COURT FILE NO.: CV-16-551409

DATE: 20201123

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

KEITH CLAVEAU BY HIS LITIGATION GUARDIAN, TONI NADON, TONI NADON IN HER PERSONAL CAPACITY, AND DENIS CLAVEAU Plaintiffs/Appellants

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wendy walker as litigation adminstrator for the estate of dr. benjamin walker, deceased, donato gugliotta, rufus oluwafemi ayeni and the sensenbrenner hospital Defendants/Respondents

Aleks Mladenovic and Kate Cahill, for the Plaintiffs/Appellants Laura B. Stewart and Graham S. Ragan, for the Defendant/ Respondent, Donato Gugliotta Anita M. Varjacic, for the Defendant, The Sensenbrenner Hospital

HEARD: In writing

On appeal from the decision of Master Linda Abrams dated January 20, 2020

DAVIES J.

A. Overview

1Keith Claveau’s mother, Toni Nadon, took him to the Sensenbrenner Hospital in Kapuskasing on April 13, 1998. Keith was just 10 weeks old. Keith was seen by Dr. Walker and discharged the same day.

2Ms. Nadon brought Keith back to the hospital on the morning of April 15, 1998 because he was lethargic and severely dehydrated. Keith was again seen by Dr. Walker. Keith’s condition deteriorated significantly throughout the day: His oxygen saturations dropped and he had a seizure. Keith was eventually transported to the Hospital for Sick Children in Toronto.

3Keith suffered hypoxic encephalopathy that resulted in permanent brain injury. Keith and his parents have brought a medical malpractice claim against the Sensenbrenner Hospital and the doctors that cared for Keith on April 13 and 15, 1998.

4Dr. Gugliotta was also involved in Keith’s care at various points on April 15, 1998. During examination for discovery, Dr. Gugliotta refused to answer several hypothetical questions that were put to him. The Plaintiffs brought a motion for an order requiring Dr. Gugliotta to answer nine questions that he had refused to answer. Master Abrams allowed the motion in part, ordering Dr. Gugliotta to answer three of the nine questions. Master Abrams held that Dr. Gugliotta was not required to answer the other six questions. The plaintiffs appeal Master Abrams’ decision in relation to those six questions.

5The decision of a master on a motion to compel answers to questions asked during examination for discovery will only be set aside if the master made an error of law, exercised her discretion on the wrong principles, or made a palpable and overriding factual error. A determination of whether a question is relevant is a matter of law, which is reviewed on a standard of correctness: see City of Kawartha Lakes v. Gendron, 2018 ONSC 3498 at paras. 38 – 39.

6The plaintiffs argue that Master Abrams erred in ruling that Dr. Gugliotta did not have to answer hypothetical questions based on facts he disputes. The plaintiffs also argue that Master Abrams erred in ruling that there was no factual foundation for one of the hypothetical questions. Finally, they argue that Master Abrams erred in finding that one of the questions was improper because it asked Dr. Gugliotta to opine both on his own standard of care and on the care of provided by another party.

7Dr. Gugliotta argues that Master Abrams made no legal error in upholding his refusals and there is no other basis to interfere with her decision.

8For the reasons that follow, the appeal is dismissed.

B. Factual Context of the Disputed Questions

9To assess the propriety of Dr. Gugliotta’s refusals and Master Abrams’ ruling, it is necessary to set out in some detail Dr. Gugliotta’s role in Keith Claveau’s care and the factual issues in dispute in relation to his evidence.

10From 1987 to 1991, Dr. Gugliotta ran his own medical practice in Kapuskasing and also worked at the Sensenbrenner Hospital. Dr. Gugliotta was a general practitioner and anesthetist.

11Keith Claveau was first brought to the hospital on April 13, 1998. Keith was seen by Dr. Walker and discharged. Dr. Gugliotta was not involved in Keith’s care that day.

12Keith was brought back to the hospital on April 15, 1998. Dr. Walker was again responsible for Keith’s care that day. Dr. Gugliotta was called at approximately 8:30 a.m. on April 15, 1998 and asked to come to the emergency room to help. Dr. Gugliotta testified when he arrived it was apparent to him that that Keith was in shock. Dr. Gugliotta established an IV line in Keith’s hand and administered a saline solution. Dr. Ayeni established an IV line in Keith’s groin by way of a cut down procedure. Dr. Gugliotta assisted with Keith’s care for about an hour or an hour and a half and he then left the hospital.

13Dr. Gugliotta testified that his next involvement with Keith’s care was at 5:00 p.m. on April 15, 1998. He testified that he was called back to the hospital from his office. He was told it was an emergency and that his help was needed with intubation and ventilation. Dr. Gugliotta testified that Keith was intubated when he arrived back at the hospital. Dr. Gugliotta was told that Keith had had a seizure earlier in the day. At some point in time, Dr. Gugliotta also learned that arrangements had been made to transfer Keith to the Hospital for Sick Children in Toronto. Dr. Gugliotta was part of the team caring for Keith from 5:00 p.m. until the team from the Hospital for Sick Children arrived at approximately 9:00 p.m.

