CITATION : Doobay v. Fu, 2020 ONSC 3329

COURT FILE NO.: 114090/13 DATE: 20200529

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Carmen Doobay, by her litigation guardian, Chintamanie (Dave) Doobay, Chintamanie (Dave) Doobay, Tisha Doobay, Tina Doobay, and Marlon Doobay Plaintiffs – and – Dr. Ping Fu, Dr. Mark Bryer, Mira Tom, K&S Temporary Medical Services Inc., and Mackenzie Health Defendants

Counsel: Duncan Embury, Pinta Maguire, and Brandyn DiDomenico, for the plaintiffs Anne Spafford, Adam Patenaude and Alec Yarascavitch, for Dr. Fu and Dr. Bryer Heather Vaughan and Zahida Shawkat, for Mira Tom and K&S Temporary Medical Services Inc. Anna Marrison and Henry Ngan, for Mackenzie Health

HEARD: November 20, 2019

S.T. Bale J.

REASONS FOR DECISION

Overview

[1] Two primary issues in this case were whether Carmen Doobay was a candidate for thrombolytic therapy, specifically tPA, and whether, if she had been treated with tPA, her injuries would have been reduced or avoided.

[2] The plaintiffs’ expert witness on these issues was Dr. David Gladstone, a neurologist. On the qualifications voir dire, while admitting that he was otherwise eminently qualified, counsel for Doctors Fu and Bryer (“Dr. Fu’s counsel”) took the position that Dr. Gladstone was not impartial or objective and that he was in a position of conflict of interest. For the following reasons, I disagreed and permitted him to testify.

Background facts

[3] After being retained by plaintiffs’ counsel, Dr. Gladstone delivered expert reports in August 2016, August 2018, and September 2019. In those reports, he did not mention that in August 2011, York Central Hospital had referred Mrs. Doobay to him and asked him to investigate the cause of her stroke and to recommend medication for her. He saw her four times for that purpose. During the course of the referral, Dr. Gladstone ordered and reviewed a magnetic resonance angiogram (“MRA”) which suggested that a carotid artery dissection was a possible cause of Mrs. Doobay’s stroke.

Analysis

[4] Dr. Fu’s counsel took the position that that Dr. Gladstone was not impartial or objective, was in a position of conflict of interest, and should not be allowed to testify. She did so for the first time at trial, without prior notice to the plaintiffs.

Impartiality and objectivity

[5] Counsel for the defendants were aware, as early as September 2015, of the fact that Dr. Gladstone had treated Mrs. Doobay. That was almost a year before the doctor’s first report, and more than four years before the trial. In these circumstances, Dr. Fu’s counsel conceded that they were not prejudiced by his failure to mention the prior relationship in his reports. However, she argued that the non-disclosure, in itself, was evidence that he was not an impartial expert. I disagreed, for the following reasons.

[6] First, Dr. Gladstone disclosed his earlier treating relationship to plaintiffs’ counsel and raised the conflict issue. His evidence on the voir dire was that he had not mentioned the earlier relationship, or the result of the 2012 MRA, in his reports, because they did not figure in the opinion that he had been asked to give. That opinion related to the apparent diagnosis in the emergency room at the time of the stroke – the later MRA had not been available in the formulation of that diagnosis. In his opinion, whether Mrs. Doobay had a carotid artery dissection had no impact on her course of treatment or her outcome. He said that he had thought very carefully about whether he could be objective, having seen Mrs. Doobay as a patient years before, and was very confident that he could be completely objective in his assessment.

[7] Dr. Fu’s counsel argued that the decision as to relevance was a decision for the court, and not for Dr. Gladstone; however, she acknowledged that if I were to find, as I did, that the doctor believed that the prior relationship was irrelevant and did not understand that he should not be the one making the call, his failure to mention the relationship would not reflect upon his impartiality.

[8] I had, and was given, no reason to doubt Dr. Gladstone’s evidence as to his reasons for not mentioning the prior relationship in his reports, and had no doubt that if allowed to testify, he would fulfil his duties of impartiality and objectivity.

