Sutherland v. SAH and Booth, 2017 ONSC 736

CITATION: Sutherland v. SAH and Booth, 2017 ONSC 736

COURT FILE NO.: 26898/15

DATE: 2017-01-30

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DONNA SUTHERLAND, EARLE SUTHERLAND AND JONATHAN SUTHERLAND and CLIFFORD SUTHERLAND

Plaintiffs

– and –

SAULT AREA HOSPITAL, KAREN BOOTH, AARON PROVENZANO and KAREN DINTER

Defendants

Peter Denton, for the Plaintiffs

Wayne Brynaert, for the Defendant Karen Booth

Lisa Spiegel, for the Defendant Sault Area Hospital and Karen Dinter

HEARD: January 19, 2017

GAREAU J.

REASONS ON MOTION

[1] The motion before the court was heard on January 19, 2017.

[2] The motion is brought by the plaintiffs and the relief sought is set out in the notice of motion at Tab 1 of the motion record as follows:

(a) An order for the defendant Karen Booth to answer the proper questions refused at her examination for discovery held on July 12, 2016 as set out in Schedule “A” (which is a refusals chart);

(b) An order for the defendant Karen Booth to re-attend for examinations for discovery to continue her discovery and answer follow-up questions arising from the proper questions refused, and questions subsequently answered;

(c) An order for costs of this motion and the continued examinations for discovery;

(d) If appropriate, the plaintiff’s costs of this motion on a solicitor and client scale.

[3] The defendant Karen Booth takes the position that the questions that were refused to be answered on the discovery were properly refused and that the subsequent answers provided do not necessitate follow-up questions that require the re-attendance of Karen Booth at a further examination for discovery.

BACKGROUND

[4] The claim arises out of a medical malpractice action involving the care of Philisha Sutherland, who attended at the Sault Area Hospital in Sault Ste. Marie, Ontario on October 17, 2013.

[5] While at the Sault Area Hospital, Philisha Sutherland was seen by the attending physician in the emergency department, Dr. Karen Booth. Dr. Booth examined and treated Ms. Sutherland and discharged her on October 17, 2013.

[6] On October 18, 2013, Philisha Sutherland returned to the Sault Area Hospital, via ambulance, suffered a cerebellar ischemic stroke and died on October 21, 2013.

[7] The plaintiffs are family members of Philisha Sutherland and are advancing this action for damages under section 61 of the Family Law Act, R.S.O. 1990.

[8] The defendants have defended this action. The defendant Karen Booth was examined for discovery by the plaintiffs’ counsel on July 12, 2016. There was refusals with respect to some of the questions put to Karen Booth at her examination for discovery. These refusals are the subject matter of the motion before the court.

[9] Subsequent to the examination for discovery on July 12, 2016, counsel for the defendant Karen Booth wrote to counsel for the plaintiff by letter dated December 22, 2016, and provided four answers by Karen Booth to questions previously asked on discovery and refused. In particular, Questions 567, 983, 994 and 1006 were answered in the letter dated December 22, 2016. Whether there are questions arising out of these answers that requires the re-attendance of Karen Booth on examination for discovery is the subject matter of the motion before the court.

(December 22, 2016 letter appended at Exhibit “F” to the affidavit of Patrick Poupore sworn January 9, 2017 at Tab 2 of the motion record)

THE MERITS OF THE MOTION

(A) Does the answers given in the December 22, 2016 letter give rise to follow-up questions necessitating the re-attendance of Karen Booth on examination for discovery?

[10] The letter of December 22, 2016 by counsel for Karen Booth to counsel for the plaintiffs respond to four questions asked on the examination for discovery of Karen Booth. With respect to the first answer in the letter related to Question 567, it is useful to examine the context in which the question was asked as set out in the transcript of the examination of discovery. At page 100 of the transcript, Question 563 and onward to Question 567 is as follows:

563 Q. In general, is vomiting usually associated with marijuana use in daily users?

A. It can be.

564 Q. In general, though, is it a common effect?

A. It can be.

565 Q. You understand the difference between common and uncommon?

A. Yes.

566 Q. Is it common or uncommon?

A. It can be – can be a reported symptom.

567 Q. Can it be common or uncommon?

MR. BRYNAERT: Don't answer it. We’re not going to play this game all day.

