Dmytriw et al. v. Odim et al.,

• Jurisdiction: Manitoba
• Judge: Joyal
• Neutral Citation: 2015 MBQB 24
• Citation: (2015), 314 Man.R.(2d) 261 (QB),2015 MBQB 24,314 ManR(2d) 261,(2015), 314 ManR(2d) 261 (QB),314 Man.R.(2d) 261
• Date: 05 February 2015
• Court: Court of Queen's Bench of Manitoba (Canada)

Dmytriw v. Odim (2015), 314 Man.R.(2d) 261 (QB)

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. FE.039

Ian Dmytriw, an infant who sues by his father and next friend, Gordon Dmytriw, Gordon Dmytriw and Rhonda Dmytriw (plaintiffs) v. Jonah N.K. Odim, Niels Giddins, Brian Postl, Oscar Casiro, Shirley Scott, Robert Blanchard, Helmut Unruh, Health Sciences Centre, Winnipeg Regional Health Authority and The Government of Manitoba and The Minister of Health, Province of Manitoba (defendants)

(CI 02-01-26964; 2015 MBQB 24)

Indexed As: Dmytriw et al. v. Odim et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Joyal, C.J.Q.B.

February 5, 2015.

Summary:

The infant plaintiff underwent a complex open heart surgical repair procedure, performed by the defendant Odim, a pediatric cardiac surgeon. While the plaintiff initially did well, 13 days after the surgery, he suffered a hemorrhagic infarction to his spinal cord, which left him paraplegic. The plaintiffs' action against Odim and Giddins, a pediatric cardiologist, alleged medical negligence and failure to obtain informed consent. At issue was the admissibility of the plaintiffs' proposed expert evidence of Soder, a pediatric anesthetist and pediatric intensivist. The plaintiffs sought to admit a 1996 report prepared by Soder at the request of the Manitoba Pediatric Cardiac Surgery Inquest and a 2004 report prepared by Soder regarding the surgery performed on the infant plaintiff.

The Manitoba Court of Queen's Bench denied the motion.

Evidence - Topic 1251

Relevant facts - Relevance and materiality - Similar acts - General - [See fourth Evidence - Topic 7075 ].

Evidence - Topic 7000.4

Opinion evidence - Expert evidence - General - Admissibility - General - The infant plaintiff underwent a complex open heart surgical repair procedure, performed by the defendant Odim, a pediatric cardiac surgeon - While the plaintiff initially did well, 13 days after the surgery, he suffered a hemorrhagic infarction to his spinal cord, which left him paraplegic - The plaintiffs' action against Odim and Giddins, a pediatric cardiologist, alleged medical negligence and failure to obtain informed consent - At issue was the admissibility of the plaintiffs' proposed expert evidence of Soder, a pediatric anesthetist and pediatric intensivist - The Manitoba Court of Queen's Bench discussed the foundations and criteria for the admissibility of expert opinion evidence - See paragraphs 38 to 49.

Evidence - Topic 7001

Opinion evidence - Expert evidence - General - Qualifications and declaration that a witness is an expert - The infant plaintiff underwent a complex open heart surgical repair procedure, performed by the defendant Odim, a pediatric cardiac surgeon - While the plaintiff initially did well, 13 days after the surgery, he suffered a hemorrhagic infarction to his spinal cord, which left him paraplegic - The plaintiffs' action against Odim and Giddins, a pediatric cardiologist, alleged medical negligence and failure to obtain informed consent - At issue was the admissibility of the plaintiffs' proposed expert evidence of Soder, a pediatric anesthetist and pediatric intensivist - The plaintiffs sought to admit a 1996 report prepared by Soder at the request of the Manitoba Pediatric Cardiac Surgery Inquest and a 2004 report prepared by Soder regarding the surgery performed on the infant plaintiff - The Manitoba Court of Queen's Bench held that Soder was not qualified to provide expert opinion evidence in the proposed areas - Sufficient evidence had not been provided to satisfy the court that Soder had the necessary training, experience and/or specialized knowledge to be duly qualified to provide the opinion furnished in the two reports - Given the issues and the plaintiffs' intended use of the reports, it was reasonable to expect that Soder's training, specialized knowledge and experience would be in areas related to alleged inadequacy of the standard of care regarding both the Pediatric Cardiac Surgery Program and the pediatric surgery performed on the infant plaintiff - Soder's affidavit disclosed no training, experience or specialized knowledge in pediatric cardiac surgery and pediatric cardiology - See paragraphs 65 to 82.

Evidence - Topic 7010

Opinion evidence - Expert evidence - General - Admissibility of information used to support opinion - [See first Evidence - Topic 7075 ].

