Downey v. McNeely, 2014 NSSC 457

SUPREME COURT OF Nova Scotia Citation: Downey v. McNeely, 2014 NSSC 457 Date: 20141223 Docket: Hfx No. 289029 Registry: Halifax Between: Thomas Valentine Downey Plaintiff v. Dr. Patrice Daniel McNeely Defendant Judge: The Honourable Justice M. Heather Robertson Written Submissions: October 14 and 17, 2014 (Motion re Striking a Portion of Expert Report) Written Release: January 29, 2015 (Orally: December 23, 2014) Counsel: Colin D. Bryson, Q.C., for the plaintiff Thomas P. Donovan, Q.C., and Joseph M.

Herschorn, for the defendant Robertson, J.: (Orally) [1] The parties seek an advance ruling on an issue of expert evidence. [2] Dr. Patrice Daniel McNeely, a neurosurgeon, performed a spinal laminectomy on the plaintiff, Thomas Downey, in 2005. [3] Mr. Downey alleges that Dr. McNeely failed to obtain his informed consent and that the material risks were not appropriatelyexplained to him. [4] Causation will be an issue at trial. [5] Relying on Reibl v.

Hughes, (SCC), [1980] 2 S.C.R. 880, the defendant says the plaintiff must not only showthat the physician failed to explain the material risks of the laminectomy procedure but also that this failure caused the alleged harm heseeks to be compensated for. The plaintiff must show that a reasonable person in his circumstances would not have consented to andundergone the procedure if fully informed of the risks. [6] The defendant has filed an export report in support of Dr. McNeely. Dr. Mark Hamilton, will if qualified as an expert beforethe court, testify that in his opinion Dr.

McNeely met the standard of care for obtaining consent by properly explaining the materialrisks. Dr. Hamilton stated in his report: Furthermore, in my experience, patients with symptomatic tethered spinal cord usually wish to undertake surgery even when made awareof these risks.

[7] Plaintiff’s counsel objects to this statement, relying on R. v. Abbey 2009 ONCA 624, urging the court not to allow the expertevidence to distort the fact finding process be accepted by the jury as being virtually infallible or having more weight than it deserves. [8] The plaintiff says the question of whether a reasonable person in the plaintiff’s circumstances would have declined theprocedure if fully informed of the risks is a matter the jury can form their own conclusions about without help, making Dr. Hamilton’sstatement unnecessary.

He urges the court to apply the criteria of relevance and necessity strictly, and to exclude Dr. Hamilton’sevidence on this point. [9] The plaintiff also recommends that court use the gatekeeper function described in R. v. Wilson (2002), (ON SC), 166 C.C.C. (3d) 294 (Ont. Sup. Ct.J.), at paras. 87-90. In addition the plaintiff makes the following arguments about thestatement:

a) It is not properly the subject of expert opinion evidence, one of the yes/no criteria that must be met in the first stage of the Abbeyapproach to the Mohan analysis.

b) The report provides absolutely no background on the group of patients that Dr. Hamilton refers to that “usually wish to undertakethe surgery”. The question for the jury is a subjective/objective question, asking the jury to put themselves in Mr. Downey’s shoes, withhis pain, his history, etc. We have no idea whether Mr. Downey’s circumstances are in any way comparable to the individualexperiences of the people in the group that Dr. Hamilton refers to. We have no idea what explanations about the surgery were given tothose patients. Dr.

Hamilton’s statement is, putting it mildly, a very unscientific, non-rigorous statistical analysis. Because of that, itdoes not pass even the relaxed reliability test for non-scientific experts permitted in Abbey, and thus like the evidence in Mohan, is nothelpful or necessary.

c) There is the unchecked danger that a jury faced with such an opinion may abdicate its fact-finding role on the assumption that Dr.Hamilton, because of his expertise, knows more about the reasonable patient than the jury does. [10] Lastly, the plaintiff says the statement is not in compliance with Rule 55.04(2). [11] The plaintiff urges the court to view Dr. Hamilton’s statement as an informal survey and an unsubstantial opinion. [12] In my view, Dr. Hamilton’s statement is not expert opinion. It is experiential evidence based on Dr. Hamilton’s observationfrom years of practice. Notwithstanding that Dr.

Hamilton is a neurosurgeon who will testify as an expert, this statement more properlyfalls into the category of “lay opinion” and is admissible. [13] The real issue will be the assessment and weight to be given to the evidence after it is admitted. [14] In The Law of Evidence in Canada, 4th edn. (LexisNexis, 2014), the Modern Statement of Lay Opinion Rule: “Helpfulness” isdescribed at §12.9 – §12.12: §12.9 Finally, Dickson J. (as he then was) in R. v. Graat all but did away with the illogical distinction between so-called fact and opinionwhere the witness’ testimony was founded on personal knowledge.

