Court File and Parties

2019 ONSC 1907

Court File No.: CV-09-392886-00 Date: 20190325 Superior Court of Justice - Ontario

Lorena Cheesman, Ruben Reinoso and Yvonne Reinoso Plaintiffs

AND :

Credit Valley Hospital, Dr. Michael Miller, Dr. Norman Epstein, Dr. Alicia Sarabia, Dr. Lorne Small, Dr. Deepa Soni, Dr. Robert Daily, Kathleen Dykstra, Barbara McGovern, Anna-Liza Teodoro, Billy Daniel Yamilee Julien, Rose Beckford and John and Jane Doe (representing a number of physicians, health care professionals and/or hospital employees involved in the care and treatment of Lorena Cheesman on December 24 and December 25, 2007 at Credit Valley Hospital) Defendants

Before: Koehnen J.

Counsel: Ron Bohm, Amani Oakley, Neil Oakley, David Scott Lee for the Plaintiffs Eli Mogil, Atrisha Lewis, Nathalie Kolos for the Defendants Dr. Sarabia, Dr. Small and Dr. Soni Nina Bombier, Christopher Kinnear Hunter for the Defendant Dr. Daily

Heard: March 22, 2019

Endorsement

[1] This ruling relates to the admissibility of expert medical evidence that the plaintiffs propose to elicit from Dr. Harmeet Gill.

[2] The issue arises in the very early stages of a medical malpractice trial before a jury.

[3] Some basic background about the issues in the action will be helpful in understanding my reasons for this ruling.

[4] At the risk of oversimplifying, in early to mid-December 2007, the plaintiff, Lorena Reinoso [1] was diagnosed with orbital cellulitis. On December 24, 2007 she appeared at the emergency room of the Credit Valley Hospital. She emerged six months later having had one half of both feet amputated and nine of 10 fingers partially or entirely amputated.

[5] Ms. Reinoso is currently pursuing this claim against four physicians who provided medical care to her in December 2007: Dr. Sarabia, an infectious disease specialist; Dr. Soni, an emergency room specialist; Dr. Small, an infectious disease specialist and Dr. Daily, an ophthalmologist.

[6] Ms. Reinoso asserts that the harm she suffered was attributable to substandard care from Doctors Sarabia, Soni, Small and Daily. Ms. Reinoso argues that Dr. Sarabia should not have interrupted her prescription of a particular antibiotic before December 24, 2007; that Doctors Soni, Small and Daily should have recognized that she was suffering from sepsis on December 24, 2007; that they failed to record her condition on medical charts in sufficient detail; and failed to communicate adequately among themselves. Put another way Ms. Reinoso says she fell through the cracks that developed in the medical care provided to her by various specialists. Ms. Reinoso asserts that, had sepsis been diagnosed in a timely manner, she would not have suffered the harm that she did.

[7] Doctors. Sarabia, Soni, Small and Daily assert that they met the standard of care applicable to them, that Ms. Reinoso’s injuries could not have been prevented and that even if they did somehow fall short of the standard of care, their conduct did not cause harm to Ms. Reinoso.

The Issue and Its Background

[8] The objection to Dr. Gill’s evidence arose in two stages. First, on March 6-8, the parties argued a number of pre-trial motions before me. Among them was a motion by the defendants to restrict the plaintiffs from eliciting expert medical evidence at trial if such evidence did not relate to the witness’ area of specialization. By way of example, the defendants submitted that an infectious disease specialist could testify about the standard of care of an infectious disease specialist but not about the standard of care of an ophthalmologist or an emergency room physician.

[9] Given the need for a ruling before the trial began and given scheduling difficulties I faced, I indicated that I would release the dispositive portion of my rulings on the motions in short order with reasons to follow at a later stage.

[10] On March 9, 2019 I circulated my dispositive rulings on the various motions. With respect to the defendants’ motion to limit the evidence of the plaintiffs’ experts, I ruled as follows:

“I will not restrict the number of the plaintiffs' experts or the nature of their testimony at this time. Any restrictions should arise as a result of a voir dire or as a result of objections to specific questions or areas of questioning.

By way of guidance, experts will be limited to their area of expertise. That is not to say, by way of example, that an infectious disease specialist cannot comment on the standard of care provided by an ophthalmologist but such evidence must somehow be tied to the expertise of the testifying expert.

Such expertise may, for example arise because the infectious disease specialist has: taught ophthalmologists to such a degree that he has expertise about their standard of care, overlapping expertise because ophthalmology involves infectious diseases, specific expertise about what physicians should be telling each other or asking each other when handing off patients etc. It will not, however, be acceptable for an infectious disease specialist to repeat what an ophthalmology expert has said about ophthalmology without tying it to his own expertise.”

[11] The first expert the plaintiffs seek to call is Dr. Harmeet Gill, an ophthalmologist. The defendants objected to the admission of some of Dr. Gill’s evidence at trial on March 21-22.

