Court File and Parties

COURT FILE NO.: CV-12-459089 DATE: 2022-01-10

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

SEAN OMAR HENRY, personally and as Estate Trustee for the Estate of SANDY ROBINSON, Plaintiffs Barbara A. MacFarlane and Michael D. Hodgins, for the Plaintiffs

- and -

DR. MARSHALL ZAITLEN, DR. EDGAR JAN, DR. JOSEPH FAIRBROTHER, DR. HILAIRE LOUISE SHEEHAN, DR. VERA BRIL, DR. ROBERT KURTZ, DR. JOHN DOE, JANE DOE, JOAN DOE, WILLIAM OSLER HEALTH CENTRE – BRAMPTON CIVIC HOSPITAL and UNIVERSITY HEALTH NETWORK – TORONTO GENERAL HOSPITAL, Defendants

Frank J. McLaughlin, Stephanie Sugar, and Christine Windsor for the Defendant, Dr. Marshall Zaitlen

HEARD: November 8-10, 12, 15-19, 22-26, 29-30 and December 1-3, 6-10 and 13, 2021

A.A. SANFILIPPO J.

Reasons for Rulings – Rule 53

[1] The trial of this medical malpractice action, with a jury, began on November 8, 2021 and continued for 25 days to December 13, 2021. This trial proceeded against only Dr. Zaitlen, as this action was either discontinued or dismissed as against all other defendants prior to trial. [1] During the testimony of four medical experts, each of whom had served expert reports under Rule 53 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, each of the parties made objections that evidence was being adduced from the medical experts that went beyond the substance of the opinions expressed in their reports. I ruled on all such objections at the time that they were made, some with oral reasons and some on the basis of reasons to follow. All the rulings under Rule 53 were made on the same legal framework, which was not disputed by the parties and which I will set out herein, with application of the Rules and legal principles to the substance of the expert report and the nature of the opinions sought to be adduced in testimony.

[2] Due to the rigid and tight schedule for this jury trial and so as to not delay the timely presentation of the expert testimony, certain of these rulings were made on short oral reasons or on the basis of reasons to follow. These are the reasons for these rulings made under Rule 53.

I. Background

[3] Sean Omar Henry brought this action on his own behalf and as Estate Trustee for the Estate of his deceased spouse, Sandy Robinson, for damages said to have been sustained by the alleged negligence of Dr. Marshall Zaitlen, a general neurologist. The Plaintiffs alleged that Dr. Zaitlen was the continuing neurologist with primary care in Mr. Henry’s treatment from January 29, 2010 to July 20, 2010 and was negligent in the delayed diagnosis and treatment of a spinal dural arteriovenous fistula (“SDAV Fistula”). The Plaintiffs alleged that but for Dr. Zaitlen’s negligence, Mr. Henry would not have sustained his injuries.

[4] The Plaintiffs called expert medical opinion evidence from Dr. Gordon Bryan Young, a neurologist; Dr. Albert Cheng, a physiatrist; and Dr. Donald Lee, a neuroradiologist. In addition, the Plaintiffs called two treating physicians, Dr. Timo Krings, an interventional neuroradiologist and Dr. Lesley Carr, a urologist, both of whom delivered expert reports under Rule 53 in order to provide opinions beyond those permissible by a treating physician participant expert.

[5] The Defendant made objections to discrete aspects of the expert opinions proffered in testimony by Dr. Young and Dr. Krings as exceeding the substance of the opinions set out in their expert reports.

[6] The Defendant called expert medical opinion evidence from Dr. Daniel Wong, a general neurologist; Dr. Gerald Brock, a medical doctor specializing in urology and neuro urology; Dr. Anthony Burns, a medical doctor specializing in physical medicine and physical rehabilitation; and Dr. Mark Tarnopolsky, a medical doctor specializing in neurology and neuromuscular disorders. The Plaintiffs made objections to discrete aspects of the expert opinions proffered in testimony by Dr. Wong and Dr. Tarnopolsky as exceeding the substance of the opinions set out in their expert reports.

II. Legal Framework

[7] The parties did not dispute the governing Rules or the applicable legal principles that pertain to the scope of expert opinion testimony permitted within the substance of the expert’s report. Rather, the debate between the parties on their objections in this area was on the construction and application of these Rules and principles.

A. Governing Rules

[8] Rule 53.03 sets out the requirements for expert reports, and provides, in sub-rules 53.03(2.1)(4) to (6), that the substance of the expert’s report must include the following:

4. The nature of the opinion being sought and each issue in the proceeding to which the opinion relates.
5. The expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range.
6. The expert’s reasons for his or her opinion …

[9] Rule 53.03(3) sets out the sanction where an expert fails to address in their expert report an issue on which the expert seeks to testify at trial, and provides that the expert may not testify at trial with respect to such an issue without leave of the trial judge:

(3) 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].

[10] The granting of leave under Rule 53.03(3), resulting from non-compliance with Rule 53.03(2.1) is prescribed by Rule 53.08(1), which provides that leave under Rule 53.03(3) “shall be granted”, on terms that are just, unless to do so would cause prejudice or undue delay in the conduct of the trial:

If evidence is admissible only with leave of the trial judge under a provision listed in subrule (2) [which includes Rule 53.03(3)], leave shall be granted on such terms as are just and with an adjournment if necessary, unless to do so will cause prejudice to the opposite party or will cause undue delay in the conduct of the trial.

