Court File and Parties

COURT FILE NO.: CV-19-367-00 DATE: 2024-06-05

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Jeremy Veran, Shawn Veran and Renee Veran Plaintiffs

R. Bohm, P. Harte and M. Damiano, for the Plaintiffs

- and -

George Derbyshire and John McPherson Defendants

B. Morrison, E. Lederman, M. Robins and A Jarvis, for the Defendants

HEARD: June 4, 2024, at Thunder Bay, Ontario

Mr. Justice S.J. Wojciechowski

Decision regarding Evidence from Dr. McPherson addressing post-February 2002 Health Care Practitioner Reports

[1] During the examination in chief of the defendant, Dr. McPherson, the defendants sought to ask a question relating to a Speech Language Pathology report dated April 18, 2002 and found at pages 535-536 of Exhibit 1A.

[2] In referring to this document, which is a report prepared by Lisa Mitchell, a speech language pathologist from the Atikokan General Hospital, Mr. Morrison began his question by reading out loud portions of the first three paragraphs of the report. After he finished reading what Lisa Mitchell had written, Mr. Morrison asked Dr. McPherson if he received any contact from any speech language pathologist at any time after his assessment of Jeremy Veran of February 25, 2002.

[3] The plaintiffs objected to this line of questioning. They submitted that Dr. McPherson did not know Lisa Mitchell, he was not aware of the report, and that it was not proper to refer Dr. McPherson to documents containing information and opinions he had never seen. This report was not found in Dr. McPherson’s chart, Dr. McPherson did not assess speech language issues affecting Jeremy Veran, nor did Dr. McPherson refer Jeremy Veran to Lisa Mitchell or any speech language pathologist.

[4] The plaintiffs submit that the claim against Dr. McPherson relates to the care he provided to Jeremy Veran on the two occasions that he saw and assessed him. Because Dr. McPherson is not an expert witness, the plaintiffs maintain that the defendants should not be able to put a document to this witness “within a vacuum”, or in circumstances where the witness has never seen the document. Because the report was generated and is dated after his last assessment of February 25, 2002, it cannot be relevant to the standard of care of Dr. McPherson.

[5] Dr. McPherson is being sued for an alleged breach in the standard of care expected of a pediatric orthopedic surgeon as a result of health care encounters he had with the plaintiff, Jeremy Veran, on October 10, 1997 and February 25, 2002. These are the only two times Dr. McPherson saw the plaintiffs, and the claim advanced against Dr. McPherson relates to the assessments undertaken during these two appointments.

[6] The defendants submit that the document or report in question is already in evidence. It is part of Exhibit 1B, which is the second half of the Joint Book of Documents. Because the parties agreed that all the documents in the Joint Book of Documents, marked as Exhibits 1A and 1B, would form part of the evidentiary record in this trial, the defendants submit that they can ask Dr. McPherson about Lisa Mitchell’s report dated April 18, 2002, as well as other documents which post-date the February 25, 2002, encounter between the plaintiffs and Dr. McPherson.

[7] In this regard, I asked Mr. Morrison which other documents he wanted to put to Dr. McPherson. After I confirmed that I was not seeking an exhaustive list of documents in this regard – in other words, he had the evening to determine whether there were additional documents he planned to reference during Dr. McPherson’s examination in chief – he pointed me to a number of other documents which he would like to put before Dr. McPherson.

[8] A document at page 537 of Exhibit 1B is a Case Conference Note created by CCAC from Kenora and Rainy-River Districts dated April 24, 2002, in which there is a reference to the fact that Jeremy Veran is now able to hold his bladder and bowels without problem. This is in contrast to previous evidence suggesting that Jeremy Veran was incontinent with respect to both his bowels and bladder. The OT and PT who previously provided reports to Dr. McPherson before his February 25, 2002, appointment with Jeremy Veran are listed as being in attendance at the CCAC case conference. As well, the CCAC document notes the fact that Dr. McPherson is following Jeremy as an orthopedic surgeon. On the basis of these facts, Mr. Morrison submits that this document and its contents can be the source of questions put to Dr. McPherson. In particular, presumably after reading selected passages of the document out loud as was done with the report of Lisa Mitchell, Mr. Morrison wants to ask Dr. McPherson if anyone got back to Dr. McPherson to advise of Jeremy’s assessment – and improved symptoms – as of April 24, 2002.

