CITATION: Lee v. Lee, 2015 ONSC 7509

NEWMARKET COURT FILE NO.: CV-10-100637-00

DATE: 20151202

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Nica Lee, Litigation Guardian of Brandon Lee, the said Nica Lee, Thongdam Lee, Lilamok Lee, Licouchleng Lang Lee, Peng Lee and Gee Lee

Plaintiffs

– and –

Southlake Regional Health Centre, Raymond Lee, Timothy Nicholas and Jane Nurses

Defendants

Ronald Bohm, for the Plaintiffs

Surit Batner and Michael O’Brien, for the Defendant, Dr. Raymond Lee

HEARD: May 19, 25 through 29, 2015 and June 1 through 5, and 8, 2015

REASONS FOR JUDGMENT

GILMORE j.:

Overview

[1] This is a medical malpractice action brought by the wife, son, parents and sisters of the deceased Meng Lee (“Meng”). The issue of damages has been settled at the amount of $835,000, inclusive of prejudgment interest until June 2015, net of any finding of contributory negligence. The trial related solely to the issues of standard of care and causation with respect to the defendant, Dr. Raymond Lee (“Dr. Lee”).

[2] The action relates to Dr. Lee’s care and treatment of Meng in the emergency department of Southlake Regional Hospital during the late afternoon and evening of August 25, 2008, and the early morning of August 26, 2008.

[3] This is a tragic case in which Meng, a healthy 22-year-old man, who was recently married and the father of a young son, died of an aortic dissection six days after being seen by Dr. Lee in the emergency department of Southlake.

[4] The plaintiffs claim that Meng died because Dr. Lee did not properly review Meng’s hospital chart, failed to properly re-assess Meng after his chest X-ray, took a substandard history of his presenting problems and insisted on a differential diagnosis that was both restrictive and failed to consider any cardiovascular diseases. As such, Dr. Lee failed to meet the standard of care expected of an emergency medicine specialist practicing in a Regional Health Centre.

[5] Dr. Lee submits that his treatment and care of Meng did not fall below the standard of care. Physicians cannot be held to a standard that requires that they must always anticipate the worst case but most unlikely scenario. In this case, despite appropriate care, there was an unfortunate outcome. Bad outcomes in such cases do not always equate to negligence. In this case, Dr. Lee appropriately diagnosed a soft tissue injury by taking a broad history and a chest X-ray. The fact that Dr. Lee did not diagnose an aortic dissection is not surprising, given the results of the examinations and X-ray and that the chances of a 22-year-old healthy male dying of an aortic dissection are miniscule if not non-existent.

Background Facts

[6] On August 25, 2008, Meng was a healthy 22-year-old man, married to his wife, Nica. They had a son, Brandon, aged 16 months. Meng had no previous medical history. The plaintiffs, Thongdam and Lilamok Lee, are Meng’s parents. The plaintiffs, Peng, Gee and Lang Lee, are Meng’s sisters.

[7] On August 25, 2008, Meng told his wife he hurt himself while working out. In the course of bench pressing weights he heard a “pop” followed by pain in his back. Around 5:00 p.m. he drove to the Upper Canada Mall in Newmarket to pick up his wife, his son and his sister-in-law, Dionne Kagayutan. He was in pain and asked his wife to drive him to a walk-in clinic. The clinic was closed, so they drove to the Southlake Emergency Department (“Southlake”). There he told the triage nurse he had severe back pain and upon prompting from his wife, added that he had chest pain. He and his wife waited for 30 minutes in the emergency room but were not seen. As Meng continued to experience a lot of pain, they decided to go to another walk-in clinic. They were still not seen. Meng took 400 mg of Advil around 8:00 p.m., but felt no relief.

[8] Meng and his wife were driven back to Southlake by Meng’s brother-in-law, Aries Kagayutan, and Meng was triaged around 8:40 p.m. The presenting complaint was a rib injury with back and chest pain.

[9] At 9:30 p.m., Meng was seen by a triage nurse for an assessment and examination. The nursing note indicated that Meng stated he had back/chest pain that came on suddenly when he was working out. He felt something “pop.” He also complained of shortness of breath and was unable to take deep breaths due to his pain. His vital signs were normal. The nurse noted Meng’s pain on a scale as 10/10, described as “worst pain ever.” The pain was made worse by deep breathing and better by leaning forward. Meng complained of dizziness but no nausea or vomiting. The ibuprofen he had taken at 8:00 p.m. had no effect.

[10] On the Assessment and Intervention Flowsheet, the neurological, cardiovascular, eyes, ears, nose and throat, gastrointestinal, genitourinary, neurovascular, integumentary, wound/incision/dressing and psychological categories do not show any significant findings. Significant findings were noted in the pain, respiratory and musculoskeletal categories. Meng was given 975 mg of Tylenol at 9:40 p.m.

[11] Meng was assessed again by an emergency department nurse at 11:15 p.m. By that point, he was lying on the floor in a fetal position still complaining that his pain was 10/10. He told the nurse that the pain medication “just made me sleepy.” His blood pressure was noted as 151/44 (a low diastolic pressure) and he was moved to a stretcher.

[12] According to the assessment note, Meng was seen by Dr. Lee at 12:10 a.m. However, evidence given during the trial made it clear that this time could not have been accurate, given the recorded time that Meng went for his X-ray (11:55 p.m.). It was no doubt sometime between 11:15 p.m. and 11:45 p.m. Meng told Dr. Lee that he had mid/low back pain from working out that evening. Dr. Lee did a review of Meng’s systems, including his respiratory, cardiovascular and abdominal systems. They were all normal. On palpation, Dr. Lee noted tenderness in Meng’s right posterior chest wall. Dr. Lee ordered a chest X-ray due to concerns about a spontaneous pneumothorax, given Meng’s age, symptoms and demographic.

[13] Meng walked to the X-ray room with assistance from his wife. Dr. Lee reviewed the X-ray results with Meng, which were normal. Meng was discharged by Dr. Lee at 1:00 a.m. on August 26, 2008, with instructions for ice, rest and analgesia. Dr. Lee prescribed 30 Tylenol 3s and gave discharge instructions for Meng to see his family doctor if needed.

[14] Meng went home and slept through the night. The next morning his wife filled the Tylenol 3 prescription for him. Meng stayed home from work and rested.

[15] On August 27, 2008, Meng saw his family physician, Dr. Timothy Nicholas, as Dr. Lee recommended. Meng told Dr. Nicholas about the pain in his neck and lower back, which came about while bench pressing on August 25, 2008. Dr. Nicholas’ objective examination noted that Meng looked well. Dr. Nicholas performed a physical examination of Meng, including his head, neck, chest, cardiovascular system and abdomen, and concluded that Meng had pain of a muscular origin in the neck and chest. Blood pressure was 130/80 in both arms. Dr. Nicholas prescribed two weeks of 200 mg of Celebrex twice daily and rest. He was to see Dr. Nicholas again if his condition changed. Dr. Nicholas did not take further steps, such as ordering an X-ray or a return to the hospital.

[16] On August 30, 2008, Nica Lee called Telehealth because her husband was coughing up blood streaked mucus. Meng spoke to the Telehealth nurse. The nurse’s notes indicated that the reason for the call was a “productive cough with white mucous and streaks of blood, sweats when coughing, pain in throat and lungs when coughing.” The coughing had been present for eight hours. Other symptoms included constipation and 4/10 pain. Celebrex taken 30 minutes earlier gave no relief. The nurse recommended that Meng see a doctor within four hours and to call back if he became worse. Meng did not see a doctor as recommended.

[17] On August 31, 2008, Meng woke at 8:00 a.m. coughing. His wife called 911. Meng was brought to Southlake Regional Hospital. His vital signs were absent on arrival and despite attempts at resuscitation, Meng died at 9:33 a.m. The cause of death in the Report of Post-Mortem Examination was noted as acute aortic dissection.

[18] A Coroner’s Investigation Statement dated August 31, 2008, was provided as part of the Joint Documents Brief. The statement referred to an autopsy, which confirmed acute aortic dissection as the cause of death. The report also referred to Meng as tall, thin and “suspicious for marfanoid features.”

Evidence - The Emergency Room Visit

[19] Nica Lee (“Nica”), Meng’s wife, testified that on August 28, 2008, she called her husband around 5:30 p.m. to come and pick her up from the mall. She had their son Brandon with her and her sister, Dionne. Usually her husband would get out of the car and help her put Brandon into his car seat but on that afternoon he was in too much pain.

[20] They first drove to a walk-in clinic, which was closed, so they drove to the Southlake Emergency Department. She recalled when they checked in that her husband complained only of back pain and she had to remind him about the chest pain he had complained of earlier.

[21] They waited at Southlake for half an hour but were not called. Meng was in so much pain they decided to try another walk-in clinic. Meng was still not seen. Nica bought him some Advil at the Shoppers Drug Mart and he took two pills. She could not recall what strength they were.

[22] They returned to the Southlake Emergency Department around 8:30 p.m. Nica testified that Meng looked terrible and was in a lot of pain. Nica called her brother-in-law who picked up her sister and Brandon. They waited about an hour and a half before Meng was assessed. He was in so much pain that he was bending over and not talking much. A nurse gave him some Tylenol 3. Nica recalls that at one point later on, Meng was lying on the floor because he was in so much pain.

[23] The doctor came to see them around midnight. Nica does not recall the conversation between Meng and the doctor but she estimated it lasted for about seven minutes. The doctor then sent Meng for an X-ray. She held his arm for support while they walked to the X-ray room. After an hour, the doctor came back and told them the X-ray was clear and that Meng had just pulled a muscle. He was given a prescription for Tylenol 3, a doctor’s note for work and told to stay home and rest. Nica’s brother-in-law picked them up when Meng was discharged. They went home and Meng slept through the night.

[24] The next day, Meng stayed home from work and rested. He told his wife that the Tylenol relieved his pain for about half an hour and then it would come back. They decided to see Meng’s family doctor, Dr. Nicholas, because the pain had not subsided.