Evidence - Topic 7075

Opinion evidence - Reports by experts - Admission of (incl. objection to) - The infant plaintiff underwent a complex open heart surgical repair procedure, performed by the defendant Odim, a pediatric cardiac surgeon - While the plaintiff initially did well, 13 days after the surgery, he suffered a hemorrhagic infarction to his spinal cord, which left him paraplegic - The plaintiffs' action against Odim and Giddins, a pediatric cardiologist, alleged medical negligence and failure to obtain informed consent - At issue was the admissibility of the plaintiffs' proposed expert evidence of Soder, a pediatric anesthetist and pediatric intensivist - The plaintiffs sought to admit, inter alia, a 1996 report (the inquest report) prepared by Soder at the request of the Manitoba Pediatric Cardiac Surgery Inquest - The inquest report presented Soder's opinion regarding cardiac surgery performed by the Pediatric Cardiac Surgery Program at the Health Sciences Centre where the plaintiff was treated - The Manitoba Court of Queen's Bench held that a 1996 report (the Sinclair report), which came out of the Manitoba Pediatric Cardiac Surgery Inquest, was not admissible as a foundation for the inquest report - The Sinclair report and the inquest report were "symbiotic and mutually dependent" - The Sinclair report was written after consideration of and reliance on the inquest report and Soder's inquest testimony - That made it difficult, if not impossible, "to conceptualize the Sinclair report as a reliable or probative evidentiary foundation for what should be Dr. Soder's more independently and objectively supported inquest report" - To admit the Sinclair report would be to ignore the principle that any account relied on by an expert in the formulation of an opinion had to be established by otherwise admissible evidence - Further, the potential prejudice of the Sinclair report was not overborne by its limited probative value - An inquest was an inquiry and not a trial - The defendants' concerns were justified - An inquest judge's findings should not be determinative of anyone's rights - See paragraphs 50 to 60.

Evidence - Topic 7075

Opinion evidence - Reports by experts - Admission of (incl. objection to) - The infant plaintiff underwent a complex open heart surgical repair procedure, performed by the defendant Odim, a pediatric cardiac surgeon - While the plaintiff initially did well, 13 days after the surgery, he suffered a hemorrhagic infarction to his spinal cord, which left him paraplegic - The plaintiffs' action against Odim and Giddins, a pediatric cardiologist, alleged medical negligence and failure to obtain informed consent - At issue was the admissibility of the plaintiffs' proposed expert evidence of Soder, a pediatric anesthetist and pediatric intensivist - The plaintiffs sought to admit a 1996 report (the inquest report) prepared by Soder at the request of the Manitoba Pediatric Cardiac Surgery Inquest and a 2004 report (the Dmytriw report) prepared by Soder regarding the surgery performed on the infant plaintiff - The inquest report presented Soder's opinion regarding cardiac surgery performed by the Pediatric Cardiac Surgery Program at the Health Sciences Centre where the plaintiff was treated - As a foundation for the inquest report, the plaintiffs relied on a 1996 report (the Sinclair report), which came out of the Manitoba Pediatric Cardiac Surgery Inquest - The Manitoba Court of Queen's Bench, having determined that the Sinclair report was not admissible as foundation evidence for the inquest report, held that the inquest report and the Dmytriw report were not admissible - The inquest report was inadmissible as it was without the required evidentiary basis to ground the opinion evidence that it contained - With the exclusion of the Sinclair report and the inadmissibility of the inquest report, the Dmytriw report was rendered inadmissible because it depended on the inquest report and the connected evidence admitted at the Inquest - See paragraphs 61 to 64.

Evidence - Topic 7075

Opinion evidence - Reports by experts - Admission of (incl. objection to) - The infant plaintiff underwent a complex open heart surgical repair procedure, performed by the defendant Odim, a pediatric cardiac surgeon - While the plaintiff initially did well, 13 days after the surgery, he suffered a hemorrhagic infarction to his spinal cord, which left him paraplegic - The plaintiffs' action against Odim and Giddins, a pediatric cardiologist, alleged medical negligence and failure to obtain informed consent - At issue was the admissibility of the plaintiffs' proposed expert evidence of Soder, a pediatric anesthetist and pediatric intensivist - The plaintiffs sought to admit a 1996 report (the inquest report) prepared by Soder at the request of the Manitoba Pediatric Cardiac Surgery Inquest and a 2004 report (the Dmytriw report) prepared by Soder regarding the surgery performed on the infant plaintiff - The inquest report presented Soder's opinion regarding cardiac surgery performed by the Pediatric Cardiac Surgery Program at the Health Sciences Centre where the plaintiff was treated - The Manitoba Court of Queen's Bench, having held that the inquest report was inadmissible as lacking the required evidentiary foundation, also held that the inquest report was neither relevant nor necessary - See paragraphs 83 to 88.

