Ontario Superior Court of Justice
Court File No.: CV-16-559582
Date: 2025-04-01
Between:
Denis Kalinichenko (Applicant)
and
Dr. Paul David Morris Jacobson (Defendant)
Applicant Counsel: Nick Todorovic and Aidan Vining
Respondent Counsel: Atrisha Lewis, Jennifer Arduini, and Holly Kallmeyer
Heard: March 23, 2025
Ruling on Requested Changes
Papageorgiou J.
Introduction
1I provided my draft jury charge on March 20 and met with the parties on March 21, 2025, to hear their submissions. There was a great deal of agreement on changes. There were four disagreements, and the parties have made submissions. These are my reasons on the requested change. I also provide brief reasons here on the Jury Questions.
Minority Practice
2The Defendant has asked that I instruct the Jury on minority practice and that if a physician’s practice was in accordance with a respected minority practice, then there is no liability as it is not for the trier of fact to prefer the practice of the majority over a respectable minority. This principle holds that where the practice followed by a doctor is adhered to by at least a respectable minority of competent medical practitioners in the same field; it is not for the court to prefer the practice of the majority over that of the respectable minority.
3The issue in this case does not relate to a minority practice. The issue here relates to what the standard is and there are competing opinions about this.
4In Cleveland v. Whelan, 2011 ONCA 244, the court referenced the argument made in that case that suggested that if a defendant is able to advance proof that one reputable body in the community of medical professionals in Ontario at the time of the incident would support the conduct and decision making of the defendant, the trial judge is virtually compelled to accept that evidence and find against negligence.
5At paragraph 51 the court indicated that the respectable minority principle does not absolve a doctor from liability in negligence whenever there is a conflict in the expert evidence led at trial concerning the reasonableness of a doctor’s conduct. “Were it otherwise, nearly every medical negligence case would be resolved in favour of the doctor, because they almost always involve a conflict in expert evidence.”
6Recently in Martindale v. Bahl et al, 2023 ONSC 4259, Justice Brown cited paragraph 51 of Cleveland with approval and held that “a physician is not absolved of liability merely by advancing proof of one reputable school of thought in the medical community at the time of the incident.” Justice Brown further held that “where competing standards are presented, the evidence must be weighed, and a determination made of the applicable standard of care. Ultimately, the applicable standard of care is determined by the trier of fact having regard to all of the expert testimony.”
7In Anderson v. Chasney, [1949] 4 DLR 71 (MBCA), affirmed by the Supreme Court of Canada, , [1950] 4 DLR 223 (SCC), the Manitoba Court of Appeal states: “If he asserts such a [minority] practice, in defence, the onus is on the surgeon to prove it by evidence. And the practice must be a reasonable one.”
8In the case before me none of the experts, nor Dr. Jacobson, gave evidence suggesting that there were two competing standards of care (majority v. minority) applicable in Ontario. The experts gave evidence as to the applicable standard of care for all emergency room physicians in Dr. Jacobson’s circumstances in Ontario in 2014.
9The word minority was never used by any expert or anyone at trial.
10I do not make this amendment to the Charge.
Ter Neuzen
11The defendant provided a book of authorities. I asked about the case Samms v. Moolla, 2019 ONCA 220 cited therein. Counsel for the defendant provided their position that I should instruct the jury in accordance with Ter Neuzen v. Korn, [1995] 3 SCR 674 at para. 41, and adopt the following and include in the charge:
Where it is established that a doctor departed from the approved practices of his profession that may often be a strong indication that the doctor in question has fallen below the standard of care expected by the law and so he or she may be properly found to be negligent. However, when a doctor acts in accordance with a recognized and respectable practice of the profession at a particular point in time, he or she ought not to be found negligent unless that common practice is obviously fraught with serious and unacceptable risks that are apparent even to persons such as you and I who do not have any medical training.
12The plaintiff agrees that this should be included and argues that the standard proposed by the defendant’s expert is one that is obviously fraught with risks such that the jury could use their common sense and set the standard given the seriousness and severity of the potentially life altering diagnosis of Cauda Equina Syndrome. The plaintiff argues that evidence across the experts indicated that an MRI is the gold standard for ruling out Cauda Equina Syndrome. That is not correct. The defence experts testified that a diagnosis of Cauda Equina Syndrome requires a clinical presentation of saddle anaesthesia, bowel and bladder problems, which if present, then leads to an MRI, which can confirm whether there is central disc rupture.
13As set out in Ter Neuzen, courts do not ordinarily have the expertise to tell professionals that they are not behaving appropriately in their field. Quoting L’Heureux Dube in Lapoint, “Given the number of available methods of treatment from which medical professionals must at time choose, and the distinction between error and fault, a doctor will not be found liable if the diagnosis and treatment given to a patient corresponds to those recognized by medical science at the time, even in the face of competing theories.”
