Court File and Parties

Court File No.: CV-14-000311-00 (Kingston) Date: 2019-11-13 Superior Court of Justice - Ontario

Re: The Estate of Julia Stevenhaagen, Deceased, by her Estate Trustee, John Stevenhaagen, Holly Stevenhaagen and Brad Stevenhaagen, Plaintiffs And: Kingston General Hospital, Dr. Gary N. Burggraf, Dr. Douglas R. Walker, Dr. I. Singh, Dr. John D. Ricketts, Dr. Lavalee, W. Tsui, V. Nair, Dr. Robert D. Tomalty, Brenda Beattie, M. Campbell, Kate Switzer, B. Brumh, The Toronto Hospital (Also Known As University Health Network), Dr. Peter R. McLaughlin, Dr. Ralph Edwards, Dr. Tirone E. David, Dr. Haggie and Dr. Yip, Jane Doe 2 and Dr. Yaron Sternbach, Defendants

Before: Mr. Justice Graeme Mew

Counsel: Jerome Morse and Kevin Kemp, for the Plaintiffs William D. Black and Atrisha S. Lewis, for the Defendants Dr. Peter R. McLaughlin and Dr. Yaron Sternbach

Heard: 12 November 2019, at Kingston

Endorsement

[1] "Participant experts" are witnesses whose evidence is derived from their observations or involvement with the underlying facts that derives from their knowledge, training and experience.

[2] Unlike litigation experts, who are engaged by or on behalf of a party for the purpose of giving opinion evidence, participant experts do not have to comply with Rule 53.03 of the Rules of Civil Procedure, which prescribes the requirements for experts' reports and the delivery of an acknowledgment of the expert's duty (Form 53).

[3] The court nevertheless retains a gatekeeper function in relation to the evidence of participant experts. As a result, for opinion evidence from a participant expert to be admissible, the court must be satisfied that:

a. the evidence meets the criteria applicable to all expert evidence;

b. the opinion which the particular participant expert seeks to give is based upon his or her observation of or participation in the events at issue; and

c. the witness formed that opinion as "part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events".

See Westerhof v. Gee Estate (2015), 124 O.R. (3d) 721, 2015 ONCA 206, at paras. 60-64; XPG, A Partnership v. Royal Bank of Canada (2016), 87 C.P.C. (7th) 57, 2016 ONSC 3508, at paras. 22-25.

[4] The plaintiffs in this clinical negligence case propose to adduce opinion evidence at trial from Dr. Anthony Ralph-Edwards ("Dr. Ralph-Edwards") and Dr. Tirone David ("Dr. David"), both of who were involved in the treatment of Julia Stevenhaagen. The plaintiffs say that their evidence is admissible as participant experts. The defendants oppose the introduction of the proposed evidence on the basis that it goes beyond the scope of evidence permitted by participant experts as set out in Westerhof; the evidence is not impartial; and, some of the proposed evidence is beyond the qualifications of the witnesses.

[5] This endorsement deals with the proposed evidence of Dr. David only.

Background

[6] The remaining active defendants in this case are Drs. Peter McLaughlin and Dr. Yaron Sternbach. At the material time, Dr. McLaughlin was an interventional cardiologist; Dr Sternbach was a vascular surgeon. Dr. Ralph-Edwards and Dr. David, both cardiac surgeons were previously active defendants in this litigation, but the claims against them were dismissed, on consent and without costs, on 7 January 2010. All these doctors practised at Toronto General Hospital, where Ms. Stevenhaagen had been admitted for treatment.

[7] By way of a very general overview, on 18 October 2002, Dr. McLaughlin performed a balloon angioplasty on Ms. Stevenhaagen to address a narrowing of her aorta (an aortic coarctation). The procedure involved the placement and inflation of a balloon in the aorta to open up the narrowing. It was conducted in the cardiac catheterisation laboratory ("Cath Lab") at Toronto General Hospital. In the course of the balloon angioplasty, a tear occurred in Ms. Stevenhaagen's aorta. To address this problem, Dr. Sternbach was consulted and he inserted a covered stent, following which Ms. Stevenhaagen was sent to the cardiac care unit ("CCU") for observation. While there, her condition became unstable and she was taken to the operating room for emergency surgery, which was performed by Dr. Ralph-Edwards and Dr. David.

