Lastly, the court declined to make an award for special damages of $685,000 for the costs associated with the development of the plaintiff's brace due to lack of evidence in support of these expenses.

This decision underscores the central role that credible and independent expert evidence plays in professional negligence cases – without it, the claim is bound to fail. Here, the plaintiff’s inability to establish a breach of the standard of care that existed in 1989, combined with the unreliable expert opinions and an insufficient evidentiary foundation for damages proved fatal to the case. Ultimately, this case lacked the pillars of a successful professional negligence action.