MR. DENTON: Well –

MR. BRYNAERT: You don't like it. You’ve got the answer. Ask more questions.

MR. DENTON: Well, it’s not responsive to the question.

MR. BRYNAERT: You’re not going to ask the same question, and I’m not going to let you ask the same question over and over again just because you don't like the answer.

[11] The answer provided in the letter of December 22, 2016 from counsel for Karen Booth is as follows:

It can be for certain patients. Like my answer to Question 570 asking if dizziness is usually associated with marijuana use and it can be common in a daily user of marijuana. It said it can be for certain patients. I also stated it is not black and white, yes or no thing, so I can’t answer that for you, like the way you want it.

[12] With respect to the second question answered in the letter of December 22, 2016, this related to Question 983 as set out in the transcript as follows:

Q. You think it was – it is a probability that Philisha Sutherland was not in fact suffering from marijuana intoxication on October 2013?

[13] The answer to this question provided in the letter of December 22, 2016 is as follows:

I believe it is unlikely that Ms. Sutherland was not suffering from marijuana intoxication, given that she reported marijuana use prior to presentation to the emergency department to the nurse and myself.

[14] With respect to the third question answered in the letter of December 22, 2016, this related to Question 994 as set out in the transcript as follows:

Q. Was there anything you would have done differently if you had suspected Philisha Sutherland was having a stroke?

[15] The answer to this question provided in the letter of December 22, 2016 is as follows:

I did not suspect Ms. Sutherland was having a stroke when I saw her. Even in hindsight, I cannot speculate what I would have or could have done differently if something raised a suspicion of a stroke. This is too speculative for me to answer such a question.

[16] With respect to the fourth question answered in the letter of December 22, 2016, this related to Question 1006. It is helpful to start with the dialogue beginning at Question 1003 to Question 1009 to understand the context in which the question was asked. Questions 1003 up to Question 1009 in the examination for discovery reads as follows:

1003 Q. Yes, but you spoke to Dr. Ip presumably after October 17^th, did you not?

A. Yes. I speak to him almost on a daily basis. We’re colleagues.

1004 Q. Did you speak to him about this case?

A. Yes.

1005 Q. What was that conversation about this case?

A. Again as I stated, how unfortunate it was.

1006 Q. Was it a brief conversation?

A. No further comment.

1007 Q. How long was the conversation?

A. No comment.

1008 Q. The reason you’re not commenting, or are you just refusing to answer the question?

A. It’s speculation and I’ve said again, we’re talking today about what happened on October 17^th, 2013.

MR. BRYNAERT: So you can take from that that it’s not relevant.

MR. DENTON: Can I take it as a refusal?

MR. BRYNAERT: Sure.

MR. DENTON: Okay.

MR. BRYNAERT: A refusal because it’s not relevant.

[17] The answer to Question 1006 provided in the letter of December 22, 2016 is as follows:

I don't recall how long we spoke.

[18] The court must consider whether the answers provided to the four aforementioned questions and the responses given in the letter of December 22, 2016 are complete or whether they give rise to legitimate follow-up questions that require the re-attendance of the deponent on a further examination for discovery.

[19] Master McLeod (as he then was) provides a useful summary of the factors to be considered in the case of Senechal v. Muskoka (Municipality), 2005 11575 (ON SC), [2005] O.J. No. 1406. As noted by Master MacLeod, “the right to a follow up discovery is not, however, an absolute right”. Master MacLeod went on to observe that, “The court is therefore not required to order re-attendance and a follow up examination simply to allow the sterile exercise of a right if it serves no purpose”. The discovery process must be proportionate to the matters in issue. At paragraph 7 of the Senechal decision, Master MacLeod sets out the principles as follows:

Do these later cases contradict the general principle enunciated in S.E. Lyons & Sons? In my view there is no contradiction and the principles enunciated in these cases may be resolved as follows:

• As a general principle a party giving undertakings or answering refusals may be required to reattend to complete the discovery by giving the answers under oath and answering appropriate follow up questions. A party being examined may not compel the examining party to accept answers in writing simply by refusing to answer questions or by giving undertakings.

