Court File and Parties

COURT FILE NO.: CV-16-558354 MOTION HEARD: 2019-01-11 REASONS RELEASED: 2019-02-11 SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

THE ESTATE OF MARYAM ASHARZADEH by her estate representative Fardad Fardnoor Mohammadnia, fardad fardnoor mohammadania and lilian fard, minor represented by her Litigation Guardian Fardad Fardnoor Mohammadnia

Plaintiffs

• and-

DR. FADIE AMIN, DR. FADIE AMIN MEDICINE PROFESSIONAL CORPORATION, ST. GABRIEL MEDICAL CENTRE, S. & E. GHOBRIAL PHARMACY INC., DR. ANTON DARRYL HELMAN, ANTON HELMAN MEDICINE PROFESSIONAL CORPORATION, DR. DAVID SCOTT HOMUTH, DR. DAVID S. HOMUTH MEDICINE PROFESSIONAL CORPORATION and NORTH YORK GENERAL HOSPITAL

Defendants

BEFORE: MASTER M.P. McGRAW

COUNSEL: D. Green, for the Plaintiffs N. Marotta, for the Defendants Dr. Fadie Amin, Dr. Fadie Amin Medicine Professional Corporation, Dr. Anton Darryl Helman, Anton Helman Medicine Professional Corporation, Dr. David Scott Homuth and Dr. David S. Homuth Medical Profesional Corporation

REASONS RELEASED: February 11, 2019

Reasons For Endorsement

I. Background

[1] The Plaintiffs bring two motions:

i.) a motion to compel the Defendant physicians Dr. Fadie Amin and Dr. Anton Helman (collectively, the “Defendants”) to answer approximately 14 questions arising from their examinations for discovery on March 26, 2018 (the “Refusals Motion”);

ii.) a motion for leave to amend their Statement of Claim issued August 11, 2016, as subsequently amended to add additional defendants pursuant to the Order of Master Abrams dated October 27, 2017 (the “Original Claim”) (the “Pleadings Motion”, together with the Refusals Motion, the “Motions”).

[2] The Plaintiffs submit that the refusals and should be answered based on the Original Claim. However, since the proposed amendments sought on the Pleadings Motions explicitly refer to the subject matter of the refusals, the Plaintiffs submit that to permit them would sufficiently expand the scope of discovery to make the refusals answerable. The Defendants oppose the amendments and submit that the refusals are proper whether or not leave to amend the Original Claim is granted.

II. The Parties and the Action

[3] This action arises from the death of Maryam Asharzadeh (“Maryam”). Maryam, age 38, attended a walk-in clinic at the St. Gabriel Medical Centre (“SGMC”) in Toronto on February 29, 2016 with a sore throat, fever, cough and headache. She was seen by Dr. Amin who diagnosed her with an upper respiratory infection and sent her home.

[4] Later that day, Maryam attended at the emergency department at North York General Hospital (“NYGH”) complaining of eye pain, flu symptoms, nausea and a headache. She was treated by Dr. Helman who noted slight swelling of the upper eye lid, diagnosed her with sinusitis and discharged her with instructions to take over the counter medicine.

[5] On March 1, 2016, Maryam experienced significant swelling of the eye. She re-attended at SGMC and was treated by Dr. Amin again. He diagnosed her with conjunctivitis and prescribed eye drops.

[6] On March 2, 2019, Maryam was found unresponsive and was taken to NYGH by ambulance. An MRI revealed that she had a bacterial infection of her sphenoethmoidal sinus which had spread to her orbit, brain and central nervous system. Sinusitis had caused ophthalmic vein thrombosis, cavernous sinus thrombosis and meningitis. Maryam fell into a coma, never regained consciousness and was declared brainstem dead on March 5, 2016. She was removed from life support on March 9, 2016. The cause of death as pleaded at paragraph 17 of the Original Claim was influenza A (H1N1), complicated bilateral cavernous sinus thrombosis and secondary bacterial meninigits secondary to streptococcus pneumonia causing extensive brain damage.

[7] As set out in the Original Claim, the Plaintiffs claim damages of $1,000,000 alleging that, among other things, Dr. Amin and Dr. Helman failed to: properly diagnose and recognize the urgency of Maryam’s medical condition; order diagnostic or imaging tests or refer her to the appropriate doctor or specialist including an opthalmologist; and follow proper policies, protocols and standards regarding the investigation and treatment of her condition.

[8] The parties first appeared before me on October 22, 2018. At that attendance, the Defendants advised that they were opposing the Refusals Motion and taking no position on the Pleadings Motion. The motion was adjourned to November 28, 2018 to permit the parties to consider the effect of the unopposed amendments on the Refusals Motion. When the parties re-attended on November 28, 2018, the Defendants advised that they were opposing both Motions.