[12] When the issue concerning Dr. Gill arose at trial, I had not yet released reasons on any of the pre-trial motions. Given the considerable overlap between the defendants’ pretrial motion and their objection to the admissibility of Dr. Gill’s evidence during the course of trial, these reasons will combine my reasons on the defendants’ motion to restrict the evidence of the plaintiffs’ experts to their area of personal specialization with my specific ruling on the admissibility of evidence from Dr. Gill.

[13] Many of the objections to Dr. Gill’s evidence may also relate to the plaintiffs’ other experts. These reasons may provide guidance to the parties on how other experts will be addressed but those other experts will need to be dealt with on an individual basis by having their qualifications established, challenged if the defendants seek to do so and by obtaining specific rulings on the nature and scope of their evidence.

[14] The plaintiffs seek to have Dr. Gill admitted as an expert who can testify to:

(a) the standard of care expected of an ophthalmologist;

(b) the diagnosis and treatment of orbital cellulitis;

(c) the standard of care of physicians more generally dealing with orbital cellulitis; and

(d) causation.

[15] The defendants agree that Dr. Gill can testify to the standard of care of an ophthalmologist. In addition, the defendants agree that Dr. Gill has experience in working on multidisciplinary teams of physicians dealing with orbital cellulitis and can testify about what typically happens on those teams and what his expectations of others on those teams might be, but not to the standard of care expected from others on those teams.

[16] The issue arises because, in Dr. Gill’s initial and responding reports, he testified about the level of care provided by the defendants Dr. Daily (an ophthalmologist), Dr. Soni (an emergency room specialist) and Dr. Small (an infectious disease specialist).

The Legal Test for Admissibility

[17] The legal test for admissibility is not at issue. It has two components. In a first stage, the proponent of the evidence must persuade the trial judge that the proposed expert opinion is:

(i) relevant,

(ii) necessary,

(iii) not barred by any other exclusionary rule, and

(iv) given by a properly qualified expert.

See: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 at para. 19.

[18] The defendants agree that Dr. Gill’s evidence meets these criteria in so far as his evidence relates to the standard of care expected of an ophthalmologist. Once Dr. Gill purports to go further than that, the defendants agree that his evidence is relevant, necessary and not barred by any exclusionary rule but submit that Dr. Gill is not properly qualified to provide such evidence. [2]

[19] In the second stage of the test for the admissibility of expert evidence, the trial judge must engage in a gatekeeping function in which the trial judge balances the potential risks and benefits of admitting the evidence to determine whether the potential benefits justify the risks: White Burgess at para. 24.

I. The Qualifications of Dr. Gill

[20] Given the position of the parties, the real issue at the first stage of the analysis is to determine whether Dr. Gill is qualified to testify to about the care that Dr. Soni, an emergency room specialist, and Dr. Small, an infectious disease specialist, provided to Ms. Reinoso. Dr. Gill does not comment on the care provided by Dr. Sarabia.

[21] The starting point of the defendants’ submission is that expert evidence is the exception, not the rule, as a result of which courts should take a rigorous approach to its admissibility.

[22] In addition, the defendants underscore that the normal rule is for experts to testify specialist to specialist. That is to say, infectious disease specialists testify about infectious disease specialists and emergency rooms specialists about emergency room specialists. The defendants submit that it is only otherwise in exceptional cases, of which this is not one.

[23] This approach is grounded in basic principles associated with the standard of care. As the Supreme Court of Canada described it in ter Neuzen v. Korn, [1995] S.C.J. No. 79 at para. 46: a “doctor’s behaviour must be assessed in light of the conduct of other ordinary specialists, who possess a reasonable level of knowledge, competence and skill expected of professionals in Canada, in that field (emphasis added).” Almost 40 years earlier the Ontario Court of Appeal expressed the standard of care as that which “could reasonably be expected of a normal, prudent practitioner of the same experience and standing ” (emphasis added): Crits v. Sylvester, [1956] O.R. 132 at para. 13.

[24] The defendants fairly concede that any requirement that a medical expert be limited to testifying about the standard of care in the expert’s own area of specialization is not absolute.

[25] As the Ontario Court of Appeal put it in Robinson v. The Sisters of St. Joseph, [1999] O.J. No. 530 at para. 1:

There is no general rule that a specialist cannot offer an opinion as to the applicable standard of care governing medical treatment provided by a general practitioner, or that the specialist cannot offer an opinion as to whether the general practitioner met the applicable standard. The admissibility of the specialist's opinion depends on the subject matter on which that opinion is offered and the specialist's training and experience. Surely, there are treatments and procedures which are common to the practices of general practitioners and specialists alike.

The Manitoba Court of Appeal came to a similar decision more recently in Timlick v. Haywood, 2017 MBCA 10 at para. 46-47.

[26] A medical expert’s qualification to testify about a standard of care in an area outside of his or her area of specialization depends on the issue at hand. By way of example, there would be a concern about a specialist testifying about a generalist in a way that held the generalist into the specialist’s standard of care. It would not, however, pose any risks for a specialist to testify that the generalist in fact met the specialist’s standard of care. Similarly, a generalist testifying about the standard of care required of a specialist raises questions about whether the generalist is in fact qualified to speak to the standard of care required of a specialist.