• On the other hand, the court will not automatically make an order for follow up discovery if it serves no useful purpose. Examples in which an order may not be appropriate would be cases in which a full and complete written response has been given to a simply question, in which the answer demonstrates that the question was not relevant or in which the parties have agreed that written answers will suffice.

• The court will generally make such an order if it appears necessary in order to fulfill the purposes of discovery. Examples of situations in which an order would be appropriate are situations in which the answers appear cursory or incomplete, where they give rise to apparently relevant follow up questions that have not been asked, if newly produced documents require explanation, or the discovery transcript supplemented by the answers will not be understandable or useable at trial.

• Even if answers do appear to require follow up, the court has discretion to order answers in writing or to decline to order further examination where it appears the cost or the onerous nature of what is proposed outweighs the possible benefit or where for any other reason it appears unjust to make such an order. Such discretion should be exercised only if the interests of justice require it.

[20] In my view, the four responses set out in the letter of December 22, 2016 are not cursory or incomplete answers to the questions posed in the examination for discovery of Karen Booth and initially refused. Requiring Dr. Booth to attend on re-examination to answer whatever obscure and oblique questions that may arise out of the answers given is not in keeping with the purpose of discovery. My view is that the answers given by Dr. Booth to Questions 567, 983, 994 and 1006 are as complete as they can be and do not require further discovery for clarification on matters that could arise out of the questions.

[21] Therefore, the plaintiffs request that Dr. Karen Booth re-attend on discovery to answer follow up questions related to the aforementioned questions and the answers given is denied.

(B) The Refusals Given on the Examination for Discovery of Karen Booth, held on July 12, 2016

[22] As indicated in the refusals chart prepared by counsel for the plaintiffs, there are some 13 questions that were asked on the examination for discovery of Karen Booth that were refused to be answered, essentially on the following grounds:

(1) Relevancy;

(2) The question relates to a legal conclusion or goes to the ultimate issue in the litigation;

(3) The question is overbroad or vague;

(4) The question asked arises from information obtained in a complaint proceeding involving Dr. Booth before the College of Physicians and Surgeons, such information being confidential thereby making the question asked improper.

[23] A refusals chart was prepared by the plaintiff for use in the motion and is set out at Tab D of the motion record. For the sake of convenience the refusals chart is reproduced and attached as Schedule “A” to my reasons.

[24] Dealing with the questions and refusals given as they are set out in the refusals chart, with respect to Questions 565 to 567, that has been answered in the letter of December 22, 2016 referred to earlier in these reasons.

[25] With respect to Questions 869 to 872, I agree with the defendant that this question is not relevant. The question asked is speculative in nature and any answer given by the witness would be purely hypothetical and of no value.

[26] With respect to Questions 886 to 891, Questions 886, 887, 888 and 890 were answered by the witness on her discovery. It is only question 891 which was refused to be answered on the grounds of relevancy. Question 891 is as follows:

Do you feel as though your notes meet the standard as set out by the College of Physicians and Surgeons of Ontario?

This is not a speculative or hypothetical question. However, it is a question for which the answer is meaningless. What does it matter if Dr. Booth felt that her notes or charting met with the standards as set out by the College of Physicians and Surgeons? The issue may be whether or not there were problems or deficiencies in the charting or note taking of Dr. Booth and whether this had a connection to her treatment of Ms. Sutherland, but these questions will be answered by evidence other than what Dr. Booth can provide, likely expert evidence as to the standard practice with respect to such issues as charting and note taking. I fail to see how any answer to the question posed is useful. What Dr. Booth feels or does not feel about her charting or note keeping is not going to be of consequence in this litigation, therefore, I am not going to require a response to this question.