III. The Law and Analysis

Generally

[9] Substantially all of the issues on the Motions arise from the Plaintiffs’ position that the Defendants should have considered a range of differential diagnoses and possible conditions including orbital cellulitis, periorbital cellulitis and preseptal cellulitis (the “Cellulitis Conditions”). The Plaintiffs submit that the disputed refusals with respect to the Celluitis Conditions are relevant based on the Original Claim and supported by the Defendants’ own discovery evidence and expert evidence delivered by the Plaintiffs after discoveries. The Plaintiffs further submit that the proposed amendments to the Original Claim would sufficiently expand the scope of discovery in any event.

[10] The Defendants submit that the refusals are irrelevant because the Plaintiffs did not specifically plead the Cellulitis Conditions and that they are improper hypotheticals questions which require the Defendants to opine on the standard of care. They also submit that the questions have no factual foundation as the Defendants dispute that Maryam had any of the Celluliits Conditions.

[11] With respect to the Pleadings Motion, the Defendants submit that the proposed amendments are frivolous and that it would be improper to grant leave to amend the Original Claim after discovery where the primary purpose is to expand the scope of discovery. Even if leave is granted, the Defendants submit that the disputed questions remain proper refusals.

The Refusals Motion

[12] Rule 31.06 of the Rules of Civil Procedure provides that:

(1) A person examined for discovery shall answer, to the best of his or her knowledge, information and belief, any proper question relevant to any matter in issue in the action….

[13] Rule 29.2.03 of the Rules of Civil Procedure sets out the proportionality factors which apply to both oral and documentary discovery:

(1)In making a determination as to whether a party or other person must answer a question or produce a document, the court shall consider whether,

(a) the time required for the party or other person to answer the question or produce the document would be unreasonable;

(b) the expense associated with answering the question or producing the document would be unjustified;

(c) requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice;

(d) requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and

(e) the information or the document is readily available to the party requesting it from another source.

(2) In addition to the considerations listed in subrule (1), in determining whether to order a party or other person to produce one or more documents, the court shall consider whether such an order would result in an excessive volume of documents required to be produced by the party or other person.

[14] Relevance, the scope of discovery and proportionality were canvassed comprehensively by Perell J. in Ontario v. Rothmans Inc., 2011 ONSC 2504 and Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2013 ONSC 917. Discovery questions must be relevant to the issues as defined by the pleadings such that they must have probative value and adequately contribute to the determination of the truth or falsity of a material fact. Overbroad and speculative discovery and “fishing expeditions” are not permitted (Rothmans at paras. 129 and 154-157).

[15] I am also guided by Rule 1.04(1) of the Rules of Civil Procedure which provides that the Rules of Civil Procedure shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. Additionally, Rule 1.04(1.1) of the Rules of Civil Procedure requires the court to make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved in the proceeding.

[16] Substantially all of the disputed refusals arise from hypothetical questions. The law with respect to hypothetical questions was considered by Master Short in Stryland v. Yazadanfar, 2011 ONSC 3842, relied on by the Defendants:

“25 My colleague Master Haberman identifies two elements relevant to this motion in her relatively recent decision, Redman v. Hospital for Sick Children, 2010 ONSC 3769:

8 Medical malpractice actions raise two basic issues with respect to liability, each of which is generally addressed by expert evidence. The first deals with whether the medical staff met the standard of care reasonably expected of them. The second issue deals with causation and raises the question: if the care provided fell below the appropriate standard, is that what caused or contributed to the medical misadventure? There will only be a finding of liability if the defendant failed to meet the appropriate standard of care and if that failure caused or contributed to the situation complained of.

26 More than twenty years earlier in Motaharian (Litigation guardian of) v. Reid (39 C.P.C. (2d) 141) Mr Justice Smith determined that hypothetical questions which invariably sought an opinion would be permitted where they were relevant to some issue in the case and the witness had expertise, provided that the questions were not overly broad or vague and did not elicit responses defending the actions or failures of others.

27 In particular in his reasons on a motion dealing with refusals in a medical malpractice case, Smith, J. held:

"Hypothetical questions are not per se improper. They invariably seek an opinion, whether a general or specific one. They should be permitted where the witness has expertise, when relevant to some issue in the case, provided they are not overly broad or vague. Another proviso should be added: a witness need not defend other persons' actions or answer for their failures. No opinion should, therefore, be elicited from a medical doctor respecting the acts, omissions or judgment of other doctors, nurses or other hospital employees."

28 Questions that go to the ultimate issue or ask a defendant to opine on the standard of care are outside the scope of a defendant's expertise. Such questions require legal opinions and are properly the domain of the trier of fact.

29 Similarly whether records met the standard are legal determinations and questions about a duty to report improper records require legal conclusions.

30 As well the amendment to Rule 31.06(1) of the Rules of Civil Procedure discussed above, limiting proper questions to those that seek an answer relevant to any matter in issue in action may further restrict the extent to which opinions can properly be sought.”