Conflict of interest

[9] Dr. Fu’s counsel argued that Dr. Gladstone was in a position of conflict of interest as a result of his prior treating relationship with Mrs. Doobay. In support of her argument, she referred to the College of Physicians and Surgeons of Ontario – The Practice Guide: Medical Professionalism and College Policies (September 2007) which provides that physicians must put the needs of their patients first, that they must always act in the patient’s best interests, and that they have a duty to advocate for their patients. She argued that Dr. Gladstone’s duty to advocate for Mrs. Doobay continued when he entered the courtroom and put him in an irreconcilable conflict with his duties to the court as an expert.

[10] However, the provisions of the Practice Guide relied upon by Dr. Fu’s counsel do not require treating physicians to advocate for their patients or former patients in an adjudicative proceeding. This issue is dealt with in the CPSO’s Advice to the Profession: Medical Expert: Reports and Testimony (December 2012) which provides that both treating and non-treating physicians may act as medical experts, and that “medical experts are not advocates for either side. Their duty is solely to the adjudicative body. A medical expert’s role is to assist the adjudicative body by providing an objective and impartial opinion.”

[11] If the argument made by Dr. Fu’s counsel were correct, then a treating physician could never testify as an expert in litigation involving a patient or former patient – which is clearly not the law. In fact, in many cases, a treating physician may be in the best position to provide the court with expert evidence.

Disposition

[12] For the reasons given, Dr. Gladstone was qualified as an expert and permitted to testify at trial.

Afterword

[13] The advocacy displayed by counsel during this trial was generally excellent, on all sides. However, I cannot leave the case without expressing my disapproval of the practice of waiting, until experts are called to testify at trial, to challenge their ability to testify as experts.

[14] While there may be cases where an unforeseen issue relating to an expert’s qualifications arises at trial, in this case there was nothing new – the challenge to Dr. Gladstone’s impartiality was a premeditated attack based upon information that had been in the possession of defence counsel for years. Plaintiffs’ counsel argued that the attack amounted to “trial by ambush”.

[15] The relevant principles are well-stated in The Advocates’ Society: Best Practices for Civil Trials (June 2015):

Best Practice #7: Counsel should discuss trial planning and strive to reach agreement on procedural issues well in advance of the first day of trial. Where there is disagreement, counsel should take all reasonable steps to ensure that it is resolved prior to trial, whether through case management, at the pre-trial conference or at the trial management conference. Pre-trial and in-trial motions should be minimized.

Commentary

7.1 Parties should strive to agree on the following matters well in advance of the first day of trial:

• Issues relating to expert testimony, including the qualification, admissibility, and scope of expert evidence.

7.2 If parties are unable to agree on these matters, the parties should set out in writing those issues that cannot be resolved and seek to have the matters resolved prior to trial, through a case management, pre-trial or trial management conference.

7.4 The case management judge or pre-trial judge may make orders with regard to procedural trial matters on which the parties are unable to agree. However, issues related to the admissibility of evidence should be resolved by the trial judge, but preferably prior to the first day of trial.

Best Practice #15: Most issues concerning expert testimony should be capable of resolution without formal motions.

Commentary

15.1 Frequently, issues as to admissibility and scope of expert testimony are not raised until after the trial commences. This can consume considerable time at trial. But there are broader implications for trial efficiency: in many cases, knowing in advance what evidence will be permitted at trial would allow counsel to determine whether a trial is necessary in the first place.

15.2 Generally, counsel should not wait until trial to raise issues regarding the qualifications of experts or the scope or admissibility of their opinions. In some cases, waiting until trial to raise these issues amounts to the last vestige of trial by ambush. Given the considerable resources demanded by the trial process, these are matters that are best dealt with before the trial commences.

15.4 Challenges to the admissibility and scope of expert evidence should be made prior to trial. Wherever possible, and particularly where experts reside outside of the jurisdiction, challenges to the admissibility and scope of expert evidence should be made by videoconference. In order to facilitate timely challenges to the admissibility and scope of expert evidence, either when or as soon as possible after serving an expert report, counsel should identify any opinions in the report on which counsel does not intend to rely at trial.

[16] In my view, the present case is one of those referred to in Commentary 15.2. As argued by plaintiffs’ counsel, waiting until trial to raise these issues amounted to trial by ambush.

“S.T. Bale J.”

Released: May 29, 2020