[25] Nica attended the appointment with Dr. Nicholas with Meng. Meng told him about the emergency attendance and Dr. Lee’s diagnosis. Dr. Nicholas prescribed Celebrex and rest. Nica returned to work the next day but when she came home Meng was the same.

[26] Nica was very worried about Meng and wanted him to see another doctor. Meng said they had seen two doctors and nothing had changed so he wanted to wait. By Saturday August 30, Nica was so worried about Meng that she called Telehealth. She did not hear the conversation between the nurse and Meng but bought him cough medicine and laxatives at his request. They decided they would see another doctor on August 31, but Meng died before they were able to follow through.

[27] Dr. Raymond Lee has a Bachelor of Science from the University of Toronto and a Masters and Ph.D. in anatomy and cell biology from Queen’s University. He completed his medical degree at Saba University in the Caribbean Netherlands and did a post-graduate residency in family and emergency medicine at Dalhousie University. In 2005, he was offered a full time position at Southlake Hospital as an attending emergency physician. He has worked there ever since. Dr. Lee also teaches undergraduate and post-graduate medical students.

[28] Dr. Lee had no independent recollection of treating Meng on August 25 and 26, 2008. He does remember the tragic events of August 31, 2008. It should be noted that Meng’s care on August 31, 2008 is not in issue in this case.

[29] As Dr. Lee had no independent recollection of the events on August 25 and 26, he testified as to his general practice with respect to emergency patients. His evidence was that in 2008, he tried to complete his charting and paperwork as contemporaneously as possible. Sometimes, however, time constraints dictated that this was not done until after his shift.

[30] As an experienced emergency physician, and given his familiarity with the hospital forms, Dr. Lee would take a couple of minutes to review the chart on the way to seeing a patient. He does this with every patient he sees. He called it his “standard practice.” Because Dr. Lee had no independent recollection of this patient encounter, he is not certain whether he reviewed the chart thoroughly or whether he may have glossed over or even missed certain parts of it, but his standard practice was to review the entire chart.

[31] Meng had been assigned to the “fast track” when triaged. Dr. Lee explained that this is somewhat of a misnomer since “fast track” is reserved for patients who present with sprained ankles, cut fingers and so on.

[32] The first thing Dr. Lee does when he sees a patient is observe them. His evidence was that a lot of information can be gained just by observing a patient’s demeanour, how they are holding themselves and any obvious physical symptoms (such as sweating or hyperventilating). He then asks the patient why they have come to the emergency department and begins the important process of history taking from the patient.

[33] In this case, he was presented with a 22-year-old male with mid-to-low back pain from working out. While he was aware of the complaint from the triage form, Dr. Lee wants his patients to describe their complaints in their own words. Following this, Dr. Lee asks the patient to expand on certain parts of the history. Based on the chart in this case, he noted no loss of consciousness and no prior medical history. Standard questions would also include the patient’s past medication and surgical history. In a patient of this age, Dr. Lee would have also asked about drug use.

[34] In order to rule out a more nefarious cause for the pain, Dr. Lee noted no gastrointestinal or urinary issues, and no problems with limbs such as tingling, numbness or ambulatory issues. Dr. Lee explained that these questions would have been asked in order to rule out a stroke or spinal cord injury.

[35] Dr. Lee then proceeded to do his usual review of symptoms (ROS). He referred to page one of the chart in this case (marked as Exhibit 2, Tab 1). He started at Meng’s head and worked down. According to his usual practice, he would have asked a myriad of questions, including whether there was any loss of vision, weakness in the face, trouble swallowing, shortness of breath, bloody cough, fever, chest pain, heart racing, nausea, vomiting, or change in stool or urine. Each of the many questions was designed to rule in or out problems within a particular bodily system.

[36] Dr. Lee then proceeded with a physical examination of the patient by way of a respiratory exam and observation of the patient from the torso up. The respiratory exam is meant to rule out problems with the lungs and heart. This is followed by an abdominal exam to check for tenderness or masses. Finally, Dr. Lee performed a musculoskeletal and dermatologic exam. As a result of this exam, Dr. Lee noted that Meng had tenderness in the right posterior chest wall or what laypeople would call the upper back. This was a critical finding, according to Dr. Lee, as localized reproducible pain is consistent with musculoskeletal pain. Dr. Lee proceeded to make a very basic drawing of Meng’s back showing where the pain was located. Given the negative findings in his review of all other systems, Dr. Lee came to a provisional diagnosis of a soft tissue injury to the right upper back. He estimated the entire examination took about fifteen minutes.

[37] Dr. Lee was asked about Meng’s blood pressure. His evidence was that the blood pressure of 168/69 on triage would have been unremarkable to him. The blood pressure of 151/44 would also have been unremarkable to him in the context of all other systems being normal. However, Dr. Lee told the court it would have been his practice to re-take the blood pressure given the low diastolic reading. He agreed there was nothing in the chart indicating this was done. Dr. Lee testified that a new blood pressure could have been taken but not recorded. He often asks nurses to do things verbally and receives the results back verbally. He agreed that it was likely important to re-take the blood pressure in this case. Dr. Lee was clear that although the diastolic pressure of 44 is low, it was an isolated reading and was not concerning to him in the context of a healthy 22-year-old male with no previous medical history.

[38] Dr. Lee was asked about Meng’s reported 10/10 pain, described as his “worst ever” pain. Dr. Lee described the constant struggle that physicians have in assessing pain. He warned that the initial pain reporting is a subjective one from the patient, so he and the nurses look for objective inputs such as panting, low systolic blood pressure or a racing heart rate to assist in determining the pain scale for a particular patient. While there was nothing in the chart to indicate that Dr. Lee asked any specific questions about the quality or nature of Meng’s pain, his evidence was that he would have asked many questions with respect to his review of the patient’s systems. The absence of any significant findings on clinical examination may weigh somewhat against the patient’s self-reported pain. In this case, the heart rate was normal with no murmurs or rubs. The positive finding of local reproducible pain led Dr. Lee back to a soft tissue injury.

[39] Dr. Lee was cross-examined about whether the sudden onset of chest pain was an abnormal finding. Dr. Lee’s evidence was that the issue of whether it was “abnormal” or not was completely contextual. He told the court that a stubbed toe is abnormal but not alarming. To him, a sudden onset of chest pain is not necessarily alarming, nor was the reported shortness of breath or difficulty breathing due to pain. Everything had to be considered in the context of Meng’s normal vital signs. Dr. Lee added that had there been something truly alarming, the nurse would have come to him directly about it.

[40] Dr. Lee was asked about the comment in the chart that Meng was found lying on the floor in a fetal position before he was seen by the doctor. Dr. Lee testified that, most unfortunately, he often sees patients lying on the floor at Southlake. This is because there are sometimes insufficient chairs and the stretchers are all taken by patients awaiting transfer. Alternatively, lying on the floor may have given Meng some relief from the pain he was experiencing.

[41] Dr. Lee was aware that Meng had taken 400 mg of ibuprofen at 8:00 p.m. and 975 mg Tylenol at 9:40 p.m. with no relief. He was not surprised at the lack of pain relief given that these are generic medications which often do not have an effect on acute pain unless used in combination with other stronger medications. The fact that Meng complained that the medication made him sleepy at 11:15 p.m. did not surprise Dr. Lee either. It was close to midnight. It was quite likely Meng was simply tired after a full day of work, a workout and waiting in emergency for several hours while in pain.

[42] Dr. Lee was asked about the nurse’s notation at 9:30 p.m. that Meng complained of being dizzy. Dr. Lee indicated that this was a subjective complaint by the patient which he found unremarkable as an isolated finding. He noted that since the nurse did not tick the “dizzy” box on page 4 of the Intervention Flow sheet and since the category of “neurological” was checked as normal, the nurse did not have any further observations or concerns either. Dr. Lee gave a similar response with respect to the notation by the nurse of “shortness of breath” on page two of the chart. Again, this was a subjective complaint by the patient in the face of otherwise normal vital signs. Shortness of breath is often connected to pain and pain is often associated with a musculoskeletal injury.

[43] Dr. Lee testified that he decided to order a chest X-ray because he was dealing with a young healthy male of Asian descent, who had shortness of breath due to pain and had heard a “pop” while working out. He had to rule out the possibility of a spontaneous pneumothorax that was not present on clinical examination. Dr. Lee reported the X-ray was normal, as did the radiologist the following day. Dr. Lee stated that this result was an important part of his differential diagnosis and enabled him to conclude that the diagnosis of musculoskeletal injury was the most likely, as “everything else was off the table.” This included a possible diagnosis of aortic dissection. Dr. Lee was clear that after taking his history and doing his examination of the patient, a soft tissue injury and pneumothorax were the only items left on his differential diagnosis.

[44] Dr. Lee met with Meng for about five to six minutes by way of re-assessment when the X-ray results were available. This allowed him to see the patient again, not only to discuss the X-ray but also to allow him to personally observe the patient in the event that anything had changed. At this point, Dr. Lee gave Meng a treatment plan based on his diagnosis. This included ice, rest, compresses, analgesia (noted as “RICE” on the chart) and follow up. Meng was to see his family physician (noted as “FP” on the chart) and return to the emergency department as needed (noted as “ED p.r.n.” on the chart). Dr. Lee’s expectation with a patient such as this is that he will get better. If he does not, a follow up with the family doctor and the emergency department will be needed.

[45] Dr. Lee gave Meng a prescription for 30 Tylenol 3s. He explained in his evidence that this was intentionally only enough for three or four days, thereby effectively forcing the patient to return to the system if they were not getting better and continued to need pain relief. While Dr. Lee made this assumption, he conceded he did not explain it to Meng. He also gave Meng a note for a couple of days’ leave of absence from work to allow him to rest as per his discharge instructions.

[46] Dr. Lee denied considering myocardial infarction, pulmonary embolism or aortic dissection in this case. Nothing in Meng’s history or the results of his physical examination would have fit. According to Dr. Lee, Meng was a 22-year-old healthy male with no past medical history. He had reproducible pain on palpation and a normal chest X-ray. The systems review was normal. Dr. Lee stood by his diagnosis based on the information he had available at the time.

