Full Decision
Guest Author – Jeremy Syrtash
Counsel for the Plaintiffs:
Ron Bohm, Amani Oakley, Neil Oakley, David Lee
Counsel for the Defendants (Dr. Sarabria,Dr. Small, Dr. Soni):
Eli D. Mogil, Atrisha S. Lewis, Natalie V. Kolos
Counsel for the Defendant (Dr. Robert Daily):
Nina Bombier, Chris Kinnear-Hunter
Defendants’ standard of care report served mid-trial is not admitted.
This motion considered the admissibility of a defendant ER physician’s standard of care report that was served mid-trial after a preliminary finding was made regarding the scope of the expert’s opinion in relation to his area of practice. The underlying action arose from the plaintiff’s care received in the Emergency Department in 2007 which culminated in the plaintiff suffering significant complications from an infection that led to the amputation to half of both feet and nine of her ten fingers. The defendant ER physician sought to introduce a supportive standard of care opinion from an Infectious Disease Expert.
The defendant ER physician argued that the report could not have been served until after the Court first decided the issue of whether an expert medical witness can testify about the standard of care applied by a defendant physician with a different specialty. The ER physician also argued that it would be unfair to exclude the report because there was uncertainty about the extent to which an expert with one medical specialty could opine on the standard of care applied by a defendant physician with a different specialty.
It was ruled that the defendant’s report should not be admitted. The judge reasoned that the report did not comply with rule 53.03; its admission would breach previous court directions; and the prejudice to the plaintiffs in admitting the report was greater than the prejudice for excluding it. Most importantly, the Court highlighted that Rule 53.03 requires an expert to provide reasoning for coming to his or her opinion. In this case, the judge noted that the report contained only conclusory statements and lacked reasoning into why the defendant ER physician met the standard of care.
This case is significant for medical malpractice trial lawyers who face the somewhat routine bombardment of late served expert reports from the CMPA. This decision can be relied on by plaintiffs’ counsel the next time the CMPA tries something like this in one of their own cases.
Cheesman et al., v. Credit Valley Hospital et al., [2019] ONSC 5783
