Court File No.: CV-16-00557189

Date: 2018-01-30

Superior Court of Justice - Ontario

Re: Andrew Angus Peller, Catherine Ann Peller, and Jennifer Constance Peller, Plaintiffs

And:

Dr. Darrell Justice Ogilvie-Harris, and University Health Network, Defendants

Before: Madam Justice Darla A. Wilson

Counsel: Jill McCartney and Kimberly Knight, Counsel for the Plaintiffs Sarit Batner and Atrisha Lewis, Counsel for the Defendant, Ogilvie-Harris

Heard: January 22, 2018

Reasons for Decision

Overview

[1] The Plaintiffs bring this action in negligence against the Defendant, Dr. Ogilvie-Harris (“Ogilvie-Harris”), an orthopedic surgeon who treated the Plaintiff, Andrew Peller (“Peller”), in 2009. He alleges Ogilvie-Harris was negligent in the performance of an arthroscopy of the Plaintiff’s elbow on July 23, 2009 and as a result, Peller has suffered damage to his ulnar nerve that required further surgery and has been left with ongoing deficits. The claim against the defendant hospital has been dismissed and damages have been agreed upon. The trial commenced January 22, 2018 on the issues of liability and causation.

[2] I convened a trial management conference with counsel the week prior to the commencement of trial. I requested and was provided with a copy of the expert brief. I was not advised there were any issues concerning the qualification of the experts or the ambit of their proposed testimony. However, at the opening of trial, counsel for the Defendant raised an issue concerning the scope of Dr. Pichora’s testimony, which these Reasons address.

[3] The first witness the Plaintiff called was Dr. David Pichora, an orthopedic surgeon who practices in Kingston, Ontario. He has authored two reports dated October 13, 2015 and January 4, 2018. Dr. Pichora is critical of the care and treatment provided by Ogilvie-Harris during the surgery and afterwards and states that in his opinion, it fell below the standard of care.

[4] The Plaintiff will also call another orthopedic surgeon, Dr. Michael McKee, who has authored reports dated May 20, 2015, December 17, 2017 and January 7, 2018. In his reports, Dr. McKee states his view that Ogilvie-Harris fell below the standard of care during the surgery and the post-operative care. As well, Dr. McKee opines that if the peripheral nerve injury that occurred during the surgery had been recognized sooner, the reparative surgery would have been of a lesser magnitude and would probably have resulted in a better functional outcome for the Plaintiff.

[5] The Defendant intends to call an orthopedic surgeon, Dr. Jason Smith, to opine on the standard of care regarding the treatment the Defendant rendered. The Defendant will also call as an expert Dr. Jenny Lin, a plastic surgeon who specializes in nerve surgery. Her report dated December 14, 2017 offers an opinion on the issue of causation, or to put it more specifically, whether, even if Ogilvie-Harris was negligent, the outcome for the Plaintiff would have been any different. Dr. Lin was asked to provide her opinion on the issue of whether having a nerve exploration procedure earlier would have had any effect on the Plaintiff’s outcome. Her opinion, as set out in her report, is that the time delay between the Plaintiff’s elbow surgery and the nerve repair had no effect on Peller’s functional outcome. She sets out the following reasons for her opinion: the age of the Plaintiff; the fact that the injury was at the site of the elbow; and the pre-existing injury to the ulnar nerve the Plaintiff had suffered as a child.

Parties’ Positions

[6] The solicitor for the Defendant indicated that if counsel for the Plaintiff attempted to elicit an opinion on causation from Dr. Pichora, she would object as there is no opinion on the causation issue expressed in his reports. She also objected to Dr. Pichora providing his opinion on whether a breach of the standard of care occurred during the Plaintiff’s first attendance with Ogilvie-Harris on May 11, 2009, because no such opinion is expressly stated in his reports.

[7] Counsel for the Plaintiffs advised that she intended to elicit opinion evidence on both of the areas to which the defence objected. First, she argued that the report of Dr. Pichora dated January 4, 2018 contained an opinion on causation as follows: “[e]arlier ulnar nerve repair or graft would, in all probability, have had a better outcome than the delayed surgery did in this case.” She submits that Dr. Pichora ought to be allowed to expand on that opinion during his viva voce testimony. Counsel for the Plaintiff also submits that, while Dr. Pichora does not expressly say Ogilvie-Harris fell below the standard of care on the Plaintiff’s first attendance, he ought to be allowed to voice that opinion as it may be inferred from comments in his report.

Analysis

Opinion Evidence on Causation

[8] The issue of permissible expert testimony is a vexing problem for trial judges. Rule 53.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, sets out the procedure that is to be followed if a party intends to call an expert to offer opinion evidence to the court. The rule was amended in 2010 to provide increased specificity about the contents and timing of service of an expert’s report. Rule 53.03 requires that a party who intends to call an expert at trial must serve a proper report at least 90 days prior to the pre-trial. The party who intends to call an expert to respond must serve the expert report at least 60 days prior to the pre-trial. Any supplementary report must be served at least 30 days prior to the commencement of trial. The amendments to Rule 53 were intended to, among other things, achieve fairness to all parties well in advance of the trial date so that each party knows the case it has to meet at trial and can accordingly prepare its case and marshal the evidence so that the issues are properly addressed. The changes were also intended to ensure that only properly qualified witnesses will be entitled to offer opinion evidence at trial and that the evidence will only be within the parameters of the witness’s particular expertise.