[27] Where, however, a generalist is testifying to the effect that a specialist did not meet the standard of care of even a generalist because the specialist missed a basic issue with which every physician should be familiar, concerns about the generalist’s qualifications do not necessarily arise.

[28] The Ontario Court of Appeal recently pointed this out in Barber v. Joshi, 2016 ONCA 897 where it stated at para. 92:

Dr. Fong’s evidence on the standard of care was based on his personal knowledge and expertise regarding the knowledge and training that was common to and expected of all physicians in 2006 who were called upon to care for a patient with Mr. Barber’s presenting history and symptoms. It was Dr. Fong’s uncontradicted testimony that the knowledge expected of any physician assessing a patient who presents with signs and symptoms of meningitis is at the core of the concepts taught to all physicians. He said, for example, that knowing how a patient presents with a stroke, peritonitis, appendicitis, pneumonia or meningitis are “core things that all medical students should know by the time they finish their training”. Dr. Fong was experienced in teaching medical students on these very subjects, specifically, on the minimum standard applicable to all doctors in 2006, including ER physicians.

[29] The situation before me is similar to that in Barber. To the extent that Dr. Gill intends to testify about the care provided by Dr. Soni and Dr. Small, he is, as he described it during his examination and cross-examination on qualifications, testifying about things that all physicians had to and should have known in 2007. He is doing so based on knowledge and training he had received as a medical student and resident in and before 2007.

[30] Dr. Gill is not trying to hold non-ophthalmologists to the elevated standard of care of an ophthalmologist. The gist of his evidence will be to hold specialist emergency room physicians and infectious disease specialists to knowledge that all physicians were required to have and act on in 2007.

[31] Dr. Gill is not purporting to testify at large about the standard of care expected of emergency room specialists or infectious disease specialists nor does he intend to testify about the standard of care those specialists should bring to bear on nuanced questions within those areas of practice. Instead, he is speaking about the ability or inability of emergency room and infectious disease specialists to identify sepsis. Ms. Reinoso takes the position that all physicians were trained to identify sepsis in 2007 and that hospitals in 2007 had decision tree flow charts that made the identification of sepsis easy for anyone. For example these charts allegedly indicated that if a patient had an infection plus two abnormal vital signs, that was an important indicator of sepsis. Ms. Reinoso says she fell into this category. As a result, she asserts, anyone with the most basic medical training should have been alert to the issue of sepsis.

[32] Whether this is in fact true or whether it would have made any difference to the outcome for Ms. Reinoso is not the issue at this very early stage. The issue is whether Dr. Gill is qualified to provide evidence that supports Ms. Reinoso’s theory.

[33] A further aspect of Dr. Gill’s intended evidence is his view about the degree to which the defendants properly recorded Ms. Reinoso’s condition on her medical chart and the degree to which they communicated properly with each other.

[34] Recall that Ms. Reinoso was treated by a multidisciplinary team. Specialists from ophthalmology, emergency care and infectious diseases had input into her diagnosis and treatment on December 24 and 25, 2007. One important theory behind Ms. Reinoso’s case is that she was left to fall between the cracks that developed between members of the team. Those cracks developed because of allegedly inadequate record keeping and allegedly inadequate communication.

[35] As of December 2007, Dr. Gill had experience working on multidisciplinary medical teams, including experience with the nature of medical record keeping and communications on such teams. Although Dr. Gill was a more junior member of such teams at the time, that would not rob him of the qualifications necessary to testify about record-keeping and communications. Once again the gist of the evidence would be that any physician knew or should have known that matters had to be recorded with a certain degree of detail and communications needed to touch on certain issues.

[36] A physician on a multidisciplinary team cannot be restricted to knowledge strictly limited to his or her area of specialization. Physicians need to be able to identify issues beyond their strict area of specialization (like sepsis) in order to appreciate where their expertise ends and where the expertise of another specialist begins. Competent physicians need to know what to communicate and what to ask about areas beyond their strict specialty to ensure that patients do not fall between the cracks.

[37] To restrict expert medical evidence to narrow areas of specialization risks duplicating at trial what Ms. Reinoso says was deficient in her medical care in 2007: the creation of isolated silos of medical expertise that do not communicate effectively with each other.

[38] I have read Dr. Gill’s two medical reports in detail and am satisfied that he is not testifying about a standard of care in a specialty other than his own in a manner that would have him testify about an area of specialization in which he has no competence. Instead, he will be testifying about concepts he says are common to all physicians, concepts he says all physicians must or should know and about the standard of care involved in recording and communicating medical information on multidisciplinary medical teams.

[39] Doctors Soni and Small submit further that Dr. Gill is inadequately qualified to testify about them because he was not qualified to practice medicine independently in 2007. Rather, he was 2 ½ years into a 5-year ophthalmology residency. Their counsel described him as a “physician in training.”

