Court File and Parties
COURT FILE NO.: 1539-13 DATE: 20181005 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: The Estate of Carlo Natalino Demarco, deceased, by his Estate Trustee, Elizabeth N. Demarco, Elizabeth N. Demarco, Franco Joseph Demarco, Julia Rita Demarco, Gabriel Demarco, Emily Elizabeth Demarco, by her Litigation Guardian Elizabeth N. Demarco, Frank Demarco and Rita Demarco, Plaintiffs
AND:
Dr. Rene Francis Martin, R.F. Martin Medicine Professional Corporation, Jane Doe #1, Dr. Dennis Shonn Wong, Dennis W. Wong Medicine Professional Corporation, London Cardiac Institute, Jane Doe #2, London Health Sciences Centre and Jane Doe/John Doe #3, Defendants
BEFORE: Justice A. K. Mitchell
COUNSEL: J. Nicholson and J. Makins, for the Plaintiffs J. Sirivar and S. Rogers, for the Defendants
HEARD: September 26 and October 3, 2018
Endorsement
Overview
[1] In this action, the plaintiffs allege that the defendant, Dr. Rene Martin’s, admitted failure to send a cardiology referral on June 13, 2011 caused the sudden death of Carlo DeMarco on August 21, 2011.
[2] Dr. Dennis Wong is the cardiologist to whom Dr. Martin intended to refer Carlo Demarco for a stress test. The defendant admits that his failure to send the referral to Dr. Wong on June 13, 2011 constitutes a breach of the standard of care of a physician practicing family medicine in Ontario in the summer of 2011.
[3] An autopsy conducted shortly after his death revealed that Mr. DeMarco suffered from severe coronary artery disease and the cause of his death was cardiac arrhythmia.
[4] Dr. Martin defends this claim, in part, on the basis that had the referral been sent on June 13, 2011, Mr. DeMarco would not have undergone a stress test and received treatment for his coronary artery disease before the events of August 20, 2011 which led to his sudden death, based on the average wait time for non-urgent referrals to Dr. Wong.
[5] Simply stated, Dr. Martin says his breach of the standard of care did not cause the death of Mr. Demarco.
The Evidence of Dr. Wong
[6] Dr. Wong testified at trial that the average wait time in the summer of 2011 for a stress test for patients referred to him on a non-urgent basis was 6-8 weeks. This was the same evidence he gave in response to the plaintiffs’ request for this information made in 2015. This was also the same estimate of wait time to which Dr. Wong deposed in response to the plaintiffs’ motion for production of his patient records brought in February 2017. This motion was later abandoned after Dr. Wong was cross-examined on his estimate of average wait time.
[7] At trial, Dr. Wong was asked what steps he took to arrive at the 6-8 week estimate. He then explained the process which was delegated to and undertaken by Dr. Wong’s office staff. Dr. Wong testified that he asked his office manager to identify the patients referred to him for a routine (non-urgent) stress test in June 2011. The person responsible for the patient record software system in Dr. Wong’s office was able to create software “code” capable of extracting patients referred for a stress test in June 2011 from the hundreds of patient records maintained by Dr. Wong.
[8] Seventy-five patients were identified as having been referred to Dr. Wong for a routine (or deemed routine by Dr. Wong) stress test in June 2011. From a review of these 75 patient records, a technologist employed by Dr. Wong prepared a chart listing the 75 patients by ID number and indicating the following information for each patient:
i. Date of referral; ii. Date seen for stress test; iii. Original appointment date given (and reason if different than date seen for stress test); iv. Whether the patient went on for further testing.
[9] Based on the information extracted from the 75 records, the average wait time for patients referred to Dr. Wong for a routine stress test in June 2011 was calculated to be 59 days. After the chart was prepared, Dr. Wong selected 10 of the 75 patient records and compared the information contained in these records with the same information summarized in the chart. Dr. Wong testified that from his review he was satisfied the information contained in the chart accurately reflected the same information contained in the related patient records.