[11] Rule 53.08 requires that the trial judge shall grant leave on such terms that are just, unless there will be prejudice to the other party or where to do so will cause undue delay in the conduct of the trial: Glass v. 618717 Ontario, 2011 ONSC 2926, at para. 12; Homes of Distinction (2002) Inc. v. Adili, 2019 ONSC 7588, at para. 8.

[12] The purpose of Rule 53 “is to avoid surprise at trial, to enable counsel to prepare to challenge the opinion and to allow for efficiency in preparation and trial”: Hacopian-Armen Estate v. Mahmoud, 2021 ONCA 545, at para. 78. In Marchand (Litigation guardian of) v. Public General Hospital Society of Chatham (2000), 51 O.R. (3d) 97 (C.A.), at para. 38, the Court stated that Rule 53.03 facilitates “orderly trial preparation by providing opposing parties with adequate notice of opinion evidence to be adduced at trial”. In Peller v. Ogilvie-Harris, 2018 ONSC 725, at para. 8, Justice D.A. Wilson stated that the Rule is designed to 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”. Similarly, in Klitzoglou v. Cure, 2012 ONSC 3411, at para. 7, Justice McKelvey commented that the delivery of the expert reports enables “a clear understanding of the anticipated evidence of the experts”.

[13] To achieve these objectives, the expert’s report must include “the factual assumptions on which the opinion is based, any research conducted by the expert and any documents relied on by the expert in forming the opinion”: Hacopian-Armen, at para. 79.

B. Legal Principles

[14] Prior to the 1985 enactment of Rule 53.03, the Court of Appeal explained that a medical expert must not be confined narrowly to the precise contents of their expert report, but rather may explain and amplify. In Thorogood v. Bowden (1978), 21 O.R. (2d) 385 (C.A.), at p. 386, the Court dismissed an appeal that a medical expert had testified beyond the substance of his expert report, stating the following principle:

We interpret the law with respect to medical reports to be that a medical expert is not to be narrowly confined and limited to the precise contents of his report, but he has a right to explain and amplify. What was done here … was to expand on what was latent in the medical report, and it did not open a new field. In our view, the trial Judge properly concluded that there was no prejudicial surprise here and, therefore, exercised his discretion and properly refused to declare a mistrial.

[15] The long-standing principle that advance notice of the substance of the expert opinion is necessary for trial fairness, in order to prevent “prejudicial surprise” was applied by the Court of Appeal in Marchand. At para. 36, the Court of Appeal referred to Thorogood and applied its principles, and those in the cases that followed it, to the Court’s interpretation of the requirement under Rule 53.03 that an expert may provide opinion evidence at trial on the substance set out in the expert report. The Court of Appeal stated, at para. 38, that an expert may explain and amplify the opinions contained in their report, but may not testify about matters that go beyond the expert report:

In our view, these cases indicate that the "substance" requirement of rule 53.03(1) must be determined in light of the purpose of the rule, which is to facilitate orderly trial preparation by providing opposing parties with adequate notice of opinion evidence to be adduced at trial. Accordingly, an 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.

[16] In applying these principles, the parameters are clear and well-established. The expert is not restricted to reading from their report, but rather may amplify and explain at trial the substance of their opinion: Peller, at para. 14, per Justice D.A. Wilson: “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, the expert may not open a new field in testimony that was not touched on by the expert report, but rather must expressly state the opinion reached by the expert, the reasoning behind the opinion and the evidence, assumptions and research on which the opinion is based.

[17] Within these parameters, trial fairness requires a measured analysis of the principle of latency: discerning that which is latent within the expert report. A narrow application of construing opinions that are “latent in” or “touched upon” by the expert report - holding the expert tightly to the expert report - would serve the objective of ensuring that the party opposite is not taken by surprise and is afforded a fulsome opportunity to know the case that they have to meet. A broader application of determination of opinions that are “latent in” or “touched upon” by the expert report would ensure that there is no prejudice to the tendering party if the opinion evidence were not admitted. These approaches to this analysis are reflected in the case law.

[18] In Cheesman v. Credit Valley Hospital, 2019 ONSC 5783, at paras. 78-88, Justice Koehnen carefully analysed the principle of latency and observed that a broad construction of what is latent in an expert report would allow for the filing of a “barebones expert’s report” and leave it to the expert’s trial testimony to expand upon the reasons for the expert’s opinion. Justice Koehnen commented that this would allow for “trial by ambush” that is prevented by holding the expert accountable to the need to provide detail in the expert report: Cheesman, at para. 81.

[19] As Justice Koehnen stated, “experts’ reports should not be a game of hide and seek”: Cheesman, at para. 87. Similarly, in Peller, at para. 14, Justice D.A. Wilson stated that Rule 53 “is not complied with if after reading the statement of opinion, the court is left guessing about what the expert means”, building on the statement in Hoang v. Vincentini, 2012 ONSC 1358, at para. 10, aff’d 2016 ONCA 723, 352 O.A.C. 358, that it is “not the job of the Court to search around in the body of an expert report and try and ascertain all the ‘implicit’ opinions contained in it.”