[40] Although there is no doubt that Dr. Gill had more limited experience at the time, the degree to which this leads to a conclusion that he is inadequately qualified depends on the issue to which he is testifying.

[41] The core of Dr. Gill’s approach in testifying about Doctors Soni and Small, is that he is testifying about things that all physicians were required to know in 2007 and that even a less experienced medical resident knew. The thrust of the evidentiary theory is that, if a less experienced medical resident knows it, then surely a more experienced specialist should know it.

[42] By December 2007 Dr. Gill had:

(a) been rotating between four hospitals in the University of Toronto teaching hospital network for 2 ½ years;

(b) received a medical license to practice as a resident and received insurance coverage from the Canadian Medical Protective Association, both of which are required for residents;

(c) provided diagnoses, made decisions about treatment and had written prescriptions;

(d) seen approximately 5 to 10 cases per month of orbital cellulitis for 2 ½ years and treated those patients as part of multidisciplinary medical teams that exposed him to medical record-keeping and communication between team members;

(e) regular inter-actions with emergency room physicians and infectious disease specialists;

(f) been appointed as a lecturer of ophthalmology at the University of Toronto;

(g) been appointed as a site supervisor for medical clerks at hospitals to which he rotated (medical clerks are students in their third and fourth years of their medical studies in which hospital based learning replaces classroom lectures).

[43] In addition, by December 2007, Dr. Gill was giving advice to emergency room physicians about orbital cellulitis and was familiar with the standards of emergency room doctors in the treatment of patients with orbital cellulitis. He was also aware of how emergency room physicians were taught to treat orbital cellulitis because all residents were required to take emergency room training.

[44] Although residents practice under the overall supervision of another physician, the degree of supervision depends on the nature of the relationship. As Dr. Gill put it, some residents he supervises very closely, others he supervises very little. The degree of supervision depends on his evaluation of the resident in question.

[45] There is little doubt that, in 2007, Dr. Gill was a leading student and resident. He had won several prizes, had numerous papers published in peer-reviewed journals and had presented at a number of peer-reviewed conferences, albeit not in fields directly related to Ms. Reinoso’s diagnosis.

[46] The defendants made some headway during their cross-examination of Dr. Gill on his qualifications and pointed out that emergency room physicians and infectious disease specialists would have training that is different than what Dr. Gill had in 2007. In addition they elicited evidence to the effect that much of Dr. Gill’s practice since 2015 has been devoted to cosmetic eye surgery. Dr. Gill does, however, continue to spend one day per week at Sunnybrook Hospital as an ophthalmologist and is an on call ophthalmologist at Sunnybrook Hospital on a regular basis.

[47] Even though thresholds to the admissibility of expert evidence have been tightened and elevated since the mid 1990’s (White Burgess at para 16 and 20), I am still inclined to find that Dr. Gill is qualified under the first part of the admissibility test.

[48] The thrust of Dr. Gill’s evidence about Dr. Soni and Dr. Small is that any physician in 2007 should have been alert to sepsis, should have recorded medical data in a certain way and should have communicated between team members in a certain way. These all fall into categories that Dr. Gill described as matters that any physician was required to know in 2007. As a result, even someone with the more limited experience that Dr. Gill had in 2007 is qualified to speak to these issues as they apply to Doctors Soni and Small.

[49] The admissibility of Dr. Gill’s evidence is subject to one exception, his opinion on causation.

Causation

[50] In his reports, Dr. Gill makes a number of statements about causation. The most significant of these is the conclusion at the end of his first report to the effect that:

“If not for the poor care that Ms. Cheesman received in December 2007, it is my opinion that she would very likely have made a good recovery from her condition.”

[51] Elsewhere in his report he opines:

“Had Ms. Cheesman received prompt treatment for sepsis on December 24, my experience and training indicate she would have likely recovered or suffered from far less serious injuries than she did.”

[52] Ms. Bombier notes that in neither of his two reports does Dr. Gill indicate that he was asked to provide an opinion on causation.

[53] During cross-examination on his qualifications by Ms. Bombier, Dr. Gill agreed that, although recognition of sepsis was part of his core competency, management of sepsis was not. Dr. Gill admitted that a once a patient became septic, he had no expertise about their ultimate outcome.

[54] That answer requires me to take a close look at any opinions Dr. Gill is entitled to give about causation.

[55] Given his admission that he has no expertise about the ultimate outcome of patients once they have sepsis he is not qualified to give the opinion that Ms. Reinoso “would have likely recovered or suffered from far less serious injuries than she did” had she received prompt treatment for sepsis on December 24. Nor is he qualified to otherwise testify about the progress of sepsis once it has been diagnosed.

[56] As a result of the foregoing I find that Dr. Gill is qualified to be admitted as an expert who can testify to:

(a) the standard of care expected of an ophthalmologist;

(b) the diagnosis and treatment of orbital cellulitis;

(c) the standard of care of physicians more generally dealing with orbital cellulitis.

