Court File and Parties

COURT FILE NO.: CV-18-00602261-0000 DATE: 20230120

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Bernard Finnigan and Ramon Suarez Plaintiffs – and – Edward Tat-Yee Lee Defendant

Counsel: Jessica Mor, for the Plaintiffs Rebecca Jones and Margaret Robbins, for the Defendant

Heard: March 21-25, May 9, 2022 Written submissions received: May 30, 2022

Carole J. Brown J.

Reasons for Decision

[1] The plaintiff, Bernard Finnigan (“the plaintiff” or “Mr. Finnigan”), brings this action alleging medical malpractice with respect to medical care received between November 3 2016 and January 18, 2017. The co-plaintiff, Ramon Suarez (“Mr. Suarez”), claims damages pursuant to the Family Law Act, R.S.O. 1990, c. F.3..

[2] The plaintiffs, Mr. Finnigan and Mr. Suarez, allege that between November 3, 2016 and January 18, 2017, the defendant, Dr. Edward Tat-Yee Lee (“the defendant” or “Dr. Lee”) failed to properly manage the pain experienced by the plaintiff and to take immediate steps to order an urgent CT scan to determine in a timely manner whether the plaintiff suffered from lymphoma, which resulted in a significant degree of pain and neurological deficits.

The Facts

[3] Based on the evidence, both viva voce and documentary, adduced by the parties at trial, the following is a summary of the facts. The testimony of the parties follows this summary.

[4] The plaintiff had been a patient of the defendant for approximately 15 years, from 2003 to January 2017. At the material times, he was 60 years of age and had retired from his work as a social worker and teacher in July of 2016.

[5] He was married to the co-plaintiff, Ramon Suarez, from October 2006 to July 2021, when they separated.

[6] They enjoyed travelling and, during the material times, had gone to Europe in the summer of 2016, the Dominican Republic from October 18 to 24, 2016 and Costa Rica from January 3 to 17, 2017.

[7] The plaintiff was diagnosed with HIV in 2005, which was well-controlled with medications. The defendant, Dr. Lee, had significant experience with HIV patients in his practice from 1989-1990 onward, and had approximately 100 to 120 patients with HIV.

[8] The plaintiff was a responsible patient, who attended appointments and followed up with medical tests as instructed. Given his education, he had no trouble reading and following instructions generally, nor did he have trouble reading instructions on medication bottles regarding dosages.

[9] The plaintiff had experienced chronic lower back pain in his thirties, which had resolved over a period of 6 to 12 months with chiropractic therapy. He continued to have periodic, acute flare-ups and saw his chiropractor three to four times per year for the flare-ups. He had also seen a massage therapist for years.

[10] In April and May of 2014, he had flare-ups for which he saw his chiropractor numerous times. He took Robaxacet.

[11] Prior to his retirement in July of 2016, the plaintiff began to experience left shoulder pain when he was on the road for work, for which he saw a chiropractor. He described the pain as similar to that which he had experienced in his 30s.

[12] Between August 26, 2016 and January 18, 2017, the plaintiff attended appointments with the defendant, Dr. Lee, on five occasions, as follows.

[13] On August 26, Mr. Finnigan attended at an appointment complaining of a lesion on his penis. The defendant performed a physical examination, checked his inguinal lymph nodes, which, if swollen, can indicate infection, and ordered blood work regarding the penile lesion. Dr. Lee also discussed with the plaintiff potentially changing his HIV medication to a newer trial medication. The appointment which had been booked for 20 minutes, the normal length of an appointment was instead quite lengthy and lasted 40 minutes. At the very end, the plaintiff mentioned that he was experiencing shoulder pain which he described as uncomfortable. The defendant prescribed self-care, including stretches, heat and, as necessary, over-the-counter medications (“OTC”), such as Tylenol, Advil or Aleve.

[14] Between August 26 and November 3, the plaintiff had several telephone conversations with the defendant concerning the results of his blood work, which showed no syphilis, but did show chlamydia. As a result, the defendant advised him to notify his sexual partners of the positive result and abstain from sex.

[15] There is no evidence to suggest that the plaintiff raised back pain with the defendant during that period of time other than at the end of the August 26 appointment. The clinical notes of the therapists indicate that, also during this time, he attended seven appointments with the chiropractor and three appointments with the massage therapist.

[16] On November 3, the plaintiff attended an appointment with the defendant, complaining again of shoulder pain, which he indicated had worsened in October. At the date of the appointment, the pain was still primarily in the shoulder. He was taking Tylenol (not the maximum dosage). He continued his activities, including curling with his team and travelling. He was seeing the chiropractor, which he reported was not helpful, and a massage therapist, which he reported helped him.

[17] The defendant conducted an examination of his back and concluded that the pain was musculoskeletal because of 1) tenderness in the left trapezius; 2) the range of motion, which was normal; 3) the plaintiff’s strength, which was normal, 4) but increased pain with activation with the latissimus dorsi. Dr. Lee recommended physiotherapy, massage, heat and OTCs as necessary.

[18] On Dr. Lee’s recommendation, the plaintiff began physiotherapy on November 10. The relief he gained from physiotherapy sessions allowed him to reduce the amount of OTCs he was taking. He reported relief from the physiotherapy sessions. He also started acupuncture.

[19] At his appointment on December 14, he told the physiotherapist that he was feeling better overall, although he testified at trial that he was still experiencing pain at that time.

[20] Mr. Finnigan also saw Dr. Lee on December 14, and reported that he was experiencing night sweats, weight loss and decreased appetite. He stated that he had travelled to Punta Cana, Dominican Republic, and may have been bitten by a mosquito.

[21] He further advised the defendant that his back pain was moving around, that it was feeling better since he began physiotherapy, but that the pain was making him feel depressed.

[22] Dr. Lee did a thorough examination of all organ systems, and complications that would arise associated with HIV patients. He ordered x-rays of the chest and back, and blood work to be done. He discussed with Mr. Finnigan that it was not likely that he had issues with lymphoma, but that they would have to investigate the reasons for the night sweats and the weight loss.

[23] The plaintiff testified at trial that, by December 14, his back pain was worse and that he was using the maximum dose of OTCs (Tylenol). However, on December 14, he reported to Dr. Lee that his back pain was better since he began seeing a physiotherapist. He did not state, at the appointment, that his pain was worse. During this time, he also continued to curl.

[24] The plaintiff testified that he never asked the defendant for pain medication; he was afraid of opioids. His nephew had been addicted to them and, in his social work, he dealt with a number of addictions.

[25] On December 21, 2016, the plaintiff attended an appointment to discuss the results of the blood work which had been received on December 16 and reviewed within 24 hours thereafter. While the plaintiff had stated in examination in chief at trial that the appointment was to discuss his pain, he conceded on cross-examination that it was to discuss the blood work which had been taken.

[26] Based on Dr. Lee’s clinical notes, during the appointment, the plaintiff advised the defendant that his night sweats, energy and appetite had all improved and he had also gained weight. He advised Dr. Lee that he had thrown his back out curling on the weekend, but it had improved over the last couple of days.

[27] Dr. Lee’s global assessment was that Mr. Finnigan’s physical condition had improved. As regards his back pain, the physiotherapy, along with OTCs as needed, seemed to be working, according to the plaintiff.

[28] Based on the blood work, Mr. Finnigan’s LDH, which is a non-specific enzyme that indicates cell breakdown or turnover, had significantly increased. His hemoglobin had dropped 30 points, which raised red flags regarding anemia, a common concern in HIV patients, as confirmed by Dr. Brankston, the plaintiff’s expert. The most concerning result was the drop in hemoglobin. Dr. Lee wanted to confirm the tests to ensure that there was no laboratory error. He ordered retests, including testing for CBC, FOBT, iron, B-12, and folic acid which, if low, can cause anemia.

[29] At that appointment, Mr. Finnigan told Dr. Lee that he had a planned trip to Costa Rica for two weeks and that he really wanted to go. He asked the defendant if there were any reason that he should not go, to which the defendant responded that he could go. However, the plaintiff and defendant agreed that the plaintiff would have the blood work, ordered by the defendant, done prior to leaving for his vacation, and that the plaintiff would make an appointment to meet with the defendant for the results of the tests as soon as he returned.

[30] The blood work was taken on December 30 and the plaintiff was in Costa Rica from January 3-17, 2017. Dr. Lee received the test results on January 3 and reviewed them within 24 hours thereafter. The hemoglobin and LDH remained essentially unchanged; the folic acid, iron and B-12 were all normal, although the ferritin was high.

[31] During his vacation in Costa Rica, the plaintiff’s condition deteriorated and he was in significant pain during the vacation. He did not call Dr. Lee from Costa Rica. He had an appointment on January 18, the day after he returned from Costa Rica, to follow-up on the blood work.

[32] On January 18, 2017, the plaintiff attended at the defendant’s offices, as planned, to review the blood work that had been done prior to his vacation. The plaintiff advised the defendant that his health had deteriorated while he was in Costa Rica and his back pain had become much more significant, such that he could not enjoy or participate in his vacation. He experienced burning in the shins and his legs were weak. At the January 18 appointment, the defendant examined the nerve function in the defendant’s legs, which he found to be normal. Lymphoma had risen on his list of differential diagnoses.

[33] The defendant ordered a CT scan of the plaintiff’s spine, x-rays and an ultrasound of his scalp, and made a referral to hematology at the Princess Margaret Hospital. Given the medical records reviewed by the medical team at the Princess Margaret Hospital, they advised the defendant that they had transferred the referral to Toronto General Hospital (“TGH”), as it did not appear to be cancer-related.

[34] On January 25, the plaintiff called Dr. Lee and advised him that he had worsening pain in his legs, that his legs were giving out, and that he had difficulty moving his legs. He was unable to lift his legs when lying on his back in bed. He also noticed changes in his bowel and bladder functions.

[35] The defendant was concerned that something may be impinging on the plaintiff’s spine, which is a medical emergency, and told him to go immediately to TGH where he would send the most recent reports and blood work, which he did.

[36] At TGH, the plaintiff was given the opioid Dilaudid, orally, which the plaintiff reported to be ineffective to counter the pain. He was thereafter given Dilaudid intravenously. After a week of intravenous medication, as well as pain management education, he was able to get the pain under sufficient control such that he was able to take oral opioids to manage the pain.