The Legal Issues

[47] The plaintiffs have the burden of proof, on a balance of probabilities, of showing that Dr. Lee was negligent. The plaintiffs must prove each of the following elements in relation to Dr. Lee:

(a) That Dr. Lee owed Meng a duty of care (this is understood in this case and need not be proven);

(b) That Dr. Lee breached that duty of care;

(c) That Meng suffered loss or injury (in this case Meng’s death is sufficient proof of loss or injury); and,

(d) That Dr. Lee’s conduct caused Meng’s death.

[48] Where liability is established, the court must also determine if Meng was in any way contributorily negligent. In this case, damages have been agreed upon net of any finding of contributory negligence.

The Positions of the Parties

[49] The plaintiffs submit that Dr. Lee breached the standard of care with respect to Meng in three ways.

[50] First, Dr. Lee did not take the time to properly or fully review the available clinical information.

[51] Second, Dr. Lee failed to consider a broad differential diagnosis, which ought to have included potentially life threatening causes for the sudden onset of severe chest and back pain. This would include Acute Coronary Syndrome (ACS) or Myocardial Infarction (MI), Pulmonary Embolism (PE) and Aortic Dissection (AD).

[52] Finally, Dr. Lee failed to observe whether his treatment plan was working before he discharged Meng. He did not have Meng stay for a period of observation despite Meng complaining of the worst pain of his life, which was not alleviated by Advil or Tylenol. He discharged Meng with instructions to return if his condition worsened. The plaintiffs’ submit that Meng was already experiencing the worst pain of his life, so such discharge instructions to return if the pain worsened were meaningless.

[53] The defence submits that Dr. Lee met the standard of care. He took a broad and thorough history of Meng, including a multi-system physical he used for chest pain complaints. Meng’s history and examination were normal. His vital signs were normal. The reproducible pain on palpation on Meng’s back was consistent with a soft tissue injury and Meng’s presentation.

[54] However, Dr. Lee went one step further. Because a pneumothorax (collapsed lung) is sometimes seen in young Asian men with Meng’s symptoms, Dr. Lee ordered a chest X-ray. The X-ray was normal. It was logical for Dr. Lee to diagnose a soft tissue injury given the available information and the X-ray. Considerations of an MI, PE or AD did not fit with the presentation or history. Dr. Lee’s diagnosis was reinforced by Dr. Nicholas’ observations.

[55] The likelihood of a healthy 22-year-old male having an aortic dissection is almost zero. The low diastolic blood pressure in the second reading is a red herring because it was almost certainly an error and, in any event, it would only herald aortic insufficiency. The autopsy revealed that Meng did not have aortic insufficiency.

[56] While Meng’s death is tragic, his history and presentation were entirely consistent with a soft tissue injury; it is not the standard of care of an emergency room physician to diagnose a rare condition, such as an AD, in these circumstances. Dr. Lee met the standard of care despite the tragic outcome. He made a reasonable clinical judgment, prescribed appropriate treatment and gave proper discharge instructions. Dr. Lee cannot be held to a standard where he must anticipate the worst case but most unlikely scenario.

The Relevant Legal Principles

[57] Each physician must meet a certain standard of care when treating a patient. That standard is described as the physician exercising “that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than of one who does not profess to be so qualified by special training and ability.”[^1]

[58] In applying the requisite standard of care to the particular circumstances of this case, a number of important principles must be considered:

(a) A finding of negligence may still be made even where competent experts disagree about a physician’s diagnosis or treatment;[^2]

(b) A higher standard of care is required when dealing with a potentially life threatening condition;[^3]

(c) An error in judgment is a valid defence only if it is made by a physician exercising reasonable care;[^4]

(d) Where clinical judgment is exercised, it must be based on information that is as complete as reasonably available and possible in the circumstances, including tests or consultations that should have been carried out but were not;[^5]

(e) In properly diagnosing a patient, a physician must take a full history, perform proper examinations and testing and consult or refer as necessary. When consultations are requested, the communication between the referring physician and the consultant should be meaningful and informative as to what steps were taken and what steps should be taken next;[^6]

(f) Using the process of differential diagnosis, a physician is required to identify the potential causes of a condition and then, through a systemic comparison and contrast of clinical findings, eliminate the most serious potential causes first.[^7] A process of diagnosis that focuses on the most likely explanation is inconsistent with a proper differential diagnosis.[^8] Focusing on one diagnosis, to the exclusion of all others, without constant reassessment and reconsideration may be negligent.[^9] However, a physician must not be held to a standard of practice in which he or she is always anticipating a worst case (but most unlikely) scenario;

(g) Misadventure is not medical negligence and liability should not be imposed on doctors for everything that happens to go wrong;[^10]

(h) The standard of care should not be assessed with the benefit of hindsight, but in light of the medical knowledge a physician ought to have reasonably possessed at the relevant time;[^11]

(i) The law requires reasonable care, not infallibility. Reasonable physicians make mistakes.[^12] The honest and intelligent exercise of reasonable judgment by a physician, even if wrong, is not negligent.[^13] Further, an error in diagnosing a condition is not determinative of negligence;[^14] and,

(j) Given the normally lengthy time between the treatment at issue and the time of trial, evidence from a physician as to his or her invariable practice should carry great weight with respect to how the physician acted on the day in question.[^15]

The Use of Experts in Medical Negligence Cases

[59] Courts require expert evidence in medical negligence cases. There are two well-recognized principles in this area. First, the ordinary knowledge and experience of a trier of fact does not include the technical knowledge required to make conclusions about causation or a breach of the standard of care.[^16] Second, the trier of fact requires assistance to determine whether a physician is acting in accordance with a recognized and respectable practice of the profession and behaving appropriately in their field.[^17]

[60] Further considerations related to expert evidence in medical malpractice cases include opinions given by specialists in relation to the standard of care of a generalist. Opinions on standard of care given by a specialist may be accepted where the specialist’s experience overlaps with the standard of care of the general practitioner. To put it simply, if a specialist testifies that a non-specialist has met the standard of care in the specialist’s area of expertise, it follows that the defendant physician has met the standard of care of a non-specialist.

[61] However, where a specialist criticizes the standard of care of a generalist, the court must approach this opinion with caution. The courts have warned that such criticisms will “inevitably be coloured and determined by [the expert’s] specialty.”[^18]

[62] Finally, it is trite to say that reasonable professionals may disagree. Where such opinions conflict as to the standard of care, it is up to the court to determine the weight to be given to the evidence.[^19] However, the court cannot become involved in either scientific disputes or controversial questions of assessment relating to a diagnosis or treatment of preference.[^20]

The Experts Called in this Case

[63] Dr. Terrence Yau was called as an expert by the plaintiffs. He was qualified as an expert in cardiac surgery and permitted to testify on cardiovascular disease. He is currently a staff surgeon at Toronto General Hospital and a professor of surgery at the University of Toronto Medical School. He testified that he has taught third and fourth-year medical students about aortic dissection.

[64] Dr. Yau’s opinion was that the care provided by Dr. Lee fell below the standard of care of a similarly qualified physician in Ontario. His opinion was that if the correct diagnosis of aortic dissection had been established during Meng’s visit to the emergency department, emergency surgery would have been available that would have led to a 50 to 80 percent survival rate. Dr. Yau’s view was that while some features of the initial presentation were suggestive of musculoskeletal pathology, measurement of the blood pressure in both arms would have suggested that a differential diagnosis of aortic dissection would have at least been considered.[^21]

[65] Dr. Alan Drummond was called as an expert by the plaintiffs. He was qualified to give evidence about general medicine, emergency medicine and a diagnosis of undifferentiated chest pain. Dr. Drummond is family physician working in a small community hospital. He has been actively involved in emergency medicine education and has taught residents since 1991.

[66] Dr. Drummond opined that Dr. Lee did not meet the required standard of care. Dr. Lee’s differential diagnosis was severely limited and failed to consider the potential for life threatening causes of chest pain. Dr. Lee should have kept Meng for a prolonged period of observation and a repeat evaluation in order to clarify his diagnosis. Doing so would likely have led to a diagnosis of aortic dissection. Surgical intervention would have then led to an entirely different outcome.[^22]

[67] Dr. Keith Greenway was called as an expert by the plaintiffs. He was qualified to give an opinion in general and emergency medicine, and in the treatment of persons with chest and back pain. Dr. Greenway is a family physician at a hospital in Perth, Ontario. He is also a clinical assistant professor in the Department of Family Medicine at Queen’s University.

[68] Dr. Greenway concluded that Dr. Lee had not met the standard of care expected of an Ontario emergency physician with respect to Meng’s treatment on August 25, 2008. Specifically, Dr. Greenway’s report set out that Meng presented with a number of findings associated with aortic dissection, including sudden onset of severe pain after weightlifting, shortness of breath, a widening pulse pressure and a lack of response to analgesics. Dr. Lee should have read the nurses’ triage records and considered a wider differential diagnosis.[^23]

[69] Dr. Eric Horlick was called as an expert by the defendant. He was qualified as an expert in cardiology and to opine on the standard of care and causation in this case. Dr. Horlick works full time at the Toronto General Hospital where he is the director of structural heart service. He is familiar with aortic dissection and has diagnosed it.

[70] Dr. Horlick did not agree that Dr. Lee had fallen below the standard of care. In his report, he stated; “Holding Dr. Lee … responsible for missing a diagnosis of aortic dissection in a 22-year-old male would be inappropriate and send an erroneous message to those practitioners of emergency medicine who routinely evaluate young patients with chest pain in the emergency room.”[^24]

[71] The defendant called Dr. Ronald Bornstein to opine on Dr. Lee’s standard of care with respect to Meng. He was qualified as an expert in emergency medicine and has been a full-time family practitioner since 1977, with a subspecialty in emergency medicine.