The Gatekeeper Analysis

[57] The fact that Dr. Gill is qualified as an expert does not end the analysis. I must still consider whether to admit his evidence in the exercise of my gatekeeper function.

[58] This second gatekeeping function has been described in various ways. In R. v. Abbey, 2009 ONCA 624 (Abbey No. 1) at para. 76 Doherty J. A. described it as a test to determine whether the evidence is “sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that might flow from the admission of expert evidence.” The Supreme Court of Canada described it in a similar manner in R. v. Mohan, [1994] 2 S.C.R. 9 at page 21 and in, R. v. J.-L.J., 2000 SCC 51 at para. 47.

[59] As Doherty J. A. described it at para. 79 of Abbey No. 1:

“The "gatekeeper" inquiry does not involve the application of bright line rules, but instead requires an exercise of judicial discretion. The trial judge must identify and weigh competing considerations to decide whether on balance those considerations favour the admissibility of the evidence. This cost-benefit analysis is case-specific and, unlike the first phase of the admissibility inquiry, often does not admit of a straightforward "yes" or "no" answer. Different trial judges, properly applying the relevant principles in the exercise of their discretion, could in some situations come to different conclusions on admissibility.”

[60] In Abbey No. 1, Doherty J.A. described the dangers of admitting expert evidence in para. 90 as including time, prejudice, confusion, the danger a jury will be unable to make an effective and critical assessment of the evidence, the complexity of the material underlying the opinion, the expert’s impressive credentials, the impenetrable jargon in which the opinion is wrapped and the cross examiner’s inability to expose the opinion’s shortcomings. There is a risk that a jury faced with a well presented opinion may abdicate its fact-finding role on the assumption that a person labelled as an expert knows more about his or her area of practice than members of the jury do.

[61] Like the application of the first step of the analysis when considering whether to admit expert evidence, the application of the second step has also evolved considerably since the mid-1990s. Since then, the trial judge’s gatekeeper function has been considerably enhanced. Appellate courts have emphasized the important role of judges as gatekeepers to screen out evidence whose value does not justify the risk of the prejudice it may create: White Burgess at paras. 16 and 20.

[62] To demonstrate the seriousness of the gatekeeper function, the defendants referred me to Alakoozi Estate v. Hospital for Sick Children where the trial judge refused to admit the plaintiff’s expert even though doing so deprived the plaintiff of any evidence about standard of care and therefore caused the plaintiff to lose the case.

[63] All cases must, however, be read in their full context. As the Court of Appeal noted in Abbey No 1, the gatekeeper analysis is always case-specific. In Alakoozi, the plaintiff proposed to call a hematologist to opine on the standard of care to which ear nose and throat specialists and surgeons should be held. Alakoozi does not appear to have involved issues as basic as Ms. Reinoso asserts are involved here nor does Alakoozi appear to have involved record keeping or communication among members of a multi-disciplinary team. Nevertheless, Alakoozi remains directionally relevant in that it demonstrates that courts must exclude evidence that does not pass the gatekeeper test, even if doing so means the plaintiff’s action will fail.

[64] I turn then to the application of these principles.

[65] The defendants that submit that prejudice caused by Dr. Gill’s evidence about Doctors Soni and Small outweighs its benefits because his evidence:

(i) is duplicative;

(ii) amounts to “piling on”;

(iii) abdicates the gatekeeping function; and

(iv) is unreliable

(i) Duplication

[66] The defendants submit that having Dr. Gill provide evidence on the standard of care expected of non-ophthalmologists would result in needless duplication of evidence at trial. In support of this submission, they point to a number of cases in which courts have rejected expert medical evidence because it duplicated other evidence the party intended to lead. See for example: Suwary (Litigation guardian of) v. Women's College Hospital, 2009 ONSC 553; Kulyk v. Cramp, 2014 ONSC 5354; and Gorman v. Powell.

[67] Those cases are, however, distinguishable. All three involved true duplication in the sense that a party sought to introduce evidence from two experts with the same specialization who would be repeating each other’s evidence. Suwary involved two obstetricians; Kulyk, two neuro-psychiatrists; and Gorman, two orthopedic surgeons.

[68] Ms. Reinoso does not propose to call two physicians with the same specialization. She proposes to call one ophthalmologist, one infectious disease specialist and one emergency room physician. That does not give rise to the same type of duplication that arose in Suwary, Kulyk and Gorman.

[69] The simple fact that two experts may be testifying to the same issue does not automatically result in duplication of the sort that warrants exclusion under the gatekeeper function.

[70] Courts have recognized that it may be appropriate for a party to call two experts with the same specialization. In Hayes v. Symington, 2015 ONSC 7362 for example, the court permitted two experts in emergency medicine to testify because one brought an academic perspective while the other brought a practitioner’s perspective.

[71] Case law does not prohibit duplication. It prohibits undue duplication.