[37] At TGH, he was given a CT scan and x-rays which showed tumors along the spine. In late January or early February, he was diagnosed with and treated for Stage IV non-Hodgkins lymphoma.

[38] Dr. Lee’s list of the differential diagnoses included Zika, TB, pneumonia, anemia, metastases and lymphoma, although until December 21, lymphoma was low on his list of differential diagnoses. Lymphoma was low on this list based on the plaintiff’s reported symptoms, the overall presentation of the symptoms and the absence of enlarged lymph nodes, as well as the plaintiff’s recent travel history, during which the plaintiff believed he had sustained a mosquito bite. Enlarged lymph nodes are common symptoms of lymphoma and the defendant had had four or five patients previously diagnosed with lymphoma, each of whom had initially presented with palpable lymph nodes.

The Evidence

The Plaintiffs’ Evidence

Bernard Finnigan

[39] Bernard Finnigan was born November 24, 1956, has a Master’s degree in social work and worked in the areas of child protection and children’s mental health until his retirement in July 2016. He was married to Mr. Suarez from October 2006 through July 2021.

[40] The plaintiff was in relatively good health through the spring of 2016 and was physically active. He had tested HIV-positive in 2005, which was well-controlled with medication.

[41] He experienced chronic lower back pain in his 30s which took 6 to 12 months to resolve and had a lot of pain during that period of time. Since then, he has had recurring flareups for which he sees a chiropractor three to four times per year.

[42] Since 2002, Dr. Lee was his family doctor, with whom he would consult three to four times per year. He described his relationship with the defendant as a good relationship and the defendant as kind and caring.

[43] In 2016, his teaching, in the context of his work, required him to be on the road a significant amount of time. He began to experience left shoulder pain while on the road, similar to the pain he had experienced in his 30s. He saw his chiropractor when he was not on the road. He resigned from his work in July 2016, in part due to the pain.

[44] In August, he felt that the pain was getting worse, and saw a chiropractor a bit more frequently. He had always had occasional lower back pain which he had learned to manage.

[45] On August 26, 2016, he saw his family doctor, the defendant, complaining of a bump on his penis. Dr. Lee took a history, did a physical exam and sent him for HIV and syphilis tests regarding the bump. They also discussed switching his HIV medication to a new trial medication. The appointment was longer than usual. Appointments are normally booked for 20 minutes and this was 40 minutes. The plaintiff also mentioned briefly that he had pain in his shoulder and was getting treatment from his chiropractor and massage therapist. In cross-examination, he stated that he did not have a good memory of the August appointment. He conceded in cross-examination that Dr. Lee suggested that he take OTC pain medications, and possibly recommended self-help such as stretches and heat at the August appointment, and again in November or December.

[46] Dr. Lee called following the appointment with the results of his blood work; he advised that the syphilis test was negative, but that the plaintiff had chlamydia.

[47] The plaintiff testified that his shoulder pain became more chronic in the fall of 2016. He started taking more OTC medications, approximately two per day, as he did not like to take a lot of medication. He used self-help methods through September and October, including heat, stretches, yoga, and chiropractic and massage therapy. The chiropractor counselled him to stop going to the gym while the chiropractor was working on his muscles and prescribed back exercises to do at home. He also went to his regular massage therapist, who he had seen for many years. During this time, he also experienced decreased appetite and energy levels. He was not certain if they were due to pain or decreased activity.

[48] In examination in chief, the plaintiff indicated that he began to experience a loss of appetite in September-October, but corrected this in cross-examination, and indicated that this happened with increased pain at the end of October into mid-November.

[49] He did not raise back pain with the defendant until the November 3 appointment.

[50] He testified that by the end of October, he was always in some level of pain. He made an appointment to see Dr. Lee on November 3, 2016 and complained of shoulder and back pain. He described the pain as waxing and waning, and indicated that some days were better than others. He also expressed concern about a potential anal wart. The defendant conducted a physical examination and recommended physiotherapy. The plaintiff was not certain whether Dr. Lee inquired about medications that he was taking for the pain in November or December, but the plaintiff did advise Dr. Lee that he was taking Tylenol Arthritis, at the recommendation of his sister who is an oncologist. He stated that that was the only time they discussed pain management. He testified that Dr. Lee told him to do physiotherapy and massage therapy.

[51] He thereafter indicated that he was not certain whether they discussed the pain at the November or December appointments, and that it may have been in December.

[52] He continued to see his physiotherapist, massage therapist, and began seeing an acupuncturist in December.

[53] He curtailed his activities, but continued to walk his dog and to curl.

[54] He testified that he started to experience night sweats and weight loss in late November or early December. The physiotherapy notes from December 2 to 14 indicate that he reported feeling better overall, was still tight on the left side, that on December 10 he had gone back to the gym, had done 15 minutes on the elliptical, had danced at a Christmas party, was trying to go to the gym three times per week and was much better.

[55] He saw the defendant again on December 14. The clinical notes indicate that he experienced night sweats for a couple of weeks prior to that, had weight loss of 10 pounds in 1 to 2 months, a decreased appetite, no cough over the past week, that he was smoking more pot 3 to 5 times per week, had no abdominal pain, no change in stool habits, no UTI symptoms, no weakness in his arms or legs and no rashes or fever. He went to Punta Cana in October and may have sustained a mosquito bite. His back pain was moving around, but was better since he started seeing the physiotherapist. He also indicated that the back pain was making him feel depressed.

[56] Dr. Lee ordered blood work and x-rays. The plaintiff was taking OTCs and never asked for pain medications as he was afraid of opioids.

[57] The defendant contacted him regarding his blood work and told him that the numbers were off and he was ordering a retest of blood work.

[58] On December 21, he attended an appointment with Dr. Lee regarding the additional blood work. He reported that his night sweats, appetite and energy levels were better, that he had gained 6 pounds, but that he had thrown his back out curling on the weekend. He stated that his back was getting better over the last couple of days. The blood work showed that his hemoglobin was low. He is not certain whether Dr. Lee mentioned that his LDH was high; he does not recall. They scheduled an appointment to follow up on the blood work.

[59] He testified that his memory of all of this was poor. Because of his fading memory, the pain and poor sleep, the plaintiff’s visits to the defendant were “mishmashed and melded”. He stated that he was not sure about dates for appointments and what happened at each appointment.

[60] The records from the acupuncturist at this time indicated that he was experiencing improved sleep, fewer night sweats and regular appetite.

[61] He testified that at the December 21 appointment, he told Dr. Lee that he was going to Costa Rica for a vacation with Mr. Suarez, that he really wanted to go, and asked if there were any reason that he should not go. Dr. Lee indicated that he could go, but they agreed that Mr. Finnigan would have the blood work redone before the trip and would return for the results upon his return to Toronto after the trip. He had his blood work done December 30 and saw the defendant, as planned, on January 18, the day after his return to Toronto.

[62] Mr. Finnigan went to Costa Rica from January 3 to 17, 2017. While there, he experienced significant pain, which interfered with his vacation. He did not speak with the defendant between December 21 and January 17. When he returned to Toronto, he went to an appointment with Dr. Lee on January 18.

[63] He stated that at the appointment on January 18, he limped into Dr. Lee’s office, crying. However, in cross-examination, he conceded that he did not limp, but was walking very slowly.

[64] Dr. Lee was to refer him to a hematologist and ordered a CT scan. He believes Dr. Lee also ordered an ultrasound regarding a bump on his head. He testified that this was the first time he had heard about potential cancer. He subsequently testified that he does not think that Dr. Lee used the word cancer or lymphoma at that appointment. However, in cross-examination, he stated that Dr. Lee told him that he was considering lymphoma but did not think it likely, until he received the results of the December 21 appointment and tests.

[65] He also complained of a large bump on the back of his head, which he said Dr. Lee had never mentioned or examined. However, in cross-examination he admitted that he never mentioned the bump to Dr. Lee or brought it to his attention.

[66] On January 25, Mr. Finnigan’s legs collapsed. He called Dr. Lee and was told to go immediately to the emergency room at TGH. He was placed on a narcotic. In late January or early February, he was diagnosed with Stage IV non-Hodgkin’s lymphoma and sent to the Princess Margaret Hospital for chemotherapy. He remained at the Princess Margaret Hospital until March 1 and was then transferred to the Toronto Rehabilitation Centre until March 16.

Ramon Suarez

[67] Ramon Suarez was born on August 28, 1974 in Columbia and immigrated to Canada in July of 2002. He married the plaintiff on October 21, 2016.

[68] He has a Bachelor’s of Arts degree in Business Administration and during the material times, from August 2016 to January 2017, worked with West Jet Airlines in customer service.

[69] He stated that, prior to September 2016, the plaintiff was in good health, and he was physically active and energetic.

[70] In September of 2016, the plaintiff began to complain of pain in his shoulders which increased in October. He saw his therapists, including his chiropractor, massage therapist and acupuncturist.

[71] By December, the pain had increased and their relationship was worsening. The plaintiff did not want Mr. Suarez to give opinions on his health or treatments, which led to fights when Mr. Suarez did so.

[72] In January, they went to Costa Rica, but he described it as the worst vacation he had had due to the plaintiff’s back pain. They were unable to do many of the activities they had planned.

[73] He took numerous videos of the plaintiff, without the plaintiff’s consent or knowledge, as he wanted to have evidence of the plaintiff’s disabilities.

[74] On January 25, while at work, the plaintiff contacted him and said that Dr. Lee had advised him to go to the emergency room at TGH. Mr. Suarez left work, went home and took the plaintiff to the hospital.

[75] He stated that he lost his job thereafter because he was a full-time caregiver for the plaintiff, which he stated was very stressful and had a significant impact on the relationship. He stated that he went to a psychologist at the Princess Margaret Hospital for counselling and continued thereafter, due to the stressful experience and to work through the feelings about the plaintiff’s diagnosis and prognosis.

[76] He admitted that his memory was not good regarding dates and he was not certain about the various dates and symptoms from August through December.

Dr. Edward Brankston

[77] Dr. Brankston has been retired since September 2016. His practice was mainly in Oshawa, Bowmanville and Ajax. He did not practice family medicine in Toronto. During the time that he practiced family medicine, he had two patients with HIV.

[78] Dr. Brankston was qualified as an expert in family medicine to testify as to whether the defendant met the standard of care in medical management of the plaintiff; and if the defendant had met the standard of care, when the lymphoma diagnosis would have been made and how this would have had an impact on the plaintiff’s pain and suffering, such opinions to be given within the four corners of the plaintiff’s expert report.

