Court File and Parties
COURT FILE NO.: CV-13-494077 DATE: 20220601
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Shoba Kolapully Plaintiff
– and –
Lynda Myles and Toronto Transit Commission Defendants
Counsel: Dahab, M. and Kaur, A., counsel for the Plaintiff Townsend, C. and Styler. D., counsel for the Defendants
HEARD: May 26, 2022
voir dire DECISION relating to the use of SPECT SCAN to diagnose traumatic brain injuries
Sugunasiri, J.:
[1] This case addresses whether a court should permit a clinical neurologist to allude to a SPECT scan as one of the tools used to diagnose a mild traumatic brain injury. In a nutshell, it depends. At the hearing, I dismissed the TTC’s motion to exclude the scan and reserved my right to elaborate on my reasons. These are my brief further reasons. While I allowed the Plaintiff’s neurologist to refer to SPECT scan results in this case, I did so only because it was one of the many diagnostic tools he used to conclude that Ms. Kolapully suffered from the ongoing effects of a mild traumatic brain injury (“TBI”). I agree with the TTC however that if like in Meade v. Hussein, 2021 ONSC 7850 it was a nuclear medicine specialist or anyone else attempting to diagnose a traumatic brain injury solely on the results of a SPECT scan, that would be a novel use of the scan and its prejudicial effect on the jury would vastly outweigh its probative value.
[2] Ms. Kolapully sues the Defendants for damages arising from an accident where Mr. Kolapully was hit by a TTC bus while crossing Ellesmere Road in Toronto. Among her complaints is the ongoing effects of a mild traumatic brain injury. To support Ms. Kolapully’s claim she retained a neurologist who she proposed as an expert pursuant to Rule 53 of the Rules of Civil Procedure. Dr. Medhiratta examined Ms. Kolapully eight years after the accident. He intended to testify that while her MRI and CT scans do not show any brain trauma, a SPECT scan supports a diagnosis of the ongoing effects of a TBI when combined with her clinical history and his examination of her.
[3] The TTC moved to prohibit Dr. Mehdiratta from showing the SPECT scan to the jury on the basis that it is science used for a novel purpose and is unreliable because it lacks the sensitivity and specificity to accurately detect a brain injury at the individual patient level. Dr. Yufe testified to support its position. Dr. Yufe’s evidence was that “no clinical neurologist uses a SPECT scan.” On cross-examination however he admitted that he had neither read the breadth of literature available about SPECT scans nor was interested in reading about it because that was the focus of nuclear medicine specialists who are trained to interpret brain imaging. When asked whether Dr. Yufe knew that the Canadian Medical Association has endorsed peer reviewed guidelines by the Canadian Association of Nuclear Medicine for the use of SPECT scans as a diagnostic tool for PTSD, depression, TBI and other disorders, he indicated that he did not read nuclear medicine articles and had little regard for what the CMA might or might not endorse or pass on to its members. Dr. Yufe also candidly admitted that he gained significant information about SPECT scans from Dr. Mehdiratta’s affidavit. I give Dr. Yufe’s evidence little weight.
[4] On the other hand, Dr.Mehdiratta provided extensive evidence on the use of SPECT scans throughout North America and referred to multiple journal articles and studies on it use a diagnostic tool for clinical neurologists. Dr. Mehdiratta testified that as of February 2, 2022, the CANM guidelines on the use of SPECT scans as a diagnostic tool was accepted by the CMA’s clinical practice guidelines Infobase. The Infobase is a database which contains approximately :1,200 evidence-based Canadian clinical practice guidelines developed or endorsed by authoritative medical or health organization in Canada.” The Guidelines were developed by a group of nuclear medicine specialists and neurologists (including Dr. Mehdiratta) to offer information on the use of SPECT scans to help diagnose certain neurological conditions including TBIs. In turn the information on TBI is derived from 9 different articles on the use of SPECT imaging. The guidelines also talk about co-morbidity and the use of SPECT scans to distinguish between PTSD and TBI’s for example, or TBI’s and depression.
[5] In my view, the proposed SPECT scan evidence as a diagnostic aid for a clinical neurologist such as Dr. Mehdiratta is not novel science. Courts in the past have recognized and accepted it is as a tool.[^1] While there may be disagreement on its accuracy, Dr. Mehdiratta was clear in his evidence that he had already made a TBI diagnosis based on this clinical evaluation before sending Ms. Kolapully for a scan to obtain any further information on abnormalities it might offer. He explained that he felt this was a useful exercise because Ms. Kolapully also showed signs of depression. The CANM guidelines set out that SPECT scans show two distinct patterns for depression and can allow a neurologist to use the scan to rule it if appropriate in the circumstances of the particular patient.
[6] As such I distinguish this case from Meade. First, the use of SPECT scans in North America, the research behind it and its use by clinical neurologists was not tendered in that case. Second, Meade involved a nuclear medicine specialist diagnosing a TBI based solely on the SPECT scan. Had that been the request here, I would have agreed with the TTC and not permitted it. Indeed in this case I only permitted the scan to be shown to the jury with the nuclear medicine specialist’s opinions redacted, so as to not unduly influence the jury with his untested opinions and the unsupported use of SPECT scans as a singular diagnostic tool for TBIs. The present case is much more akin to Legree v. Origlieri, 2021 ONSC 7650 where the court considered the use of a SPECT scan as a diagnostic tool to confirm a provisional diagnosis or add information to one. This use is not novel and much less controversial in the caselaw and in the research offered by Dr. Mehdiratta.
[7] To be clear, the SPECT scan in this case was only admitted because I excluded the nuclear medicine specialist’s untestable interpretation of the scan from being shown to the jury and because the clinical neurologist intended to allude to the scan as one of the many tools that informed his diagnosis.
P.T. Sugunasiri, J.
Released: November 28, 2022
COURT FILE NO.: CV-13-494077 DATE: 20220601
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Shoba Kolapully Plaintiff
– and –
Lynda Myles and Toronto Transit Commission Defendants
VOIR DIRE DECISION RELATING TO THE USE OF SPECT SCAN TO DIAGNOSE TRAUMATIC BRAIN INJURIES
P. Tamara Sugunasiri J.
Released: November 28, 2022
[^1]: Legree v. Origlieri, 2021 ONSC 7650; Marcoccia v. Gill, 2007 11322 (Ont. S.C.); Hornick v. Kochinsky, 2005 13784 (Ont. S.C.); Tsaoussis (Litigation Guardian of) v. Baetz, 1997 12148 (Ont. S.C.); Goodman v. Mikolajewicz, 1997 CarswellOnt 693 (S.C.); Wong v. Towns, 2015 BCSC 1333; Banyay v. Insurance Corp. of British Columbia, 1994 CarswellBC 2497 (S.C.); West v. Cotton, 1993 CarswellBC 2787 (S.C.).