The Estate of Carlo Demarco et al. v. Dr. Martin et al., 2018 ONSC 5948 (CanLII)

Causation evidence in a medical negligence action – the admissibility of a cardiologist’s evidence on the average wait time for a stress test once a non-urgent referral is received.  

Date Heard: September 26 & October 3, 2018 | Full Decision [PDF]

The Plaintiffs claim that Dr. Martin’s admitted failure to send a cardiology referral on June 13, 2011 caused the sudden death of Carlo DeMarco on August 21, 2011. Dr. Martin defends this claim on the basis that his breach of standard of care did not cause his death. Dr. Martin claims that had the referral been sent on June 13, 2011, Mr. DeMarco would not have undergone a stress test and received treatment before his death given the average wait time for non-urgent referrals to Dr. Wong, a cardiologist to whom Dr. Martin would have referred Mr. DeMarco.

Dr. Wong testified at trial that the average wait time in the summer of 2011 for a stress test for patients referred to him on a non-urgent basis was 6-8 weeks. Dr. Wong was asked what steps he took to arrive at the 6-8 week estimate. The patient record system programmer in Dr. Wong’s office created a software “code” which extracted and identified 75 patients (out of hundreds) who were referred for a stress test in June 2011. A technologist then prepared a chart listing the 75 patients by ID number, date of referral, date seen for stress test, original appointment given, and whether the patient went on for further testing. Based on the information extracted, the average wait time was calculated to be 59 days. After the chart was prepared, Dr. Wong selected 10 of the 75 patients and compared the information in the chart with the patient records, after which he felt satisfied that the information contained in the chart accurately reflected the patient records. At trial, the chart was not made an exhibit.

The Plaintiffs argued that Dr. Wong’s evidence was inadmissible because it relied on the hearsay evidence of others, the information contained in the patient records and chart was hearsay because both records were not prepared by Dr. Wong. The defence argue that the information contained in the records and chart was simply a record of information of which Dr. Wong had first-hand knowledge in the summer of 2011 but could no longer recollect, and therefore was not hearsay.

Mitchell J. noted that the chart was the tool used by Dr. Wong to refresh his memory of dates and assessments relating to the 75 patients referred for a stress test in June 2011 for the purpose of supporting his original evidence of a 6-8 week average wait time. The Plaintiffs were entitled to test Dr. Wong’s evidence which they did at trial and during cross-examination as part of their production motion in 2017. Mitchell J. held that the 75 patient records were business records and were therefore inherently reliable. With respect to the summary chart, Mitchell J. acknowledged that human error inevitably occurs from time to time and that the programmer and technologist would likely admit to the possibility of error if they were called to testify. However, their admission would do little to assist the Court in determining the average wait time. Additionally, there was no better aid available to refresh Dr. Wong’s memory as to the estimated wait time than the information summarized in the chart.

Mitchell J. held that in determining the weight to be afforded to Dr. Wong’s evidence the Court must consider the inherent weaknesses in the reliability of the process undertaken to arrive at the 59 day estimate. However, these weaknesses do not render Dr. Wong’s evidence inadmissible, as he was not relying on the truth of the contents of the information contained in the chart; rather, he was using the chart as a means of satisfying himself that his original 6-8 week estimate was reliable. Dr. Wong’s evidence was found admissible in its entirety. Any concerns with respect to the manner in which the relevant patient records were summarized and the coding used goes to weight.

 

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Nga has practiced exclusively in personal injury since her call to the bar. Nga is very compassionate towards those who have suffered a loss and aims to guide clients through difficult legal processes. She is also dedicated to promoting access to justice for injured members of the Vietnamese community. With her fluent Vietnamese language skills, she hopes to lower the communication barriers faced by many injured members of her community and help them obtain appropriate compensation.