[27] With respect to Questions 895 and 896, this essentially asks Dr. Booth whether she changed the way she charted since her involvement with Philisha Sutherland. The issue of note taking and charting was pleaded in the statement of claim as a grounds of negligence. In paragraph 10(c) of the statement of claim it is alleged that Dr. Booth “failed to conduct and document a full examination or re-examination of Philisha Sutherland”. In paragraph 10(k) of the statement it is alleged that Dr. Booth “failed to keep adequate and proper notes”. It would not be unusual to see this allegation in a medical malpractice proceeding. The pleadings in an action set the parameters for what questions on an examination for discovery may or may not be relevant. Counsel for the defendant Karen Booth takes the position that changes to Dr. Booth’s practice after the care at issue are irrelevant and that the standard of care is not to be determined with the benefit of hindsight. In the case of Sandhu v. Wellington Place Apartments, 2008 ONCA 215, 291 D.L.R. (4^th) 220, the Ontario Court of Appeal held that evidence of remedial conduct post event was relevant evidence on the issue of standard of care. It was for the trial judge to rule on the admissibility of that evidence at trial weighing the probative value of the evidence against its prejudicial effect. As stated by the court at paragraph 56 of its reasons,

The impugned evidence in this case provides an example of such a situation. Apart from any inference of an admission of liability, the fact that repairs to the screens were made quickly and inexpensively after the accident was relevant in other ways. It was evidence from which the jury could infer that the appellants had failed to meet a reasonable standard in keeping the building in good repair. The evidence of repairs could also be evidence of a failure to take reasonable care because it was capable of showing the appellants’ inspection of the building before the accident failed to meet a reasonable standard.

[28] As stated in paragraph 60 of the Sandhu decision, “Where a plaintiff offers evidence of subsequent remedial measures, the trial judge must balance the probative value of that evidence against its prejudicial effect”. The court goes on to state in paragraph 60 of its decision, “In considering the balance between probative value and prejudicial effect, the trial judge can take into account whether limiting instructions to the jury can mitigate any prejudice”.

[29] Questions concerning any remedial actions taken post event are relevant. These questions and the answers may be subsequently ruled inadmissible by the trial judge after balancing the probative value against the prejudicial effects, but, in my view, such questions at the discovery stage are relevant and ought to be answered.

[30] I am not persuaded that questions concerning Dr. Booth’s note taking or charting arise solely from information contained in the decision of the College of Physicians and Surgeons of Ontario relating to a complaint against Dr. Karen Booth launched by the family of Philisha Sutherland. It is not unreasonable to expect questions with respect to the note taking or charting practices of a treating physician in a medical malpractice litigation. I cannot give effect to the defendants’ argument that questions regarding her charting and note taking must have arisen out of the complaint to and decision of the College of Physicians and Surgeons of Ontario and are thereby improperly asked by the plaintiff on her examination of discovery.

[31] My view is that Questions 895 and 896 are relevant, properly asked and should be answered by the defendant Karen Booth.

[32] With respect to Question 900, which is “Did anybody express any concerns to you about your charting?”, my view is that Dr. Booth answered this question properly in her response, “I’ve never had any concerns about my charting”. Dr. Booth answered the question by replying about her views about her charting. Whether anyone else expressed any concerns about her charting is, in my view, not relevant. As to Question 903, whether Dr. Booth changed “her practice in any way” as a result of what happened with Philisha Sutherland, this question is overbroad. Dr. Booth will be answering the questions related to changes in her charting, as previously discussed in these reasons.

[33] Question 904, “Did you change how you diagnose vertigo?” is in my view, not relevant. The question is not supported on the basis of the pleading, such as the way questions concerning note taking and charting are.

[34] I agree with the basis of the defendants’ refusal to answer questions 905 to 907 as being unfair questions posed to Dr. Booth. It is the information and knowledge that Dr. Booth possessed at the time she treated Ms. Sutherland that is relevant, not any information or knowledge that she possessed post event. This is markedly different from questions about remedial action she may have taken post event.

[35] The line of questions at 908 to 911 of the examination for discovery have, in my view, been answered by Dr. Booth. To ask Dr. Booth if her upgrading of her medical education had anything to do with Ms. Sutherland is an unfair and improper question.

[36] Question 976, which was refused on the basis of relevancy, is as follows:

Q. Have you re-evaluated how you diagnose patients with vertigo and dizziness as a result of what happened to Ms. Sutherland?”