[9] One of the most important amendments to Rule 53 was the requirement that the written report must articulate the opinion of the expert on each issue, a description of the facts upon which the opinion is based, a list of every document relied on by the expert in arriving at the opinion and a description of any research conducted by the expert that led to the opinion. Rule 53.03(3)(a) states:

An expert witness may not testify with respect to an issue, except with leave of the trial judge, unless the substance of his or her testimony with respect to that issue is set out in … a report served under this rule.

[10] Notwithstanding the mandatory provisions of Rule 53.03, it is a far too common occurrence that just as an expert is being called to give evidence at trial, the trial judge is asked to hear submissions and make a ruling on whether or not an expert witness can testify about certain issues. The requirements of Rule 53.03 clarified the role of the expert and what the written report must contain, which should result in fewer motions at trial concerning expert testimony.

[11] In the instant case, having read both reports tendered by Dr. Pichora, it is clear that he was retained by the Plaintiff to provide an opinion on whether there was a breach of the standard of care by Ogilvie-Harris. He was asked to answer certain questions and in doing so, he offered his opinion on the care provided by the Defendant. Specifically, Dr. Pichora states that the decision to undertake surgery was appropriate. However, in his opinion, the performance of the surgery did not meet the standard of care and was negligent, as was the post-operative treatment. Dr. Pichora is critical of Ogilvie-Harris for failing to examine the peripheral nerves after the surgery and for failing to make a referral to a specialist in the area of peripheral nerve issues. This, according to Dr. Pichora, constitutes negligence on the part of Ogilvie-Harris.

[12] It is not disputed that Dr. Pichora would be qualified to provide an opinion on causation given his background and experience in hand and microsurgery. The difficulty that has arisen is that nowhere in either of his reports, and I am not being critical of Dr. Pichora, does he expressly set out an opinion on causation. The closest he comes to doing so is the one sentence relied on by counsel for the Plaintiff in her submissions—essentially that earlier detection of the nerve problem would have probably led to a better result. That is a broad brush statement, in my opinion, without any particularity which would enable the reader of his report to understand in what way the outcome for the Plaintiff would have been different had the injury to the ulnar nerve been detected earlier and further surgery undertaken.

[13] While I accept as a general proposition that if something goes awry in surgery, the earlier it is recognized and treated, the better the outcome is for the patient, that is a bald statement without any specificity which does not comply with the provisions of Rule 53.03. It does not set out the facts upon which this opinion is based or the literature or research that has been done which supports this view. Perhaps in this particular situation, with a transection of the ulnar nerve, earlier detection might make no difference because there is no treatment or surgery available to rectify the problem. I simply do not know and there is nothing in Dr. Pichora’s reports that assists me. This is exactly the type of evidence that the court relies on an expert witness to provide because it is out of the realm of the knowledge and experience of someone without training in medical issues. It is precisely the sort of opinion that counsel seek and is necessary from an expert in a medical malpractice case.

[14] I agree that an expert is not bound by the four corners of the written report, and certainly a trial judge does not expect an expert to get into the witness box and simply read from the written report. However, it is also true that the report must articulate expressly the opinion that the expert has arrived at after doing a full review of the file and considering the literature in the area. The report must also set out the reasons behind the opinion held by the expert. The rule is not complied with if after reading the statement of opinion, the court is left guessing about what the expert means.

[15] In this case, even if I were to accept that the line cited by counsel for the Plaintiff qualifies as an opinion on causation, which I do not, I have no idea of what evidence Dr. Pichora would offer about what he means by an “earlier” ulnar nerve repair, a nerve “graft” or a “better” outcome. I also have no understanding of the timing of any intervention that Dr. Pichora is referring to.

[16] When he did his last report, Dr. Pichora had for his review the defence expert opinion of Dr. Lin on causation. In her report, Dr. Lin comments specifically on the timing of nerve conduction tests and when a referral ought to have been made to another specialist. She expresses her opinion on what the outcome would have been if the Plaintiff had undergone the nerve exploration procedure much earlier than he did. Dr. Lin discusses her opinion on what the factors are in the case of Peller that influenced his outcome—his pre-existing injury, his age and the site of the injury. She concludes that the time delay made little if any difference to the functional outcome of the Plaintiff and that he had a limited prognosis from the outset. It was open to Dr. Pichora, if he was requested by counsel for the Plaintiffs, to offer his own views on the issue of causation and specifically address the opinion of Dr. Lin as set out in her report. He did not do so in his report and it would be unfair to allow him to provide this opinion for the first time during his examination in chief. That is precisely what the amendments to Rule 53.03 were designed to eliminate.