[17] The Defendants submit that Stryland stands for the general proposition that defendant physicians in medical malpractice actions are not required to answer hypothetical questions regarding the standard of care. In my view, this misstates the law and is inconsistent with specific rulings made by Master Short in Stryland. In particular, Master Short concluded as follows at paragraph 45 regarding a refusal by a defendant physician:

“I also continue to be of the view that the understanding of the witness as to the appropriate standard of care is relevant. On this basis, I did not uphold refusal 19 made in response to a request to advise whether 90 minutes is an appropriate amount of time to leave a patient unattended or not examined by a physician. This did not go to any particular co-defendant’s conduct and I believe ought to fall within the examinable expertise of the witness.”

[18] In my view, Stryland highlights an important distinction with respect to hypothetical questions related to the standard of care. Questions which require a witness to “opine” on the standard of care or the ultimate issue such as whether the witness’ conduct fell below the standard of care are in the purview of the trier of fact or the subject of expert evidence and therefore outside the expertise of the witness. These are distinguishable from questions which are probative of the standard of care, including questions which elicit answers regarding the witness’ understanding of the standard of care and acts or omissions which may inform or provide evidence regarding the standard of care, as long as the questions are within the expertise of the witness.

[19] Further, at paragraph 32(l) of Stryland, Master Short ordered the defendant physician to advise whether he “was supposed to chart the oxygen saturation. – To be answered goes to duty of care to patient.”

[20] In Stryland, Master Short also considered the distinction between questions which elicit answers with respect to what “could have” caused a particular outcome and those which ask what “would have” caused a particular outcome:

“37 However, with respect to Refusal 33 as to what "could" have caused hypovolemic shock, I determined to rely upon the observation in Motaharian (supra) that hypothetical questions "should be permitted where the witness has expertise, when relevant to some issue in the case, provided they are not overly broad or vague."

38 On a similar question in Redman my colleague looked at this issue:

"18 Item 2 raises different issues, as a definite result is not built into the response. All that is sought is an indication as to whether the witness believes that the use of a huddle would have given the team the opportunity to question the use of this drug. The only possible response to this question is "certainly", as the purpose of the huddle is to accomplish just that - create opportunities for the exchange of information about the patient so as to maximize a positive outcome for him. This is a "could it have" rather than a "would it have" question and it shall therefore be answered within 30 days. ..."

39 While his counsel asserts that asking what "could" have caused Ms. Stryland's death is also a speculative question and that such a hypothetical is irrelevant, based on the above test and analysis, I disagreed and ordered this question to be answered. “

[21] By contrast, Master Short held that it was unnecessary for a defendant physician to answer questions regarding a hypothetical blood pressure where he did not agree that the plaintiff had the blood pressure reading in question (Stryland at para. 36). Similarly, in Cheesman v. Credit Valley Hospital, 2018 ONSC 1881 at para. 21, Master Pope declined to compel a physician to answer a hypothetical question regarding the standard care when a patient complains of a fever where the plaintiff in that case did not complain of a fever stating, “his standard of care in different circumstances is not relevant”.

[22] In my view, the principles regarding hypothetical questions which emerge from the case law can be summarized as follows:

i.) hypothetical questions necessarily elicit opinions and are not per se improper (Motaharian at para. 3; Stryland at paras. 26-27);

ii.) a hypothetical question must be within the knowledge and expertise of the witness (Motaharian at para. 3; Stryland at paras. 26-27);

iii.) a hypothetical question must be relevant and proportionate (Motaharian at para. 3; Stryland at paras. 26-27 and 30; Rothmans at paras. 129 and 154-157);

iv.) a hypothetical question cannot be so vague or overbroad as to be unanswerable (Motaharian at para. 3; Stryland at paras. 26-27);

v.) a hypothetical question must have some factual foundation in the evidence (Stryland at para. 36; Cheesman at para. 21);

vi.) a hypothetical question must not elicit a response regarding the acts or omissions of others or require the witness to defend the actions of others (Motaharian at para. 3; Stryland at paras. 26-27);

vii.) a hypothetical question which requires the witness to opine on the standard of care or the ultimate issue is a legal opinion which is outside the expertise of the witness. This would include whether the witness’ conduct met or fell below the standard of care. These are questions for the trier of fact and the subject of expert reports and opinions. However, this is distinguishable from questions which are relevant to the standard of care, including the witness’ understanding of the standard of care, acts or omissions which are probative of the standard of care or those which otherwise inform or provide evidence relevant to the standard of care on the condition that the questions are within the witness’ expertise (Stryland at paras. 28 and 45; Redman at para. 8);

viii.) hypothetical questions which elicit answers regarding what “could” have caused certain outcomes are proper as opposed to what “would” have caused certain outcomes (Redman, at para. 8; Stryland at paras. 37-39).

[23] I have considered the Refusals Motion and made the determinations below based on the Original Claim, independent of and without any consideration of the Proposed Draft Amended Amended Statement of Claim (the “Amended Claim”) and the Pleadings Motion. I have also not considered the expert reports by Dr. Edwin Brankston dated June 26, 2018 and Dr. Bharat Yarlagadda dated July 9, 2017 which were delivered in July 2018 and not put to the Defendants during their examinations for discovery.

Refusals by Dr. Amin

[24] There are 3 questions at issue on the Refusals Motion as it relates to Dr. Amin.