[72] Calling two experts with the same specialty to say the same thing from the same perspective is unnecessary and falls afoul of the judge’s gatekeeping function. That, however, is not what Ms. Reinoso intends to do. The experts she intends to call bring different perspectives to the trial. As noted above, Dr. Gill is not testifying about the standard of care of an emergency physician or an infectious disease specialist at large but is testifying about the standard of care expected in record-keeping and communication between members of a multidisciplinary team and about things that every physician must or should know. He is testifying to those issues from the perspective of an ophthalmologist. In other words, he is testifying about what an ophthalmologist in 2007 would have expected an emergency room physician or an infectious disease specialist to record and communicate about a patient when either transferring the patient to an ophthalmologist’s care or seeking advice from an ophthalmologist. That does not unduly duplicate the evidence that the plaintiffs’ emergency care and infectious disease specialists intend to provide but brings a different perspective to the issue.

[73] The lion’s share of Dr. Gill’s reports are devoted to an assessment of the care provided by Dr. Daily, an ophthalmologist. His comments on the care of Dr. Soni and Dr. Small are relatively minor, are unlikely to result in waste of trial time and bring an important, unique perspective to Ms. Reinoso’s theory that the defendants let her fall between the cracks.

(ii) “Piling on”

[74] The defendants “piling on” argument is a refinement of their duplication argument. The defendants submit that allowing Dr. Gill to testify to the standard of care of an emergency room physician and an infectious disease specialist will effectively give the plaintiffs three experts on each of those issues to the defendants’ single expert in each area of specialization. I say three experts because in addition to Dr. Gill testifying about the standard of care of an emergency room physician and infectious disease specialist, the plaintiffs will also call an emergency room specialist and an infectious disease specialist to testify about the standard of care expected of an emergency room physician. Similarly, the defendants submit that the plaintiffs will have three infectious disease specialists because in addition to their infectious disease expert, Dr. Gill and the plaintiffs emergency room expert would also talk about standard of care expected infectious disease specialist.

[75] The defendants submit that this turns expert evidence into a numbers game in which the party with the highest score wins. The defendants submit Ms. Reinoso will have three experts on infectious disease while the defendants will have only one. The concern is exacerbated in a jury trial like this where a jury faced with complex expert evidence may simply defer to the party with the largest number of experts on a particular issue.

[76] A larger number of experts drives home the concern the Ontario Court of Appeal expressed at para. 71 of Abbey No. 1 that expert evidence “has the real potential to swallow whole the fact-finding function of the court, especially in jury cases.” As the Supreme Court of Canada noted in White Burgess at para 18: there is a risk that a contest of experts distracts rather than assists the trier of fact.

[77] These are legitimate concerns to which the trial judge must remain attuned.

[78] The issue of piling on and keeping score is not, however, quite as straightforward as the defendants submit for two reasons.

[79] First, as noted earlier, Dr. Gill is not duplicating the evidence of the plaintiffs’ emergency room or infectious disease experts. He is bringing the perspective of an ophthalmologist to the standard of care expected in record-keeping and communication between members of a multidisciplinary team and to things that every physician must or should know.

[80] Second, the defendants’ concern that Ms. Reinoso would have three infectious disease specialists while the defendants had only one, is not entirely mathematically correct.

[81] The defendants, between them, will in fact have four physicians testifying to what is expected of an infectious disease specialist. The defendants Dr. Soni, Dr. Small and Dr. Sarabia intend to call one infectious disease specialist as an expert. The defendant Dr. Daily proposes to call his own infectious disease specialist as an expert. In addition, the defendants Dr. Small and Dr. Sarabia are infectious disease specialists and are expected to testify. While they will not be testifying as experts, I would expect that their evidence would touch on matters related to the standard of care. By way of example, one could expect them to frame their evidence with a view to whatever they believe the standard of care to have been. As a result, if we are keeping count of what the defendants characterize as “piling on” the defendants will have four people testifying on infectious disease while the plaintiffs will have only three.

[82] By counting up the witnesses on each side, I do not intend to endorse that as an appropriate analysis in the exercise of the gatekeeper function. The test is not one of keeping count but of avoiding undue duplication and undue prejudice.

[83] The gatekeeping function is not a solely arithmetic exercise but demands a consideration of the extent to which the evidence is necessary to a proper adjudication of the issues to which the evidence is directed: Abbey No. 1 at para. 93. In addition, it demands balancing the benefits of admitting the evidence against the prejudice of doing so: Abbey No. 1 at para. 76.

[84] Why then is the evidence of Dr. Gill about Dr. Soni and Dr. Small necessary? As noted earlier, one of the principal theories of Ms. Reinoso’s claim is that her medical care was allowed to fall between the cracks that developed between the different members of the multidisciplinary team that was supposed to tend to her. This requires Ms. Reinoso to establish what members of the team were to record and to communicate to each other. That in turn means experts must be permitted to testify not only about their own area of specialization but also about the record-keeping and communication that is required from different members of a multidisciplinary team. The standard of care expected of a member of a multidisciplinary team is not necessarily restricted to matters unique to that physician’s area of specialization but may also extend to the manner in which the physician interacts with other members of the team.