[9] A document found at page 591 of Exhibit 1B is a Speech, Physio and Occupational Therapy Contact Summary dated October 23, 2003. The relevant portion of this document referenced by Mr. Morrison includes the observation that Jeremy is no longer experiencing any neck pain. Also participating in Jeremy’s ongoing treatment are the same occupational and physio therapists who originally reported to Dr. McPherson before his February 25, 2002, assessment. As such, the defendants want to review the “no longer any neck pain” observation out loud, and then ask Dr. McPherson if he heard from any of the health care team referenced in this October 23, 2003, document after the February 25, 2002 assessment of Jeremy Veran.

[10] Similarly, a document at page 578 of Exhibit 1B is a report from Jeremy’s occupational therapist dated March 28, 2003, which notes that Jeremy is fully continent and toilet trained.

[11] And a document at page 579 of Exhibit 1B is a Physio and Occupational Therapy Contact Summary dated May 30, 2003, again prepared by the same OT and PT who provided services to Jeremy Veran and had authored a report for Dr. McPherson to review before his February 25, 2002 meeting with the plaintiffs. This report identifies that a toilet chair used by Jeremy Veran was working out well.

[12] With respect to these two last documents, after confirming the absence of incontinence issues with Dr. McPherson, it is my understanding that the defendants wish to ask him if the authors of or participants in the documents ever reported back to Dr. McPherson following his assessment of Jeremy on February 25, 2002.

[13] With respect to the initial report of Lisa Mitchell, I made a ruling which I said would be expressed and expanded upon in these reasons. While I am also delivering these reasons orally, the written version of these reasons, once released, will be the basis for my decision.

[14] My brief oral ruling on June 4, 2024, questioned the relevance of these documents to Dr. McPherson’s evidence. In this regard, I indicated that if Dr. McPherson had not seen a document, or if the document was not related to issues assessed by Dr. McPherson, then I did not see how Dr. McPherson could be asked to speak to these issues. In other words, I stated that the documents which were created after Dr. McPherson’s assessment of Jeremy Veran in February 2002 cannot be reviewed and discussed with him, especially if the documents or reports or assessments were never sent to him and the subject matter in them did not address the subject matter which was part of his encounters with Jeremy Veran.

[15] Without any nexus to Dr. McPherson’s actual care of Jeremy Veran, I ruled that these documents were not relevant and could not be put to him during his examination in chief. In this regard, I also agree with the submissions of the plaintiffs that during a witness’s chief examination, it is leading and therefore inappropriate to simply read out loud the contents of a document to the witness, and then to ask whether the witness had any contact with the author of the document.

[16] A subsequent discussion then followed between myself and Mr. Morrison, during which the other documents referenced above were identified. Despite making my ruling, I appreciated the opportunity to discuss the position of the defendants further so that I could better understand why they thought putting these documents and these questions were appropriate.

[17] A main thrust of the defendants’ position is the nature of the documents found within the Joint Book of Documents filed as Exhibits 1A and 1B. The Joint Book of Documents was filed on the following basis:

The parties agree that the documents in the Joint Brief of Documents are authentic copies of the originals and will be admitted into evidence without proof of the original documents. The parties further agree that all documents in the Joint Brief of Documents are admitted to have been prepared, sent and/or received on or about the dates set out in the documents, unless otherwise shown in evidence at the trial. Where the records contain a diagnosis or statement of opinion, those entries are admitted to establish the fact that the author(s) reached those diagnoses or opinions at the time, and not for the truth or accuracy of those opinions. The parties agree that either party is permitted to seek to introduce into evidence at trial additional documents that are not included in the Joint Brief of Documents.

[18] From my understanding of the submissions of Mr. Morrison, because these documents are all in evidence, including the documents listed above which were referenced to me, they could be put to any witness, including Dr. McPherson. As such, without needing to establish any relevance between the document and Dr. McPherson’s evidence, the document can be put before the jury during Dr. McPherson’s examination in chief.

[19] This is especially so in light of my comments that while Exhibit 1A and Exhibit 1B contain evidence – which has been tendered in accordance with terms agreed upon by counsel – I felt that if documents were not actually discussed during the trial, they should be given less weight by the jury at the end of the day.

[20] When the trial began, it was my intention to mark the Joint Book of Documents as a lettered exhibit and that each time a document was referenced, it would become a numbered exhibit. After hearing submissions from counsel on the efforts spent coming up with the Joint Book of Documents and the terms agreed to by counsel, I agreed to mark the Joint Book of Documents as Exhibits 1A and 1B. However, at the same time, I indicated that I wanted each document which was discussed during the trial to be marked as a separate numbered exhibit so that it would be clear to the jury which documents were the subject of witness testimony at the end of the trial. I stated then, and repeated my comments during my discussion with Mr. Morrison, that those documents which were not discussed and marked as a separate numbered exhibit would not carry the same weight as those which witnesses had reviewed during their evidence. Simply put, if a witness was able to identify and discuss the contents of a document, then the jury would be provided with a better understanding of the document. The evidence in these documents should then be weighed more heavily than other documented evidence which was not discussed nor explained during the course of the trial.