[25] Refusal #1 (Question 215) – Dr. Amin was asked at Question 215 whether “ten-out-of-ten pain on a subjective report” would “be a red flag requiring urgent referral to an ophthalmologist or an emergency department”. Dr. Amin refuses to answer this question on the basis that Maryam did not report 10-out-of-10 pain when he saw her on February 29, 2016. In my view, this is a proper refusal. This question is analogous to the blood pressure question in Stryland and the fever question in Cheesman. As in those cases, there is no evidence or basis in the record or any suggestion that Maryam presented 10-out-of-10 pain to Dr. Amin. Therefore, this question has no factual foundation and Dr. Amin is not required to answer it.

[26] Refusal #2 (Question 379) –Dr. Amin answered this question regarding symptoms which require urgent specialist referral such as orbital pain, edema and conjunctival chemosis at Questions 388-391. No further efforts are required.

[27] Refusal #3 (Question 393) – Dr. Amin was asked at Question 393 if Maryam presented retro-orbital migraine. He replied: “She had retro-orbital pain. Yes”. At Question 394 Dr. Amin was asked “would you agree that was a red flag for urgent referral?” and answered “no”. The Plaintiffs seek clarification as to whether Dr. Amin’s answer is “no” for both retro-orbital pain and retro-orbital migraine. Defendants’ counsel has agreed to ask Dr. Amin and confirm. This is a reasonable and proportionate resolution of this refusal.

Refusals by Dr. Helman

[28] There are 11 questions at issue on the Refusals Motion as it relates to Dr. Helman.

[29] The following excerpt from Dr. Helman’s examination for discovery transcript is relevant to many of the disputed questions:

275. Q. Dr. Helman, when you assessed this patient, did you find anything wrong with the eye itself? A. I did note that the patient had maybe some slight swelling of the upper lid.

276. Q. Other than that, did you note anything wrong with the eye itself? A. No.

277. Q. At the time, what did you understand could cause swelling to the upper lid? A. Sinusitis.

278. Q. And what else? Periorbital cellulitis? Yes? A. Yeah. Periorbital cellulitis, yes.

279. Q. Or orbital cellulitis? A. Yes.

280. Q. Or preseptal cellulitis, correct? A. Yes.

281. Q. All right. And I take it any of those three conditions would require treatment by antibiotic? A. Yes.

282. Q. I take it all three of those conditions could quickly become life-threatening? A. I suppose.

283. Q. I take it you did not prescribe antibiotics? A. Correct.

284. Q. Can you tell me, how is preseptal, periorbital or orbital cellulitis caused? Is it the progression of sinusits into the orbit? A. So ---

MS. SPAFFORD: Can you repeat that? I didn’t…

BY MR. LINDEN:

285. Q. Sure. So, we talked about preseptal, periorbital and orbital cellulitis. I take it you’d agree, Dr. Helman, one of the methods, one of the manners in which those illnesses can be caused is the advancement of the sinusitis into the orbit? A. My understanding of orbital cellulitis is that the most common cause is from a skin cellulitis that then progresses to the orbit.

286. Q. So that’s maybe one cause. But would you agree that another method is the progression of sinusitis? A. I don’t know.

287. Q. I take it you wouldn’t disagree with that? MS. SPAFFORD: Well, he doesn’t know. He doesn’t know.

BY MR. LINDEN:

288. Q. Would you agree that sinusitis is an infection that can spread to the orbit? A. I don’t know.

289. Q. … Can you tell me, was there an ophthalmologist on call at North York General Hospital when you saw this patient? A. There is an ophthalmologist on call all the time at North York General.

290. Q. All right. I take it you’re – I should have asked you this in fairness to you. You’re not an ophthalmologist by training? A. Correct.

291. Q. All right. And I take it if you had wanted to call an ophthalmologist to have a look at this patient you could’ve done that, correct? A. Yes.

292. Q. Okay. A. I’m at liberty to call any specialist for any reason I would want.

293. Q. Sir, would you agree that ophthalmology is not your area of specialty? A. Correct.

294. Q. That in an ophthalmology case you should refer to an ophthalmologist? A. No.

295. Q. Well, it’s not your area of specialty. A. We only refer cases that we believe require emergency assessment by an ophthalmologist.

296. Q. Would you agree that a delay in diagnosing orbital cellulitis may be associated with life-threatening consequences? A. Sorry, I don’t understand the relevance. The patient didn’t have orbital cellulitis.

297. Q. Really? I’m just asking you sir, if you would agree that a delay in diagnosis of orbital cellulitis may be associated with life-threatening consequences? A. No. My understanding is that orbital cellulitis can cause problems with the eye but that it’s not life-threatening.

298. Q. Would you agree that an infection that is progressing from sinusitis to the orbit requires antibiotic treatment? A. I suppose.

299. Q. Would you agree that this particular patient when she presented had flu-like symptoms since the previous Thursday and as of I guess February 28th, had a new symptom of eye pain? A. Yes.