[79] Dr. Brankston provided his overall opinion that Dr. Lee fell below the standard of care as follows:

1. He failed to document the plaintiff’s mid-back pain on August 26 and did not examine the plaintiff regarding these symptoms; and did not have the plaintiff return for an appropriate assessment;
2. He failed to advise the plaintiff regarding his back pain from August through December 2016;
3. He failed to realize that the lack of palpably large lymph nodes does not rule out a diagnosis of lymphoma;
4. He failed to consider the diagnosis of lymphoma in December of 2016, based on the plaintiff’s positive HIV status, his constitutional symptoms, including fever, night sweats, weight loss, fatigue and the plaintiff’s elevated LDH;
5. He failed to order CT scans of the neck, chest, abdomen and pelvis and/or refer the plaintiff to a hematologist or medical oncologist.

[80] Regarding the August 26 appointment, Dr. Brankston stated that he did not have any issues with the general assessment given, but that the comment about back pain at the very end of the appointment when the patient was leaving should have been documented and that it was a breach of the standard of care not to tell the plaintiff to come back if the pain persisted.

[81] Regarding the November 3 appointment, he opined that it was appropriate for the defendant to conclude that the symptoms were muscular in origin and that management should be physiotherapy and OTC medications. There was no indication for considering opiates at that time and the guidelines for chronic non-malignant pain outline a stepwise approach to treatment of chronic pain, including recommending OTC analgesics and anti-inflammatories. If the pain is not controlled with the maximum dosage of OTCs and pain management approaches, opioids may be considered. There are guidelines for assessing opioid risk.

[82] It was below the standard of care not to have discussed medication therapy, simple OTCs and to have documented same. He conceded that this was simply his opinion.

[83] He further took issue with the fact that the defendant did not use a pain scale (1-10), which he stated was absolutely required, did not indicate the degree to which daily functioning was impacted and did not indicate whether there was a sufficient discussion regarding medications.

[84] He confirmed that back pain is one of the most common complaints seen in the practice of family medicine. Most of the time, in a patient of 60 years, back pain will be benign. It is very uncommon for back pain in a 60-year-old man to be malignant rather than benign. He stated that for many patients with back pain, the pain will resolve spontaneously with simple management measures.

[85] As regards the December 14 appointment, Dr. Brankston testified that Dr. Lee did a thorough examination of all systems and discussed with the patient that lymphoma was unlikely but that they would investigate the reasons for the weight loss and night sweats. There should have been a discussion regarding pain management, but nothing is noted.

[86] The defendant put lymphoma lower on the differential diagnosis list which, in Dr. Brankston’s view, fell below the standard of care. In cross-examination, he acknowledged that he disagreed with the defendant on where the defendant placed lymphoma on his differential diagnosis. He further conceded, in cross-examination, that the defendant did not fail to consider the diagnosis of lymphoma, but rather put it in the wrong place in the list of differential diagnoses, according to Dr. Brankston.

[87] Further, in Dr. Brankston’s opinion, Dr. Lee should have ordered an urgent CT scan on December 14, which again fell below the standard of care. In his opinion, not ordering an urgent CT scan in the face of increased LDH was a breach of the standard of care. I note that in Dr. Brankston’s expert report, he did not indicate that an urgent CT scan should have been ordered. However, at trial, he insisted that the word “urgent” was inferred in his report.

[88] In cross-examination, Dr. Brankston conceded that based on the December 14 appointment record, there was insufficient information to decide whether the patient should have been prescribed an opiate or not.

[89] As regards the appointment on December 21, Dr. Brankston could not say for certain that the defendant should have prescribed opiates, or that they were merited at the time. The notes indicate that the plaintiff’s back felt better and his energy and appetite were better. He stated that where a patient had thrown his back out curling but the pain was improving, the situation did not mandate the prescribing of opioids.

[90] It was further the opinion of Dr. Brankston that Dr. Lee failed to advise of medications for the pain from August to December. He opined that even if the plaintiff and defendant had discussed the use of OTCs in August, and assuming the defendant still considered them appropriate in November, there was still no documentation of this in November. This was, in his opinion, a breach of the standard of care, as Dr. Brankston did not know whether it occurred from consulting the notes. In cross-examination, when the question was re-asked, he agreed that it was not a breach and that the defendant’s advice to the plaintiff to engage in physiotherapy and massage therapy for the plaintiff’s pain was appropriate.

[91] Further, in cross-examination, he stated that if it were assumed that the defendant talked with the plaintiff about medications in August and December, then there was no failure or breach of the standard of care to discuss medications for the plaintiff’s pain.

[92] It was the opinion of Dr. Brankston that it was below the standard of care to permit the plaintiff to go to Costa Rica with abnormal blood investigations ongoing. However, in cross-examination, he conceded that the decision to go on vacation is ultimately that of the patient and that if the patient and doctor agree upon a plan for further testing and to discuss the test results that they are comfortable with, such as was the situation in this case, it is not a breach of the standard of care for the doctor not to tell the patient to cancel the trip.

[93] He stated that after the results of the December 30 blood tests were received on January 3, the defendant should have contacted the plaintiff to advise of the results and further steps that would have to be taken. It was his opinion that Dr. Lee fell below the standard of care in not ordering urgent CT tests after the January 3 results were received.

[94] Dr. Brankston acknowledged that when he wrote his report, he did not realize that the plaintiff was away in Costa Rica for two weeks, nor that this had been discussed between the plaintiff and defendant and a plan propounded for the plaintiff to have blood work done prior to the vacation, and to see the defendant immediately upon his return to discuss the results.

[95] In cross-examination, Dr. Brankston conceded that it is recommended that tests be ordered serially (i.e. requesting further tests based on initial test results) rather than testing for many things all at once. However, he clarified that he believed this was an oversimplification and that everything depended on the situation. He further considered an overgeneralization the statement that tests should only be requested that are indicated for a specific problem and not “just in case”. He further considered an overgeneralization that a practical approach to testing can facilitate rational test-ordering and contribute to reduction in the harms associated with unnecessary testing, rather than ordering unnecessary tests. He stated that this also depends on the physician’s judgment.

The Defendant’s Evidence

Dr. Lee

[96] Dr. Lee is a general practitioner in family medicine. He obtained his medical degree from McGill in 1988, completed a one-year postgraduate rotating internship and was licensed to practice medicine in Ontario in 1989.

[97] Dr. Lee was a physician at Parkdale Queen West Community Health Center, a multidisciplinary approach to medicine established by the Ministry of Health, with doctors, nurses, nurse practitioners, social workers and counsellors, providing care for very marginalized people. He also worked as a physician at the Hassle Free Clinic, which was established in the 1970s to provide care for sexual health issues. He worked at a men’s clinic where 70% of his patients were gay.

[98] From 1998 to the present, he practices at the St. Clair Medical Association Clinic with a roster of 400 to 500 patients, 70 % to 80% of whom are gay or bisexual. He has seen approximately 100 to 120 HIV-positive patients during that time.

[99] He also served on the Ontario Advisory Committee for HIV-AIDS from 1996 to 2001 and on the National Advisory Committee on Sexually-Transmitted and Blood-Borne Infections.

[100] He has seen the plaintiff as his patient at the St. Clair Clinic since 2003, for mainly well-person care. The plaintiff was diagnosed as HIV-positive in 2005. With medications, the condition is well-controlled.

[101] He described the treating relationship with the plaintiff as collaborative. He would offer treatment suggestions, they would talk about the pros and cons thereof and come to a mutual decision.

[102] As regards the material issues, he described the appointments from August through January as follows.

[103] Mr. Finnigan came to see Dr. Lee on August 26 complaining of a small bump on the shaft of his penis, that he had noticed two days prior. Dr. Lee conducted a physical examination of the small bump, noted that skin had been scraped off the top, resulting in an ulcer. He noted fullness in the texture of the skin around the lesion, checked for lymph nodes which were negative and explained that in some sexual infections such as syphilis and herpes, lymph nodes can swell. The plan was to do routine HIV blood work for which he was due and a syphilis test.

[104] Dr. Lee further discussed with the plaintiff changing HIV medications, as there were newer medications potentially with fewer side effects and medications that could be injected once per month. The plaintiff chose not to change his medication at that time.

[105] At the very end of the appointment, which took 40 minutes, the plaintiff mentioned that he was experiencing back pain around the shoulder. Dr. Lee stated that it was very common for patients to complain of back pain, which was one of the most common complaints in family practice, and that no red flags were raised regarding the back pain. As a result, he would have told Mr. Finnigan to do self-care such as stretches, heat, physiotherapy and massage, as well as OTCs as necessary, as this was his standard practice as regards back pain. He stated that he did not note any red flags as regards the back complaint nor anything worrisome. If there had been something worrisome, he would have asked the plaintiff to come back, or would have asked him to stay until the lunch hour which was coming up shortly, so that he could see Mr. Finnigan then, even though he knew that the plaintiff was able to make his own appointments and was a good advocate for himself.

[106] At that appointment, Dr. Lee ordered blood work, which was drawn on August 29 and the results received by the defendant on August 30. He would typically review blood reports received within 24 hours of receipt. He contacted the plaintiff to advise that the test for syphilis was negative, but that he was “in the window” and should abstain from sexual contact until everything was clarified. The syphilis test was to be re-checked within two weeks and tests for gonorrhea and chlamydia done.

[107] On September 6, Dr. Lee contacted the plaintiff to advise that the tests had been received and that he was positive for chlamydia. The plaintiff was advised to contact his sexual partners to advise them that he was positive for chlamydia.

[108] He further spoke with the plaintiff on September 8, as the plaintiff needed a guarantor for a passport.

[109] He did not see the plaintiff thereafter until November 3, when the plaintiff made an appointment to see him, complaining of back pain and advised that he had a six month history of back pain starting in the left back below the shoulder blade, and in the areas of the spine and right rhomboid. The plaintiff had reported that the pain came and went, that some days it was better, that on November 3 it was better and that he was going to a chiropractor but this was not helping. The defendant stated that he would have asked the plaintiff about the quality of the pain, its frequency and what the plaintiff was doing for it.

[110] He conducted a physical exam and noted that on palpation there was slight tenderness in the left trapezius and right rhomboid and that range of motion (“ROM”) was normal. Dr. Lee would have had him do movements to see if there was any impingement on function and would have had him do strength tests to see if muscles were affected. He noted that the plaintiff had normal strength, normal range of motion, but some pain with activation of the latissimus muscles. From these tests, the pain appeared to be musculoskeletal.