[85] To confine each expert’s evidence strictly to his or her own area of specialization prevents a proper examination of an allegation core to Ms. Reinoso’s claim: namely that she was allowed to fall between the cracks that emerged between the different specialists tending to her. As noted earlier, to confine the evidence of experts as the defendants would have me do risks replicating at trial the very problem Ms. Reinoso alleges occurred during her treatment.

[86] The defendants conceded during argument that Dr. Gill could testify to his experience and expectations about record-keeping by and communications with emergency room specialists and infectious disease specialists. The defendants did not explain how that differs from providing evidence about the standard of care. One way of establishing a standard of care is to have experienced witnesses testify about their experiences, expectations and the bases for those expectations. Whether that evidence is ever found to amount to the standard of care is up to the trier of fact. At this stage, however, the jury should not be precluded from considering Dr. Gill’s evidence as relevant to a potential standard of care if. Whether it amounts to a standard of care is for the jury to decide after hearing all of the evidence.

[87] As just explained, the benefit of admitting the impugned evidence it is to allow Ms. Reinoso to develop more fully her allegation that the defendants let her fall between the cracks. What then is the prejudice of admitting that evidence?

[88] The prejudice advanced by the defendants is that of duplication or “piling on”. As I have found, however, there is no duplication because when Dr. Gill testifies about Dr. Soni and Dr. Small, he is doing so from the perspective of an ophthalmologist on a multidisciplinary team. He is talking about what an ophthalmologist should expect of an emergency room physician and infectious disease specialist.

[89] I must also balance the risk of “piling on” by considering that the defendants do in fact have more than one witness with a specialization in infectious diseases.

[90] The defendants responded to Dr. Gill’s report and the reports of the plaintiffs’ other experts. If they wanted to respond to address the issue of what a member of a multidisciplinary team should expect by way of record-keeping and communication from other members of the team, they had ample opportunity to do so.

[91] While I agree that a larger number of experts creates a greater risk of confusion, that risk can be controlled by confining the ability of any one expert to testify about the standard of care applicable to areas outside of his or her area of specialization to issues involving medical record-keeping when dealing with multidisciplinary issues, communication between members of multidisciplinary teams and basic skills that form part of the standard of care of all physicians regardless of their area of specialization.

[92] When I balance the risk of confusion arising out of the number of experts against the risk of depriving the jury of the perspective of different specializations on the standard of care of record-keeping and communication, I find that the latter poses a far greater risk to the jury’s ability to do justice in this case than does the former.

(iii) Abdicating the Gatekeeping Function

[93] The defendants submit that, if I allow Dr. Gill to testify about the standard of care applicable to an emergency room physician or an infectious disease specialist because his evidence will be about “basic” issues of medical care, it would allow any physician to testify about any medical issue on the grounds that it is “basic”. That, the defendants submit, would amount to abdicating my gatekeeping function.

[94] I cannot be driven by that argument. Any analysis of the gatekeeping function must be case-specific: Abbey No. 1 at para. 79. It would not be in the interests of justice to deprive Ms. Reinoso of the ability to make out her case as she wants to because of a fear that others in future trials might try to miss-use principles applicable to the admission of expert evidence. Whether the defendants’ fear is one that materializes in the future will depend on the circumstances of those future cases and will depend on the exercise of the gatekeeper function by judges hearing those cases.

(iv) Reliability

[95] Since the mid-1990s, case law has emphasized the importance of the reliability of the evidence to its admissibility: R v. Abbey, 2017 ONCA 640 (Abbey No. 2) at para. 54.

[96] The defendant Doctors Soni and Small mount several attacks on the reliability of Dr. Gill’s evidence.

[97] First, they ask how will it help the jury to have Dr. Gill testify about something outside of his area of expertise. Dr. Gill is, however, testifying to something within his expertise namely the nature of record-keeping and communication among members of a multidisciplinary team and issues like the identification of sepsis which he asserts is something every physician should know about.

[98] Second they ask whether we really need to hear from a “physician in training” when “properly qualified” experts will be testifying about those issues. The defendants submit that the plaintiffs’ right to tender this evidence must be balanced against the prejudice to Doctors Soni and Small.

[99] The fact that Dr. Gill was 2 ½ years in into a 5- year residency as opposed to having decades of experience, is easy to communicate to a jury during cross-examination and not one about which a jury is likely to be confused.

[100] While I agree that the overwhelming trend in the case law since the mid-1990s has been to require judges to take their role as gatekeeper seriously, it has not displaced a jury’s duty to decide what weight to give to conflicting evidence.

[101] Given the ease with which Dr. Gill’s more limited experience can be brought to the jury’s attention, I am not willing to deprive Ms. Reinoso of the ability to advance the theory of her case as she wants to. Requiring the defendants to demonstrate Dr. Gill’s relative inexperience to a jury causes far less prejudice, if any, to the defendants than the prejudice caused to Ms. Reinoso if she is deprived of developing her theory about multidisciplinary care in the manner she wants.