[72] Dr. Bornstein opined that Dr. Lee met the standard of care for an emergency room physician in this case. According to Dr. Bornstein, Dr. Lee took a detailed history, did a thorough physical examination and ordered appropriate investigation. Further, he made a reasonable clinical judgment based on his assessment, and prescribed appropriate treatment.[^25]

[73] Finally, Dr. David Carr was called as an expert by the defendant. He was qualified as an expert in emergency medicine and in the diagnosis of aortic dissection. Dr. Carr is an emergency practitioner and an associate professor of emergency medicine at the University of Toronto medical school. He has experience evaluating and examining chest pain in the emergency department on a routine basis.

[74] Dr. Carr opined that Dr. Lee met the standard of care in this case. Dr. Carr testified that a complaint of chest pain is very common in the emergency department. Dr. Carr’s view was that there was no need for Dr. Lee to investigate MI, PE or AD, given the presenting complaint, risk factors, physical examination and history. Dr. Lee’s differential diagnosis addressed the possibility of the pneumothorax, which was ruled out by the X-ray.[^26]

The Coroner’s Investigation and Post-Mortem Examination

[75] The coroner requested that Dr. Nilam Clerk, pathologist, conduct a post-mortem examination on Meng and prepare a report.

[76] Dr. Clerk was called as a fact witness by the plaintiff. In the course of her evidence, she confirmed that she received information from the coroner that Meng was a young man with no previous illness, who developed sudden pain in the back and chest. He went to the emergency department on August 25, 2008. His chest X-ray was normal and he was given Tylenol 3 and told to go to his family doctor if pain persisted. On August 26, 2008, he visited his family doctor for pain relief and on August 30, 2008, he called Telehealth about ongoing pain. On August 31, 2008, he became unresponsive and died at 9:38 a.m.

[77] Her report, dated October 23, 2008, concluded as follows:

Postmortem examination showed a distinct marfanoid body habitus with sclerodactyly. An acute aortic dissection resulted in a massive hemopericardium and cardiac tamponade. Other findings are as described above. The sequence of history events indicates that the initial chest pain episode was the intimal tear and that death resulted a few days later when the adventitial tear resulted in a rupture in the hemopericardium.

[78] Dr. Clerk testified that when a dissection occurs there is a tear in the aorta and blood flows into the pericardial sac. The heart needs space in the pericardial sac in order to beat. If there is blood in the sac and the heart cannot beat then blood will not flow to the brain and death results.

[79] Dr. Clerk indicated that in her forty years as a pathologist she has seen about thirty aortic dissections. They are rare. The aortic dissections she has observed were all seen in older people, with the exception of one or two younger people who suffered from chronic hypertension.

[80] Dr. Clerk agreed that she was unable to determine when the rupture occurred. That is, she could not tell from her examination whether the dissection caused the pain experienced by Meng on August 25, or whether the dissection occurred later. She agreed that normally when a patient suffers from a dissection they die within hours, not days. She further agreed that based on her observations, Meng did not die of any aortic insufficiency.

[81] Dr. Clerk was asked about her description of Meng as having a “distinct marfanoid … habitus”. It was on this basis that the Coroner’s Investigation Statement concluded that Meng died of an Acute Aortic Dissection due to Marfan’s Syndrome.

[82] Dr. Clerk agreed that she used the word “marfanoid” as an adjective only. She did not take measurements or do any other form of testing with respect to Marfan’s Syndrome. She did not diagnose Meng with Marfan’s Syndrome nor is she qualified to do so. She agreed that her reference to “sclerodactyly” was inaccurate, as that term refers to skin tightening which causes fingers to curl. She simply meant to say that Meng had long fingers.

Negligence

[83] The plaintiffs raised a number of areas of concern relating to Dr. Lee’s alleged failure to meet the standard of care. These include:

(a)His assessment of Meng’s “marphanoid” features;

(b) His review of Meng’s chart;

(c)His assessment of Meng’s pain and blood pressure;

(d) Meng’s noted shortness of breath and dizziness;

(e)Dr. Lee’s differential diagnosis;

(f) The association between aortic dissection and weightlifting;

(g) The consultation with Dr. Nicholas; and,

(h) Dr. Lee’s discharge instructions;

[84] I will address each issue in turn below.

A. Marfan’s Syndrome

[85] The Coroner’s Investigative Statement and Dr. Clerk both made reference to Meng having marphanoid features. Marfan’s syndrome dramatically increases the likelihood of AD. The plaintiffs alleged that Dr. Lee’s failure to consider Meng’s marphanoid features in his differential diagnoses caused him to disregard AD as a possible cause of his pain, and this fell below the expected standard of care.

[86] Marfan’s Syndrome is a genetic connective tissue disorder. Individuals who are tall, slim, with long limbs, fingers and toes and who may be pigeon chested have a greater likelihood of developing problems of the heart, aorta, lungs and eyes. People with Marfan’s Syndrome are in a high risk category for aortic dissection.

[87] However, Meng was never diagnosed with Marfan’s Syndrome by Dr. Nicholas or any other physician. Dr. Greenway conceded that he was not a Marfan’s Syndrome expert, but that if there had been a diagnosis of Marfan’s Syndrome, it would be of significance in this case. He went so far as to call it a “game changer.”[^27]

[88] Dr. Lee was also aware of Marfan’s Syndrome and its presenting features, including disproportionately long limbs, a long thin face, eye problems and possibly a crooked spine. Meng did not appear marfanoid to Dr. Lee.[^28]

[89] Dr. Nilam Clerk was called as a witness at trial by the plaintiffs. She is the pathologist who performed the autopsy on Meng. While Dr. Clerk testified that it was obvious in looking at Meng that he had a “marfanoid habitus”, she was careful to say that she took none of the required body measurements to diagnose Marfan’s Syndrome and her observations were not a diagnosis but an observation about Meng’s body in general.[^29]

[90] If Dr. Lee had missed an obvious diagnosis of Marfan’s Syndrome, it would have dramatically affected where aortic dissection was on his differential diagnosis. However, this cannot affect the standard of care in this case, as the plaintiffs’ own experts did not criticize Dr. Lee for failing to consider Marfan’s Syndrome. The result is that Dr. Lee’s differential diagnosis related to a healthy 22-year-old male who did not have Marfan’s Syndrome, or any other previous medical history.

B. Dr. Lee’s Review of Meng’s Chart

[91] The plaintiff further claims that Dr. Lee did not meet the required standard of care because he did not properly review Meng’s chart on his way to his initial meeting with Meng. This caused him to misperceive Meng’s complaints, and thereby fail to make a proper diagnosis.

[92] Dr. Lee testified that he had no independent recollection of treating Meng on August 25, 2008. That is not surprising, given the number of patients he sees in a shift, a year or in the almost seven years between August 25, 2008 and the date of this trial.

[93] It is clear and accepted that physicians testifying in such circumstances are entitled to testify as to what their ordinary or invariable practice is.[^30]

[94] Dr. Lee’s evidence was that in 2008, it was his invariable practice to read a patient’s chart while on the way to see the patient. This would take him about two minutes because over the years he has become very proficient in reviewing patient charts. He reviews the chart with the goal of trying to obtain clues as to the root cause of why the patient is there.

[95] Dr. Lee conceded in cross-examination that he often does not have time to read all patients’ charts. Presumably this is due to the exigencies of working in a busy emergency department. The plaintiffs submit that Dr. Lee was unaware of key aspects of Meng’s original presentation because he “often” fails to read a patient’s entire chart.

[96] Physicians must be given some latitude in their recollections. They cannot reasonably be expected to recall every interaction with every patient.

[97] As Dr. Lee had no independent recollection of the events of August 25, 2008, he could not say which parts of the chart he did or did not read. As his invariable practice was to review a chart in order to obtain clues as why the patient was there, it is logical to assume he reviewed at least the salient parts, even if he did not read the entire chart.

[98] Evidence of a physician’s invariable practice must be given significant weight.[^31] Further, based on the available evidence, if Dr. Lee did not read certain parts of Meng’s chart, there is no way to tell which parts they were and therefore no reasonable way to link that with the issue of standard of care.

[99] Finally, the evidence on this point must be examined carefully. It was suggested to Dr. Lee that he did not have time to read all patients’ charts and he conceded that was often the case. Yet, his invariable general practice was to read the complete patient chart on the way to seeing a patient. On this point, I find the plaintiffs are parsing words. I do not accept that Dr. Lee simply did not read certain patient charts at all. Looking at the evidence as a whole, I find that Dr. Lee’s evidence on his invariable general practice should be given significant weight. It would not be surprising that on a busy shift Dr. Lee would not be able to read all parts of each patient’s chart. I believe he was fair about that. However, to say that Dr. Lee did not read certain patient charts at all is both inconsistent with his general practice and his evidence as a whole.

[100] As well, I find that Dr. Lee was a credible witness. He made reasonable concessions. For example, he did not disagree that he could not be certain that there were parts of Meng’s chart that he did not read. He also agreed that the blood pressure of 151/44 was potentially concerning and required follow up, where the chart did not show that such follow up was done. Overall, I found Dr. Lee to be an emergency physician who clearly cared about his patients and did the best he could in exigent emergency room circumstances.

[101] In conclusion, I find that Dr. Lee read Meng’s chart in accordance with his invariable general practice and that he did not fall below the standard of care in doing so. That is, he took about two minutes to review it on the way to seeing Meng. The fact that he may have missed part of the chart (which cannot be stated with certainty) does not mean he fell below the standard of care. The standard of care in relation to this issue relates to Dr. Lee following his invariable general practice, which I find that he did.

C. Meng’s Pain

[102] The plaintiffs submitted that Dr. Lee failed to pay adequate attention to Meng’s severe and unrelenting pain. The plaintiffs contend that Dr. Lee was not aware that Meng had a sudden onset of chest pain, that he described the pain as the worst in his life and that he rated his pain as 10/10. The plaintiffs point out that there were four references to pain in Meng’s chart as follows;

(a) Page 1, 20:40 pain 10/10;

(b) Page 4, 21:30 pain ten “worst pain ever”;

(c) Page 4, 21:30 pain scale 10/10; and

(d) Page 6, 23:15 pain, rated 10/10.