[111] The plaintiff further indicated that he felt a small lump around the anus and was concerned about genital warts. The defendant examined that area but found no wart visible. He then did an anoscopy to look inside for warts or hemorrhoids and found nothing.

[112] The plan propounded was that if chiropractic treatment was not helping the back pain, the plaintiff was to try physiotherapy and massage therapy, standard practices or modalities for back pain. The defendant also recommended heat and OTCs if that was what the patient wanted. He also gave him a flu shot.

[113] The plaintiff made a further appointment to see the defendant on December 14, due to changes in his symptoms. The plaintiff had noticed night sweats for two weeks. While it could have been the medications that he was on, he had been on them for a long time without any complaints. Alternatively, it could have been fever or infection, and that would have to be investigated. It is of note that the plaintiff would have been asked about night sweats in a routine list of questions posed at each HIV follow-up appointment.

[114] There was concern for infection, especially if the immune system were compromised as it was with HIV-positive patients. HIV-positive patients were more susceptible to certain infections, viruses and other conditions, including lymphoma.

[115] The plaintiff indicated that he had lost ten pounds in two months, and that his appetite was poor. Dr. Lee did a review of the systems to try to localize the issues. He did a thorough review of the major systems in the body. He asked about headaches, which were negative, and a cough, which could indicate a potential lung infection. Dr. Lee found that the plaintiff had a slight cough but was also smoking more cannabis, did not have abdominal pain, his bowel and urinary functions were normal, had no weakness in the limbs and no rashes or fevers. There was a possibility of a blood-borne infection as the plaintiff had been in the Dominican Republic and had potentially been bitten by a mosquito.

[116] The plaintiff’s back pain was moving around but getting better with physiotherapy treatments. Dr. Lee did a complete medical examination of the plaintiff’s various systems, checked his blood pressure, weight, head/neck, throat and found no thrush. Dr. Lee also did an examination of his head and scalp, eyes, ears and mouth, which were all normal, his chest which was clear, his heart, the sounds of which were normal with no murmurs, the abdomen, liver and spleen which were all normal, the lymph nodes in the neck, armpits and inguinal region, which were all normal and without palpable nodes. He checked the dermis (skin), looking for rashes, ulcers or any other abnormal condition and found nothing. He felt along the upper and lower back and noted some tenderness at various levels. His impression was that this tenderness was musculoskeletal.

[117] Given that there was weight loss, fatigue, night sweats and back pain, he was not sure what was the cause. He wanted to investigate in a stepwise manner, to employ the easily accessible test results, to get the results quickly. He did x-rays of the chest, lower back and upper back. He explained that the back x-ray would show whether there were any fractures or metastases of some kind of bone cancer, or bone loss if there was osteoporosis. The chest x-ray would show whether there was an infection in the lungs; in some cases, it can also show whether there is TB or a mass in the lung.

[118] He discussed with the plaintiff that while lymphoma was on the potential list of diagnoses, it was not high on his list. This is noted in the file. Dr. Lee had had four to five patients previously with lymphoma, all of whom presented with palpable lymph nodes, which the plaintiff did not. He continued, at this juncture, to think that the back pain was musculoskeletal.

[119] Dr. Lee testified that in Toronto, it would typically take four weeks for a CT scan. An urgent CT scan would not be merited in circumstances where the back pain was getting better, as it was in this case. In the plaintiff’s circumstances, Dr. Lee would have typically told him to continue with physiotherapy, which seemed to be working, to use Advil or Tylenol and to see how these modalities worked.

[120] He ordered blood work to be done, which was drawn on December 15, and the results received on December 16. He would have reviewed the results within 24 hours. He testified that the results were concerning, that the hemoglobin had dropped 30 points, the lymphocytes were low and the LDH was high. He stated that most concerning was the low hemoglobin, and wondered if the cause was that the plaintiff was not producing hemoglobin, that it was being broken down too quickly or that it was being filtered out somewhere. Given the lymphocytes were also low, there could be an infection. Several of these reasons could also explain the higher LDH levels. The results of the x-rays showed no pneumonia, no markings consistent with TB, but chronic COPD. Dr. Lee asked his receptionist to have the plaintiff come in for an appointment to discuss the results.

[121] On December 21, the plaintiff attended for the appointment. The plaintiff stated that his night sweats were better, that he was able to curl on the weekend and that he threw his back out curling, but was feeling better in the past few days. In cross-examination, he stated that the fact that he was able to curl suggested that his back was better and he was functioning at a level where he could do sports activities. His energy levels and appetite were better, and he had gained weight. According to Dr. Lee, the global assessment of his functioning was improved. Clinically, he seemed to be doing better than the week before. They discussed the blood work. The plan was to repeat the CBC, to make sure that the lab results were not spurious; to check the FOBT to see if there was blood loss from the esophagus, stomach, or lower intestines and to check the iron levels, B-12, folic acid and ferritin as regards potential anemia.

[122] As regards his back pain, this was not noted, but Dr. Lee’s standard practice would be to recommend self-care; physiotherapy seemed to be working, so that should be continued, along with OTCs, if needed.

[123] The plaintiff and defendant agreed that the plaintiff would have blood work done prior to the plaintiff leaving for vacation and would see the defendant upon his return. Blood was drawn on December 30 and the results received January 3. Dr. Lee reviewed the results within 24 hours of receipt. There was no appreciable change regarding the hemoglobin; the LDH was a little lower but not appreciably changed. The folic acid and B-12 were within normal range and the ferritin was high. In a situation of anemia, caused by iron loss, particularly if it was chronic, ferritin would be low. The plaintiff was reassured that things were not getting worse from the point of view of the blood work. He knew that the plaintiff wanted to go to Costa Rica and would discuss the results when they returned. He did not call the plaintiff, who was in Costa Rica on his vacation, when he received the results, as the readings had not changed appreciably. There was no reason to contact him on his vacation.

[124] Dr. Lee stated that as of the end of December, lymphoma was moving up on his differential diagnosis list, that nothing acute was happening based on the blood work and that he was assured that the numbers were not worsening. He began to formulate a plan for the next steps. He did not feel that there was any action he could or should have taken at that time, given that the plaintiff was in Costa Rica and they had agreed that the plaintiff would see Dr. Lee as soon as he returned.

[125] The plaintiff returned to Canada on January 17 and attended at his appointment with Dr. Lee on January 18. He reported that his back pain continued in the mid and lower back and he had a burning sensation down the right leg (shin), that he was losing weight again and his night sweats had returned. Dr. Lee did a physical examination, noted a small bump on the plaintiff’s left scalp, checked the nerves in his legs, his deep tendon reflexes and the strength in his legs. Dr. Lee found all of them to be normal.

[126] Given the weight loss, night sweats, anemia and back pain, in conjunction with the blood work, lymphoma had moved up on the differential diagnosis list. Dr. Lee also considered osteomalacia and low vitamin D, given that one of the medications he took for HIV caused some malabsorption of vitamin D. However, the x-rays were normal, whereas with osteomalacia, some bone loss would be seen on the x-rays. Because lymphoma moved up on the differential list, Dr. Lee referred the plaintiff to hematology at the Princess Margaret Hospital. He ordered a CT scan of the back to better characterize the back pain, as the x-rays had been unremarkable. He further ordered an x-ray and ultrasound of the left scalp for the bump, as well as a CT of the lower back to the sacral area. The Princess Margaret Hospital responded on January 20 to indicate that they had sent the referral to benign hematology at TGH.

[127] The referrals were made on a regular basis as there was no evidence that they needed to be made on an urgent basis at that juncture. It would typically take about one month to see a hematologist in Toronto. Dr. Lee further included in the referrals all of the up-to-date medical information.

[128] The results from the x-ray and ultrasound of the scalp were normal and the ultrasound showed two avascular lesions.

[129] On January 25, the plaintiff called Dr. Lee and advised him that the pain in his legs had become worse and his legs were giving out from weakness. He had difficulty moving his legs if he was on his back, and noted changes to his bowel and urinary functions. Given the symptoms, the defendant became concerned that there was something impinging on the spinal cord, which would be considered a medical emergency. He advised the plaintiff to go to the emergency room at TGH, where he would forward the latest medical and laboratory reports.

[130] The defendant stated that at no time did he prescribe opioids up to the end of December 2016, as the pain seemed to be musculoskeletal. It was fluctuating and seemed to be manageable with advice regarding pain modality treatments.

[131] In cross-examination, he stated that it was not his standard practice to use a pain scale when he was not considering prescribing opioids. If opioids had been considered, they would have been discussed with the plaintiff, and it would have been charted. Where OTCs were recommended, details, including dosages, would not normally have been charted.

[132] In cross-examination, the defendant stated that had the plaintiff advised that he was not sleeping through the night, this would have been noted in the chart. Where a complaint is deemed not to be urgent or worrisome, it may not be noted in the chart. Had pain affected functioning, this would have been noted in the chart.

[133] Dr. Lee stated that an early diagnosis of lymphoma does not generally lead to a better outcome; whether early or further along, the treatment is not changed.

Dr. John Gibson

[134] Dr. Gibson obtained his medical degree from the University of Toronto in 1975, completed his residency at McGill in family medicine in 1977 and practised in Hamilton, the Northwest Territories, a refugee camp in Hong Kong for refugees fleeing Vietnam, as well as Kenya, Port Hope and Etobicoke through 1999. He has practised family medicine in Toronto from 1999 to the present. He has looked after approximately 15 to 20 patients with HIV as a family doctor, and has seen patients with lymphoma as a family doctor.

[135] Dr. Gibson was qualified as an expert witness in family medicine to provide his opinion on the standard of practice of a family doctor in 2016-2017, including to provide his opinion on whether the defendant met the standard of care in the medical management of the plaintiff and in relation to causation relating to the timing of the plaintiff’s lymphoma diagnosis.

[136] Dr. Gibson’s opinion was that the plaintiff met the standard of care for a family doctor in his treatment of the plaintiff.

[137] Dr. Gibson testified that back pain and viral sore throats are the most common things a family doctor sees. Typical causes of back pain include muscle strain, ligament strain injuries or aging changes of cartilage discs, resulting in degenerative disc disease, and facet arthritis. It is very rare for back pain to be caused by cancer or infections. First-line treatments for back pain include physiotherapy as the number one treatment, chiropractic therapy, massage therapy and over-the-counter pain medications.