For the reasons I previously indicated in these reasons with respect to the questions about charting post event, my view is that this is a relevant question on discovery which should be answered. As to whether this question and the answer will be put to the jury at trial, that is for the trial judge to decide on the basis of whether the probative value outweighs the prejudicial effect. At the discovery stage, my view is that is a question that should be answered by Dr. Booth.

[37] Question 983 was answered by the written response in the letter dated December 22, 2016 from counsel for the defendant Booth.

[38] Question 994, “Was there anything you would have done differently if you had suspected Philisha Sutherland was having a stroke?” was answered by the written response in the letter dated December 22, 2016 from counsel for the defendant Booth.

[39] Similarly, Questions 1005 to 1008 have been responded to by the answer provided to Question 1006 in the letter dated December 22, 2016 from counsel.

[40] Questions 1009 to 1013 relate to a conversation that the defendant Dr. Booth had with Dr. Ghosh. The transcript of the examination for discovery sets out the dialogue relating to these questions as follows:

1009 Q. Okay. Did you ever talk to Dr. Ghosh about this? Ghosh is G-H-O-S-H.

A. Dr. Ghosh.

1010 Q. Ghosh, thank you.

A. Yes.

1011 Q. What did you discuss with Dr. Ghosh.

A. We did not speak formally, separately about this, but there have been subsequent meetings at the hospital that he was involved with and that this case was discussed.

1012 Q. What were those meetings?

A. Again, we are talking about events on October 17^th, 2013, so I will not comment. He is not here.

1013 Q. You have no recollection of the conversation with Dr. Ghosh?

A. I am going to recall what I just said, that we are talking about events on October 17^th, 2013. Dr. Ghosh is not here, and I will not answer any further questions about that.

[41] The conversations that Dr. Booth had with Dr. Ghosh concerning the incident in question in this litigation is relevant. Unless the conversation and what was disclosed in it is protected by privilege, either solicitor or client or litigation privilege, then questions concerning this conversation are proper and should be answered.

(Century Services Inc. v. New World Engineering Corp., [2013] O.J. No. 6304 (S.C.J.))

[42] Accordingly, Dr. Booth should answer Question 1011 about what she discussed with Dr. Ghosh.

ORDER

[43] For the foregoing reasons, there shall be an order that the defendant Karen Booth answer the following questions put to her at her examination for discovery on July 12, 2016 for which refusals were given:

(a) Questions 895 and 896.

Q. Have you changed the way you chart since?

Q. As a result of what happened with Philisha Sutherland, did you change how you chart?

(b) Question 976:

Q. Have you re-evaluated how you diagnose patients with vertigo and dizziness as a result of what happened to Ms. Sutherland?

(c) Question 101:

Q. What did you discuss with Dr. Ghosh?

[44] Given that these questions are limited in number and scope, I am going to allow Dr. Karen Booth to provide written responses to the questions which are to be communicated to counsel for the plaintiff, through her counsel, Mr. Brynaert.

[45] With respect to the issue of costs of the motion, if counsel are not able to resolve this issue, the parties are to submit to the court written submissions, no longer than five typed pages excluding offers to settle and bills of costs by March 1, 2017 at 4:00 p.m.

Gareau J.

Released: January 30, 2017

CITATION: Sutherland v. SAH and Booth, 2017 ONSC 736

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DONNA SUTHERLAND, EARLE SUTHERLAND AND JONATHAN SUTHERLAND and CLIFFORD SUTHERLAND

• and –

SAULT AREA HOSPITAL, KAREN BOOTH, AARON PROVENZANO and KAREN DINTER

REASONS ON MOTION

Gareau J.