[103] The plaintiffs argue that a sudden onset of chest pain is an obvious, potentially life threatening, abnormal symptom that Dr. Lee was apparently unaware of when he met with Meng.

[104] The defendant submits as follows: Dr. Greenway did not disagree that there was no indication of any nurse increasing acuity as a result of Meng’s subjective pain reports; that pain was a common complaint in the emergency room; and the chart did not indicate that any nurse sought permission to obtain stronger pain medication for Meng.[^32]

[105] Dr. Drummond agreed that the pain medication that Meng received was at the lower end of the scale and that the Tylenol 3 received by Meng was at the very low end of the painkiller spectrum.[^33]

[106] It is also of note that Meng drove himself to the hospital and another clinic and then slept through the night when he got home from the hospital. He also walked to the X-ray room (somewhat supported by his wife) without needing a wheelchair or stretcher.

[107] The plaintiffs submit that there is nothing in Dr. Lee’s charting that indicates he asked Meng about the recorded “sudden onset of chest pain” and that it cannot be inferred that he did so simply because he discounted any significant cardiovascular disease during his overall assessment of Meng. The plaintiffs submit that Dr. Lee should have made a specific enquiry about this pain and noted Meng’s response, whether positive or negative, as this is proper practice.

[108] On this point, the defence submits that there is expert evidence, even from the plaintiffs’ experts, that the objective factors obtained by Dr. Lee in his examination of Meng allowed him to evaluate Meng’s subjective complaints of pain. This can be inferred.[^34]

[109] The plaintiffs submit that the defence has attempted to trivialize Meng’s pain presentation, especially when he was lying on the floor in the fetal position at 23:15. Nica Lee testified that he did so because he was in so much pain.

[110] The defence argues that the fact Meng was lying on the floor must be taken in context, given the surrounding circumstances, including the facilities at Southlake, the lack of available stretchers and the late hour after a day of work.

[111] I do not find that Dr. Lee fell below the standard of care with respect to his assessment or treatment of Meng’s pain upon initial presentation for the following reasons:

(a) I accept the testimony of Dr. Lee that his history taking would have included questions concerning the nature, quality and location of the pain, given the presenting complaint;[^35]

(b) It is important to note that Meng presented with differentiated pain. That is, Dr. Lee had identified musculoskeletal pain reproducible on palpation. There was, according to Dr. Lee’s assessment, a logical and explainable reason for Meng’s pain;

(c) Dr. Lee had not been notified by the nurses of any abnormality related to Meng’s pain nor was his acuity level increased. No nurse had come to Dr. Lee requesting a stronger pain medication.[^36] One can reasonably infer, therefore, that this was a factor in Dr. Lee’s assessment of Meng;

(d) Dr. Lee testified that his assessment of a patient begins when he first looks at the patient. In Meng’s case his appearance, presentation and his ability to tolerate examination were among the factors that Dr. Lee considered, in what one can infer was an objective assessment of Meng’s subjective pain complaints;

(e) The fact that the low level of analgesics given did not relieve Meng’s pain was not inconsistent with his complaint. If Meng had been given a strong narcotic pain reliever and was still noting 10/10 pain that would, no doubt, have been more remarkable to Dr. Lee;

(f) There were multiple explanations as to why Meng was lying on the floor in a fetal position. As there were no stretchers available, it may have been as simple as being tired after a day of work and a workout. The fact that Meng was in pain is not contested. Several experts testified that changing positions will often reduce or relieve muscular pain. Finally, Dr. Lee testified that due to overcrowding and long waits, it is not uncommon to see patients sitting or lying on the floor at Southlake;[^37]

(g) A subjective report of 10/10 pain is simply unfiltered information from the recording nurse. As Dr. Carr indicated in his evidence, people often say they have 14/10 pain so they can be seen sooner.[^38] Dr. Carr reiterated that questions about the nature and quality of pain become more important where there is no obvious reason for the pain. In this case, Dr. Lee concluded that the pain related to a musculoskeletal injury;

(h) With respect to the plaintiffs’ complaints about the lack of charting related to the sudden onset of chest pain, I find that Dr. Yau’s evidence suffices as a response when he said as follows; “It is a reasonable inference from Dr. Lee’s note about cardiovascular systems that Dr. Lee was exploring with Meng what brought him to the hospital, what kind of pain he had, where his pain is and how it is impacting him”;[^39]

(i) This court has already found that Dr. Lee reviewed Meng’s chart as per his general practice. That is, he reviewed the chart for two minutes on the way to see Meng. I infer that Dr. Lee therefore saw the notations with respect to pain. Dr. Lee made an assessment of Meng’s pain by way of his further examination of Lee. The tenderness he found on palpation was a critical factor in this assessment.[^40]

D. Meng’s Blood Pressure

[112] At 23:15 Meng’s blood pressure was recorded as 151/44, an abnormal reading which all doctors agree would require some attention. Dr. Lee’s evidence was that this blood pressure reading was “concerning”.[^41] Although there was no indication in the chart that any follow up had been done to address this reading, Dr. Lee’s evidence was that it would have been his practice to repeat the blood pressure. Since there was nothing in the chart to indicate this was the case, Dr. Lee testified that sometimes such things are done and not recorded or there are times he requests a blood pressure reading verbally and the nurse gives him back the result verbally. While Dr. Lee agreed that the diastolic pressure in the reading was low, he was not excessively worried about it as an isolated factor.[^42]

[113] Dr. Bornstein agreed with Dr. Lee on this point. Dr. Bornstein’s evidence was that there was no significance in the widened blood pressure reading and it would not have been alarming to him, given that Meng’s cardiovascular and respiratory examinations were normal. He also factored in Meng’s age and lack of prior medical history in coming to this opinion.[^43]

[114] Dr. Greenway testified that this blood pressure reading was worthy of re-evaulation and that Dr. Lee should have acted on this. When it was suggested to him that another blood pressure reading may have been taken but not written down (as Dr. Lee suggested in his evidence), he agreed that it was possible and that many things happen in patient encounters that are not written down.[^44]

[115] The experts did not disagree that in a patient with chest pain, a widened pulse pressure is concerning as evidence of aortic insufficiency. However, the autopsy report indicated that Meng’s aortic valve was normal.[^45] While one cannot assess Dr. Lee’s actions in hindsight, it is reasonable to infer that the widened pulse pressure was an error because it is now known that Meng did not have aortic insufficiency. Dr. Greenway agreed with this proposition.[^46] Dr. Greenway further agreed that automatic cuff blood pressure readings (as this one was) can often be unreliable and produce errors, and that such errors happen all the time.[^47]

[116] Given all of the above, I agree with the defence that the widened pulse pressure is a “red herring” and that Dr. Lee did not fall below the standard of care in failing to request a further blood pressure reading, or in failing to chart it if he did so.

[117] I should add at this point a reference to the plaintiffs’ position on Dr. Lee’s overall charting. The plaintiffs’ submission was that Dr. Lee’s charting fell below the standard of care and that “if it was not charted, it was not done.” I decline to make such an inference with respect to Dr. Lee. I do not find that bad notes equal bad care. I defer to the case law on a physician’s general practice as referenced above and find that while Dr. Lee’s examination of Meng may not have been fully fleshed out in his notes, that does not mean he did not examine Meng in accordance with his regular practice. Further, while the plaintiffs’ experts criticized Dr. Lee’s note-taking they did not do so in reference to the standard of care. As such, the note-taking concern becomes legally irrelevant.

E. Shortness of Breath and Dizziness Notations in Meng’s Chart

[118] Meng complained of shortness of breath when he attended the Emergency Department at 20:40. The plaintiffs are critical of Dr. Lee’s failure to make any notation regarding shortness of breath because it can be characteristic of aortic dissection. Dr. Lee agreed that shortness of breath can be a sign of aortic dissection, but only in the context of acute congestive heart failure, from which Meng was not suffering.[^48]

[119] Dr. Bornstein was asked why he did not note Meng’s complaint of shortness of breath in any of his reports. His response was that although this may have been an important piece of information, it was not an objective one, only a subjective complaint related to pain experienced by Meng when taking a deep breath.

[120] Dr. Yau agreed that the shortness of breath was related to the pain issue, in terms of Meng’s limited ability to take deep breaths.[^49] Along the same lines, Dr. Greenway agreed that shortness of breath is important but it is also important that the shortness of breath turned into pleuritic pain.[^50]

[121] The plaintiffs were also critical of Dr. Lee’s failure to follow up on Meng’s complaint of dizziness in the nursing note at 21:30. Dr. Lee’s evidence was that it was an isolated finding that was not remarkable to him. If it had been an issue, it would have been fleshed out in his examination of Meng.[^51]

[122] Dr. Horlick’s view of the dizziness notation was that it was a non-specific symptom and not something he would follow up on, on its own. It is a very different complaint than, for example, vertigo.[^52] Dr. Horlick’s view was that dizziness is not a pathology, but more of a behaviour. Overall, he testified, he would give it a very low weight in his evaluation of symptoms.[^53]

[123] Did Dr. Lee fall below the standard of care in failing to follow up on the notations of dizziness and shortness of breath in the nursing notes? In this court’s view, the starting point is the evidence of Dr. Drummond, who was critical of Dr. Lee’s failure to address these issues or note them. He did not accept that Dr. Lee’s review of Meng’s systems was sufficient to satisfy him that Meng was no longer dizzy or short of breath, both of which bore further investigation.[^54]

[124] The answer to this criticism is fairly stated in Dr. Drummond’s further evidence in cross-examination, in which he testified:

The important things to investigate when a patient presents with chest pain, no matter what the basis of their complaint was, is respiratory, cardiovascular, and even abdominal examinations. Dr. Lee did the proper exam for all those systems.[^55]

[125] When this evidence is combined with that of Dr. Bornstein and Dr. Yau that the shortness of breath was related to Meng’s pain issue (pain on taking deep breaths), it is clear that, even on Dr. Drummond’s evidence, the shortness of breath was adequately investigated by Dr. Lee in the context of his pain investigation.