[102] The analysis may be different if the issue on which the expert must be cross-examined involves complex scientific evidence with respect to which the cross examiner is at a disadvantage and with respect to which the jury is likely to be confused. How much experience someone has does not fall into that category of complexity.

Risk of Juror Confusion

[103] As noted earlier, in Abbey No. 1 the Court of Appeal pointed to a number of other factors to which the trial judge should be alive when exercising the gatekeeper function. These include confusion, the complexity of the material, impenetrable jargon and a cross examiner’s inability to expose shortcomings in the expert’s evidence: Abbey No. 1 at para. 90. Although the defendants did not raise these factors explicitly, they are implicit in many of their submissions and ought to be considered.

[104] While noting these factors, the Court of Appeal also indicated that “the trial judge as gatekeeper must go beyond truisms about the risks inherent in expert evidence and come to grips with those risks as they apply to the circumstance of the individual case”: Abbey No. 1 at para. 92.

[105] The nature of the evidence that Dr. Gill proposes to give about the standard of care of physicians outside of his area of specialization does not appear to be such that it would cause confusion among jurors.

[106] Based on his expert reports, the gist of Dr. Gill’s evidence in this regard turns on the obligation of physicians to record certain information in medical records, to communicate that information to other team members, to communicate the degree of urgency and to be able to detect sepsis. Those issues do not appear unduly complicated from the reports of Dr. Gill. They relate to matters like tracking blood pressure, body temperature, pulse, oxygen consumption and the ability to walk without assistance. Ms. Reinoso’s theory is that the presence of an infection plus two or more abnormal vital signs should alert a physician to a diagnosis of sepsis.

[107] These concepts are not particularly complex, do not involve impenetrable jargon and are relatively easy subjects on which to cross-examine. Jurors are likely to be familiar with concepts like blood pressure, body temperature pulse and the ability to walk without assistance. Following changes in those vital signs and comparing them to a benchmark of a normal reading is well within the competence of the ordinary juror. While oxygen consumption may not be within the knowledge of the typical juror, it too appears to be a numerical rating much like body temperature or pulse and does not appear to be complex to follow.

[108] As a result, the contested evidence from Dr. Gill does not give rise to concerns of juror confusion.

[109] As a result of the foregoing I decline to exercise my discretion to exclude Dr. Gill’s evidence about Doctors Soni and Small under the gatekeeper function. In my view, the benefit of admitting that evidence to allow Ms. Reinoso to present her theory of the case far exceeds any prejudice to the defendants. To deprive Ms. Reinoso of the ability of introducing this evidence would, in my view, impair the jury’s ability to do justice in the case because it deprives them of evidence that is important to understand Ms. Reinoso’s claim.

Conclusion

[110] Dr. Gill will be admitted as an expert on:

(a) The standard of care expected of an ophthalmologist,

(b) The diagnosis and treatment of orbital cellulitis; and

(c) The standard of care of physicians more generally when dealing with orbital cellulitis.

[111] The admission of Dr. Gill as an expert on these issues is consistent with the initial guidance I gave as a result of the pre-trial motions I heard. The issues on which he will be testifying with respect to Doctors Soni and Small are ones with respect to which he demonstrated experience during his voir dire on qualifications. By December 2007 he had dealt with many cases of orbital cellulitis, had rotated between numerous hospitals, had been a member of numerous multidisciplinary teams treating orbital cellulitis, had experience with standards of record-keeping and communication among members of multidisciplinary medical teams and had sufficient experience to speak to certain core matters of which all physicians should be aware. He is qualified to provide evidence on those issues.

[112] In an effort to allow the examination and cross-examination of Dr. Gill and other experts to proceed more smoothly I am also taking the liberty to provide further guidance about the matters to which Dr. Gill will and will not be allowed to testify.

[113] He will be allowed to testify about: the indicia of sepsis, the need to diagnose sepsis and the need for speed in diagnosing and beginning treatment of sepsis, the standard of care expected in medical record keeping and communications between members of a multidisciplinary medical team and about things that every physician must or should know.

[114] Dr. Gill will not be permitted to testify about the likely outcome of patients once they are septic.

Koehnen J.

Date: March 25, 2019

Footnotes:

[1] The style of cause and certain documents quoted in these reasons will refer to Lorena Cheesman. This was Ms. Reinoso’s married name. She has since divorced and return to her birth name Reinoso.

[2] More properly put, the defendants Doctors Soni, Sarabia and Small take the position that Dr. Gill is not qualified. The defendant Dr. Daily, who is an ophthalmologist and is separately represented, takes no position on the point and concedes that Dr. Gill is qualified to testify about the standard of care expected of ophthalmologists. For ease of reference I will simply refer to the position of the defendants in this regard going forward rather than repeating the distinction between Dr. Daily and the remaining physicians.