[20] In Rolley v. MacDonell, 2018 ONSC 163, at para. 29, Justice Corthorn observed that an overly restrictive construction of the admissibility of expert opinion evidence runs the risk of excluding relevant opinion evidence. Justice Corthorn adopted the statement of Justice Barr in Hunter v. Ellenberger (1988), 25 C.P.C. (2d) 14 (Ont. H.C.), at p. 16, as applied by Justice Quinn in Auto Workers’ Village (St. Catherines) Ltd. v. Blaney McMurtry Stapells Friedman (1997), 14 C.P.C. (4th) 152 (Ont. Gen. Div.), at para. 19, that “any time a court excludes relevant evidence the court’s ability to reach a just verdict is compromised.” See also, Kilitzoglou, at para. 7: “It is apparent, however, from Rule 53.08, that a court should exercise caution in excluding relevant expert opinion.”

[21] In my view, the process for analysis of an objection under Rule 53 based on the principles expressed in Marchand, and cases following, is as follows: first, an assessment of whether the substance of the opinion elicited from the expert witness in testimony is expressly contained in the expert’s report, or is latent (“touched on”) within the report as determined by application of the principles set out above. If so, the expert witness may amplify or explain the opinion in testimony. Second, if the substance of the opinion is not expressly included in the expert report, or latent within it, then the expert may not testify on that opinion without leave of the Court under Rule 53.08(1). In applying Rule 53.08(1), the Court must assess whether the opinion evidence is admissible, in that the expert is testifying within their area of qualification and permissible scope of testimony; whether any party would be prejudiced by the admission of the testimony; whether any prejudice could be addressed through terms or an adjournment; and, whether any adjournment would cause undue delay in the conduct of the trial.

III. Analysis

[22] I will now explain the application of these principles to my rulings on the objections made by the Defendant to discrete elements of the expert opinion evidence in those instances where my rulings were based on reasons to follow. These include objections made by the Defendant to discrete elements of the expert opinion testimony of Dr. Young and Dr. Krings, and objections made by the Plaintiffs to discrete elements of the expert opinion evidence of Dr. Wong and Dr. Tarnopolsky.

A. Dr. Gordon Young

[23] Dr. Gordon Young delivered four expert reports on the issues of standard of care and causation. [2] Dr. Young’s evidence was tendered by the Plaintiffs. He was qualified at trial as a medical doctor specializing in neurology and was admitted to provide expert opinion evidence on the issues of standard of care and causation.

[24] Dr. Young wrote, in his report dated March 11, 2013, that Dr. Zaitlen breached the standard of care for the diagnosis of Mr. Henry’s condition because he did not investigate the entirety of the spine, which should have included the thoracic cord:

A series of events led to 1. delays in localizing the lesion clinically, 2 arriving at the definitive diagnosis and 3 instituting definitive treatment once 1 and 2 were accomplished. The asymmetry of features, the fluctuating course, the early preservation of reflexes should have caused Dr. Zaitlen to consider that the problem may have arisen higher than the conus and cauda equina.

While the presentation was not specific for a dural AVM it should have at least been considered in the differential diagnosis and investigation should have included complete imaging of the spine, including especially the thoracic cord. The consultant neurologist is the ultimate resource for diagnosis, which is the essential step before any definitive treatment could be provided. This was markedly delayed in Mr. Henry’s case, in fact some 7 months, while had (sic) repeated exacerbations that left residual damage.

[25] Dr. Young’s opinion that Dr. Zaitlen breached the standard of care by not investigating the entirety of Mr. Henry’s spine, including the thoracic cord, resulting in a delay in the diagnosis of Mr. Henry’s SDAV Fistula, was reinforced by Dr. Young in his subsequent reports.

(a) Failure to Access Hospital Records

[26] Dr. Young was asked in examination in chief whether Dr. Zaitlen, a treating general neurologist practising in William Osler Hospital, would have access to Mr. Henry’s hospital records. Dr. Zaitlen replied in the affirmative. The examining counsel then asked what Dr. Young’s expectation would be in terms of the neurologist reviewing the medical records. The lawyer for Dr. Zaitlen objected on the basis that the question went to the issue of Dr. Zaitlen’s discharge of his standard of care, and that Dr. Young’s reports did not raise this issue. I upheld the objection on the basis of reasons to follow.

[27] The Defendant submitted that Dr. Young’s written opinion that Dr. Zaitlen breached the standard of care was not based on his failure to access available medical records. The Plaintiffs conceded that Dr. Young did not write, in any of his four reports, that Dr. Zaitlen breached the standard of care by failing to access available medical records. The Plaintiffs submitted that this detail of breach of the standard of care is latent in Dr. Young’s stated opinion that Dr. Zaitlen missed the diagnosis of a SDAV Fistula at a time when appropriate treatment and investigation would have spared him his current disability. The Plaintiffs’ submitted that this opinion touches upon the detail that Dr. Zaitlen failed to access available medical records.

[28] I found that the latency urged by the Plaintiffs’ goes well-beyond a reasonable reading of any of Dr. Young’s four reports. Dr. Young did not write, in any report, any criticism of Dr. Zaitlen for failing to access available medical records, and had a fulsome opportunity to do so over the 7-year span of his reports. I accept the objecting party Defendant’s submission that there is not a “hint of this criticism” in any of the reports, and it is not latent or touched on by the reports. I am satisfied that the Defendant was taken by surprise at the suggestion that Dr. Zaitlen’s breach of standard of care included failure to access available medical records.

