Malpractice suit against Coquitlam dentist dismissed in provincial court for lack of evidence, missing deadlines

A former patient of a Coquitlam dentist had his lawsuit thrown out of provincial court for failing to provide evidence and missing the statute of limitations deadline.

Jason Bak filed the dental malpractice claim against Dr. Joosung Kang on Oct. 21, 2021, alleging he was suffering pain from four dental implants. He sought a $9,000 refund from Kang, as well as nearly $1,600 in fees charged by other dental specialists.

During a pre-trial conference on April 10, 2024, however, Justice Nicholas Preovolos dismissed the claim, citing the lack of an expert report and the time passed since the alleged negligence occurred.

“Mr. Bak’s claim suffers from two critical flaws, each of which is fatal by itself,” Preovolos said. “To set aside court time for a trial in these circumstances would be pointless.”

Bak alleged that Kang’s procedures to replace four of his teeth between November 2017 and May 2018 left him in pain when drinking, eating and running, adding the Coquitlam dentist refuses to speak with him or refund the fee.

Kang, on the other hand, denies any of his implants malfunctioned, and alleged Bak has simply failed to take proper care of his teeth.

The claim included a list of expenses incurred at the Coquitlam dental office, expenses and estimates from other dental offices following the procedure, and a handwritten account of interactions between Bak and Kang.

But Preovolos said the claim lacks a standard of care opinion from a qualified dental professional, which he noted he had requested repeatedly on previous court dates. 

Bak told the court he does not intend to produce these documents for the trial, which was originally set for June 2024.

At a previous court date in September, 2023, Preovolos warned Bak that, without expert opinion concluding that Kang’s negligence was causing his pain, the claim would not be able to proceed.

Bak was given until a pre-trial conference on Jan. 31, 2024 to file the report, but he did not show up, claiming he did not understand the documents which were required.

Instead, Bak supplied what appeared to be dental X-rays, receipts, and a photograph of his mouth.

Preovolos gave the plaintiff one last change to produce the report by April 5, but Bak failed to comply with the order.

Bak instead submitted two letters, neither of which qualified as expert opinion.

The first was a handwritten letter in which Bak criticized a dentist who refused to provide a standard of care opinion due his friendship with Kang; the second, was a letter from a Vancouver dentist which diagnosed his pain, evaluated his implants, and provided recommended treatments.

Bak claimed he asked the Vancouver dentist to prepare the required report, but Preovolos did not accept the explanation.

Preovolos ruled the evidentiary gaps would not be overcome by Bak’s expected testimony.

He said he is not qualified to interpret X-rays or draw conclusions, not even whether the supplied X-rays were of Bak’s own teeth. 

Furthermore, Preovolos said quotes from other dentists and Bak’s letters do not assist in determining whether Kang made mistakes, or whether more dental work is needed as a result of alleged mistakes.

While Preovolos said in rare cases, dental malpractice can be proved without tendering an expert report, Bak’s case does not meet that high threshold.

“I acknowledge that dismissing a claim at this stage should be done with caution and only in clear cases.  That said, I find that it should be dismissed because Mr. Bak has had more than a reasonable opportunity to provide the necessary evidence,” Preovolos said. “Nearly 18 months have passed since Mr. Bak filed his Notice of Claim, and I have urged him on two separate occasions . . . to obtain the necessary evidence.”

Preovolos also said under the Limitation Act, Bak had three years to commence his civil claim, which needed to be established by August, 2022 at the latest.