[138] The plaintiff would be considered a complex patient due to his pre-existing condition of HIV; people with HIV are more vulnerable to cancers and infections.

[139] As regards the August 26 appointment, it was the opinion of Dr. Gibson that Dr. Lee met the standard of care. The methods that he used were effective to address muscular pain.

[140] The examination conducted by the defendant at the second appointment on November 3 met the standard of care. From the description provided by the plaintiff of fluctuation in pain, the pain appeared to be musculoskeletal. A good history and physical examination were taken. Assuming that the defendant recommended physiotherapy and massage, he met the standard of care. Physiotherapy is a core treatment of back pain and massage can also be useful for muscular pain. The plaintiff was taking Advil and/or Tylenol. The plaintiff would not have been a candidate for prescription medications at that time. Normally, one would maximize the OTCs prior to transitioning to prescription medications. One does not know whether OTCs are working without using a full dose.

[141] As regards the December 14 appointment, the defendant did a thorough examination of all organ systems and also looked for complications associated with HIV patients. He met the standard of care in his examination of the plaintiff. His consideration of the plaintiff’s symptoms met the standard of care; he considered the common causes of back pain, as well as those that might be more specific to someone with chronic HIV. Ordering back x-rays which can show damage to cartilage, discs, arthritic pain, injuries and fractures was appropriate. Ordering chest x-rays which may show infections which may be tied to night sweats, as well as other chest infections more common in HIV patients was appropriate.

[142] It was the opinion of Dr. Gibson that the standard of care did not require an urgent CT scan as of December 14. Family physicians generally start with basic tests, which are readily available and for which the results come faster. Then, they possibly move on to more sophisticated tests that are perhaps only done in hospital, and typically take longer to obtain an appointment. The stepwise approach to testing, starting with basic tests casts a broad net of trying to find a disorder. The fact that the plaintiff did not order an urgent CT scan at that juncture was not a breach of the standard of care. A CT scan ordered in Toronto would have taken about four weeks. If ordered on December 14, it would have been performed around January 14. Given that the plaintiff’s back pain was described as moving around, but better since he started physiotherapy, a prescription for narcotic pain medications would not have made medical sense at that time. The results of the chest and back x-rays indicated no infection on the chest, no pneumonia or tumors, COPD caused by cigarettes and a normal back x-ray.

[143] Dr. Gibson did not agree with Dr. Brankston that upon receiving the blood results indicating low hemoglobin and high LDH, an urgent CT scan should have been ordered. He stated that the reason for the drop in hemoglobin and increased LDH had to be focused upon first, and a CT scan of the thoracic spine would not assist in answering those questions, particularly as regards the hemoglobin.

[144] Based on the clinical notes of December 21, which showed improvement in the plaintiff’s overall condition, Dr. Gibson found that the defendant met the standard practice regarding the tests he ordered. As for the description of improvement of the back pain and his curling, it was the opinion of Dr. Gibson that the plaintiff was not a candidate for opioids or prescription pain medications.

[145] There were contradictions between the plaintiff’s testimony and the medical and therapeutic reports. His reporting of his activities and pain levels were inconsistent or contradictory in that he complained of significant pain, but was still curling and going on vacations, functions which suggest that, with self-help and medications, he was able to cope. The plaintiff was curling, which is a fairly vigorous sport. Dr. Gibson indicated that, where a person is able to curl, this strongly implies that the person feels the pain is sufficiently under control with self-help procedures to be able to involve himself in the physical activity required to curl. The plaintiff testified that he experienced significant pain, but if he was able to curl, the pain was sufficiently under control, even if it took Tylenol and hot baths to bring it under control.

[146] As regards the plaintiff’s planned trip to Costa Rica, it was Dr. Gibson’s opinion that the defendant did not fall below the standard of care in advising the plaintiff that he could go. It was a two-week vacation. There had been symptom improvements, as well as weight gain, energy and appetite improvements, such that there were no signs of imminent danger associated with being out of the country for two weeks. Further, the defendant and plaintiff had made plans whereby the plaintiff would get blood work done before he left on vacation and would see the defendant immediately upon his return. He further was of the opinion that when the blood work taken prior to the plaintiff’s vacation was reviewed by the defendant, the defendant did not breach the standard of care by not calling the defendant to have him return or to speak with him about the results. The plaintiff and defendant had already agreed that the plaintiff would attend at an appointment immediately upon his return for review of the blood work. Indeed, in cross-examination, Dr. Brankston, the plaintiff’s expert, conceded that this was not a breach of the standard of care.

[147] At the appointment on January 18, the day following the plaintiff’s return from Costa Rica, Dr. Lee made a referral to a hematologist at Princess Margaret Hospital and ordered a CT scan of the back and x-rays and ultrasound of the scalp. Thereafter, on January 25, when the defendant sent the plaintiff to the emergency room at TGH due to the fact that his legs were collapsing from weakness, Dr. Gibson was of the opinion that he met the standard of care, as there was concern for a pinched nerve or impingement of the spinal cord.

[148] As regards pain scales, Dr. Gibson is of the opinion that they would be appropriate for people with long-term chronic pain that has been investigated, serious disease ruled out and are simply managing the pain. A pain scale is useful in tweaking medications for chronic pain. Where a patient is in the process of being diagnosed, without any answers as regards the symptoms, having the patient advise whether the pain is better or worse is adequate. The standard of care does not require the defendant to maintain a pain scale.

[149] In Dr. Gibson’s opinion, opioids were not a first line of treatment for chronic pain. There were risks of dependency, side effects, addiction and overdose. Most doctors would recommend physiotherapy and OTCs first. Using too many modalities at the same time results in not knowing what modality is effective and what modality is not effective. Where OTCs are at a maximum dosage and not working, the doctor may consider prescription medications. Additional steps would be necessary if considering opioids and the Canadian Guidelines for Safe and Effective Use of Opioids would have to be followed for chronic non-cancerous pain. In Dr. Gibson’s opinion, chronic non-cancer pain guidelines would not be applicable to the plaintiff’s situation, which was unstable and fluctuating.

[150] In Dr. Gibson’s opinion, it would be a breach of the standard of care to prescribe opioids without considering the cause of the pain and obtaining a diagnosis.

Credibility

[151] I found the plaintiff to be credible and forthright. He, himself, testified that due to his memory after the passage of time, the pain that he had experienced and poor sleep, he was unable to remember exactly what events occurred at what times, and what accounts of pain he communicated to the defendant at which appointments. I found him to be credible, although his testimony as regards events and timelines was, by his own admission, not reliable, given the passage of time. He stated in testimony that visits to the defendant “all got mishmashed and melded” in his mind, that while he knew that the visits were in December, he could not say which visit was which. In this regard, he was not a good historian. I take all of the foregoing into account in my consideration of the plaintiff’s testimony at trial.

[152] This lack of reliability is also seen in the differences between his evidence regarding his symptoms and pain at specific times and the contemporaneous clinical notes from the defendant, and the clinical notes of the various therapists he saw, including the chiropractor, physiotherapist, massage therapist and acupuncturist, which all seem to be consistent with one another with respect to what he was telling them about his pain, but different from the evidence he was giving at trial.

[153] Mr. Suarez testified about his relationship with the plaintiff, housekeeping and caregiver responsibilities and the progression of the plaintiff’s illness. His testimony was blanketed throughout by an overlay of emotion. He acknowledged on two occasions that he had difficulty recalling specifics and timelines regarding the progression of the plaintiff’s illness. He admitted that he was not good at recalling dates and that his memory was “not the greatest”.

[154] I found the defendant, Dr. Lee, to be candid and forthright. He explained his notes clearly and indicated in a forthright manner what memories he had of appointments and where he was relying on his clinical notes. He clearly explained his stepwise approach to diagnosis as a family practitioner. His evidence was consistent and without conflict throughout his testimony, in examination in chief and cross-examination. I found him to be credible and reliable.

[155] Dr. Brankston, who testified on behalf of the plaintiff and Dr. Gibson, who testified on behalf of the defendant, are both recognized as experts in their field of general family medicine.

[156] I have considered their respective credibilities as regards the evidence given. While I am satisfied that they are well-qualified in their field of expertise, I do not find them equally credible or reliable as regards the testimony they gave in examination in chief and in cross-examination at trial.

[157] Dr. Brankston found that the defendant’s care generally was in breach of the standard of care, from his clinical note-taking, to his failure to use a pain scale (1-10) to assess the plaintiff’s pain, to his use of tests, to his discussions of pain management. He seemed ready to find all of the defendant’s actions to be breaches of the standard of care. His opinions were not consistent throughout. In examination in chief, he appeared unwavering regarding his opinions but, in cross-examination, conceded that numerous of the actions he found to be in breach of standards of care were not actually so.

[158] For example, he acknowledged in cross-examination that not documenting everything, including all discussions about pain management and OTC medications were not necessarily breaches, and that there was not sufficient information in the December 14 clinical notes to decide whether the plaintiff should have been prescribed an opioid at that time. His reports were not always consistent with his evidence at trial, which seemed intent on establishing the defendant’s liability. He appeared at times to assume the role of advocate on behalf of the plaintiff rather than as an expert, who acknowledged his role to be fair, objective and non-partisan.

[159] In deciding this case, and considering Dr. Brankston’s evidence, I have taken the foregoing into consideration.

[160] Dr. Gibson was straightforward and forthright in his testimony. His evidence in chief did not vary and he was not shaken in cross-examination. His testimony was consistent with his expert reports. Where his evidence and opinions differ from those of Dr. Brankston, I generally have preferred Dr. Gibson’s evidence, unless I state otherwise.

The Issues

[161] The issues to be determined are as follows.

1. Whether the defendant failed to take timely steps to investigate the plaintiff’s symptoms, and whether he breached the standard of care in his treatment of the plaintiff between December 14, 2016 and January 18, 2017 in failing to diagnose lymphoma one month earlier, which would have resulted in earlier pain management; and
2. Whether the defendant failed to properly manage the plaintiff’s pain at the material times and whether he breached the standard of care regarding his treatment of the plaintiff by failing to prescribe opioids for pain.

[162] The parties agree that a delay in the plaintiff’s diagnosis of lymphoma did not cause his cancer diagnosis, nor would his prognosis or cancer treatment have been different.