[29] I turned then to consideration of whether leave should be granted to allow this opinion evidence at trial, in accordance with Rule 53.08(1). In considering this issue, I was satisfied that the Defendant had established prejudicial surprise, in that the Defendant could not have known of this criticism in advance of trial. Indeed, none of the reports delivered by the Defendant’s standard of care experts, Dr. Wong and Dr. Tarnopolsky, referred to this issue, showing that it was not evident to them. No party requested an adjournment of the trial to accommodate the delivery of further expert reports. This was consistent with the parties’ commitment to conduct this trial within the schedule that had been agreed upon and firmly established to allow for its completion, with a jury, before the Holidays. In this context, no adjournment was even capable of being considered.

[30] Accordingly, I declined to grant leave for the introduction of this expert opinion evidence as the Defendant had established prejudice that was incapable of being addressed by terms as it would result in unacceptable delay in the conduct of the jury trial.

(b) Leaking Blood Vessels

[31] While responding to a question in examination in chief, Dr. Young stated that the MRI report of January 28, 2010 showed that “blood vessels were clearly leaking”. The Defendant objected on the basis that Dr. Young did not mention, in any of his reports, that blood vessels were shown to be leaking on the January 28, 2010 MRI report, or any connection between leaking blood vessels and a vascular deformation. The Defendant submitted that when Dr. Young wrote about the clinical signs that ought to have alerted Dr. Zaitlen to investigate the entirety of Mr. Henry’s spine, including the thoracic cord, he did not include leaking blood vessels. The Defendant objected to the Plaintiffs developing this line of questioning as a further component of their theory that Dr. Zaitlen breached the standard of care.

[32] The Plaintiffs conceded that “leaking blood vessels” were not mentioned in any of Dr. Young’s reports. The Plaintiffs submitted that the presence of leaking blood vessels as a clinical sign requiring further investigation was latent in, or touched on, by Dr. Young’s written opinion that “Mr. Henry’s presentation, symptoms and signs are really quite typical for [SDAV Fistulas]”.

[33] During submissions, the Plaintiffs conceded that they did not intend to elicit evidence of leaking blood vessels as a basis of their claim that Dr. Zaitlen breached the standard of care. The Plaintiffs agreed that Dr. Young tendered this opinion as part of an expansive answer on a question pertaining to Dr. Zaitlen’s differential diagnosis, and was not directly adduced in testimony by the examining counsel. The parties thereby agreed that no ruling was required on this objection, and the Plaintiff would proceed without further examination on this area.

[34] Had a ruling been required, I would have upheld the Defendant’s objection, determined that Dr. Young could not testify on any failure to identify leaking blood vessels as a ground for Dr. Zaitlen’s alleged breach of standard of care as this was a new field that was neither express nor latent in any of Dr. Young’s reports. I would have determined, further, that no leave could be granted for this evidence to be adduced at trial as the Defendant had established prejudicial surprise by Dr. Young’s failure to refer to this detail in any of his expert reports, and that this prejudice could not be addressed by terms.

(c) Adequacy of Materials sent to Dr. Bril

[35] Dr. Young testified that Dr. Zaitlen referred Mr. Henry to Dr. Vera Bril for a second opinion. Dr. Bril is a neuromuscular specialist and a specialist in electrodiagnosis. In furtherance of the referral, on March 23, 2010, Dr. Zaitlen prepared and forwarded to Dr. Bril a “Request for Consultation” that attached several medical records (the “Referral Materials”).

[36] The Defendant objected to the Plaintiffs’ question of Dr. Young regarding whether Dr. Zaitlen included, in the Referral Materials, Dr. Zaitlen’s Progress Report of March 5, 2010, which pertained to his follow-up examination of Mr. Henry that day. The Defendant submitted that the only reason to lead evidence regarding any inadequacy in Dr. Zaitlen’s transmittal of Referral Materials to Dr. Bril was to support an opinion that Dr. Zaitlen breached the standard of care by negligently providing inadequate records to Dr. Bril in furtherance of her specialist assessment.

[37] Dr. Young did not write, in any of his four reports, that Dr. Zaitlen was negligent in his assembly and transmission of medical records to Dr. Bril for use in her examination and assessment of Mr. Henry. The Plaintiffs submitted that this opinion was latent in a single statement written by Dr. Young in his report of March 11, 2013, at p. 6: “If [Dr. Bril] were truly aware of the fluctuating/ relapsing-remitting course of Mr. Henry’s illness I am not sure how she could accept the diagnosis of a myeloradiculopathy as a post-infectious phenomenon. This just does not happen.” The Plaintiffs submitted that a reader of this passage would reasonably have understood that Dr. Bril was not aware of the fluctuating course of Mr. Henry’s illness because Dr. Zaitlen did not provide her with a copy of his Progress Report of March 5, 2010.

[38] I ruled that Dr. Young may answer the question posed and thereby testify to the content of the material that he sent to Dr. Bril on March 23, 2010. Indeed, the content of the Referral Materials was agreed upon by the parties in their certification of the authenticity and truth of the contents of the medical records dated January 27, 2010 to July 28, 2010, marked on consent as Exhibit 3. Accordingly, I denied the objection made by the Defendant to the question posed of Dr. Young regarding whether he included his March 5, 2010 Consultation Report in the Referral Materials. The parties had already agreed that he did not.

[39] This objection was pre-emptive in nature, as the Defendant anticipated that the questioning would lead to an attempt by the Plaintiffs to adduce evidence from Dr. Young that Dr. Zaitlen breached the standard of care by failing to include all relevant medical records in his transmission to Dr. Bril. This question had not been asked, and therefore did not require a ruling. However, as the submissions dealt extensively with this anticipated area of questioning, I stated that if the only reference to this issue in Dr. Young’s reports is the single passage on p. 6 of Dr. Young’s report of March 11, 2013, I would have to be persuaded that any opinion by Dr. Young on standard of care regarding inadequacy of transmission of materials to Dr. Bril is latent in, or arises from Dr. Young’s reports as opposed to opening a new area. The Plaintiffs did not examine further on this area.