[10] Dr. Wong testified that the average wait time of 59 days was consistent with his original estimate of 6-8 weeks.
[11] Dr. Wong admitted on cross-examination that he did not know how the programmer extracted the 75 patients and whether the “code” captured all patients referred to Dr. Wong in June 2011. Dr. Wong admitted that, aside from the information relating to the 10 patient records he reviewed, he did not know whether or not the information relating to the balance of patient records (65) had been accurately summarized by the technologist.
[12] At trial, the chart was not made an exhibit.
Position of the Plaintiffs
[13] The plaintiffs submit that in arriving at the 6-8 week estimate, Dr. Wong relied on a review of patient records and information summarized in the chart which was the combined work product of a software developer and a technologist, both employees of Dr. Wong. The plaintiffs’ concern lies in the fact that Dr. Wong did not personally conduct the review or verify independently (save and except for 10 of the 75 patient records) the accuracy of the information contained in the chart.
[14] The plaintiffs submit that the information contained in the patient records is hearsay and the information contained in the chart is hearsay because both the records and the summary of information contained in the chart were not prepared by Dr. Wong. The plaintiffs submit that the information contained in the patient records and the summary of information contained in the chart are being relied on by Dr. Wong for their truth which is classic hearsay evidence. In giving his evidence of estimated wait time he relied on the hearsay evidence of others and his evidence is, therefore, inadmissible.
Position of the Defendant
[15] The defendant takes the position that neither the information contained in the patient records nor the extracted information summarized in the chart are hearsay and both are therefore admissible. Put another way – the information relied on by Dr. Wong to support the accuracy of his wait time estimate of 6-8 weeks was not relied on for its truth. Rather the information contained in the patient records and summarized in the chart merely informed the evidence of Dr. Wong as to the average wait time for a stress test in the summer of 2011. The information contained in the patient records is simply a record of information of which Dr. Wong had first-hand knowledge in the summer of 2011 and which he can no longer recollect.
Analysis
[16] The plaintiffs challenge the admissibility of those parts of Dr. Wong’s evidence that support his estimated wait time of 6-8 weeks. In particular, the plaintiffs challenge the average wait time of 59 days for the 75 patients referred to him in June 2011 for a routine stress test. The plaintiffs challenge the calculation of 59 days because Dr. Wong was not involved in the process which generated the summary of information which provided the foundation for the 59 day estimate.
[17] Classic hearsay evidence consists of an out of court statement that is being tendered for its truth. Hearsay is presumptively inadmissible.
[18] Hearsay has four essential elements: (i) a declarant; (ii) a recipient; (iii) a statement; and (iv) its purpose is to prove the truth of the statement and not that the statement was made. Such a purpose offends a cardinal underpinning of due process of law being the right to cross-examine the declarant to test the reliability of the out-of-court statement. [1]
[19] Neither the chart nor the 75 patient records were sought to be made exhibits at trial. The information contained in the chart was not read into the record although some of the information contained in the chart formed part of the testimony of Dr. Wong. In particular, Dr. Wong testified that the average wait time for the 75 patients referred in June 2011 was 59 days. Although he did not calculate the figure – no one disputes that it is a correct mechanical calculation having regard to the individual wait time for each of the 75 patients listed in the chart.
[20] The chart was the tool used by Dr. Wong to refresh his memory of dates and assessments relating to the 75 patients referred for a stress test in June 2011 for the purpose of supporting his original evidence of a 6-8 week average wait time for referrals received in the summer of 2011. The plaintiffs were entitled to test Dr. Wong’s evidence which they did both at trial and earlier on Dr. Wong’s cross-examination as part of their production motion.
[21] The process undertaken to prepare the chart was challenged at trial. The less fulsome process undertaken in response to the plaintiffs’ motion was challenged on cross-examination as part of the plaintiffs’ production motion. It is the reliability of the process undertaken to generate the chart and not the reliability of the information contained in the chart itself that the plaintiffs challenge. Weaknesses or limitations in the process undertaken by Dr. Wong’s administrative staff goes to the weight and reliability of the 6-8 week estimate and more importantly the 59 day average wait time calculated from information contained in the patient records for the 75 patients referred for a stress test in June 2011.