The Law

[163] The standard of care for general practitioners and specialists is well-established in Ontario. As stated by the Court of Appeal for Ontario in Crits v. Sylvester:

Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than one who does not profess to be so qualified by special training and ability: Crits v. Sylvester, 1956 ONCA 34, [1956] O.R. 132 (C.A.), at para. 13, aff’d, 1956 SCC 29, [1956] S.C.R. 991.

[164] In assessing and applying the standard of care, the court applies a standard of reasonableness, not perfection or infallibility: see Geddis v. Bloom, 2008 ONSC 44737, at paras. 16-17. The legal standard requires that a physician provide reasonable care, not “gold standard” care that would, in retrospect, have been preferable: see Bush v. Friedman, 2011 ONSC 4988, 90 C.C.L.T. (3d) 43, at para. 145.

[165] The physician’s care must be assessed in light of the medical knowledge and circumstances of which the physician ought to have been aware at the time of the alleged negligence: see ter Neuzen v. Korn, 1995 SCC 72, [1995] 3 S.C.R. 674, at para. 33.

[166] To ask as the principal question in the general inquiry, whether a specific positive act or an instance of omission constitutes a fault, is to collapse the inquiry and may confuse the issue. What must be asked is whether that act or omission would be acceptable behaviour for a reasonably prudent and diligent professional in the same circumstances. The erroneous approach runs the risk of focusing on the result rather than the means. Professionals have an obligation of means, not an obligation of result: see St-Jean v. Mercier, 2002 SCC 15, [2002] 1 S.C.R. 491, at para. 53.

Clinical Judgment

[167] A physician’s honest and intelligent exercise of judgment will satisfy the standard of care. The Court of Appeal for Ontario has clarified that the standard of care expected of the medical professional must be realistic and reasonable. A physician is not the insurer of a patient’s health and well-being: see Tacknyk v. Lake of the Woods Clinic, [1982] O.J. No. 170 (C.A.), at para. 29.

[168] There is a clear distinction in the law between the exercise of clinical judgment and negligence. It is well-established that medical professionals cannot be held liable for exercising clinical judgment. However, a physician’s basis for exercising judgment must be properly founded and is subject to scrutiny. The court can examine the grounds upon which the judgment is exercised: see Crawford (Litigation Guardian of) v. Penney, [2003] O.T.C. 16 (S.C.); Williams (Litigation Guardian of) v. Bowler, 2005 ONSC 27526, [2005] O.T.C. 680 (S.C.), at para. 232. The exercise of clinical judgment must be based on a physician’s consideration of appropriate factors and proper weight must be given by the physician to those factors: see Williams, at paras. 238, 248.

[169] Whether a physician was negligent or simply made an error in judgment is determined on a case-by-case basis having regard to the particular facts of the case: see Dean v. York County Hospital et.al., [1979] O.J. No. 348 (S.C.), at para. 41, cited with approval in Bafaro v. Dowd, 2008 ONSC 45000, at para. 28, aff’d, 2010 ONCA 188, 260 O.A.C. 70.

[170] Physicians must often make a choice between several available courses of action. A doctor will not be found liable if the treatment given accords with those recognized by medical science at the time, even in the face of competing authorities: see Lapointe v. Hôpital Le Gardeur, 1992 SCC 119, [1992] 1 S.C.R. 351, at para. 31. Where the act or omission complained of pertains to a strictly medical matter in which medical judgment and technique are involved, the defence that the act was done in accordance with standard recognized medical practice is almost always a complete answer to an allegation of negligence: see Crawford, at para. 228. An honest exercise of judgment will not result in liability even though other medical professionals may disagree with that judgment: see Pinch (Litigation Guardian of) v. Morwood, 2016 BCSC 938, 28 C.C.L.T. (4th) 20, at para. 154.

[171] An error of judgment, including one that may prove wrong or have unexpected consequences, does not amount to negligence if the medical professional appropriately applied clinical judgment: see Hillis v. Meineri, 2017 ONSC 2845, at para. 56, citing Wilson v. Swanson, 1956 SCC 1, [1956] S.C.R. 804, at p. 812.

[172] Where a physician applies his mind to a situation and arrives at a judgment that is subsequently proven to be wrong, or to have unexpected consequences, he or she will not be held liable. An error of judgment does not amount to negligence where the physician appropriately applies clinical judgment: see Jones-Carter (Litigation guardian of) v. Warwaruk, 2019 ONSC 1965, at para. 179.

[173] The onus is on the plaintiff to show that a lapse is more than an error in judgment and that it rises to the level of unskilfulness, carelessness, or is demonstrative of a lack of knowledge: see Stell v. Obedcoff, [2000] O.T.C. 742 (S.C.), at paras. 203-204.

[174] An unfortunate outcome is not proof of negligence: see Bafaro, at paras. 24, 26; Keith v. Abraham, 2011 ONSC 2, 80 C.C.L.T. (3d) 68, at para. 213. Courts must not apply retrospective reasoning and use an unfortunate outcome as the barometer of negligence. An outcome-based retrospective approach which attempts to work backward from the result in order to prove negligence is fundamentally flawed in law: see Bafaro, at para. 26. A “mistaken diagnosis alone is not sufficient to ground a finding of negligence.”: Sit v. Trillium Health Centre, 2020 ONSC 2458, at para. 113.

[175] Courts must be careful not to rely on the perfect vision afforded by hindsight: see Lee v. Southlake Regional Health Centre, 2015 ONSC 7509, at paras. 5, 141-143. In order to evaluate a particular exercise of judgment fairly, the doctor’s limited ability to foresee future events when determining a course of conduct must be borne in mind. Otherwise, the doctor will not be assessed according to what could reasonably be expected of a normal, prudent practitioner of the same experience and standing, but rather will be held accountable for adverse outcomes or mistakes that are only apparent after the fact: see Lapointe, at para. 28. “Negligence cannot be assumed simply because, viewed in retrospect, another course of action would have been preferable.”: Trillium Health Centre, at para. 113.

[176] A physician must turn his or her mind to the potential explanations for the patient’s symptoms as a part of a differential diagnosis and to exercise clinical judgment in arriving at a diagnosis. In assessing whether a particular differential diagnosis is a reasonable exercise of clinical judgment, courts have considered: (i) that a doctor is not required to order every available test; (ii) whether a physician considered multiple diagnoses (and avoided “tunnel vision”); (iii) that a doctor is not expected to be infallible; (iv) that reasonable physicians may disagree with the doctor’s clinical judgment; and (v) whether the physician considered the likelihood of a specific outcome (e.g. where an outcome is extremely rare, it is not unreasonable for the physician to arrive at an alternative diagnosis): see Lee, at para. 143; Watson v. Dr. Shawn Soon, 2018 ONSC 3809, 50 C.C.L.T. (4th) 83, at para. 28.

[177] It is not the law in Ontario that a physician should eliminate the most serious potential ailment first (the “worst first” principle) as opposed to treating the most probable diagnosis. The principle was expressly dismissed by this court in Lee, at para. 145, a case involving exercise of clinical judgment by an emergency room physician:

With respect to the case law on differential diagnosis, a physician will not be held to a standard of practice in which he or she is required to anticipate a worst case but most unlikely scenario. Unfortunately for Meng, this is exactly what tragically occurred. He succumbed to both the worst case and most unlikely scenario.

[Emphasis in original.]

See also: White v. St. Joseph’s Hospital, 2019 ONCA 312.

[178] The standard of care does not require physicians to take action based upon the worst possible outcomes: see Bogdon v. Folman, 2013 ONSC 222, at para. 74.

[179] A physician does not fail to meet the standard of care because, with the benefit of hindsight, another diagnosis would have been preferable. What must be assessed is whether a physician exercised their judgment fairly in light of what they knew or ought to have known at the time.”: Stepita v. Dibble, 2020 ONSC 3041, at para. 69.

[180] In the realm of diagnosis and treatment, there is ample scope for genuine difference of opinion. One physician is not negligent merely because his or her conclusion differs from that of other professionals: see Stell, at para. 204. If the diagnosis and treatment given to a patient accord with those recognized by medical science at the time, a doctor will not be liable even if there are competing views on appropriate methods of treatment: see Lapointe, at para. 31.

[181] There is seldom any one answer exclusive of all others to problems of professional judgment. A court may prefer one body of opinion to the other, but that cannot be a basis for a conclusion of negligence: see Belknap v. Meakes (1989), 64 D.L.R. (4th) 452 (BCCA), at para. 82.

[182] Physicians’ conduct must be assessed in light of the information that was available to them at the time of treatment: see Hillis, at para. 62; ter Neuzen, at paras. 46-47. The court should not attribute to a physician knowledge that a physician did not have at the time: see Hillis, at para. 61; Grass v. Women's College Hospital (2005), 75 O.R. (3d) 85 (C.A.), at paras. 103-106; Tahir v. Mitoff, 2019 ONSC 7298, at para. 38.

Causation

[183] In addition to proving a breach of the standard of care, the plaintiff must establish that the particular breach of the standard, on a balance of probabilities, caused the injury. The onus is not on the defendant to disprove causation. In medical negligence cases where delay of a diagnosis and/or treatment is at issue, the “but for” test is the legal test for causation: see Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 46.

[184] The plaintiffs must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred: see Girard and Gagnon v. Windsor Regional Hospital, 2014 ONSC 87, at para. 192.

[185] Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury—the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. The plaintiff must do more than demonstrate a possibility that the acts complained of materially contributed to the harm. If the plaintiff does not establish this on a balance of probabilities, the action fails: see Cottrelle v. Gerrard (2003), 67 O.R. (3d) 737 (C.A.), at para. 25, leave to appeal refused, [2003] S.C.C.A. No. 549; Bafaro, at para. 45.

[186] In an action for delayed diagnosis or treatment, the plaintiff must establish on a balance of probabilities that the delay caused or contributed to the unfavourable outcome. A plaintiff who fails to prove that the unfavourable outcome would have been avoided with prompt diagnosis and treatment will fail to establish his claim: Cottrelle, at para. 25; Windsor Regional Hospital, at para. 193.

