ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-029 (Walkerton)
DATE: 20130315
BETWEEN:
DANIELLE EDITH BOYD, ELAINE LUCIE FRETZ, RICHARD JAMES BOYD, and KAIDEN RICHARD BOYD by his Litigation Guardian, Elaine Lucie Fretz
André Michael and Jill McCartney, for the Plaintiffs
Plaintiffs
- and -
DR. RICHARD BRUCE EDINGTON and HANOVER AND DISTRICT HOSPITAL
Carolyn Brandow and Andrea Plumb, for the Defendants
Defendants
HEARD: March 11, 12, 2013
RULING ONE – NUMBER OF EXPERT WITNESSES
Sproat J.
Introduction
[1] On the first day of trial the defence brought a motion seeking leave under s.12 of the Ontario Evidence Act to call more than three expert witnesses and for leave to admit the evidence of two of those experts, Dr. Antoniades and Dr. Teal, notwithstanding late delivery of their expert reports. Mr. Michael opposed both aspects of the motion.
[2] When the motion was argued the parties indicated that they were discussing possible agreement on the quantum of damages. As such, it was not necessary to address at that time leave to call additional non-medical experts. I took from what counsel said this might not be contentious as both sides have additional experts on damages.
[3] That evening I emailed counsel asking for further submissions with respect to Rule 53.08 which essentially provides that expert evidence shall be admitted despite late service unless to do so would cause prejudice or unduly delay the trial.
[4] When the trial resumed the next morning Mr. Michael took the position that he would withdraw his objection to the late delivery of the expert reports as long as the trial was adjourned to permit his experts an opportunity to review the evidence of Dr. Antoniades and Dr. Teal. Ms Brandow agreed there should be an adjournment although suggested a tighter timetable than proposed by Mr. Michael. I indicated that since it was the defence experts, and in particular Dr. Teal’s report delivered on the last business day before the trial commenced, that necessitated the adjournment I was not prepared to put plaintiffs’ counsel or experts under time constraints they were uncomfortable with.
[5] A revised trial schedule was worked out such that the defence experts would testify in September-October, 2013. The defence motion seeking leave under Rule 53.08 need not be addressed further. As such these reasons only address the defence request to call more than three expert witnesses.
Overview
[6] To provide some context, it is common ground that on December 27, 2008 the plaintiff suffered a stroke which ultimately resulted in quadriplegia. Dr. Edington is a family physician and was the emergency room physician who attended the plaintiff in the Hanover Hospital on the evening of December 27 and into the morning of December 28, 2008 before she was transferred to the London Health Sciences Centre.
[7] In brief, the plaintiff alleges that Dr. Edington was negligent in not immediately recognizing the symptoms of stroke and arranging for her transfer to London and in administering a drug to reduce her blood pressure which further reduced blood flow to the affected area. The plaintiff also alleges a causal relationship between the negligence and the quadriplegia.
[8] In submissions it was common ground that there were two subjects of expert medical evidence, being the standard of care required and causation.
The Medical Experts
[9] The plaintiff intends to call three medical experts. Dr. DePetrillo to testify as to the standard of care and two neurologists, Dr. Young and Dr. Sharma, on causation.
[10] The defence seeks to call:
a) One family-emergency physician, Dr. Antoniades on the standard of care.
b) Dr. Teal, who is a neurologist, with expertise as an emergency room physician, on the standard of care and causation.
c) Two neurologists, Dr. Spence and Dr. Silver, on causation.
[11] For the defence Dr. Spence’s initial report was served January 19, 2012. He has been a medical doctor since l970 and is a professor of neurology and director of a stroke research institute. Dr. Silver’s initial report was served October 1, 2012. He has been a neurologist for 30 years and is a professor of medicine at the University of Toronto.
[12] Mr. Michael only learned that a further neurology report was coming approximately two weeks prior to trial. On the last business day prior to the commencement of trial the defence served the report of Dr. Teal.