Released: January 30, 2017

SCHEDULE “A”

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DONNA SUTHERLAND, EARLE SUTHERLAND, JONATHAN SUTHERLAND, and CLIFFORD SUTHERLAND

-and-

SAULT AREA HOSPITAL, KAREN BOOTH, JANE DOE(S)

. and KAREN DINTER

Plaintiffs

Defendants

· REFUSALS CHART

REFUSALS

Refusals to answer questions on the examination of Karen Booth, dated July 12, 2016

Page No. & Question No.	Spec ific question	Refused to answer	Disposition by the Court
P. 100 Q. 565 to 567	Q. In general, is vomiting usually associated with marijuana use in daily users? A. it can be. Q. In general, though, it is a common effect? Q. It can be. Q. You understand the difference between common and uncommon? A. It can be -can be a reported symptom. Q. Can it be common or uncommon?	Refused to answer.
P. 153 Q. 869 to 872	Q. Okay. Did you ever determine what- how long her stroke had been going on for? A. No. Q. Is it possible that her stroke was on the 17th? Q. You don't know? Q. Do you think it's probable that her stroke was on the 17th?	Refused on the basis of relevancy.
P. 156 Q. 886 to 891	Q. Are you aware of any charting requirement under the Medicine Act? A. I am not. Q. Does the college have any guidelines on charting? A. Yes. Q. Have you 'reviewed their guidelines on charting? A. On their website, not recently. Q. At any point have you reviewed it? A. I'm sure I've read it at some point. Q. Okay. Do you feel as though your notes meet the standard as set out by the College of Physicians and Surgeons of Ontario?	Refused on the basis of relevancy .
P. 158 Q. 895 to 896	Q. Have you changed the way you chart since? Q. As a result of what happened with Philisha Sutherland, did you change how you chart?	Refused on the basis of relevancy .
P. 159 Q. 900 to 903	Q. Did anybody express any concerns to you about your charting? A. I've never had concerns about my charting. Q. But has anyone expressed them to you? A. Hypothetically, like at any point? Q. Yes. A. As related to this case, again I don't see why this is- Q. Okay. As a result of what happened with Philisha Sutherland, did you change your practice in any way?	Refused to answer.
P. 159 Q. 904	Did you change how you diagnose vertigo?	Refused based on relevancy .
P. 160 Q. 905 to 907	Q. Are you aware of any- have you learned any information about diagnosing vertigo or dizziness or strokes since Philisha Sutherland, based on new information that you didn't have available to you in 2013? A. I don't that that is a question. You can ask me anything about the time on October 17, 2013. Q. Sorry, why don't you feel that's a question? A. Well, at the time, as I've gone over before, we were talking about what is documented in this chart. Q. So if it's, but the question, though, is if it's information that would have been available to you and for whatever reason you didn't know about it in 2013, I think it's a fair question.	Refused to answer based on being unfair.
P. 161 Q. 908 to 911	Q. As a result of what happened with Philisha Sutherland, have you reviewed any journal articles on strokes? The Deponent: I'm continually upgrading my continual medical education. Q. So it had nothing to do with what happened with Miss Sutherland? A. I am continuing to upgrade my continuing medical education. Q. Did you have anything to do with Philisha Sutherland, though? MR . BRYNAERT: No . Q. Your lawyer is saying no . Do you endorse that answer?	Refused to ·answer.
P. 173 Q. 976	Q. Have you re-evaluated how you diagnose patients with vertigo and dizziness as a result of what happened to Miss Sutherland?	Refused to answer based on relevancy.
P. 174 Q. 983	Q. You think it was- it is a probability that Philisha Sutherland was not in fact suffering from marijuana intoxication on October 2013?	Refused based on relevancy.
P. 178 to 179 Q. 994	Q. Was there anything you would have done differently if you had suspected Philisha Sutherland was having a stroke?	Refused based on relevancy.
P. 180 to 181 Q.·1005 to 1008	Q. What was the conversation about this case? A. Again, as I stated how unfortunate it was. Q. Was it a brief conversation? A. No further comment. Q. How long was the conversation? A. No comment. Q. The reason you're not commenting , or are you just refusing to answer the question? A. It's speculation and I've said again, we're talking today about what happened on October 17, 2013.	Refused based on relevancy .
P. 182 Q. 1012 to 1013	Q. What were those meetings? A. Again, we are talking about events on October 17, 2013, so I will not comment. He is not here. Q. You have no recollection Of the conversation with Dr. Ghosh? A. I am going to recall what I ju st said, that we are talking about events on October 17, 2013. Dr. Ghosh is not here, and I will not answer any further questions about that.	Refused.