[187] Proof that meeting the standard of care would have afforded a chance to avoid an outcome is not sufficient; “loss of chance” is not compensable: see Salter v. Hurst, 2011 ONCA 609, 107 O.R. (3d) 236, at para. 14. An unfavourable outcome must have occurred, and it must be proven that adequate treatment more likely than not would have avoided that outcome: Cottrelle, at paras. 36-37; Latin v Hospital for Sick Children, 2007 ONSC 34, [2007] O.J. No. 13, at para. 131. The plaintiff’s burden of proof will not be satisfied where the evidence leaves important questions unanswered with respect to what treatment decisions may have been made under different theoretical circumstances: see Cottrelle, at para. 23; Hillis, at para. 81.

Analysis

[188] The plaintiffs allege two breaches of the standard of care, as follows:

1. That Dr. Lee failed to take steps between December 14, 2016 and January 18, 2017 to rule in or out a diagnosis of lymphoma; and
2. That Dr. Lee did not sufficiently manage Mr. Finnigan’s pain between November 3, 2016 and January 18, 2017.

[189] As regards each of the alleged breaches, the plaintiff must establish that there was a breach of the standard of care and that the breach caused an injury to Mr. Finnigan.

[190] The plaintiff concedes that Dr. Lee met the standard of care in his efforts to diagnose Mr. Finnigan between August and November 2016. They allege however that he breached the standard of care in failing to order an urgent CT scan on or after December 14, 2016, as he himself conceded.

[191] There is no dispute with the fact that Mr. Finnigan had back pain in 2016, nor that it became significantly worse in January of 2017 when he was on vacation in Costa Rica.

[192] However, as indicated above, the plaintiff’s evidence at trial concerning the extent of his pain and what he was expressing to healthcare providers at any given time is understandably unreliable, given the passage of time and his poor memory of what symptoms and events occurred at what times.

[193] The first question is whether the defendant met the standard of care in his efforts to diagnose the plaintiff between December 14, 2016 and January 18, 2017.

[194] As stated above, the plaintiff has conceded that Dr. Lee met the standard of care in this regard between August 26 and November 3, during which time the plaintiff attended at two appointments with the defendant. Having reviewed all of the clinical notes, records and the transcripts, I am of the same view, i.e. that the defendant met the standard of care during this time period.

[195] At the December 14 appointment, the plaintiff presented with complaints of night sweats, weight loss and poor appetite. Dr. Lee did a thorough review of all systems and found them to be normal, but found that the plaintiff had a slight cough and may have been bitten by a mosquito in the Dominican Republic. The plaintiff reported that his back pains were moving around, but getting better with physiotherapy. Upon physical examination by Dr. Lee, he noted some tenderness along the upper and lower back. Dr. Lee considered the full range of possible causes for the plaintiff’s symptoms, including lymphoma and other potential diagnoses. He ordered blood work and x-rays of the chest, lower and upper back.

[196] Both experts testified that the plaintiff’s symptoms could have been caused by a wide range of conditions, other than lymphoma.

[197] Dr. Lee placed the possibility of lymphoma lower on his differential diagnosis list considering the following:

1. The plaintiff’s lymph nodes were not enlarged on palpitation. Dr. Lee had had four or five other patients with non-Hodgkin’s lymphoma, all of whom presented with palpable lymph nodes. Most patients with non-Hodgkin’s lymphoma have enlarged lymph nodes, as Dr. Brankston acknowledged.
2. As a patient with HIV, the plaintiff was at an increased risk for a wide range of conditions, including opportunistic infections, tuberculosis, pneumonia, mosquito-borne illnesses, as well as lymphoma. Dr. Lee, who had significant experience with patients with HIV, considered the wide range of potential causes of his symptoms. In his clinical judgment, lymphoma was lower on the list.
3. The plaintiff had recently travelled to Punta Cana, Dominican Republic, and may have acquired a mosquito-borne illness while there.

[198] While Dr. Brankston agreed that Dr. Lee appropriately considered lymphoma at the December 14 appointment, he disagrees with where Dr. Lee placed lymphoma on his differential diagnosis list. As a result, he found Dr. Lee breached the standard of care.

[199] However, the ranking of the potential diagnoses on a differential diagnosis list is a matter of clinical judgment and does not amount to a breach of the standard of care. Where clinical judgment is appropriately applied, as it was here, based on the defendant’s experience, his thorough examination of the plaintiff and the results of numerous tests, it would not result in liability. In my view, there was no lack of skill or care, nor any demonstrative lack of knowledge on the defendant’s part.

[200] In assessing whether a particular differential diagnosis is a reasonable exercise of clinical judgment, I have considered the factors previously mentioned in Lee and Watson, set forth above at paragraph 176. In this regard, courts have considered the following: (i) that a doctor is not required to order every available test; (ii) whether a doctor considered multiple diagnoses; (iii) that a doctor is not expected to be infallible; and (iv) that reasonable doctors may disagree with a doctor’s clinical judgment.

[201] I am satisfied, as indicated above, that the defendant exercised his clinical judgment reasonably and carefully, based on all of the information he knew at the time.

[202] While the plaintiff argues that an urgent CT scan should have been ordered on December 14 and/or December 21, I am satisfied, based on the case law, that the “worst first” principle is not the law in Ontario. The standard of care does not require a physician to take action based on the worst possible or potential outcomes, i.e. the defendant was not required to test for and eliminate the most serious potential diagnoses first as opposed to testing the more probable diagnoses first.

[203] In this case, the defendant, based on his experience, his clinical observations of the plaintiff and the symptoms as described by the plaintiff, used the stepwise approach to testing, which is accepted as the appropriate practice for family practitioners.

[204] At the January 18 appointment, which was to discuss the results of the tests and x-rays which had been ordered before the plaintiff left on his vacation to Costa Rica, lymphoma had risen significantly on his differential diagnosis list, based on said results. Accordingly, he made a referral to a hematologist at the Princess Margaret Hospital and ordered a CT scan of the plaintiff’s back and an x-ray and ultrasound of the plaintiff’s left scalp.

[205] Dr. Brankston agreed that using a stepwise approach, family practitioners would normally order the key front-line investigations, including x-rays and blood work prior to ordering a CT scan; that blood work can assist in making a differential diagnosis; that the decision to order parallel or stepwise testing depends on clinical judgment; that a spine x-ray can assist in diagnosing back pain and is a reasonable step to take if a patient has ongoing back pain and a chest x-ray can assist in identifying pneumonia and tuberculosis, as well as enlarged lymph nodes characteristic of lymphoma. However, he was of the opinion that the defendant did not meet the standard of care because he did not order an urgent CT scan. I do not accept his opinion. It is not consistent with his expert report, in which he opined that a CT scan should have been ordered. While he stated in testimony that when he wrote CT scan in his report, it inferred an urgent CT scan, I do not accept that explanation.

[206] I do note that Dr. Brankston indicated that if Dr. Lee had ordered an urgent CT scan on December 14, he may have had to try to convince the radiologist of the urgency of it.

[207] Dr. Gibson opined that, based on the December 15 results of blood work, a doctor would not have been required to order an urgent CT scan. The most concerning results involved the drop in hemoglobin, suggestive of anemia, which could not be investigated by a CT scan.

[208] The results of the December 15 tests were reviewed at the December 21 appointment. At that appointment, the plaintiff’s clinical presentation was improving, as both doctors Gibson and Brankston noted, although Dr. Brankston stated that the amount of improvement was unknown. He nevertheless acknowledged that Dr. Lee was appropriately concerned about blood work results and appropriately ordered other blood tests to obtain more information, especially as regards anemia. Dr. Brankston testified that said additional tests were an exercise of Dr. Lee’s clinical judgment regarding what next steps were necessary to arrive at a diagnosis.

[209] It was Dr. Gibson’s opinion that the plaintiff’s report that he had been curling on the weekend was suggestive of the fact that his back pain was muscular or disc related, and that he was controlling the pain with the modalities prescribed, including various therapies and OTCs. Also, the weight gain was encouraging because occult infection or cancer is “significantly less likely with a person gaining weight”.

[210] Both Drs. Gibson and Brankston agreed that it was not a breach of the standard of care for Dr. Lee not to advise Mr. Finnigan on December 21 not to go on his scheduled vacation. Dr. Brankston opined in cross-examination that where there is a plan for further testing and follow-up with which both doctor and patient are comfortable, as there was here, it was not a breach of the standard of care for Dr. Lee not to tell the plaintiff to cancel his trip. Drs. Gibson and Brankston were also in agreement that where such a plan was in place, the doctor was not required to contact the vacationing patient after receiving the results of the blood work on January 3, which showed that the readings were stable. I note that even if the defendant had attempted to reach the plaintiff to tell him to come home earlier, it is not clear that the plaintiff could have done so. The plaintiff testified that due to a volcano in the region, flights were delayed and cancelled while they were in Costa Rica.

[211] I am satisfied that the defendant’s treatment of the plaintiff did not breach any of the standards of care of a family physician. I do not accept the plaintiff’s submissions that the defendant’s care of the plaintiff was negligent or in breach of the standard of care.

[212] While there was a two-week delay in proceeding with further tests while the plaintiff was in Costa Rica, Dr. Gibson’s opinion was that a two-week delay was not a breach of the standard of care. Dr. Brankston did not initially agree, but did not know, when he wrote his expert report, that the delay was due to the fact that the plaintiff was in Costa Rica.

[213] The parties agree that any alleged delay in the plaintiff’s diagnosis related to the defendant’s treatment and care between August 2016 and January 2017 had no impact on Mr. Finnigan’s diagnosis, treatment or prognosis. Therefore, delay did not cause any of Mr. Finnigan’s injuries related to his lymphoma diagnosis, treatment for lymphoma or prognosis relating to the reoccurrence of lymphoma.

[214] It is noteworthy that even if the defendant had ordered a CT scan on December 14 or 21, the CT scan could not likely have been performed before at least January 18, when the plaintiff was back from Costa Rica. Moreover, the results would not have been received until January 25 or after, once the radiologist had read the CT scan, reported it and sent it to the family doctor. And, if there were signs suggestive of malignancy, a biopsy would also have had to be ordered and done.

[215] Further, referral to a hematologist in Toronto can take up to three months.

[216] Only if the standard of care required an urgent CT scan in December, an opinion which Dr. Brankston stated for the first time at trial, might Mr. Finnigan’s diagnosis have been made sooner. As indicated above, I have found on all of the evidence that the standard of care did not require an urgent CT scan in December.

[217] I find that the defendant did not breach the standard of care in his treatment of the plaintiff.

Did the defendant fail to properly manage the plaintiff’s pain between November 2016 and January 2017?