[8] The breaches of the standard of care alleged against Drs. McLaughlin and Sternbach were summarised by Mr. Morse in his opening address at trial. At the risk of over-simplifying those allegations, they include:

As Against Dr. McLaughlin

• He failed to adequately prepare and consult with Dr. Sternbach and cardiovascular surgery when it was known that the patient had had previous coarctation procedure
• He failed to ensure that adequate backup was available if needed
• He did not consult with a cardiovascular surgeon following the rupture
• He failed to recognise that the covered stent could not be expected to work given the location of the rupture
• He failed to recognise that the patient was haemodynamically unstable from 1128 until 1441
• He should have transferred the patient from the Cath Lab to the operating room rather than to the CCU

As Against Dr. Sternbach

• He agreed to be backup for Dr. McLaughlin's angioplasty aortic coarctation without including a cardiac surgeon as a member of the team
• He failed to recognise the complexity of the patient's aortic coarctation
• He should have insisted on being notified of every coarctation procedure so that an appropriate stent graft was available prior to the angioplasty
• He failed to consult cardiac surgery before the procedure so a cardiac surgeon could assess the patient and plan a proper back-up procedure
• He did not consult with cardiac surgery for back-up when he learned of the patient's rupture
• He did not have joint discussion with a cardiac surgeon to evaluate the option of open surgery repair compared to the endovascular repair which was undertaken
• He failed to recognise the unacceptable position of the covered stent which he inserted
• He should have made a prompt referral to cardiac surgery as soon as the patient was sufficiently stable to be transferred
• It should have been clear to him that the stent graft could not effect a long-term outcome and thus that open surgical repair was indicated

[9] One of the arguments that will be advanced by the defendants is that as a matter of causation, the long-term injuries suffered by Ms. Stevenhaagen were a consequence of the open surgery undertaken by Dr. David and Dr. Ralph-Edwards.

Proposed Evidence

[10] It has been known for some time that the plaintiffs intended to summon Dr. David to testify at trial. However, on 16 October 2019, Mr. Kemp wrote to the defendants' lawyers advising:

In addition to the evidence Dr. David gave in the course of his examination for discovery dated June 10, 2009, it is anticipated that Dr. David will give the following evidence:

• In 2002 the standard treatment for the type of injury suffered by Mrs. Stevenhaagen would have been an open surgical approach;
• Mrs. Stevenhaagen was in shock for a lengthy period before the open procedure. If she had not had the open surgery, she likely would have died in two hours. The longer she was in shock the more likely she would suffer permanent damage;
• The 28 minutes of no circulation in the course of the open procedure was not excessive at 28 [sic] degrees;
• that Mrs. Stevenhaagen did not have an embolic stroke as suggested by Dr. Selchen; and,
• if Mrs. Stevenhaagen had surgery earlier, she likely could have avoided the damage she ultimately suffered.

Parties' Positions

[11] I will make further comment on some of the arguments advanced in the analysis portion of this endorsement. By way of overview, the plaintiffs characterise the proposed evidence of Drs. David and Dr. Ralph-Edwards as providing an account of their observations and participation in the care and treatment of Ms. Stevenhaagen, but also say that in light of their skill, knowledge, training and experience, it would be appropriate for them to give evidence and comment upon the causation aspects of the case including, inter alia, "the role of [Ms. Stevenhaagen's] condition at the time of her arrival in the operating room".

[12] The defendants say that the proposed evidence of Drs. David and Dr. Ralph-Edwards does not, in respect of some of the areas of proposed evidence, meet the Westerhof criteria and, further, that Dr. David cannot be impartial given his obvious interest in deflecting away any possible blame or responsibility for the outcome that might otherwise attach to him. Furthermore, as a cardiac surgeon Dr. David is not qualified to give opinion evidence in respect of matters outside his area of expertise.

Analysis

[13] Following the scheme of the arguments advanced by counsel, I will address the five bullet points from Mr. Kemp's 16 October 2019 letter in turn.

In 2002 the standard treatment for the type of injury suffered by Mrs. Stevenhaagen would have been an open surgical approach

[14] The defendants raise two objections to Dr. David expressing this opinion as a participant expert, both of which I agree with, namely:

a. Dr. David did not become involved in Mrs. Stevenhaagen's care until after she had been transferred to the CCU and after Dr. Ralph-Edwards had decided to operate. Accordingly, he was not present to form an opinion as to what approach should be employed to first treat Mrs. Stevenhaagen's aortic tear. His opinion is therefore not based upon his observation of or participation in the events at issue, as required by Westerhof; and

b. Dr. David, despite his eminent reputation as a cardiac surgeon, is not a vascular surgeon. In 2002, by his own admission, he "knew nothing about stents". He is not qualified to give an opinion on whether an endovascular approach was preferable to a surgical one.