300. Q. Did you consider that that might be a sign of progression of an underlying infection from the sinus? A. No.

301. Q. What did you consider the potential causes of that swelling in the right lid to be? A. Sinusitis.

302. Q. Well, the sinus infection hadn’t progressed from the sinus into the eye. There isn’t a sinus in the lid. How could it be causing swelling in the lid? A. My understanding is that one of the symptoms of sinusitis is some swelling, facial swelling, which can include the eyelid.

303. Q. What else did you understand could be causing the swelling in the eyelid? A. Well, a sty can cause swelling in the eyelid.

304. Q. How about the other ones: preseptal cellulitis, orbital cellulitis? A. Again, my understanding with orbital cellulitis is that it’s usually an infection that starts on the skin and when the skin is infected then, yes, the skin all around the eye will be swollen. But it’s red, and in her case the skin was not red.

305. Q. Would you agree that symptoms that indicate extension of disease from the sinuses to the orbit or intracranial structures require urgent specialist referral and aggressive treatment? A. It depends.

306. Q. Well, would you agree that some symptoms that would indicate an extension of disease from the sinuses to the orbit requiring urgent specialist referral and aggressive treatment include orbital pain? MS. SPAFFORD: He’s not answering that. This is …

--- REFUSAL NO. 4

BY MR. LINDEN:

350. Q. How about preseptal cellulitis? MS. SPAFFORD: He’s not answering that question.

--- REFUSAL NO. 5

BY MR. LINDEN:

351. Q. Symptoms of meningeal irritation? MS. SPAFFORD: I’m refusing that question as well.

--- REFUSAL NO. 6

BY MR. LINDEN:

352. Q. Would you agree --- MS. SPAFFORD: These are all theoretical questions.

[30] Refusal #1 (Question 274) – Dr. Helman was asked to advise if certain conditions are generally excluded through imaging. In my view, Dr. Helman answered this and similar questions at Questions 266-273. To the extent to which the Plaintiffs seek any clarification, they may do so in writing or upon re-attendance on discovery.

[31] Refusals #2, #3 and #4 (Questions 349-351): Dr. Helman refuses to advise if symptoms of orbital pain (Question 349); preseptal cellulitis (Question 350); and meningeal irritation (Question 351) would indicate an extension of disease from the sinuses to the orbit requiring urgent specialist referral and aggressive treatment.

[32] Dr. Helman has agreed to answer Refusal #4 (Question 351) on the basis that the Plaintiffs pleaded bacterial meningitis as part of the cause of death, subject to confirmation that by meningeal irritation the Plaintiffs are referring to meningitis. While this would appear to be obvious, the Plaintiffs shall do so and Dr. Helman shall answer this question.

[33] The Defendants submit that Refusals #2-#3 (Questions 349-350) are not relevant, have no factual foundation and are improper hypothetical questions regarding the standard of care.

[34] I am satisfied that Questions 349-350 are relevant to the following allegations as against Dr. Helman as pleaded in the Original Claim:

i.) “he misdiagnosed Maryam” (para. 21C (a));

ii.) “he failed to properly document, investigate, diagnose, and/or recommend the further investigation of Maryam’s eye pain, flu like symptoms and/or related symptoms” (para. 21C(b));

iii.) “he failed to recommend any further investigations and/or consultations in a timely fashion” (para. 21C(c);

iv.) “he failed to advise Maryam that her eye pain, flu like symptoms and/or related symptoms could be the product of a more serious condition” (para. 21C(h);

v.) “he failed to recommend and/or schedule and/or offer any specialist assessments, diagnostics, follow up appointments, imaging and/or monitoring to further observe and/or investigate Maryam’s eye pain, flu like symptoms and/or related symptoms” (para. 21C(i));

vi.) “he failed to order diagnostic imaging or tests” (para. 21C(j));

vii.) “he failed to properly diagnose Maryam” (para. 21C(k));

viii.) “he failed to recognize the urgency of Maryam’s medical condition” (para. 21C(m));

ix.) “he failed to use appropriate tests, and consult appropriate individuals and experts in the care of Maryam” (para. 21C(p));

x.) “he failed to refer Maryam to the appropriate doctor and/or specialist and/or communicate with other physicians who could properly diagnose Maryam’s medical condition” (para. 21C(s));

xi.) “he failed to refer Maryam for a neurological and/or opthalmological and/or other consultation and/or second opinion” (para. 21C(u);

xii.) “he failed to warn Maryam of the potential nature of her symptoms and to recommend Maryam obtain appropriate diagnostics and assessments” (para. 21C(hh).

[35] I reject the Defendants’ argument that Refusals #2-#3 are not relevant because the Plaintiffs did not specifically plead the Cellulitis Conditions. In my view, both questions are probative of numerous matters at issue in this litigation as pleaded. While eye pain is specifically pleaded, both questions are probative of Maryam’s diagnosis, the urgency of her medical condition, the potential for more serious conditions and specialist referrals.