[126] As for the dizziness issue, I am not satisfied on a balance of probabilities that Meng’s dizziness, as noted by the nurse, was any more than a subjective complaint that was an isolated, non-specific finding, which would rank low on an overall assessment of Meng’s systems. Neither Dr. Yau nor Dr. Greenway placed any emphasis on Meng’s report of dizziness to the nurse at 21:30. Further, there was no evidence of any connection between dizziness and aortic dissection. I therefore accept Dr. Lee’s evidence on this point that if dizziness had truly been an issue, it would have been fleshed out in his overall examination of Meng.

[127] Dr. Lee, therefore, did not fall below the standard of care with respect to any specific follow-up on the nursing notations of dizziness or shortness of breath. Such follow up was fairly encompassed in his examination of Meng’s systems.

F. The Differential Diagnosis

[128] The plaintiffs submit that Dr. Lee’s differential diagnosis was unduly restrictive and failed to consider cardiovascular diseases, including aortic dissection. Dr. Lee grasped onto an anchor diagnosis which precluded any proper consideration of aortic dissection. The failure of Dr. Lee to properly diagnose an aortic dissection was the cause of Meng’s death.

[129] The defence submits that Dr. Lee exercised reasonable clinical judgment in his diagnosis and discharge of Meng. The standard of care does not require healthy 22-year-olds, who present with differentiated chest pain and no past medical history, to be kept for observation or worked up for an aortic dissection.

[130] The plaintiffs’ expert, Dr. Yau, testified that in a patient presenting with severe chest, back and rib pain graded at 10/10, a soft tissue injury should not have been the only consideration, especially in a patient with some marfanoid features. Dr. Yau was critical of Dr. Lee having considered only a spontaneous pneumothorax as his alternative diagnosis.[^56]

[131] Dr. Yau felt that a CT scan should have been ordered to rule out aortic dissection. His view was that an X-ray could not be used to rule out aortic dissection. It was important for Dr. Lee, in this situation, to consider a multiplicity of factors including the fact that analgesics did not appear to have any effect on the pain, along with a patient having trouble breathing and writhing on the floor because of the pain. All medical students are taught about aortic dissection and are expected to be able to diagnose it. The diagnosis is not limited to specialists.[^57]

[132] Finally, Dr. Yau criticized Dr. Lee’s failure to make any notes of his differential diagnosis, which would have provided a clear record of what he was thinking and why he proceeded the way he did.[^58]

[133] In cross-examination, however, it is important to note that Dr. Yau made the following important and critical concessions:

(a) Within limits, reasonable and competent doctors can reasonably disagree about matters of diagnosis and treatment;[^59]

(b) The studies cited in Dr. Yau’s report about young people having aortic dissections are patients with characteristics that are exceptionally different from Meng;[^60]

(c) Dr. Yau is not personally aware of a 22-year-old, or anyone around that age, who has had an aortic dissection without a notable prior medical history;[^61]

(d) Dr. Lee met his duty in taking Meng’s history and making his own assessment of Meng;[^62]

(e) The process Dr. Lee took to reach his diagnosis was reasonable, and further, it was reasonable for him to have a primary diagnosis of musculoskeletal injury;[^63] and

(f) Dr. Lee did not confine his examination to only pain emanating from a musculoskeletal injury; rather he did a broad investigation considering a wide variety of systems in diagnosing the patient.[^64]

[134] The plaintiffs’ expert, Dr. Greenway, was also critical of Dr. Lee’s differential diagnosis. He testified that aortic dissection should have been included in the differential diagnosis because of Meng’s widened pulse pressure, shortness of breath and unresolving pain. Those issues should have led Dr. Lee to “rethink” and retake Meng’s history in a meaningful way. The history as taken by Dr. Lee was skimpy and should have been more extensive. Dr. Lee should have ordered a CT scan with contrast to rule in/out aortic dissection.[^65]

[135] However, in cross-examination, Dr. Greenway gave the following evidence:

(a) Dr. Lee’s physical exam was appropriate, other than that he did not specifically document significant negatives;[^66]

(b) The clinical judgement exercised by Dr. Lee at the end of his history and examination of Meng is a matter over which reasonable and reputable physicians can disagree;[^67]

(c) Aortic dissection is an exceedingly rare diagnosis, and even more so in young people. Dr. Greenway has never heard of a 22-year-old with an aortic dissection without a prior diagnosis of either Marfan’s Syndrome, a bicuspid valve or another pre-existing condition;[^68]

(d) Meng’s likelihood of having an aortic dissection with no past medical history and a normal chest X-ray is as close to zero as possible, given that there is no such thing as zero in medicine;[^69] and

(e) The “Choosing Wisely” campaign discourages physicians from over-testing patients, especially where the testing increases the patient’s risk of developing cancer, as does a CT scan.[^70]

[136] There is a concern about the weight to be given Dr. Greenway’s report, given his statement that Meng did not exhibit any joint or muscle tenderness. Muscle tenderness was clearly a key consideration for Dr. Lee in formulating his differential diagnosis. Further, Dr. Greenway knew about this error before testifying, but did not mention it in his examination-in-chief. It is difficult to give any significant weight to Dr. Greenway’s opinion on standard of care in light of this significant omission.

[137] The plaintiffs’ expert, Dr. Drummond, testified that Dr. Lee’s differential diagnosis was too limited to chest wall pain or a collapsed lung, and he did not appropriately consider aortic dissection. His investigative response was limited to one X-ray when he should have ordered blood tests, an ECG, a consult with a specialist or kept Meng for observation. Dr. Lee should have broadened his differential diagnosis to include serious and life threatening causes including PE, MI and AD. At a minimum, Dr. Lee should have ensured that Meng’s pain was relieved before he was discharged, which it was not.[^71]

[138] However, in cross-examination, Dr. Drummond made the following critical concessions:

(a) The risk of a healthy 22-year-old having an aortic dissection is in the “one in a billion” category;[^72]

(b) When Dr. Lee took Meng’s history, he was not set on a musculoskeletal injury as a diagnosis. He asked broad questions about a number of systems;[^73]

(c) Tenderness on palpation is the hallmark of a musculoskeletal injury. Pain on palpation would be unusual with an aortic dissection;[^74]

(d) 85 to 90 percent of aortic dissections will present with an abnormal chest X-ray;[^75] and

(e) Whether a CT scan should have been ordered in this case is something about which reasonable physicians might disagree.[^76]

[139] Notwithstanding rigorous cross-examination, the defence experts remained firm that:

(a) A cardiovascular issue would be at the very back of a cardiologist’s mind in a 22-year-old with Meng’s history. If Meng had aortic dissection when he presented on August 25, 2008, Dr. Lee could not be criticized for not finding it;[^77]

(b) Although having chest wall pain does not rule out aortic dissection, it would be way down or barely on the differential diagnosis list. If every test is done on every person who comes to the emergency department, the system could not function—tests must be administered judiciously. The system will always miss fatal, exceedingly rare events;[^78] and

(c) Physicians must be suspicious about everything, but where there is a plausible explanation [for the pain], probing questions about the nature and quality of the pain are less relevant.[^79] This was reinforced in Dr. Carr’s examination in chief, in which he was clear that it was not necessary for Dr. Lee to pursue investigations into other conditions such as MI, PE or AD based on the presenting complaint, the risk factors and the physical examination history.[^80]

[140] Dr. Lee testified that:

[A]fter I’ve had a chance to compile all the information that’s been put before me in the notation as well as my personal history on the patient, after my review of systems, after my past medical history taking, after my physical examination of the patient, the fact that there are no abnormalities that I can identify in his respiratory cardiovascular abdominal exam, the fact that this patient has reproducible localized pain to his right posterior chest or upper back, the fact that there is an, these are all important inputs that need, have me arrive at a provisional diagnosis of a soft tissue injury to his right upper back, or posterior chest wall.[^81]

[G]iven the demographics of a young healthy male and the fact that there was at some point a subjective history of, of shortness of breath and difficulty with inspiratory effort I wanted to absolutely rule out concurrent or secondary less likely diagnosis of a spontaneous pneumothorax.[^82]

[A]fter I had had an opportunity to gather all the data that was available to me, sort it out in my mind, compile it appropriately, perform my own personal history, my own personal examination, make note of what or wasn’t found with that examination, put it altogether in the demographics of a healthy male with no previous history and positive findings consistent with a musculoskeletal injury that’s, that was the diagnosis.[^83]

[141] Consistent with his evidence, I find that Dr. Lee did a broad and thorough examination of Meng, which was not criticized in any of the expert’s reports. He proceeded in a proper step-wise fashion to a differential diagnosis that was supported by his thorough examination. Although aware of other possibilities, such as AD, MI and PE, he did not further investigate them. The reason for this is clear. Differentiated pain that was reproduced on palpation was reasonably a musculoskeletal injury, consistent with the workout history and “pop” described by Meng. His exclusion of further investigation into more serious but rarer conditions, such as AD, was based on his history taking and the one-in-a-billion probability of an otherwise healthy 22-year-old male having an aortic dissection, which was alluded to by Dr. Drummond. I further find that, based on the evidence, the only other reasonable possibility was a pneumothorax, which Dr. Lee properly investigated. As an added confirmation, the experts did not disagree that in 85 to 90 percent of cases, chest X-rays will show indicia of an aortic dissection. No such indicia were seen in Meng’s X-ray.

[142] With respect to the case law on differential diagnosis, a physician will not be held to a standard of practice in which he or she is required to anticipate a worst case but most unlikely scenario.[^84] Unfortunately for Meng, this is exactly what tragically occurred. He succumbed to both the worst case and most unlikely scenario.