14There is a nursing note in Keith’s medical records from 1:05 p.m. on April 15, 1998 which states as follows:

Received seven week to two months old male. Came from pediatrics with diagnosis of gastroenteritis. Under services of Dr. Walker. Patient’s colour pale plus, plus. Periorbital syanosis, extremities cold. Good skin, warm and dry. Patient responding slightly to painful stimuli. Patient is in incubator with oxygen at 50 percent. Patient is on cardiac monitor showing SL. NSR at 156 beats per minute. Dr. Walker in with Dr. Gugliotta.

15Dr. Gugliotta was asked about this note. He testified that he has no recollection of being at the hospital at 1:05 p.m. on April 15, 1998. He also testified that he does not understand the circumstances in which he would have been in the hospital at that time. He strongly denied that he was with Keith Claveau at 1:05 p.m. and testified the nursing note must be wrong.

C. Proper Scope of Examination for Discovery

16Rule 31.06 states that a person who is examined for discovery must answer any proper question relevant to any matter in issue in the action. A person being examined may, therefore, refuse to answer a question if it is irrelevant to the issues as defined by the pleadings or otherwise improper.

17The disputed questions were all hypothetical questions. Hypothetical questions are not necessarily improper. A witness can be asked a relevant hypothetical question so long as it falls within the witness’ knowledge and expertise. There must also be a factual foundation for the hypothetical question in the evidence. However, hypothetical questions that ask a witness to comment on the acts or omissions of others or require the witness to defend the actions of others are not permitted in medical malpractice cases. Similarly, hypothetical questions that ask a witness to opine on whether the standard of care was met or on the ultimate issue are not permitted. Questions that ask a witness to opine on the standard of care must, of course, be distinguished from questions relevant to the standard of care, including for example the witness’ understanding of the standard of care, which are permitted; see The Estate of Maryam Asharzadeh v. Amin, 2019 ONSC 1024 at para. 22; Stryland v. Yazadanfar, 2011 ONSC 3842 at paras. 25 – 30; Motaharian (Litigation guardian of) v. Reid, [1989] O.J. No. 1947 (H.C.) at para. 3, Cheesman v. Credit Valley Hospital, 2018 ONSC 1881 at para. 21.

18With this factual and legal framework in mind, I will consider each refusal that Justice Abrams upheld.

a. Questions about respiratory issues on the morning of April 15, 1998

19There is some evidence that Keith Claveau was coughing and congested in addition to being dehydrated when he was brought into the emergency room on April 15, 1998. Later in the day, Keith had a chest x-ray that revealed possible pneumonia.

20Dr. Gugliotta testified that he was not aware that Keith was having respiratory issues on the morning of April 15, 1998. He testified that it was not clear to him from his dealings with Keith that morning or his subsequent review of the medical records that Keith was in respiratory distress that morning. Dr. Gugliotta was then asked if it would have been important for him to know that Keith was experiencing respiratory issues given the task he had been asked to complete, namely establishing an IV line to administer fluids. Dr. Gugliotta answered that question and said it would not have been important. He was asked to explain his answer and he responded as follows:

He was clearly dehydrated, he was in hypovolemic shock. Everything else was secondary. In fact, not even secondary, it was way down in terms of importance.

21Dr. Gugliotta then refused to answer the following question about how he would have felt if he had known that Keith was having respiratory issues on the morning April 15, 1998:

Q264: In the aftermath of what you did, if you had had some information that this baby was having respiratory issues would that have caused you some concern?

22Master Abrams ruled that Dr. Gugliotta was not required to answer this question because it called for retrospective speculation. In addition, Master Abrams ruled that there was no factual foundation for the question and, as posed, asked Dr. Gugliotta to opine on his own standard of care.

23Master Abrams was correct in her ruling that Dr. Gugliotta was not required to answer the follow up question about whether he would have been concerned if he received information about respiratory issues. Dr. Gugliotta had already answered questions about whether his treatment of Keith would have changed if he was given information about any respiratory issues. Whether that information would have cause Dr. Gugliotta “some concern” is not relevant given that he had already explained that it would not have changed his approach to Keith’s care that day. There is a factual basis in the record to suggest that Keith was having respiratory issues on the morning of April 15, 1998, namely the notation that he had chest congestion and was coughing when brought into the hospital. Nonetheless, the plaintiffs have Dr. Gugliotta’s evidence about the significance of that information.

b. Questions about Keith Claveau’s condition and treatment at 1:05 p.m. on April 15, 1998

24Dr. Gugliotta testified that he left the hospital after assisting with the IV and returned to help with intubation and ventilation at 5:00 p.m. on April 15, 1998. He testified that he was not at the hospital at 1:05 pm despite a nursing note that suggests he was there with Dr. Walker.

25Plaintiffs’ counsel asked Dr. Gugliotta a series of questions that required him to assume that he was at the hospital and treating Keith at 1:05 p.m. on April 15, 1998:

Q365: … But assuming you were present at 13:05 would you have been aware that Keith Claveau had been, as of the morning and continuing into the afternoon up until 13:05, had been suffering from respiratory distress?