[22] In this case, Dr. Wong is ostensibly the declarant of the information contained in the patient records. The patient records, from which the information contained in the chart was extracted, contain the first-hand knowledge of Dr. Wong. Dr. Wong received the 75 patient referrals directly and would therefore have known the date on which they were received. Dr. Wong reviewed each referral and made a decision whether the referral was routine or urgent. Dr. Wong attended with each of the 75 patients on the date on which their respective stress test was conducted and therefore knew the date of the stress test. Understandably given his patient load coupled with the passage of more than 7 years’ time, Dr. Wong no longer recalls the specific details of these 75 patient encounters. He turned to his patient records to assist with his recollection. The information contained in the patient charts serves, only, to refresh his memory of events and decisions in which he was directly involved during the summer of 2011. The chart is a summary of information extracted from the patient charts. The chart contains no new information.
[23] Human error inevitably occurs from time to time when individuals are asked to perform tasks including employment-related tasks. It is possible that the original information contained in the patient records was transcribed incorrectly. It is possible that the software “code” developed to extract from Dr. Wong’s patient data base only those referrals received in June 2011 did not capture all referrals meeting the necessary criteria. It is possible that errors were made by the technologist when summarizing the data from the 75 patient records and preparing the chart. I have no doubt that if called to testify, both the programmer and the technologist would admit to this possibility for error. However, their admission would do little to assist the court in determining the average wait time for a stress test referral to Dr. Wong in June 2011.
[24] The 75 patient records contain the first-hand knowledge of Dr. Wong recorded contemporaneously with the event (referral, assessment or stress test, as the case may be) and are therefore inherently reliable. These patient records are business records. That is they were prepared in the ordinary course of Dr. Wong’s cardiology practice by individuals trained and skilled in preparing them. The possibility of error during the extracting of information from the patient records and the summarizing of this information in the chart exists. So too (to a lesser extent) the possibility of personal bias leading to the misrepresenting of information summarized in the chart also exists. However, there is no better aid available to refresh Dr. Wong’s memory as to the estimated wait time for a referral made in June 2011 than the information summarized in the chart. In determining the weight to be afforded Dr. Wong’s evidence the Court must consider these inherent weaknesses in the reliability of the process undertaken to arrive at the 59 day estimate. However, these weaknesses do not render Dr. Wong’s evidence inadmissible. Dr. Wong is not relying on the truth of the contents of the information contained in the chart. For example, whether patient having ID no. 28789 did in fact wait 72 days for a stress test as reflected in the chart is not relevant. Rather he is using the chart as a means of satisfying himself that his original 6-8 week estimate is reliable.
[25] As an aside, I note that the evidence of Dr. Wong with respect to his estimated wait time is either hearsay or it is not hearsay. His evidence does not change its character simply because Dr. Martin paid Dr. Wong to do a more comprehensive and reliable review of his patient records than what Dr. Wong was prepared to do or did do in response to the plaintiffs’ motion. The character of his evidence does not change simply because that evidence is now more reliable. Throughout this litigation, Dr. Wong has consistently relied on the assistance of others to inform his evidence and refresh his memory of average wait time in summer 2011.
[26] The plaintiffs did not renew their motion for production of Dr. Wong’s records at trial. Therefore, I have no authority to consider or order production of the patient records upon which Dr. Wong relied in arriving at his estimate.
Disposition
[27] The evidence of Dr. Wong is admissible in its entirety. The chart remains a lettered exhibit as agreed by the parties. Concerns with respect to the manner in which the relevant patient records were summarized and the coding used to extract information from the patient records goes to the weight to be given Dr. Wong’s evidence regarding the average wait time for a stress test referral in June 2011.
“Justice A.K. Mitchell” Justice A. K. Mitchell
Date: October 5, 2018