[143] We know that Dr. Lee could have ordered a CT scan, kept Meng for observation or taken other steps. However, we cannot rely on “the perfect vision afforded by hindsight.”[^85] This court finds that in arriving at his differential diagnosis, Dr. Lee exercised reasonable clinical judgment based on the information available. This conclusion involves a number of important facets, including the following:

(a) Dr. Lee was not required to order every available test;

(b) Dr. Lee did not fall prey to “tunnel vision” (Dr. Yau agreed with this);

(c) A doctor is not expected to be infallible;

(d) Reasonable physicians may disagree with respect to Dr. Lee’s clinical judgment;

(e) Dr. Lee’s differential diagnosis reasonably took into account that the chances of a 22-year-old healthy male, with no prior medical history, suffering an aortic dissection are either one in a billion or as close to zero as possible (statements from the plaintiffs’ experts). Although Dr. Lee did not use those exact words, he described an aortic dissection as “rare”. As such, it was not unreasonable for him to come to the conclusion that differentiated pain evidenced on palpation was musculoskeletal, with a possible pneumothorax as his differential diagnosis;

(f) Meng’s presentation with differentiated pain that was reproducible on palpation was simply more consistent with a musculoskeletal injury than an aortic dissection when considering all the available information; and

(g) While the plaintiffs’ experts criticized Dr. Lee and testified that he fell below the standard of care, many of their concessions in cross-examination (as listed above) are at odds with their criticisms.

[144] Based on all of the above, I do not find that Dr. Lee fell below the standard of care with respect to his differential diagnosis.

G. Aortic Dissection and Weightlifting

[145] This issue only came up at trial and was not raised in any of the reports of Drs. Yau, Greenway or Drummond. The defence submits that this makes it clear that the standard of care for an emergency physician in 2008 did not require him or her to be aware of any connection between weightlifting and aortic dissection.

[146] Dr. Lee’s evidence was that he knew about the association between weightlifting and aortic dissection at the time he met Meng, albeit in older men. Dr. Carr testified to similar knowledge. The plaintiffs submit that this knowledge made it incumbent on Dr. Lee to consider this issue with respect to his differential diagnosis.

[147] Dr. Bornstein was aware of a connection between weightlifting and aortic dissection, but only in older people with prior medical histories.[^86] Dr. Carr was also aware of the connection and conceded he did not note the connection in his report. However, he testified that noting the connection did not enter his mind because it did not have the same significance as other risk factors.[^87]

[148] A study was put to Dr. Carr in which aortic dissection occurred in thirty-one patients in the context of severe physical exertion. The average age of the patients in the study was 47.3 years. Three patients were under 35 and each of them had enlarged aortas. Meng did not fall under any of these categories.

[149] I do not find that Dr. Lee fell below the standard of care for failing to consider the connection between weightlifting and aortic dissection in his differential diagnosis. First, the study put to Dr. Carr makes it clear that Meng was not within the usual risk factors. Second, no expert called by either the plaintiffs or the defendant testified that Dr. Lee fell below the standard of care in not considering the connection between weightlifting and aortic dissection in 2008. The court must rely on expert evidence before coming to such conclusions. Without such evidence, the court cannot impugn Dr. Lee’s care in this regard.

H. The Discharge Instructions

[150] The plaintiffs argue that Dr. Lee fell below the standard of care in failing to provide proper information to Meng about the status of his health and appropriate advice to manage any risk. Advice on discharge must be tailored to each patient’s particular circumstances and lifestyle.

[151] Telling Meng to return in the event his condition worsened was nonsensical given that his pain was already 10/10 and the worst he had experienced in his life. The plaintiffs are critical of Dr. Lee for failing to keep Meng for further observation given his pain complaints.

[152] The defence submits that Dr. Lee discharged Meng with proper instructions after having reviewed his X-ray. There was no complaint about pain from Meng after 23:15. In fact, he left the hospital, went home and slept through the night.

[153] The discharge instructions given were proper as they included ice, rest and Tylenol 3 for pain. Meng was told to return to his family doctor or return to the emergency department if his symptoms worsened or became concerning to him.

[154] Dr. Lee’s evidence was that he probably spent another five to six minutes with Meng giving him his discharge instructions and reviewing his X-ray before discharging him. This would allow him a short re-assessment of Meng’s condition. He wrote the acronym R-I-C-E on his chart. That stands for rest, ice, compresses and analgesics. He also ticked the box for family physician as required. He prescribed 30 tablets of Tylenol 3’s, which is enough pain medication for about three or four days. His rationale was that if the patient has not improved they will come back for more pain medication and be reassessed. He testified that all of this is part of standard practice. Finally, Dr. Lee testified that the patient would not have been discharged had he not looked well enough to go home.[^88]

[155] Dr. Greenway agreed that the discharge instructions given to Meng were standard and that seeing Meng a second time allowed Dr. Lee the opportunity to see and briefly re-assess Meng’s progress.[^89]

[156] Dr. Drummond also agreed that Dr. Lee’s second meeting with Meng was appropriate and another chance to arrive at a clinical impression of him. The discharge instructions, including the requirement to see his family doctor, were appropriate. It is not uncommon for patients to come to the emergency department in pain and leave in pain.[^90]

[157] I do not find that Dr. Lee fell below the standard of care with respect to his discharge instructions. The plaintiffs’ experts did not disagree that the instructions given were “standard”. I accept Dr. Lee’s evidence that such instructions fell within the parameters of his standard practice and were noted in the chart. The fact that Dr. Lee was able to lay eyes on Meng for a second time and review the X-ray with him allowed Dr. Lee to do two things. First, it allowed a further short visual re-assessment of Meng which did not appear to trigger any concern for Dr. Lee. As well, it allowed him to be re-assured that there was no pneumothorax. Dr. Lee’s differential diagnosis, which I have already found met the standard of care, was followed through as far as it could go at that time: the RICE portion for the musculoskeletal diagnosis and the X-ray for the pneumothorax.

I. The Consultation with Dr. Nicholas

[158] Dr. Timothy Nicholas testified at trial for the defence. He has been Meng’s family doctor since Meng was nine years old. Meng consulted Dr. Nicholas on August 27, 2008, as he was not feeling better and his pain was continuing.

[159] Dr. Nicholas examined Meng and noted that he “looks well”. Dr. Nicholas did not have the emergency record from Southlake when he examined Meng and therefore did not have the benefit of either the X-ray or Dr. Lee’s findings. However, he did ask Meng to describe to him what happened at the emergency department.

[160] After examining Meng, Dr. Nicholas came to the same conclusion as Dr. Lee. Meng had a musculoskeletal injury. He prescribed Celebrex for Meng’s pain and advised him to rest and reduce physical activity. Although there was no note of it, Dr. Nicholas testified it was his normal practice to tell patients to return if there was a change.[^91]

Conclusions on Meng’s Care

[161] Based on the findings made herein, Dr. Lee met the standard of care in this case for the following reasons:

(a) Dr. Lee followed his invariable practice, which meant he reviewed Meng’s chart for about two minutes before seeing him;

(b) He took a proper history and thorough examination of Meng’s systems;

(c) While his notes may not have reflected specific questions about the pain Meng was experiencing, the thorough examination infers that it was done because Dr. Lee found differentiated pain reproducible on palpation. His examination of Meng’s systems gave Dr. Lee the objective information he needed to assess the subjective complaints of pain;

(d) Meng’s complaint about shortness of breath was related to pain on inspiration. This complaint was a subjective one and subject to the same considerations as in (c) above;

(e) Meng’s subjective complaint of dizziness was a non-specific finding which would have ranked low in the overall assessment of his systems;

(f) The widened pulse pressure from the reading with the low diastolic pressure was either an error (not unusual in cuff type machine readings) or unremarkable on the basis of the Meng’s overall presentation;

(g) Dr. Lee cannot be faulted for not diagnosing Marfan’s Syndrome. Marfan’s Syndrome is not a diagnosis that is established in an emergency room. It requires a team of experts;

(h) Dr. Lee’s differential diagnosis was appropriate, given the information available, his reasonable clinical findings and the fact that there was a one-in-a-billion chance of a 22-year-old male with no prior medical history having an aortic dissection;

(i) The X-ray ordered by Dr. Lee was appropriate and consistent with his differential diagnosis;

(j) In 85 to 90 percent of cases, a chest X-ray will show signs of an aortic dissection. No such signs were seen by Dr. Lee or the radiologist who reviewed the X-ray;

(k) Dr. Lee’s discharge instructions were standard and appropriate given his finding of a soft tissue injury, after excluding a pneumothorax with the X-ray findings;

(l) Dr. Lee cannot be found to have fallen below the standard of care for failing to consider the connection between aortic dissection and weightlifting, as there was no expert evidence to support that conclusion;

(m) Dr. Nicholas’ examination of Meng on August 27, 2008, resulted in the same conclusion as that of Dr. Lee with respect to a musculoskeletal injury. This is supportive of Dr. Lee’s differential diagnosis and standard of care;

(n) Dr. Lee cannot be held to a standard in which he must anticipate the worst case but most unlikely scenario; and

(o) If I am wrong and Dr. Lee made an error in judgment by failing to include aortic dissection in his differential diagnosis, he did so while otherwise exercising reasonable care.

[162] This is indeed a tragic case and one which has affected all concerned. However, in a purely legal context, Dr. Lee cannot be held to a standard which would have required him to investigate the possibility of aortic dissection where such a possibility was as close to zero as one can get.

Causation

[163] The plaintiffs have not proven that Dr. Lee breached the standard of care. However, if they had done so, I would not have found that Dr. Lee’s conduct caused the injury.

[164] The well-known and proper causation test in medical negligence cases requires that the plaintiffs prove on a balance of probabilities that Meng would not have died but for Dr. Lee’s conduct.

[165] The question to be asked is whether the defence advanced some evidence that Meng would have died notwithstanding Dr. Lee’s negligence. I find that they have done so for the following reasons;

(a) there was no evidence that Meng suffered from any aortic insufficiency;

(b) Dr. Clerk’s testimony was that she could not say when the aortic dissection took place;

(c) Dr. Nicholas’ diagnosis replicated that of Dr. Lee and Meng’s symptoms had not changed by that point;

(d) Meng’s symptoms described to Telehealth a few days later were very different from what Dr. Lee or Dr. Nicholas saw (i.e. blood streaked sputum); and

(e) aortic dissection is very serious and causes death within a few hours, not days.[^92]

[166] In conclusion, causation in this case cannot be inferred, as the defence presented the above evidence which tends to demonstrate that, had Dr. Lee taken the steps the plaintiffs suggest were appropriate, he would not have detected AD as it is unclear on a balance of probabilities that Meng was suffering from AD at the time of his visit to the emergency department.