[17] I am not persuaded by the argument that what counsel is attempting to do is only an expansion of an opinion expressed in Dr. Pichora’s report. That is simply not the case and the jurisprudence has been clear on this issue well before the amendments to Rule 53.03. In Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (2000), 2000 CanLII 16946 (ON CA), 51 O.R. (3d) 97 (C.A), at para. 38, the Court of Appeal stated as follows:

[A]n expert report cannot merely state a conclusion. The report must set out the expert’s opinion, and the basis for that opinion. Further, while testifying, an expert may explain and amplify what is in his or her report but only on matters that are “latent in” or “touched on” by the report. An expert may not testify about matters that open up a new field not mentioned in the report. The trial judge must be afforded a certain amount of discretion in applying rule 53.03 with a view to ensuring that a party is not unfairly taken by surprise by expert evidence on a point that would not have been anticipated from a reading of an expert’s report.

[18] In my view, cases of professional negligence which generally turn on the opinions of the experts retained by the parties, demand, perhaps more than other types of cases, compliance with the requirements of Rule 53.03. That is so because of the technical nature of the medical evidence, which is not easily understood by someone untrained in the medical field.

[19] The issue before me is similar to one I addressed in Hoang v. Vicentini, 2012 ONSC 1358, [2012] O.J. No. 889, where the Plaintiff wished to elicit an opinion from an engineer that was not contained in the written report. I noted as follows at paras. 10 and 11:

Rule 53 … specifically requires an expert to set out his or her opinion including the factual basis upon which it rests. It is not the job of the Court to search around in the body of an expert report and try and ascertain all of the “implicit” opinions contained in it.

One of the purposes of the amendments to Rule 53 was to ensure that the expert clearly sets out the opinion, the basis for it and the documentation that was relied upon in arriving at that opinion, so that opposing counsel can easily understand the opinion of the expert and how it was arrived at.

Hoang was ultimately upheld on appeal: Hoang v. Vicentini, 2016 ONCA 723, 352 O.A.C. 358. I agree that the trier of fact must ensure the expert is afforded the opportunity at trial to explain his or her opinion; but that opinion must be clear from reading the written report that has been delivered. The opinion should not be something that the court has to “infer” from what the expert sets out in the report and it should not be something that the court is left guessing about. Not only must the opinion be clearly set out, the reasoning that led the expert to that particular opinion must be articulated in the report. The expert will then have an opportunity to explain and elaborate on the opinion and how it was arrived at during his or her testimony at trial.

[20] What counsel for the Plaintiffs is seeking to do by having Dr. Pichora offer an opinion on causation is not simply amplifying an opinion that is set out in his report. If I were to permit this evidence to be elicited from this expert, in my view, it would be an abdication of my function as gatekeeper of the evidence and would result in a flagrant breach of Rule 53 when there is no compelling reason to do so. Dr. Pichora will not be permitted to offer an opinion on causation. This ruling will not prejudice the case of the Plaintiffs because the opinion on the causation issue will be offered by Dr. McKee in accordance with the contents of his reports.

Opinion Evidence on Breach of the Standard of Care

[21] After the commencement of the evidence of Dr. Pichora, an objection was raised about his evidence concerning the first attendance of the Plaintiff with Ogilvie-Harris, on May 11, 2009. While Dr. Pichora is critical of the Defendant in his reports and offers the opinion that he breached the standard of care during the surgery and post-operative care, he does not articulate in his reports that there was any breach of the standard of care on the first visit. Counsel for the Plaintiff submits that while she acknowledges Dr. Pichora does not expressly say Ogilvie-Harris fell below the standard of care in his treatment of the Plaintiff on the May 11, 2009 visit, he ought to be allowed to voice that opinion at the trial because that conclusion can be inferred from comments made in his report. For example, Dr. Pichora states that the documentation from the initial attendance was lacking.

[22] In the “Opinion” section of his first report, Dr. Pichora sets out the questions he was asked to answer and the questions deal with the first visit, the surgery, and the post-operative period. Dr. Pichora clearly states his opinion that the Defendant fell below the standard during the surgery and in the post-operative management. He says nothing about the first visit on May 11, 2009 except that the decision to undertake the arthroscopy was appropriate; he comments that it is not clear that other options for treatment were discussed. Whether or not they were is a matter of credibility based on findings of fact. Dr. Pichora does not state that if other options were not discussed, that constitutes a breach of the standard of care.

[23] Dr. Pichora had the benefit of the medical documentation and the examinations for discovery of the parties when he was asked to provide his opinion on the standard of care. If he was of the view that the treatment rendered by the Defendant at the initial visit was substandard, it was open to him to do so in his report and he did not. To allow him to express that opinion during his testimony at trial would be unfair and a breach of the requirements of Rule 53. He clearly states that the treatment rendered by Ogilvie-Harris at various visits following the surgery was not in accordance with the standard of care, but he does not state that there was a breach of the standard of care on the May 11, 2009 attendance and I am not prepared to allow that evidence at trial.

Conclusion

[24] For the reasons set out above, counsel for the Plaintiffs may not illicit testimony from Dr. Pichora on either the issue of causation or whether there was a breach of the standard of care on the Plaintiff’s May 11, 2009 attendance with the Defendant.

D.A. Wilson J.

Date: January 30, 2018