(d) Delay in Investigation During the Referral Period

[40] Dr. Young testified that Dr. Zaitlen’s role as continuing neurologist with primary care in Mr. Henry’s treatment commencing January 29, 2010 did not change by reason of his referral of Mr. Henry to neuromuscular specialist Dr. Bril on March 23, 2010 for a second opinion. The Defendant objected to the examining counsel asking Dr. Young whether, in his expert opinion, Dr. Zaitlen ought to have taken further follow-up steps in investigation of Mr. Henry’s condition during the period after Dr. Zaitlen referred Mr. Henry to Dr. Bril and while Dr. Bril’s work was pending.

[41] The Defendant submitted that Dr. Young did not write in any of his reports that Dr. Zaitlen’s breach of the standard of care included not taking steps to continue with his investigation of Mr. Henry’s condition during the period after his referral of Mr. Henry to Dr. Bril. The Defendant submitted that if Dr. Young intended to offer this opinion in testimony at trial, he was required, under Rule 53, to state it in his report. The Plaintiffs submitted that Dr. Young expressly stated this in his reports or, alternatively, that this opinion was latent in Dr. Young’s overall opinion that Dr. Zaitlen breached the standard of care through a delay in diagnosis of Mr. Henry’s SDAV Fistula. I agreed, for the following reasons.

[42] In his expert report of March 11, 2013, at p. 5, Dr. Young wrote that Dr. Zaitlen was the “ultimate resource” for diagnosis of Mr. Henry’s condition, and that he had “markedly delayed” diagnosis for “some 7 months”:

The consultant neurologist is the ultimate resource for diagnosis, which is the essential step before any definitive treatment could be provided. This was markedly delayed in Mr. Henry’s case, in fact some 7 months, while had (sic) repeated exacerbations that left residual damage. [Emphasis added.]

[43] The period of ‘some 7-months” was clearly understandable, on any fair and reasonable reading, to be the period from the initiation of Dr. Zaitlen’s care of Mr. Henry, namely January 29, 2010, to the treatment of Mr. Henry by Dr. Michael Angel, Dr. Brian Best and then Dr. Krings on July 20-25, 2010. This period included the time between Dr. Zaitlen’s referral of Mr. Henry to Dr. Bril on March 23, 2010 to Dr. Bril’s examination of Mr. Henry on June 2, 2010. Dr. Young’s report, taken together, showed that Dr. Young held the opinion that: (i) Dr. Zaitlen was Mr. Henry’s consulting neurologist with primary care; (ii) Dr. Zaitlen’s delay in diagnosis of an SDAV Fistula was “some 7-months”; (iii) the period of alleged delayed diagnosis and treatment, as commented upon by Dr. Young in the provision of his overall opinion, included the time during which Dr. Bril’s work was pending.

[44] The substance of Dr. Young’s reports was that Dr. Zaitlen breached the standard of care by delay in diagnosis of Mr. Henry’s condition resulting in delay in treatment. In addition to the passage excerpted above from the March 11, 2013 report, Dr. Young wrote, on p. 5, that a “series of events” led to delays in localizing the lesion clinically, arriving at a definitive diagnosis and instituting definitive treatment. In his report of February 27, 2020, Dr. Young wrote, on p. 4, as follows:

It cannot be denied that the diagnosis of spinal dural AVM was missed at a stage when appropriate investigation and treatment would have spared [Mr. Henry] his current disability. … The diagnosis was never clear when Drs. Zaitlen and Bril saw Mr. Henry and further imaging should have been done and a vascular etiology considered.

[45] In his report of April 22, 2020, at p. 2, Dr. Young wrote that “prompt localization and diagnosis by neuroimaging would have prevented the permanent deficits Mr. Henry suffered later”. Dr. Young wrote this conclusion having provided the opinion that the delay in localization of Mr. Henry’s SDAV Fistula resulted from Dr. Zaitlen’s failure to requisition the appropriate imaging, at p. 1:

In clinical neurology localization is the most important step in arriving at a diagnosis. This should be arrived at as soon as possible, as accurate localization is essential to diagnosis and management. Dr. Zaitlen did not have a clear localization in mind and, although he wondered about a cord lesion [he] did not pursue that with appropriate imaging. [Emphasis in original.]

[46] Dr. Young’s reports, read holistically, show that Dr. Young provided an opinion about the role of a general neurologist with primary, continuing care for a patient, the management of the patient and the role of imaging in reaching a definitive diagnosis. Dr. Young expressed the opinion that Dr. Zaitlen breached the standard of care in attending to these tasks. Dr. Young stated that the breach of standard of care occurred over the “some 7-month” period of Dr. Zaitlen’s care of Mr. Henry. It is, in my view latent in Dr. Young’s reports - if not express - that Dr. Zaitlen’s delay in investigating Mr. Henry’s condition, requisitioning appropriate imaging of the thoracic spine and advancing a diagnosis, was throughout this period. I therefore did not accept that the objecting party Defendant could have reasonably been taken by surprise by Dr. Young testifying to steps that Dr. Zaitlen ought to have taken during the time between his referral to Dr. Bril and the completion of her assessment, as a fair and reasonable reading of Dr. Young’s reports showed that his opinions of Dr. Zaitlen’s breach of duty of care continued through this period.