[36] There is also a factual foundation for both questions. With respect to Refusal #2, the Defendants do not dispute that Maryam presented orbital pain to Dr. Helman, which is supported by Dr. Helman’s evidence on discovery, his clinical notes and the nurse’s triage notes. With respect to Refusal #3, Dr. Helman deposed on discovery that preseptal cellulitis could cause swelling in the eyelid, that it could quickly become life-threatening and that that it requires antibiotic treatment. In my view, not only does this establish a factual foundation for this question but it appears that Dr. Helman has provided a partial answer such that only additional clarification may be required.

[37] The fact that the Defendants dispute that Maryam had preseptal cellulitis does not alter this conclusion. In my view, Dr. Helman’s disagreement that Maryam had preseptal cellulitis is distinguishable from Refusal #1 regarding Dr. Amin where Maryam did not present 10-out-of-10 pain to Dr. Amin. It is also distinguishable from the plaintiffs in Stryland or Cheesman who did not have a certain blood pressure reading or a fever, respectively. These conclusions were based on readings or symptoms which the record demonstrated the patients did not have, which were not in dispute and/or otherwise there was no evidence on the record to support such a conclusion. By contrast, the parties in the present case disagree whether Maryam had preseptal cellulitis and there is nothing conclusive in the record.

[38] I further conclude that Refusals #2-#3 are hypotheticals within Dr. Helman’s expertise. Dr. Helman stated on discovery that although optholmology is not his specialty, he would only refer cases to an optholomologist if he believed emergency assessment was required. The questions at issue are related to the very assessment he was required to make to determine if he believed a referral was necessary. Dr. Helman also confirmed on discovery that he authored/edited a podcast entitled “Non-Traumatic Eye Emergencies“ which includes a six-part systematic eye exam for every patient with an eye complaint (Questions 172-174). This would suggest that, as an emergency physician, he possesses a sufficient degree of expertise with respect to the relevant assessment of the eye conditions and related symptoms at issue in this action. These questions are also not vague and do not elicit answers regarding the conduct of others.

[39] I also conclude that Refusals #2-#3 are not improper hypotheticals which ask Dr. Helman to opine on the standard of care, the ultimate issue or provide a legal or expert opinion. Questions 349-350 elicit answers from Dr. Helman regarding his understanding of the symptoms and assessment of orbital pain and preseptal sinusitis, conditions which he already provided evidence on discovery and which are within his expertise. While these questions may be probative of the standard of care, they do not require him to opine on the standard of care itself including whether or not his actions met the standard of care.

[40] Having considered the relevant factors and circumstances, I conclude that, to the extent to which Dr. Helman has not already answered Refusals #2-#3 by his partial responses, he shall do so and/or provide the necessary clarifications.

[41] Refusals #5, #6 and #11 (Questions 457, 459 and 476) – Dr. Helman submits that there is no factual foundation for these 3 questions on the basis that they elicit responses regarding orbital and periorbital cellulitis, conditions which he submits Maryam did not have.

[42] With respect to Refusal #5, Dr. Helman was asked at Question 457 what he understands the appropriate assessment to be to determine if somebody has orbital cellulitis including what would be done by the emergency physician. In my view, his answer to Question 458 is a complete response to Question 457:

458. Q. Dr. Helman, what would you typically do to determine or exclude whether someone is suffering from periorbtial or orbital cellulitis? A. I would assess whether they have an infection of the skin around the eye and if that was tender, if they had abnormal extraocular movements, and this patient had none of those.

[43] With respect to Refusal #6, at Question 459, Dr. Helman refuses to advise whether he would agree that the typical patient with periorbital cellulitis does not present an impaired ability to move their eye. In my view, this question is relevant to the paragraphs of the Original Claim set out above at paragraph 34. Further, at Question 458 Dr. Helman stated that as part of his assessment for periorbital cellulitis that he would assess whether the patient “…had abnormal extraocular movements, and this patient had none of those” and acknowledged at Question 206 that he checked Maryam’s extraocular movements. Therefore, I am satisfied that there is a factual foundation. Further, based on my analysis for Refusals #2-#3, I am satisfied that this question does not require Dr. Helman to opine on the standard of care but rather is probative of his understanding of assessments which are relevant to the standard of care and otherwise meets the requirements for a proper hypothetical question. In my view, in light of the previous and partial answers provided, the most reasonable and proportionate disposition for Refusal #6 is for Dr. Helman to confirm what he means by “abnormal extraocular movements” in Question 458 and whether no movement in the eye would be typical in a patient with periorbital cellulitis.

[44] With respect to Refusal #11, at Question 476 Dr. Helman refuses to answer whether orbital cellulitis, if left untreated, ultimately leads to a cavernous sinus involvement. The Defendants again submit that this is an improper hypothetical question because it is not relevant and has no factual foundation. It is not disputed that, as pleaded in the Original Claim, Maryam’s death was in part due to complicated bilateral cavernous sinus thrombosis. This, in addition to the other paragraphs from the Original Claim cited above at paragraph 34, establishes relevance. On discovery, Dr. Helman deposed that his “understanding is that orbital cellulitis can cause problems with the eye but that it’s not life-threatening”. Further, at Questions 482-487, Dr. Helman agreed that cavernous sinus thrombosis could be caused by an infection of the sinuses. Accordingly, there is a factual foundation for this question on the record and, when taken together, Dr. Helman’s discovery evidence comprises a partial response. I also conclude that for the same reasons set about above with respect to Refusals #2-#3 this is otherwise a proper hypothetical question within Dr. Helman’s expertise. Therefore, I conclude that to the extent to which Refusal #11 is not answered or requires clarification, Dr. Helman shall do so.