Final Conclusion

[167] Hindsight alone may allow one to criticize Dr. Lee’s care and diagnosis in this case. However, the care given by a busy emergency physician cannot be judged by hindsight, especially when the case involves an exceedingly rare condition in a patient whose symptoms, demographic and lack of prior medical history point in a completely different direction from aortic dissection.

[168] Finally, while Meng died of an aortic dissection it cannot be concluded that he did so as a result of any alleged negligence on the part of Dr. Lee. Meng was the victim of a tragic, grievous and ill-fated set of circumstances for which no one can be held legally responsible.

Costs

[169] This was a difficult case. If the defence is insisting on costs I will receive written submissions or a telephone conference can be arranged through my assistant at jennifer.beattie@ontario.ca.

Madam Justice C.A. Gilmore

Released: December 2, 2015

NEWMARKET COURT FILE NO.: CV-10-100637-00

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Nica Lee, Litigation Guardian of Brandon Lee, the said Nica Lee, Thongdam Lee, Lilamok Lee, Licouchleng Lang Lee, Peng Lee and Gee Lee

Plaintiffs

– and –

Southlake Regional Health Centre, Raymond Lee, Timothy Nicholas and Jane Nurses

Defendants

REASONS FOR JUDGMENT

Gilmore J.

Released: December 2, 2015

[^1]: Crits v. Sylvester, 1956 CanLII 34 (ON CA), [1956] O.R. 132, at p. 143, aff’d 1956 CanLII 29 (SCC), [1956] S.C.R. 991.

[^2]: Crawford (Litigation Guardian of) v. Penney (2003), 14 C.C.L.T. (3d) 60 (Ont. S.C) at paras. 236-249.

[^3]: Williams (Litigation Guardian of) v. Bowler, 2005 CanLII 27526 (ON SC), [2005] O.T.C. 680 (Ont. S.C.) at para. 250.

[^4]: Wilson v. Byrne, 2004 CanLII 20532 (ON SC), [2004] O.T.C. 487 at para. 28.

[^5]: Crawford, at para. 229.

[^6]: Bergen Estate v. Sturgeon General Hospital (District No. 100) (1984), 52 A.R. 161 (Q.B.) at para. 31.

[^7]: Adair Estate v. Hamilton Health Sciences Corp, 2005 CanLII 18846 (ON SC), 32 C.C.L.T. (3d) 283 at para. 116.

[^8]: Adair, at para. 153.

[^9]: Williams, at para. 243.

[^10]: Crits, at pp. 143-144.

[^11]: Ter Neuzen v. Korn, 1995 CanLII 72 (SCC), [1995] 3 S.C.R. 674 at para. 34.

[^12]: Felix v. Red Deer Regional Hospital Centre, 2001 ABQB 545 at para. 80.

[^13]: Wilson v. Swanson, 1956 CanLII 1 (SCC), [1956] S.C.R. 804 at p. 812.

[^14]: Ellen I. Picard & Gerald B. Robertson, Legal Liability of Doctors and Hospitals in Canada, 3d ed. (Toronto: Carswell, 1996) at p. 281.

[^15]: Turkington v. Lai, 2007 CanLII 48993 (ON SC), 52 C.C.L.T. (3d) 254 at para. 93.

[^16]: Bafaro v. Dowd, 2008 CanLII 45000 (ON SC) at para. 31, aff’d 2010 ONCA 188, 260 O.A.C. 70.

[^17]: Ter Neuzen, at para 38.

[^18]: Wilkinson Estate v. Shannon (1986), 37 C.C.L.T. 181 (Ont. H.C.) at p. 190.

[^19]: Bogdon v. Folmon, 2013 ONSC 222 at para 38.

[^20]: Lapointe v. Hopital le Gardeur, 1992 CanLII 119 (SCC), [1992] 1 S.C.R. 351 at p. 364.

[^21]: Report of Dr. Terrence Yau dated October 16, 2010.

[^22]: Report of Dr. Alan Drummond dated February 9, 2014.

[^23]: Report of Dr. Keith Greenway dated April 3, 2013.

[^24]: Report of Dr. Eric Horlick dated February 16, 2015.

[^25]: Report of Dr. Ronald Bornstein dated February 13, 2015.

[^26]: Examination in Chief of Dr. Carr, June 2 and 3, 2015.

[^27]: Cross-examination of Dr. Greenway, May 28, 2015, morning.

[^28]: Examination for Discovery of Dr. Lee, April 3, 2012 p. 43, line 12; Examination in Chief of Dr. Lee, June 2, 2015, morning

[^29]: Cross-examination of Dr. Clerk, May 25, 2015, morning.

[^30]: Turkington, at paras. 93-94.

[^31]: Bafaro, at para. 29.

[^32]: Final Written Argument of the Defendant, Dr. Raymond Lee at pp. 53-55.

[^33]: Final Written Argument of the Defendant, Dr. Raymond Lee at. p. 54

[^34]: See for example, the cross-examination of Dr. Keith Greenway during the afternoon of May 27, 2015.

[^35]: Examination in Chief of Dr. Lee, June 2, 2015, morning.

[^36]: Final Written Argument of the Defendant, Dr. Raymond Lee at p. 55

[^37]: Examination in Chief of Dr. Lee, June 2, 2015, morning.

[^38]: Cross-examination of Dr. Carr, June 3, 2015, afternoon.

[^39]: Cross-examination of Dr. Yau, May 26, 2015, afternoon.

[^40]: Cross-examination of Dr. Horlick, June 1, 2015, morning.

[^41]: Cross-examination of Dr. Lee, June 2, 2015, afternoon.

[^42]: Cross-examination of Dr. Lee, June 2, 2015, afternoon.

[^43]: Examination in Chief of Dr. Bornstein, June 2, 2015, afternoon.

[^44]: Cross-examination of Dr. Greenway, May 27, 2015, afternoon.

[^45]: Cross-examination of Dr. Clerk, May 25, 2015, afternoon.

[^46]: Cross-examination of Dr. Greenway, May 27, 2015, afternoon.

[^47]: Cross-examination of Dr. Greenway, May 27, 2015, afternoon.

[^48]: Cross-examination of Dr. Lee, June 2, 2015, afternoon.

[^49]: Cross-examination of Dr. Yau, May 26, 2015, morning.

[^50]: Cross-examination of Dr. Greenway, May 27, 2015, afternoon.

[^51]: Cross-examination of Dr. Greenway, May 27, 2015, afternoon.

[^52]: Cross-examination of Dr. Horlick, June 1, 2015, morning.

[^53]: Cross-examination of Dr. Horlick, June 1, 2015, morning.

[^54]: Cross-examination of Dr. Drummond, May 29, 2015, morning.

[^55]: Cross-examination of Dr. Drummond, May 29, 2015, morning.

[^56]: Examination in Chief of Dr. Yau, May 26, 2015, morning.

[^57]: Examination in Chief of Dr. Yau, May 26, 2015, morning.

[^58]: Examination in Chief of Dr. Yau, May 26, 2015, morning.

[^59]: Cross-examination of Dr. Yau, May 26, 2015, morning.

[^60]: Cross-examination of Dr. Yau, May 26, 2015, morning.

[^61]: Cross-examination of Dr. Yau, May 26, 2015, morning.

[^62]: Cross-examination of Dr. Yau, May 26, 2015, morning.

[^63]: Cross-examination of Dr. Yau, May 26, 2015, afternoon.

[^64]: Cross-examination of Dr. Yau, May 26, 2015, afternoon.

[^65]: Examination in Chief of Dr.Greenway, May 27, 2015, morning.

[^66]: Cross-examination of Dr. Greenway, May 27, 2015, afternoon.

[^67]: Cross-examination of Dr. Greenway, May 27, 2015, afternoon.

[^68]: Cross-examination of Dr. Greenway, May 27, 2015, afternoon.

[^69]: Cross-examination of Dr. Greenway, May 27, 2015, afternoon.

[^70]: Cross-examination of Dr. Greenway, May 27, 2015, afternoon.

[^71]: Examination in Chief of Dr. Drummond, May 29, 2015, morning.

[^72]: Cross-examination of Dr. Drummond, May 29, 2015, morning.

[^73]: Cross-examination of Dr. Drummond, May 29, 2015, morning.

[^74]: Cross-examination of Dr. Drummond, May 29, 2015, morning.

[^75]: Cross-examination of Dr. Drummond, May 29, 2015, morning.

[^76]: Cross-examination of Dr. Drummond, May 29, 2015, morning.

[^77]: Cross-examination of Dr. Horlick, June 1, 2015, morning.

[^78]: Cross-examination of Dr. Bornstein, June 2, 2015, afternoon.

[^79]: Cross-examination of Dr. Carr, June 3, 2015, afternoon.

[^80]: Examination in Chief of Dr. Carr, June 3, 2015, morning.

[^81]: Examination in Chief of Dr. Lee, June 2, 2015, morning.

[^82]: Examination in Chief of Dr. Lee, June 2, 2015, morning.

[^83]: Examination in Chief of Dr. Lee, June 2, 2015, morning.

[^84]: Campbell v. Roberts, 2014 ONSC 5922, [2014] W.D.F.L. 4684 at para. 100(f).

[^85]: Cardy v. Trapp, 2008 CanLII 59096 (ON SC) at para. 37.

[^86]: Cross-examination of Dr. Bornstein, June 2, 2015, afternoon.

[^87]: Cross-examination of Dr. Carr, June 3, 2015, afternoon.

[^88]: Examination in Chief of Dr. Lee, June 2, 2015, morning.

[^89]: Cross-examination of Dr. Greenway, May 27, 2015, afternoon.

[^90]: Cross-examination of Dr. Drummond, May 29, 2015, morning.

[^91]: Cross-examination of Dr. Nicholas, June 5, 2015, morning.

[^92]: Cross-examination of Dr. Clerk, May 25, 2015, afternoon.