B. Dr. Timo Krings

[47] Dr. Timo Krings is a medical doctor with specialty in interventional neuroradiology, practicing at Toronto Western Hospital. Dr. Krings treated Mr. Henry on July 24-25, 2010, successfully performing a glue embolization of Mr. Henry’s SDAV Fistula on July 25, 2010. As one of Mr. Henry’s treating physicians, there was no dispute that Dr. Krings was a participant expert, in the manner defined by the Court of Appeal in Westerhof v. Gee Estate, 2015 ONCA 206, 124 O.R. (3d) 721, at para. 61, leave to appeal to S.C.C. refused, 36445 (October 19, 2015). Dr. Krings was therefore able to give opinion evidence without complying with Rule 53.03 where “the opinion to be given is based on the witness’ observation of or participation in the events at issue; and the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events”: Westerhof, at para. 60.

[48] In addition to his status as a participant expert, Dr. Krings was admitted to provide opinion evidence on the radiological diagnosis and treatment regarding the issue of causation. Dr. Krings delivered an expert report dated August 17, 2021 in which he provided the opinion that in 2010 he would see a patient with a radiological finding of a SDAV Fistula within 1-2 weeks after referral and follow with a digital subtraction angiography (an attempt to cure through open surgery or endovascular approaches) within 1-2 weeks following the office visit. Dr. Krings provided the further opinion that “Mr. Henry’s outcome would have been better if the [SDAV Fistula] had been diagnosed earlier (because his symptoms did not deteriorate significantly until July 2010 and the prognosis is tied to the level of disability at the time of treatment)”: August 17, 2021 report, p. 3.

[49] Dr. Krings was questioned regarding MRI images taken of Mr. Henry on January 28, 2010, March 14 and 15, 2010 and July 22, 2010. The Defendant objected to Dr. Krings testifying in relation to the July 22, 2010 MRI images, either in his capacity as a participant expert or as a litigation expert under Rule 53. To determine this objection, an admissibility hearing (voir dire) was conducted, in the absence of the jury, during which Dr. Krings was examined and cross-examined on the admissibility of this evidence, and I heard submissions. At the conclusion of the admissibility hearing, I denied the objection and allowed Dr. Krings to testify regarding his review of the July 22, 2010 MRI images. I will explain why.

[50] The evidence in the admissibility hearing showed that on July 22, 2010, the staff at William Osler Health Centre created a CD of Mr. Henry’s “MRIs since January including that of 22/7/10”, and sent this to Toronto Western Hospital as part of Mr. Henry’s transfer: William Osler Hospital Records, Ex. 3, p. 242. Dr. Krings stated that he saw and treated Mr. Henry upon his arrival at Toronto Western Hospital and that in all likelihood he saw the July 22, 2010 MRI images. He testified that after diagnosis, he prepared his own MRI imaging to better identify the precise location of the SDAV Fistula in anticipation of performing the angiography. Dr. Krings testified that he did not remember specifically whether he reviewed the July 22, 2010 images as part of his treatment in July 2010, testifying that he has interpreted over 7,000 radiological images annually in the 11 years since these events. Dr. Krings swore that based on his standard or routine practice, the likelihood that he reviewed the July 22, 2010 MRI image in July 2010 before conducting the glue embolization procedure was “very high”.

[51] Dr. Krings was referred to his post-intervention Consultation Report of July 25, 2010 where he wrote that: “Repeat MT imaging was performed on July 22, 2010 which demonstrated the imaging features of a thoracic spinal DAVF”. Dr. Krings recalled that his review would have been of both the July 22, 2010 MRI image and the repeat imaging report, at the time that he conducted the glue embolization procedure.

[52] The Defendant submitted that Dr. Krings should not be allowed to testify to his observations of the July 22, 2010 MRI image in his capacity as a participant expert because he did not have any present specific recollection of the observations made of these MRI images. In regard to Dr. Krings’ qualification as a litigation expert under Rule 53, the Defendant submitted that Dr. Krings’ report did not provide sufficient detail of his assessment of the July 22, 2010 MRI image to support his provision of expert testimony on this topic. I rejected both grounds of the Defendant’s objection for the following reasons.

[53] First, in Dr. Krings’ capacity as a participant expert, I accepted his sworn testimony that there was a high likelihood that he reviewed the July 22, 2010 MRI image as part of his observation or participation in the treatment of Mr. Henry in the period of July 23-25, 2020. Having heard Dr. Krings’ testimony in the voir dire, and having assessed Dr. Krings as an accomplished expert interventional neuroradiologist whose evidence was credible, reliable and plausible, I was satisfied that he would have carefully followed his routine or invariable practice and considered the July 22, 2010 MRI images as part of his assessment of Mr. Henry’s condition. As a participant witness, Dr. Krings could properly provide an opinion that derived from the ordinary exercise of his skill, knowledge, training and experience while observing or participating in Mr. Henry’s treatment and care. This is precisely what Dr. Krings did in his review of the July 22, 2010 MRI images and the evidence that he proposed to provide in relation to this review.