14The court quoted Fleming who stated: “However, there is no categorical rule. Thus an accepted practice is open to censure by a jury (nor expert testimony required) at any rate in matters not involving diagnostic or clinical skills, on which an ordinary person may presume to pass judgment sensibly, like omission to inform the patient of risks, failure to remove a sponge, an explosion set-off by an admixture of ether vapour and oxygen or injury to a patient’s body outside the area of treatment.”
15The court further stated that conformity with the common practice will generally exonerate physicians of any complaint of negligence, there are certain situations where the common practice is “fraught with obvious risks” such that anyone is capable of finding it negligent, without the necessity of judging matters requiring diagnostic or clinical expertise.
16In this case there are two competing expert opinions. These opinions are based upon specialized and technical expertise relating to the diagnosis of Cauda Equina Syndrome.
17As the Supreme Court specifically stated in Ter Neuzen at paragraph 44, “courts should not involve themselves in resolving scientific disputes which require the expertise of the profession. Courts and juries do not have the necessary expertise to assess technical matters relating to the diagnosis or treatment of patients.”
18Although the plaintiff’s expert does take the position that his approach would reduce risk to Mr. Kalinichenko, his opinion, like the defence expert opinion, is based upon his medical expertise which includes not only diagnostic expertise but also expertise on the availability of resources and ability to obtain a referral based upon Mr. Kalinichenko’s presentation. The case centres on whether Mr. Kalinichenko should have had an MRI and surgery to prevent neurological injury. These are inherently things that require expertise to assess.
19These are not things that an ordinary person has expertise in. These are difficult and uncertain questions that require scientific knowledge. This is not a case where there are obvious, simple and available simple precautions. Whether or not Mr. Kalinichenko should have had an MRI and surgery at that time is a matter of diagnostic expertise.
20As noted, here there are competing opinions as to what the standard was. There is no need for the jury to fix the standard since the standard proposed by the plaintiff is the very standard that his expert provides evidence about. If they prefer the evidence of the plaintiff’s expert, then they can accept that evidence. They do not need to set the standard.
21Regarding the first part of the quotation that “physicians will not be found liable if they adhere to a recognized and respectable practice of the profession at a particular point in time”, I have inserted this. I have not inserted the exception as it does not apply and will confuse the jury.
Usual Practice
22The defendant began by requesting that I insert in the charge that given the lengthy time between the treatment at issue and the time of trial, evidence from a physician as to his invariable practice should carry great weight with respect to how the physician acted on the day in question. I note that the case cited, Campbell v. Roberts, 2014 ONSC 5922 is a Superior Court trial decision where the trial judge weighed the evidence and made that statement.
23There is no Court of Appeal authority cited for the proposition that I must direct the jury as to the great weight to be carried by the usual practice. In the case Mirembe v. Tarshi, what the Court of Appeal says is that there was no error in the trial judge accepting the physician’s invariable practice to determine what he did in relation to the appellant. They saw no error in this as “it was open to the trial judge to accept this evidence particularly given that she found that [the physician] was generally credible, his evidence made sense and to some degree, supported by the evidence.”
24In Loffler v. Cosman, 2010 ABQB 177, the Court of Appeal stated that “the cases suggest that it is the credibility of the medical practitioner which is the determinative factor in establishing invariable practice.”
25I reviewed the law presented by the plaintiff and defendant and I amended the charge to read as follows:
A physician’s testimony as to his or her usual practice is admissible circumstantial evidence of what he or she likely did when a physician has no or limited independent recollection. However, like all evidence, the physician’s evidence as to their invariable or usual practice must be weighed together with the other evidence. The fact that a physician has a regular or invariable practice does not mean that the court must accept that it was followed in the particular circumstances or that the physician is automatically more credible or reliable than a patient. Like all evidence, it must be weighed. The credibility of the medical practitioner is the determinative factor in establishing invariable or usual practice. Where something is called usual or invariable practice, but it is not done with sufficient regularity so as to make it probable that it would have been done in every instance or in most instances, it does not carry the same weight. Whether or not there is sufficient regularity depends on the circumstances of the case. This is something that you the Jury must decide.
26The defendant objects to this and now says that I should now insert the following paragraph:
In medical negligence cases, medical practitioners quite understandably do not have a memory of every patient or interaction with the patient who comes under their care. In assessing whether a healthcare practitioner has met the standard of care, the healthcare practitioner may testify as to his or her invariable practice. That is to say, if the practitioner testifies about what he or she always does, it is likely he or she did what they always do on the day in question.
27In my view this is unbalanced and does not reflect the totality of the law on this issue. It does not reflect the Court of Appeal authority that whether or not testimony regarding invariable practice depends upon the credibility of the physician. The paragraph as I have written it will stand. In my view, the paragraph I have written is balanced, particularly in the context of the charge as a whole.