[21] At this juncture in the trial, I am in the process of preparing the Jury Charge, and have told the plaintiffs and the defendants that I will be seeking input from them as to the content of my Jury Charge. This includes the use and weight of the documents in Exhibits 1A and 1B which have not been introduced to the jury through witness testimony. As such, my original comments relating to the possible use and weight of the documents in Exhibits 1A and 1B could change. But in light of my comments, I certainly understand Mr. Morrison’s desire to mark the documents he identified with numbers instead of leaving them buried in Exhibit 1A and Exhibit 1B.

[22] Notwithstanding this anticipated discussion, I do not agree that just because a document has been introduced into evidence, it can be put to any witness to comment on.

[23] With respect to Dr. McPherson, the case against him relates to what he did or did not do during his two appointments with the plaintiffs. Investigations, assessments and services provided to Jeremy Veran after his February 2002 appointment are not relevant to Dr. McPherson’s encounters on October 10, 1997 and February 25, 2002.

[24] The defendants will argue that Jeremy’s condition improved following the February 2002 appointment, which supports the appropriateness of Dr. McPherson’s assessment which did not result in the ordering of any imaging nor the questioning of Jeremy Veran’s diagnosis of cerebral palsy. The defendants submit that there was no need to do so, and that the proof is in the pudding. Jeremy Veran’s symptoms of incontinence which previously existed were no longer an issue following Dr. McPherson’s second assessment. If the issue impacting Jeremy Veran was a spinal cord injury resulting from the os odontoideum, and this caused incontinence, the cord injury would not resolve and result in a resolution of the incontinence issues. The defendants maintain that cerebral palsy is the cause of the incontinence issues, and this better explains the transient nature of these incontinence issues. As such, addressing the appearance and the disappearance of neck pain and incontinence and shoulder issues is important to sorting out the cause of Jeremy’s medical condition. Given the relevance of this evidence, the defendants argue that Dr. McPherson can be asked about documents showing the absence of additional symptoms, as well as the improvement of some issues.

[25] I agree that this evidence is relevant. But that does not mean anyone can be asked to lead evidence on the issue. Dr. McPherson never saw Jeremy Veran after February 2002, and aside from a few reports dated after February 25, 2002, which are found in his chart, he never heard back from any health care practitioners regarding Jeremy’s issues. No one called him back for further input, no one sent the documents identified by Mr. Morrison to Dr. McPherson, nor was any of the information set out in those documents ever brought to Dr. McPherson’s attention.

[26] On the other hand, if the health care providers which were involved in Jeremy’s care following February 2002 were called to provide evidence at the trial, then reference to the relevant facts set out within these reports and assessments could be introduced through them. Also, the defendants called expert opinion evidence through Dr. Kontio, a pediatric orthopedic surgeon, who would also be well positioned to evaluate the relevant encounters of Dr. McPherson with the facts contained in the documents found in Exhibits 1A and 1B.

[27] However, Dr. McPherson knows nothing about these documents since he never saw them, and their contents were never discussed with him. As such, aside from the documents which are contained in his chart which is found at Tab 6 of Exhibit 1A, some of which were received by Dr. McPherson after his February 25, 2002, assessment of Jeremy Veran, documents never seen nor received by Dr. McPherson cannot be introduced through Dr. McPherson since he has absolutely no ability to provide any relevant or probative evidence relating to these documents. Further, Dr. McPherson is a fact witness in this case, not a litigation expert.

[28] And while reference to health care providers who circled back and connected with Dr. McPherson might be relevant to the issues to be decided in this case, there is no need to use a document to introduce this evidence. Questions can be put to Dr. McPherson which attempt to identify if anyone contacted him after his January 25, 2002 assessment regarding the status of Jeremy Veran. But if his answer is no, that ends the inquiry. And if his answer is yes, and he can identify the person or persons who contacted him, it would be appropriate to delve into the details of these exchanges. However, assuming the chart of Dr. McPherson contains all of the documents he received from other health care providers, subject to further submissions in these specific circumstances of specific exchanges, the defendants cannot randomly put documents in front of this witness which Dr. McPherson never received nor reviewed.

“Originally signed by”

The Hon. Mr. Justice S.J. Wojciechowski

Released: June 5, 2024