[54] I did not accept the Defendant’s submission that Dr. Krings should be disqualified from stating any opinion in relation to the July 22, 2010 MRI images because he had no present specific recollection of his assessment on July 23-25, 2010. A physician’s testimony as to their routine, ordinary or invariable practice is admissible as evidence of what they did on a specific day, even in the absence of direct evidence: Turkington v. Lai, at paras. 93-94; Mirembe v. Tarshis, at para. 1; Belknap v. Meakes (1989), 64 D.L.R. (4th) 452 (B.C.C.A.), at pp. 465-66; Campbell v. Roberts, 2014 ONSC 5922, at para. 100 (j). The Defendant could not reasonably dispute this principle, as the substance of Dr. Zaitlen’s examination in chief was based on evidence of his routine or invariable practice considering his admitted lack of specific recollection of aspects of his treatment and care of Mr. Henry.

[55] Second, Dr. Krings was admitted to provide expert opinion evidence beyond his role as a treating physician/ participant expert, as he complied with Rule 53 by delivery of an expert report. Dr. Krings expressly referred to the July 2010 MRI images in his expert report, albeit he apologized for having mistakenly identified them as having been taken on July 20, 2010 as opposed to the actual date of July 22, 2010, writing as follows:

Mr. Henry’s new clinical neurological findings in July prompted the imaging of his thoracic spine on July 20^th^ (sic) where imaging findings were correctly interpreted and the diagnosis of a spinal dural AV fistula was made.

[56] Dr. Krings’ expert report expressly stated his opinion regarding the July 22, 2010 MRI images. On the basis of the principles explained in Marchand, at para. 36, Dr. Krings could explain and amplify what was in his report, including matters that are "latent in" or "touched on" by the report, which included the July 22, 2010 MRI images.

[57] For these reasons, I ruled, at the conclusion of the admissibility hearing, that I denied the Defendant’s objection to Dr. Krings testifying on the July 22, 2010 MRI images.

C. Dr. Daniel Wong

[58] Dr. Daniel Wong is a medical doctor specializing in general neurology, called by the Defendant to provide expert opinion evidence on the standard of care of a general neurologist. Dr. Wong delivered an expert report dated December 20, 2019. Dr. Wong stated his opinion that Dr. Zaitlen met the standard of care in his care and treatment of Mr. Henry.

[59] Dr. Wong was examined on the radiology report of Dr. Hilarie Sheehan of March 15, 2010 (Ex. 3, p. 63) wherein Dr. Sheehan stated that Mr. Henry continued to have enlargement and enhancement of the conus as well as the cauda equina roots, and that his differential diagnosis had not changed. The Plaintiffs objected to Dr. Wong testifying on Dr. Zaitlen’s exercise of the standard of care in not acting on Dr. Sheehan’s “Impression” that: “Formal imaging of the thoracic spine may also be warranted to exclude abnormality at that level.”

[60] The basis of the Plaintiffs’ objection was their claim to have had no notice through Dr. Wong’s expert report that Dr. Wong would testify on Dr. Zaitlen’s discharge of the standard of care in relation to the March 15, 2010 radiology report. The Plaintiffs objected to the statement of any opinion by Dr. Wong regarding whether it was reasonable for Dr. Zaitlen not to have requisitioned MRI imaging of Mr. Henry’s thoracic spine after noting the Impression stated in the March 15, 2010 radiology report. The Plaintiffs stated that this opinion is not expressed in Dr. Wong’s expert report and is not “latent in” or “touched on” by that report.

[61] I denied the Plaintiffs’ objection and ruled that the Defendant could examine Dr. Wong, and adduce his expert opinion evidence, on the March 15, 2010 radiology report, including the statement by Dr. Sheehan that imaging of the thoracic spine “may be warranted”.

[62] Dr. Wong’s report, on p. 3, makes express reference to the March 15, 2010 radiology report:

The MRI of the lumbar spine with contrast was completed on March 15, 2010. The findings were grossly unchanged. There was persistent enlargement, signal change and enhancement of the conus. The cauda equina roots were enlarged and enhanced.

[63] The Plaintiffs are correct that this statement did not refer specifically to Dr. Sheehan’s Impression that imaging of the thoracic spine “may be warranted”. However, Dr. Wong goes on to state opinions on Dr. Zaitlen’s investigation, including his decision to requisition imaging of the head, cervical spine and lumbosacral spine but not the thoracic spine, as follows:

Mr. Henry initially presented with symptoms of numbness in the perineal area with bladder sphincter dysfunction and complaints of left leg weakness. The initial neurological examination did not demonstrate any long track signs to suggest a spinal cord localization. Dr. Zaitlen’s localization to the conus medularis and lumbosacral roots was reasonable. The MRI of the lumbar spine with contrast did uncover an abnormality at this level which correlated to Mr. Henry’s symptoms. There were no symptoms or clinical examination findings to suggest a more proximal lesion, hence there was no indication for imaging of other areas of the neuroaxis. He documented a reasonable differential diagnosis and he subsequently obtained the appropriate initial investigations to determine the etiology of the condition. [Emphasis added.]

[64] Dr. Wong explained, further, in p. 6 of his report, that the rationale for imaging the brain and cervical cord was because these are the “areas of highest yield for identifying inflammation”, and Dr. Zaitlen’s differential diagnosis included inflammatory conditions.