He pointed out the numerous exceptions to the opinion rule that haddeveloped and concluded: Except for the sake of convenience, there is little, if any, virtue, in any distinction resting on the tenuous, and frequently false, antithesisbetween fact and opinion. The line between “fact” and “opinion” is not clear. §12.10 Returning to broad principles, Dickson J. put the admissibility of such evidence on a sound and straightforward basis: The witnesses had an opportunity for personal observation.

They were in a position to give the Court real help. §12.11 Prior to the Graat decision, the trial judge would simply stop the witness if he or she began to answer in the form of an opinionand the judge would then determine whether the proffered testimony would be necessary for the trier of fact. Justice Dickson held thatlay persons may testify about their observations where the witness is “merely giving a compendious statement of facts that are too subtleand too complicated to be narrated separately and distinctly”.

Thus, the law moved away from the requirement of “necessity” in the caseof lay witnesses whereby opinion evidence was received only if the witness could not “owing to the nature of the matter adequatelyconvey to the jury the data from which such inference is made to a “helpfulness” standard. §12.12 Couched in these terms, the modern opinion rule for lay witnesses should pose few exclusionary difficulties when based on thewitness’ perceptions.

The real issue will be the assessment and weight to be given to such evidence after it is admitted. and at §12.14: §12.14 Courts now have greater freedom to receive lay witnesses’ opinions if: (1) the witness has personal knowledge of observed facts;

(2) the witness is in a better position than the trier of fact to draw the inference; (3) the witness has the necessary experiential capacity todraw the inference, that is, form the opinion; and (4) the opinion is a compendious mode of speaking and the witness could not asaccurately, adequately and with reasonable facility describe the facts she or he is testifying about. But as such evidence approaches thecentral issues that the courts must decide, one can still expect an insistence that the witnesses stick to the primary facts and refrain fromgiving their inferences. It is always a matter of degree.

As the testimony shades towards a legal conclusion, resistance to admissibilitydevelops. [15] I am also of the view that Rule 55.04(2)(

b) does not apply to this statement and it would not be necessary for Dr. Hamilton toset material facts (perhaps a recital of each case he has seen where a patient did consent to the laminectomy procedure) to support hisstatement. Rather he will make a professional observation in a compendious mode of speaking. [16] His observations are legitimate, and probative evidence relevant to the issue of what a reasonable person informed of the riskswould do. The jury must decide causation and in doing so may reasonably ask themselves what a typical patient would decide. [17] Such evidence has been accepted by the courts.

The defendant has cited in their brief various instances: In Rayner v. Knickle (1992), (PE SCAD), 99 Nfld. & P.E.I.R 35 (PEICA), the trial judge heard evidence that theexpert had never seen a patient refuse an amniocentesis test for c-section delivery. In the circumstances of that case, the PEI Court ofAppeal stated that this was evidence that had to be taken into account in analyzing causation (pp. 37-8). In Brandon v. Jordan, [2001] B.C.J. No 308, the Court considered evidence that only 2% to 5% of patients declined laparoscopic tuballigation when informed of the risks (p. 44). In Perez v.

Ziesmann, 2005 MBQB 157, experts testified that they had never seen a patient decline the nipple-inversion procedure inissue because of the risk of nipple loss (para. 34). In Grisack v. Fainman, [1999] O.J. No. 3174, an expert testified that 1% or less of his patients did not proceed with intravascularinjection for neck problems (para. 103). In Flodell v. Hesson Estate, [2000] A.J. No. 1220, an expert testified that in his 12 years of experience, only one patient had declined theepidural procedure in question (para.17). [18] The defendant also cites Schanilec Estate v.

Harris (1987), (BC CA), 36 D.L.R. (4th) 410, a decision of theBritish Columbia Court of Appeal, a similar case where the plaintiff underwent a spinal laminectomy. The court addressed the specialcircumstance listed by the trial judge that modified the objective analysis of the issue of informed consent.

The court found the evidenceof other neurosurgeons to be relevant at para. 21: Other relevant considerations for a reasonable man in the plaintiff's position viewing the case objectively would be (1) the fact that allthe neurosurgeons who testified at the trial stated that they had never known a patient suffering from moderately severe symptoms ofcervical degeneration to refuse to have the operation which was performed in this case and, (2) the fact that the risk of paralysis,although material, was remote. [19] Other Nova Scotia authorities cited include: Crocker v. Awan, 2002 NSSC 136; Locke v.

Lea. [1997] N.S.J. No. 186. [20] I find the final sentence in Dr. Hamilton’s report to be admissible as lay opinion, subject to Dr. Hamilton being qualified as anexpert at trial and his report being otherwise admissible. Justice M. Heather Robertson