Analysis
[13] The defendants cite Burgess (Litigation Guardian of) v. Wu, [2005] O.J. No. 929 (Sup. Ct.) at paragraph 33 as providing a helpful, non-exhaustive list of factors to be considered. In my opinion these factors generally weigh in favour of declining to grant leave to the defence to call more than three experts. I will now address these factors.
a) The plaintiff objects to leave being granted.
b) There are only two subjects for expert evidence being standard of care and causation. In my opinion three experts are sufficient to address those two subjects. I note that at page two of Dr. Teal’s report under the heading “Instructions” he states he was retained to provide an “expert neurological opinion” on causation. Thus while his report does touch on the standard of care for an emergency room physician, this was not even part of his retainer. I, therefore, infer the defence was prepared to proceed to trial on the basis of one standard of care report. In practical terms, the issue is really whether a third neurologist is required.
Drs. Spence, Silver and Teal all have long careers and extensive qualifications in neurology. The defence factum describes Dr. Spence’s and Dr. Teal’s areas of expertise in similar terms. In argument no issues or aspects of the three reports were identified that would suggest that, absent all three doctors testifying, a relevant area could not be thoroughly and properly addressed. Put differently, there was no suggestion that if only two of the three testified they would have to opine on areas in which they did not have great expertise and experience.
c) The plaintiff proposes two expert opinions on causation and one on standard of care. If Dr. Teal is called and gives an opinion on both causation and standard of care the defence will have three causation opinions and two standard of care opinions.
d) The next factor concerns how many experts are customarily called in similar cases. The defence cited a number of medical malpractice cases, having some comparable features to this case, in which the parties in the aggregate called 7-9 medical experts. In those cases, however, there was no objection taken to the number of experts. Two of those cases apparently required radiologists to be called by both sides which our case does not. It is certainly not unusual to have more than three medical experts for each side in a medical malpractice case, however, the issue is whether that is required in this case.
e) If leave is granted then, in my opinion, the plaintiff will be disadvantaged by having fewer expert opinions on standard of care and causation than the defence.
f) In my view it is not necessary to call more than three experts to address the matters in issue. For the reasons above, in my opinion it is not necessary to call three defence experts to give evidence on causation.
g) In my opinion there would be considerable duplication in having three defence experts on causation.
h) The time and cost to have an additional expert is not disproportionate considering only the amount of the claim. It is common ground that the quantum of damages is extremely high. In my view, however, it is also relevant to consider this factor from the position of the plaintiffs and their counsel. A huge financial investment is necessary for a medical malpractice case to get to trial. It is unduly onerous to put the plaintiff in the position of having to retain a third neurologist, or risk being disadvantaged, unless three neurologists are really required.
[14] I agree with the comments of Ferguson J. in Gorman v. Powell 2006 CarswellOnt. 6536 (Sup. Ct.) at para. 14, that unnecessary duplication of expert witnesses:
… is expensive not just in terms of trial time – for all concerned including any jury – but also encourages the incurring of expense before trial by way of paying multiple experts. Longer trials caused by calling unnecessary experts use up scarce resources […]
Conclusion
[15] As such I decline to grant leave to the defence to call more than three medical experts.
[16] As suggested by counsel, the issue of costs thrown away by virtue of the adjournment will be addressed at a later date.
Sproat J.
Released: March 15, 2013
COURT FILE NO.: 12-029 (Walkerton)
DATE: 20130315
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DANIELLE EDITH BOYD, ELAINE LUCIE FRETZ, RICHARD JAMES BOYD, and KAIDEN RICHARD BOYD by his Litigation Guardian, Elaine Lucie Fretz
Plaintiffs
- and -
DR. RICHARD BRUCE EDINGTON and HANOVER AND DISTRICT HOSPITAL
Defendants
RULING ONE – NUMBER OF EXPERT WITNESSES
Sproat J.
Released: March 15, 2013