[65] The Plaintiffs’ objection that Dr. Wong did not expressly refer to the basis on which Dr. Zaitlen did not heed the radiologist’s March 15, 2010 impression that imaging of the thoracic spine “may be warranted” is, in my view, too narrow an interpretation and construction of Dr. Wong’s written opinions. Dr. Wong’s report, read fairly and holistically, expresses the opinion that Dr. Zaitlen acted reasonably and without negligence in his ordering of imaging. Latent, if not express in this opinion, is that he acted reasonably in declining to order imaging identified by Dr. Sheehan in the March 15, 2010 radiology report. Dr. Wong’s expert opinion, in this regard, would come as no surprise to the Plaintiffs, including in consideration of the long-standing positions taken by the parties in this action, the profile of this issue and the overall purpose, scope and substance of the opinions contained in Dr. Wong’s report.

[66] Last, this ruling is, in my view, consistent with the scope, application and construction of expert reports, including the principle of “latency” urged by the Plaintiffs in responding to the rulings sought by the Defendant on his objections based on Rule 53. In my view this ruling, as well as the ruling that I will next explain in relation to the Plaintiffs’ objection of a discrete element of Dr. Tarnopolsky’s evidence, ensures trial fairness in that the same analytical lens through which the issue of latency was applied in addressing the Defendant’s Rule 53 objections to the Plaintiffs’ litigation experts is consistently applied to the Plaintiffs’ Rule 53 objections to Defendant’s litigation experts.

D. Dr. Mark Tarnopolsky

[67] Dr. Mark Tarnopolsky is a medical doctor specializing in neurology and neuromuscular disorders. Dr. Tarnopolsky was admitted to provide expert opinion evidence on the issues of standard of care of a general neurologist and causation in this matter.

[68] Dr. Tarnopolsky delivered an expert report dated December 3, 2019 in which he provided opinions regarding whether Dr. Zaitlen and Dr. Bril (at that time a defendant) met the standard of care in their treatment of Mr. Henry, and a report dated October 8, 2021 in which he responded to Dr. Krings’ report on the issue of causation. Regarding Dr. Zaitlen’s discharge of the standard of care, Dr. Tarnopolsky wrote that, in his opinion, the evaluation, differential diagnosis and care plan put forth by Dr. Zaitlen met the standard of care expected from a neurologist in 2010.

[69] The Plaintiffs objected to Dr. Tarnopolsky providing any expert opinion evidence on Dr. Zaitlen’s discharge of the standard of care in relation to his examination of Mr. Henry on March 5, 2010 on the basis that Dr. Tarnopolsky made no reference to this in his December 3, 2019 report.

[70] The Defendant conceded that Dr. Tarnopolsky did not expressly refer to Dr. Zaitlen’s assessment of Mr. Henry on March 5, 2010 in his expert report on standard of care, but submitted that Dr. Tarnopolsky’s opinion on standard of care was formulated and expressed in relation to the entirety of the period of Dr. Zaitlen’s treatment of Mr. Henry. The Defendant submitted that “it would be a stretch” for the Plaintiffs to contend that they did not know that Dr. Tarnopolsky’s opinions were written in relation to the three main assessments conducted by Dr. Zaitlen: January 29, 2010; February 12, 2010; March 5, 2010. I agree.

[71] In the section of Dr. Tarnopolsky’s standard of care report entitled “My impression of the clinical situation to date and Dr. Zaitlen’s care”, Dr. Tarnopolsky addressed the entirety of Dr. Zaitlen’s care of Mr. Henry, including the imaging reports requisitioned on March 5, 2010: being the March 14, 2010 MRI imaging of the brain and cervical spine and the March 15, 2010 MRI imaging of the lumbosacral spine. Dr. Tarnopolsky wrote that Dr. Zaitlen’s findings were consistent with the “history and examination” presented by Mr. Henry and were all consistent in suggesting an autoimmune/inflammatory condition. Dr. Tarnopolsky concluded in his standard of care report that “Dr. Zaitlen appears to have made a very careful and reasonable conclusion and evaluation plan based upon the evidence available at that time”. In my view, it is latent in Dr. Tarnopolsky’s expert report on standard of care that the evidence available to Dr. Zaitlen at the time of his treatment included the assessment made on March 5, 2010.

[72] Accordingly, the question posed to Dr. Tarnopolsky regarding Dr. Zaitlen’s assessment of Mr. Henry on March 5, 2010 properly arose from his expert report on standard of care. For these reasons, the Plaintiffs’ objection was denied.

IV. Disposition

[73] The above reasons are the basis for my trial rulings on the Rule 53 objections made by the Defendant regarding the opinion evidence of Dr. Young and Dr. Krings, and the objections made by the Plaintiffs regarding the opinion evidence of Dr. Wong and Dr. Tarnopolsky, in those instances where the rulings were made with reasons to follow.

A.A. Sanfilippo J. Date: January 10, 2022 (Revised: January 26, 2022)

Footnotes

[1] Notice of Discontinuance of this action against Dr. Joseph Fairbrother and Dr. Hilarie Louise Sheehan, dated March 4, 2013; Notice of Discontinuance of this action against Dr. John Doe, Jane Doe, and Joan Doe, dated February 11, 2016; Order dated November 21, 2016 dismissing this action, on consent, as against Dr. Edgar Jan, Dr. Robert Kurtz, William Osler Health System (incorrectly identified as “William Osler Health Centre – Brampton Civic Hospital) and University Health Network (incorrectly identified as “University Health Network – Toronto General Hospital”); Order dated November 26, 2020 dismissing this action, on consent, as against Dr. Vera Bril.

[2] Expert reports dated March 11, 2013, January 3, 2015, February 27, 2020, and April 22, 2020.