Distinction Between Buttocks and Saddle Anaesthesia
28The defendant submits that the charge should be amended to clarify that buttock numbness is not the same thing as saddle anaesthesia. They refer to Dr. Ng’s testimony in this respect. I have now included his view, as he did say this, but the other witnesses did use the term interchangeably with buttock numbness. The parties are free to argue the matter as they see fit, but the charge will reflect the evidence given by some of the witness who used the terms interchangeably.
Dr. Jacobson testified:
73Q. You’ve also written numb left leg. What would numbness in a left leg tell you?
A. …We are most concerned in lower back pain something about saddle anesthesia where you get numbness on both sides around the lower buttocks.96Q. And how would you have assessed that?
A. …and then the perineal area you’re sensing for sensation so you pinched in the (indiscernible) pinch around the buttock area and ask if they can feel that and that’s for saddle anesthesia.129Q. So it’s been suggested that you should have ordered an urgent MRI for Mr. Kalinichenko. Why didn’t you do that?
A. …inability to control your bowels and saddle anesthesia so numbness on both sides of the butt and area of the saddle.191Q. And your understanding – is your understanding back then – what were the cardinal symptoms of cauda equina syndrome?
A. So the four cardinal symptoms is bilateral motor paresis, weakness, urinary retention, fecal incontinence and saddle anesthesia, numbness area around the buttocks.
Dr. Martin stated:
124Q. And can you go over the pertinent points from the examination for discovery that was located in your report?
A. …And that the patient complained of saddle anesthesia, he had numbness in his buttocks, which would represent saddle anesthesia.148Q. And can you go through that with us as well about what you disagreed with and what you agreed with?
A. …Dr. Jacobson described his examination for saddle anesthesia as pinching the patient through clothing, pinching the skin of the buttocks while he was clothed.
Dr. Muller stated:
- 349Q. Sorry for interrupting?
A. …They also supple that’s so called sacral nerve roots that area of anatomy that is referred to as the saddle area. What that consists of basically if you sat on a horse’s saddle that area that contacts if you will the bum, crotch, that sometimes the posterior portion of the genital areas the sensation there is supplied by these sacral nerve roots.
Dr. Busse stated:
56Q. And in 2014 what would an emergency room physician consider the symptoms of cauda equina syndrome to be?
A. …And the third thing is numbness in your groin area, and medically we call that saddle anesthesia. It’s the area – if you think sitting naked on a horse’s saddle, it’s the area that touches the saddle. And if you look at the anatomical map of the dermatomes where the different nerves map on your skin, it actually is where you sit on the saddle of a horse. So it’s halfway on your bum cheeks and down your legs…311Q. …He’s clearly noting what you’re suggesting is a rectal examination?
A. As I mentioned earlier how you do a rectal examination, you cannot do a rectal examination without touching the saddle area for multiple reasons. It’s physically impossible. The bum cheeks are stuck together, You are spreading them, touching the saddle area with your whole hands…doing a rectal examination means you’re examining the saddle area. It’s impossible not to.365Q. Now, assume, doctor, we've heard from Mr. Kalinichenko that he had butt numbness across both cheeks. Assume he has butt numbness as well. What can you give me your opinion in that days?
A. That is a cardinal feature of cauda equina syndrome. And so any cardinal feature you investigate with an emergent MRI. It's just my reading of the information here to support (indiscernible). But if he had documented saddle anesthesia, bowel or bladder changes, you need to invest for cauda equina syndrome.
Additional Submissions and Jury Charge
29I then met with the parties today at 2:00 to briefly review whether the parties had any additional submissions with respect to the Charge. They raised some minor additional issues and I have amended the Charge accordingly. One issue related to guidance on how to weigh conflicting evidence and case law that says that where oral testimony based on witness testimony conflicts with contemporaneous medical records, the written record is generally considered a more reliable source. I have made this amendment.
30At today’s meeting they did not have any further submissions on the Charge.
31I have now delivered the final charge to the parties. I will be marking the first draft as Exhibit H. The redraft I provided on the evening of March 21, 2025, as Exhibit I and the final draft provided on March 23, 2025 as Exhibit 42.
Jury Questions
32The parties submitted jury questions at the outset of the trial. They had agreed that the jury questions would include questions about particulars in respect of the breach of standard and causation.
33I asked for submissions on this.
34I am satisfied after reviewing their submissions, which include many authorities, that this is a matter of discretion. This matter involves complex issues, and the Jury should provide brief particulars.
35With respect to the concern expressed in Huang v. Stogryn, 20078 BCSC that the problem with asking for particulars is that they may not all agree on the basis for any finding. However, as set out in Surujdeo v. Melady, 2017 ONCA 41, at paras. 116 and 137, a jury is entitled to arrive at an answer to a “bottom line” question or verdict by different evidentiary routes. All that is required is that the Jury list all of the reasons that led the five to arrive at a conclusion.
Papageorgiou J.
Released: April 1, 2025