[15] Accordingly, Dr. David will not be able to give opinion evidence on the standard treatment for someone presenting as Ms. Stevenhaagen did.

If Ms. Stevenhaagen had not had the open surgery, she likely would have died in two hours. The longer she was in shock the more likely she would suffer permanent damage

[16] The defendants do not question Dr. David's expertise or the application of the Westerhof criteria to this proposed evidence. Rather, they say that Dr. David's opinion is not impartial given it is in his interest to argue or assert that it was not the cardiac procedure he performed that caused Mrs. Stevenhaagen's neurologic injury.

[17] In XPG, Mr. Justice Raikes stated, at para. 33:

Thus, the impartiality and objectivity of an expert should be assessed at the outset when the opinion evidence is proffered to determine whether it should be admitted at all. Even if admitted, the court may consider any concerns that it had at the end of the day with the objectivity or bias of the expert which did not rise to a level sufficient for its exclusion, as part of the consideration of the weight to attach to that evidence.

[18] Dr. David's involvement as a party in this litigation ended nearly a decade ago. While it would be natural for someone in his position to prefer that no harm had resulted from his involvement in Ms. Stevenhaagen's treatment, in the absence of any more tangible reason not to receive this evidence at all, I decline to exclude it altogether but, of course, reserve the right to determine what if any weight to ultimately attach to it, whether because of concerns about partiality, or otherwise.

The 28 minutes of no circulation in the course of the open procedure was not excessive

[19] My approach to this question is similar to the last one. This is the sort of judgment one would expect a cardiac surgeon to make. Dr. David may provide his opinion, subject to my assessment of the effect of any lack of objectivity or partiality on his part that I may discern.

Mrs. Stevenhaagen did not have an embolic stroke as suggested by Dr. Selchen

[20] Dr. Selchen is a neurologist engaged as a litigation expert by the defendants. He opines that:

... stroke risk is much higher for very complex cardiac surgery of the kind performed by Dr. Edwards and Dr. David and is a significant risk even in the best of hands.

... it is much more likely that the embolic strokes suffered by Ms. Stevenhaagen related to the cardiac surgeries rather than the endograft insertion. Given the embolic nature of the strokes, if the surgery had been performed either a couple of hours earlier or later it would not have affected the stroke risk.

[21] Two things emerge from these extracts. Firstly, the nature of the procedure undertaken by Dr. David in and of itself gives rise to the risk of embolic strokes. Even if the surgery had been performed earlier than it was, a similar risk would have been present. Any partiality concerns can be dealt with when assessing weight. Secondly, while a neurologist is undoubtedly an appropriate specialist to proffer an opinion on what might have caused Ms. Stevenhaagen's stroke, the very fact that the risk of stroke is part and parcel of this type of cardiac surgical procedure surely means that a cardiac surgeon would also be alert to the risk of stroke and qualified to offer an observation or opinion as to whether Ms. Stevenhaagen had one. No doubt the foundation for Dr. David's opinion can and will be explored during his testimony. But I am not at this juncture going to say that he is not qualified.

[22] Nor do I accept the defendants' argument that the proposed evidence does not meet the Westerhof criteria. While Dr. David's opinion was not expressed while observing or participating in the cardiac surgery performed on Ms. Stevenhaagen, it is nevertheless an opinion which arises directly from his interaction with her. In that sense it can fairly be regarded as an opinion formed during the course of his observations or participation. It would be splitting hairs to an unreasonable degree to hold otherwise.

If Mrs. Stevenhaagen had surgery earlier, she likely could have avoided the damage she ultimately suffered

[23] To adopt the terminology used by Dr. David when he was examined for discovery, by the time his involvement commenced he was operating on a patient who was "already moribund'. He had not previously been involved in Ms. Stevenhaagen's treatment. Indeed, when he was asked if, had he seen her sooner, there would have been a better outcome, Dr. David's then counsel refused to let him answer the question "because he was not involved in the care at the time". An opinion on what might have been had Dr. David been involved earlier is not, in my view, an opinion based upon his or observation of or participation in the events at issue. Hence the Westerhof criteria are not satisfied and Dr. David should not be permitted to give the proposed evidence on this point.

Ruling

[24] For the foregoing reasons, the defendants' motion is allowed in part. Dr. David will not be permitted to offer opinion evidence on the standard treatment in 2002 for Ms. Stevenhaagen's condition or on whether, if she had had surgery earlier than she did, there would have been a better outcome. Dr David may, however, give opinion evidence on the other bullet point items set out in Ms. Kemp's 16 October 2019 letter.

Mew J.

Date: 13 November 2019