[218] The second question is whether the defendant met the standard of care in managing the plaintiff’s pain.

[219] While I do not doubt that Mr. Finnigan experienced pain during the material times, the question is whether Dr. Lee, with the information that he was given by the plaintiff regarding the pain, properly managed the pain.

[220] This question must be answered within the context of the information that we know was available to the defendant at the time of treatment: see Hillis, at para 62. In this case, Dr. Lee had been the plaintiff’s family doctor for 15 years. They had a good, collaborative relationship and Dr. Lee knew the plaintiff to be a good advocate for his health and a sophisticated and responsible patient. He was able to read medication bottles and instructions, and to determine maximum dosages. Mr. Finnigan stated that he never, during this time, requested of Dr. Lee any prescription analgesics or opioids.

[221] While the plaintiff testified that his pain was never under control from August 26, 2016 to January 25, 2017, his evidence was inconsistent in this regard. In his testimony, he described his shoulder pain through September as “a bit uncomfortable” and indicated that it was manageable with the occasional use of OTCs and other pain management modalities such as physiotherapy and massage.

[222] Regarding the pain in November and December, the plaintiff’s evidence and final arguments at trial were inconsistent with the contemporaneous clinical notes and records of his various therapists, including his physiotherapist, massage therapist and acupuncturist. In this regard, the plaintiff explained that he had a “very strong belief in the mind-body continuum” such that he focused on the positive in his interactions with others, including his healthcare providers and overemphasized improvement, projecting overall improvement even in the face of pain.

[223] It is of note that Mr. Finnigan admitted in cross-examination at trial that he was feeling desperation in December 2016, but that his physiotherapist would not have had a sense of that desperation, based on the information he was and was not providing to her. It would appear that a similar situation was occurring in his interactions with Dr. Lee.

[224] Based on all of the clinical notes, and the plaintiff’s symptoms as he reported them to Dr Lee, I am of the view that Dr Lee would have also not had a sense of his actual circumstances regarding any pain the plaintiff may have been experiencing and the extent thereof, due to his belief in the mind-body continuum and his projecting of a positive face regarding symptoms.

[225] I find, based on all of the evidence, both viva voce and documentary, that the plaintiff did not fully and accurately report his pain to the defendant during the material times. He seemed to more readily turn to his therapists, including his chiropractor, physiotherapist, massage therapist and acupuncturist for assistance with his pain, although he seems also to have projected a positive face in reporting his circumstances to them.

[226] The plaintiff testified that while he did not raise prescription medications with the defendant because he had concerns about opioids, he felt the doctor should have raised the issue of opioids with him, and should be able to evaluate the level of pain he was in, despite not fully and accurately apprising Dr. Lee of the extent and intensity of his pain. I do not accept that proposition.

[227] It is of note that while Dr. Lee did not have the clinical records of the other therapists, his clinical notes of appointments with the plaintiff were consistent with those of the therapists, regarding what the plaintiff was reporting to him about the pain.

[228] I am also cognizant of the plaintiff’s testimony that during this time, his memory is poor concerning what happened at what times and what symptoms were being experienced at what times due to his pain, his lack of sleep and the lapse of time generally, and events have become confused.

[229] I am further cognizant of the fact that throughout this time, and to Dr. Lee’s knowledge, the plaintiff was travelling out of country and was also curling through December, which would suggest that he was able to manage his pain.

[230] Both experts agree that back pain is one of the most common complaints in family medicine and that back pain in a 60-year-old man is rarely due to cancer. Many instances of back pain resolve with simple management measures.

[231] As regards the three appointments from November 3 to December 21, both the defendant’s and plaintiff’s experts agreed that, based on the clinical notes of Dr. Lee, and assuming their correctness, Mr. Finnigan was not a candidate for opioids, and that Dr. Lee met the standard of care in not prescribing opioids, as noted below.

[232] As regards the November 3 appointment, both experts were of the opinion that the standard of care did not require the defendant to have prescribed opioids. They further agreed that the pain modalities recommended, i.e. physiotherapy and massage therapy met the standard of care. Dr. Lee had previously recommended OTCs in August and these were still appropriate and being used by the plaintiff.

[233] The plaintiff argued at trial that Dr. Lee should have prescribed opioids for the plaintiff’s pain by on or before December 14. However, both experts agreed that, based on the December 14 clinical notes and the plaintiff’s description of his symptoms, the standard of care did not require Dr. Lee to prescribed opioids.

[234] Further, before prescribing opioids, the medical practitioner must ensure that informed consent is obtained from the patient by discussing with the patient the potential benefits, risks, complications and adverse effects of the opioid, including nausea, dizziness, constipation and addiction. The plaintiff’s expert, Dr. Brankston, testified that there are real concerns in prescribing opioids for back pain. Effectiveness of a medication such as opioids for back pain must be considered as opioids only show low to moderate benefits for low back and neck pain. Dr. Gibson also agreed that opioids pose significant risks and that the plaintiff’s symptoms on December 14, which appeared to be musculoskeletal, did not merit opioids. Dr. Brankston agreed that Dr. Lee’s notes indicated that the plaintiff was reporting non-transient improvement but the extent thereof was unclear.

[235] In any event, had there been a discussion about the pros, cons, benefits and risks of taking opioids for pain, it is not at all clear to me that the plaintiff would have decided to take opioids at that juncture. He testified that he did not like to take medications, was afraid of opioids, that his nephew had been addicted to opioids and that he had worked with a number of addicts as a social worker.

[236] As regards the December 14 appointment, both experts agree that, assuming the accuracy of the clinical notes taken at that appointment and the description of back pain therein, the standard of care did not require the defendant to prescribe opioids.

[237] As regards the December 14 appointment, the plaintiff was reporting that physiotherapy was helping his back pain and he was reporting overall improvement. Again, both experts opined that he was not a candidate for opioids and both experts opined that Dr. Lee met the standard of care in not prescribing opioids. As previously mentioned, Dr. Brankston testified about the concerns in prescribing opioids for back pain, including the lesser effectiveness of opioids for back pain, as well as the numerous potential adverse effects of opioids. I note that the lesser effectiveness of opioids for back pain also can be demonstrated from the plaintiff’s admission to the TGH emergency room, when the oral narcotics prescribed to him were described in the hospital records as ineffective to quell the back pain.

[238] As regards the December 21 appointment, there was, again, no evidence to support the fact that opioids were indicated or should have been prescribed. The clinical notes indicate that the plaintiff’s reported symptoms, including the back pain, were improving. He had curled on the weekend and thrown his back out, but it was feeling better at the appointment with Dr. Lee, according to Mr. Finnigan. On cross-examination, Dr. Brankston agreed that based on the clinical notes, the plaintiff was not a candidate for opioids and the situation with which the plaintiff presented on December 21 did not mandate a prescription of opioids.

[239] Based on the clinical notes for that appointment, Dr. Gibson opined that the plaintiff was not a candidate for opioids or prescription pain medications on that date. In cross-examination, Dr. Brankston agreed that the plaintiff was not a candidate for opioids.

[240] As regards the appointment on January 18, 2017, the plaintiff’s expert did not give an opinion regarding prescribing opioids in his reports and was therefore confined at trial to the reports that he had written. Dr. Gibson was asked in cross-examination whether the defendant should have considered prescribing opioids under a set of very specific circumstances which were not made out at trial, and which I have accordingly not considered.

[241] The evidence of the plaintiff, defendant and the defendant’s clinical notes indicate that by this time, the defendant had provided to the plaintiff advice on pain management modalities on several occasions, including such modalities as heat, stretches, physiotherapy, massage and over-the-counter medications.

[242] As regards the January 18 appointment, the only opinion report regarding the standard of care required with respect to pain management is that of Dr. Gibson, as Dr. Brankston’s expert report was confined to the period from August 26 to December 21, 2016.

[243] At the appointment on January 18, Dr. Lee referred the plaintiff to a hematologist and ordered a CT scan of the back, and x-rays and an ultrasound of the lump which had developed on the plaintiff’s left scalp.

[244] In Dr. Gibson’s opinion, Dr. Lee met the standard of care in his physical examination and treatment. In cross-examination, he was asked whether Dr. Lee should have considered prescribing opioids, assuming the seven specific enumerated factors. Assuming those factors, he agreed, although he stated that the first priority was to make a diagnosis and determine what treatment could be offered. It is of significance that the seven specific enumerated factors were not made out or established at trial. I therefore do not consider this opinion in my determination of the issue.

[245] Throughout the trial, the plaintiffs did not offer any evidence as regards what pain medication should have been prescribed and when, in what dosages, when it would have been effective in reducing Mr. Finnigan’s pain, or how much, if at all, it would have reduced his pain. The plaintiffs have not met their onus of establishing a causal link between the alleged breaches in pain management and the pain experienced by the plaintiff.

[246] It is of note that the plaintiff’s expert stated that the effect of opioids on back pain is only small to moderate. He was unable to give an opinion on the effect of further treatment on the plaintiff’s pain, as he stated that this was beyond his expertise.

[247] Further, as previously noted, the oral narcotics given to Mr. Finnigan at hospital were reported in the hospital records to be “ineffective”.

[248] Finally, had the defendant discussed with the plaintiff the possibility of using opioids, it is not clear to me that the plaintiff would have agreed to use them. His evidence was that he did not like taking medications, was afraid of opioids, that his nephew had been addicted to opioids and that as a social worker he worked with people with addictions such that this caused him to be afraid of narcotics.

Conclusion

[249] Based on all the foregoing evidence, both documentary and viva voce, and taking into account the relevant case law, I find that Dr. Lee did not breach the standard of care in his diagnosis, treatment and management of the plaintiff during the material times. I do not find Dr. Lee to have breached any standards of care in his diagnosis and treatment of the plaintiff, or in the management of the plaintiff’s pain.

[250] Again, this is not to say that the plaintiff may have experienced pain during the material times, which he likely did. However, based on all of the information which the defendant had and was given regarding the plaintiff, I do not find Dr. Lee to have fallen below or breached any standard of care in his medical care, treatment and management of the plaintiff and his pain.

[251] Accordingly, I dismiss this case.

Costs

[252] I strongly urge the parties to agree upon costs. In the event that they are unable to do so, the parties are to provide their Bills of Costs, in 3 pages or less within 60 days of the release of this decision.

C.J. Brown J.

Released: January 20, 2023