[45] Refusals #7, #8, #9, #10 (Questions 462, 467, 470, 475) – Dr. Helman submits that these 4 questions are improper hypotheticals again on the basis that there is no factual foundation because they all relate to preseptal cellulitis which he asserts Maryam did not have.

[46] With respect to Refusal #7, Dr. Helman was asked at Question 462 whether most patients who present with preseptal cellulitis do not have dysfunction in the eye and that the eye moves normally. Similarly, at Refusal #8, Dr. Helman was asked if he would agree that in cases of preseptal cellulitis, visual acuity is not affected and ocular movement is intact. In Refusal #6 above, Dr. Helman was asked a similar question regarding periorbital cellulitis. Given my previous conclusions above that there is a factual foundation for questions related to periorbital cellulitis and eye movement and that such questions are relevant, I similarly conclude that there is a factual foundation for Refusals #7-#8. I am also satisfied that this is a proper hypothetical question within Dr. Helman’s expertise. Having considered all of the relevant factors and circumstances, and taking into consideration my analysis above regarding Refusals #5-#6, I conclude that Dr. Helman shall answer Refusals #7-#8.

[47] At Refusal #9, at Question 470, Dr. Helman is asked if he would agree that there is no alternative treatment for preseptal cellulitis other than antibiotic treatment. As set out above, in his answer to Question 281, Dr. Helman deposed that preseptal cellulitis would require antibiotic treatment. This answer is a complete response to Refusal #9.

[48] At Refusal #10, in Question 475, Dr. Helman is asked if he would agree that the first stage in the progression of sino-nasal orbital infections is preseptal cellulitis. In responding to Questions 284-288, Dr. Helman stated that he did not know the answers to mutiple questions regarding the progression of sinusitis including whether sinusitis is an infection that can spread to the orbit. He was asked specifically if all three of the Celluitis Conditions were caused by this progression but addressed only orbital celluitis. In my view, it would appear that Dr. Helman has already stated that he does not know the answer and has provided at least a partial response to Refusal #10. However, to the extent to which the Plaintiffs require clarification, Dr. Helman shall provide it.

The Pleadings Motion

[49] Rule 26.01 of the Rules of Civil Procedure states:

“On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.”

[50] Amendments should be presumptively approved unless they would result in prejudice that cannot be compensated by costs or an adjournment; they are shown to be scandalous, frivolous, vexatious or an abuse of the court's process; or they disclose no reasonable cause of action (Andersen Consulting v. Canada (Attorney General), 2001 CarswellOnt 3139 (C.A.) at para. 37; Schembri v. Way, 2012 ONCA 620 at paras. 25 and 44).

[51] Master MacLeod summarized the test for leave to amend pleadings under Rule 26.01 of the Rules of Civil Procedure at paragraphs 19-22 of Plante v. Industrial Alliance Life Insurance Co., 2003 CarswellOnt 296:

“(a) The amendments must not result in irremediable prejudice. The onus of proving prejudice is on the party alleging it unless a limitation period has expired. In the latter case, the onus shifts and the party seeking the amendment must lead evidence to explain the delay and to displace the presumption of prejudice: [citations omitted]

(b) The amended pleading must be legally tenable. It is not necessary to tender evidence to support the claims nor is it necessary for the court to consider whether the amending party is able to prove its amended claim. The court must assume that the facts pleaded in the proposed amendment (unless patently ridiculous or incapable of proof) are true, and the only question is whether they disclose a cause of action. Amendments are to be granted unless the claim is clearly impossible of success. For this purpose amendments are to be read generously with allowance for deficiencies in drafting: [citations omitted].

(c) The proposed amendments must otherwise comply with the rules of pleading. For example, the proposed amendments must contain a "concise statement of material facts" relied on "but not the evidence by which those facts are to be proved" (rule 25.06(1) of the Rules of Civil Procedure), the proposed amendments are not "scandalous, frivolous or vexatious" (rule 25.11(b) of the Rules of Civil Procedure), the proposed amendments are not "an abuse of the process of the court" (rule 25.11(c) of the Rules of Civil Procedure), the proposed amendments contain sufficient particulars -- for example, of fraud and misrepresentation (rule 25.06(8) of the Rules of Civil Procedure).”

[52] Where, based on a generous reading, proposed amendments arise out of the same facts or factual matrix that was pleaded in the original statement of claim and can reasonably be seen as falling within the four corners of the existing claim, the presumption is that they should be permitted unless they will inflict non-compensable prejudice (Farmers Oil and Gas Inc. v. Ontario (Ministry of Natural Resources), 2016 ONSC 6359 at paras. 22 and 31).