Q366: Would you have understood that he had stopped breathing at various times?

Q367: What steps did you take as of approximately 13:05 to deal with Keith’s respiratory issues?

Q368: Did you take any steps to assess his oxygen saturation, and if not, why not?

26During the examination for discovery, plaintiffs’ counsel said that he had other questions for Dr. Gugliotta about Keith Claveau’s chart leading up to 1:05 p.m. on April 15, 1998. On agreement, counsel did not put all his questions on the record but reserved his right to ask other questions about this timeframe if Dr. Gugliotta was required to answer the four questions posed.

27Master Abrams held that Dr. Gugliotta was not required to answer these questions. Master Abrams noted that Dr. Gugliotta testified that he was not present and he is not required to answer questions about what he would have known or done at a time he says he was not with the patient. She did not err in reaching this conclusion.

28While there is some evidence to suggest that Dr. Gugliotta was present at 1:05 p.m., the questions as posed are improper. Dr. Gugliotta’s evidence was clear that he was not present at that time. The refused questions are all based on a factual premise that Dr. Gugliotta has already rejected. In effect, he has already answered these questions about what he did by saying he was not there; he did not take any steps to deal with Keith’s respiratory issues or his oxygen saturation at 1:05 pm because he was not at the hospital at that time. To ask him to assume that he was there when he maintains he was not is simply inviting him to speculate on a hypothetical set of facts that he says are not true. It will be for the trier of fact to decide whether Dr. Gugliotta was or was not at the hospital at 1:05 p.m. If the trier of fact rejects Dr. Gugliotta’s evidence and finds that he was with Keith at 1:05 p.m., it will be for the trier to draw inferences, if possible, from the other evidence about what Dr. Gugliotta understood at that time and what he did at that time. It is not appropriate to ask Dr. Gugliotta to speculate about what he did during that time.

29In addition, the questions that ask Dr. Gugliotta what he would have understood if he was present at 1:05 p.m. have the effect of asking him indirectly to comment on what other members of the treatment team knew or ought to have known. Again, it the trier of fact finds that Dr. Gugliotta was there at 1:05 p.m., counsel will be able to argue what he would have known or should have known at that time based on the full clinical record. Asking Dr. Gugliotta what he would have understood or known based on his after-the-fact review of the records is not helpful or relevant.

30Master Abrams was correct to uphold these refusals.

c. Question about what Dr. Gugliotta would have done if he was called back to the hospital before 5:00 p.m. on April 15, 1998

31Dr. Gugliotta testified that he was called back to the hospital at 5 p.m. on April 15, 1998. When he arrived, Keith was intubated. The last disputed refusal is a hypothetical about what Dr. Guliotta might have done had he been called back to the hospital before 5:00 p.m. that day:

Q395: Had you encountered … the clinical situation that you now know was occurring, would you have taken steps to intubate the baby when you were called if the baby had not been intubated?

32Master Abrams held that Dr. Gugliotta was not required to answer this question. The plaintiffs argue that Master Abrams erred in finding that this question improperly asked Dr. Gugliotta to opine on the steps taken by other physicians. I disagree.

33It is improper to ask a witness to defend the actions of another person or answer for their omissions. A medical doctor should not be asked to opine on the “acts, omissions or judgment of other doctors, nurses or other hospital employees”: Motaharian at para. 3.

34The question, as posed, asked Dr. Gugliotta to speculate about whether and when he would have made the decision to intubate Keith if he had been called into the hospital before 5:00 p.m. Dr. Gugliotta was not involved in the initial decision to intubate Keith. He was not even at the hospital at that time. To the extent the timing of the decision to intubate Keith is an issue in this case, the doctors and nurses involved in that decision can be questioned about it. By asking Dr. Gugliotta to speculate on when he would have made the decision to intubate Keith if he was at the hospital earlier in the afternoon, the plaintiffs were essentially asking Dr. Gugliotta if he would have made the same decision Keith’s treatment team made. This amounts to asking Dr. Gugliotta to comment indirectly on the decisions made by the medical team that caring for Keith earlier in the afternoon. This is an improper question and Master Abrams made no error in upholding Dr. Gugliotta’s refusal.

D. Conclusion

35The appeal is dismissed.

36I encourage the parties to reach an agreement on the issue of costs. If they are unable to do so, the Respondent may serve and file written submissions on costs of no more than five (5) pages each together with their costs outline and any supporting authority on or before December 4 2020. The Plaintiffs may serve and file written responding submissions on costs of no more than five (5) pages with supporting authorities on or before December 14, 2020. In addition to filing cost submissions, counsel are to send an electronic copy to my assistant. In the event that I do not receive any written cost submissions by December 16, 2020, I will deem the issue of costs to have been settled.

Davies J.

Released: November 23, 2020

COURT FILE NO.: CV-16-551409 DATE: 20201123

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

REASONS FOR JUDGMENT

Davies J.