[53] The Defendants oppose the proposed amendments (the “Proposed Amendments”) at paragraph 26 of the Amended Claim on the basis that they are frivolous allegations with no air of reality which are being sought only to address the pending refusals motion:

A. As against the Defendant, Dr. Amin:

(e) He failed to advise Maryam that her eye pain, flu like symptoms and/or related symptoms could be the product of a more serious condition, which conditions include, but are not limited to, preseptal cellulitis, perorbital cellulitis, orbital cellulitis, cancer, intracranial hemorrhage, and/or intracerebral hemorrhage;

(h) He failed to properly diagnose Maryam and, in particular, failed to suspect that she was suffering from preseptal cellulitis, periorbital cellulitis, orbital cellulitis, cancer, intracranial hemorrhage, and/or intracerebral hemorrhage and/or that her symptoms and/or infection had migrated into the orbit;

C. As against the Defendant, Dr. Helman:

(h) He failed to advise Maryam that her eye pain, flu like symptoms and/or related symptoms could be the product of a more serious condition, which conditions include, but are not limited to, preseptal cellulitis, perorbital cellulitis, orbital cellulitis, cancer, intracranial hemorrhage, and/or intracerebral hemorrhage;

(l) He failed to properly diagnose Maryam and, in particular, failed to suspect that she was suffering from preseptal cellulitis, periorbital cellulitis, orbital cellulitis, cancer, intracranial hemorrhage, and/or intracerebral hemorrhage and/or that her symptoms and/or infection had migrated into the orbit;

[54] As set out above, Dr. Helman deposed that the Cellulitis Conditions could cause eye swelling, would require antibiotic treatment and could become life threatening. With respect to cancer, intracranial hemorrhage and intracerebral hemorrhage, Dr. Helman stated in answering Questions 265-267 that these conditions would be on the differential for a serious headache, which Maryam presented to the triage nurse. The Plaintiffs are not required to tender evidence or prove their claims arising from the Proposed Amendments and the court must assume that the facts pleaded in the Proposed Amendments are true. It is not sufficient for the Defendants to assert that they dispute that Maryam had the Cellulitis Conditions. Accordingly, based on a generous reading of the Amended Claim, I conclude that the Proposed Amendments are legally tenable, not patently ridiculous or incapable of proof and not vexatious, scandalous or frivolous.

[55] I am also satisfied that the Proposed Amendments arise out of the same factual matrix in the Original Claim namely, they specify the more serious conditions which the Plaintiffs allege the Defendants should have considered as differential diagnoses. The Defendants have also provided no evidence that they would suffer actual prejudice if the Proposed Amendments are permitted or that allowing the Proposed Amendments would constitute an abuse of process or disrupt these proceedings.

[56] Additionally, I reject the Defendants’ submission that the Proposed Amendments should be denied because they were sought post-discovery as a strategy to expand the scope of discovery. The Defendants have not referred me to any case law or other authority in support of this position and in any event, I have considered and disposed of the Motions separately. I also do not accept the Defendants’ submissions that to permit the Proposed Amendments will encourage pleadings amendment motions to expand the scope of discovery given the low threshold on such motions. Further, there is no basis for the Defendants’ assertion that if the Proposed Amendments are granted, only the Defendants, and not the Plaintiffs, are entitled to conduct further examinations for discovery based on the expanded scope of discovery. It is not uncommon for parties to seek leave to amend their pleadings after examinations for discovery and, if leave is granted by the court (which is not automatic) or the parties consent, for the parties to re-attend and conduct additional discoveries based on the amended pleadings. This action should be no different.

[57] In my view, having considered all of the relevant factors and circumstances, I conclude that the Plaintiffs have met the appropriate tests and should be granted leave to amend the Original Claim in the form of the Amended Claim with all Defendants granted leave to amend their Defences to plead additional and/or amended defences.

III. Disposition

[58] Order to go as follows:

i.) the Refusals Motion as against Dr. Amin is dismissed subject to clarification of his answer with respect to Refusal #3;

ii.) Dr. Helman shall provide the necessary clarifications with respect to Refusals #1 and #4 within 30 days;

iii.) Dr. Helman shall answer Refusals #2, #3, #6, #7, #8, #10 and #11 and/or provide the necessary clarifications, as applicable, within 30 days;

iv.) the Refusals Motion as against Dr. Helman is dismissed with respect to Refusals #5 and #9;

v.) the Plaintiffs are granted leave to amend the Original Claim in the form of the Amended Claim with all Defendants granted leave to, if necessary, plead additional and/or amended defences.

[59] If the parties are unable to agree on the costs of the Motions, they may file written costs submissions not to exceed 3 pages (excluding costs outlines) with me through the Masters Administration Office on or before March 31, 2019. If the parties are unable to agree on a timetable to do so, they may contact me to schedule a telephone case conference.

Released: February 11, 2019

Master M.P. McGraw