Evidence - Topic 7075

Opinion evidence - Reports by experts - Admission of (incl. objection to) - The infant plaintiff underwent a complex open heart surgical repair procedure, performed by the defendant Odim, a pediatric cardiac surgeon - While the plaintiff initially did well, 13 days after the surgery, he suffered a hemorrhagic infarction to his spinal cord, which left him paraplegic - The plaintiffs' action against Odim and Giddins, a pediatric cardiologist, alleged medical negligence and failure to obtain informed consent - At issue was the admissibility of the plaintiffs' proposed expert evidence of Soder, a pediatric anesthetist and pediatric intensivist - The plaintiffs sought to admit a 1996 report (the inquest report) prepared by Soder at the request of the Manitoba Pediatric Cardiac Surgery Inquest and a 2004 report (the Dmytriw report) prepared by Soder regarding the surgery performed on the infant plaintiff - The inquest report presented Soder's opinion regarding cardiac surgery performed by the Pediatric Cardiac Surgery Program at the Health Sciences Centre where the plaintiff was treated - The Manitoba Court of Queen's Bench, having held that the inquest report and the Dmytriw report were inadmissible as lacking the required evidentiary foundation, also held that the reports were inadmissible to the extent that they included and depended or relied on similar fact evidence that was admitted at the Manitoba Pediatric Cardiac Surgery Inquest - Although the plaintiffs did not seek to rely on the inquest report as similar fact evidence, it had no utility for the plaintiffs without reliance on such similar fact evidence - The plaintiffs' action was not about the quality of the surgical repair, but about a complication that occurred 13 days later - The 12 cases reviewed in the inquest report involved the quality of surgical repair - None of those cases related to patients who underwent the specific procedure performed on the infant plaintiff and none developed paraplegia following surgery - If similar fact evidence was admissible here, it would have to be for the purpose of establishing a problem with the Pediatric Cardiac Surgery Program - There would have to be a nexus between what happened to the infant plaintiff and the 12 cases reviewed in the inquest report - Such a nexus was not apparent - Further, it would be highly prejudicial if Odim was found to be liable to the plaintiffs based on evidence of different and distinct complications and/or tragic outcomes - See paragraphs 89 to 102.

Evidence - Topic 7075

Opinion evidence - Reports by experts - Admission of (incl. objection to) - The infant plaintiff underwent a complex open heart surgical repair procedure, performed by the defendant Odim, a pediatric cardiac surgeon - While the plaintiff initially did well, 13 days after the surgery, he suffered a hemorrhagic infarction to his spinal cord, which left him paraplegic - The plaintiffs' action against Odim and Giddins, a pediatric cardiologist, alleged medical negligence and failure to obtain informed consent - At issue was the admissibility of the plaintiffs' proposed expert evidence of Soder, a pediatric anesthetist and pediatric intensivist - The plaintiffs sought to admit a 1996 report (the inquest report) prepared by Soder at the request of the Manitoba Pediatric Cardiac Surgery Inquest and a 2004 report (the Dmytriw report) prepared by Soder regarding the surgery performed on the infant plaintiff - The inquest report presented Soder's opinion regarding cardiac surgery performed by the Pediatric Cardiac Surgery Program at the Health Sciences Centre where the plaintiff was treated - The Manitoba Court of Queen's Bench, having held that the inquest report and the Dmytriw report were inadmissible as lacking the required evidentiary foundation, also held that the benefits of receiving such evidence would have exceeded the costs to the litigation process - It was one thing to consider the fact of a problem with the Pediatric Cardiac Surgery Program, where such a fact was already established, but it was "quite another to embark upon the adjudicative adventure involved in revisiting 12 separate cases [in the inquest report] in order to establish the fact of a problem" - The complexity, length and expense of the proceeding would have been increased more than twelvefold - Further, there was the concern that this would involve the confidential health information of 12 different patients - See paragraphs 103 to 114.

Medicine - Topic 4257

Liability of practitioners - Negligence or fault - Evidence and burden of proof - [See all Evidence - Topic 7075 ].

Cases Noticed:

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, appld. [para. 10].

Lepp v. Hopp, [1980] 2 S.C.R. 192; 32 N.R. 145; 22 A.R. 361, refd to. [para. 33].

Reibl v. Hughes, [1980] 2 S.C.R. 880; 33 N.R. 361, refd to. [para. 33].

White v. Turner, [1981] O.J. No. 201 (H.C.), refd to. [para. 35].

Layton v. Wescott (1992), 134 A.R. 297 (Q.B.), refd to. [para. 35].

Ediger v. Johnston, [2013] 2 S.C.R. 98; 442 N.R. 105; 333 B.C.A.C. 1; 571 W.A.C. 1; 2013 SCC 18, refd to. [para. 37].

R. v. D.D., [2000] 2 S.C.R. 275; 259 N.R. 156; 136 O.A.C. 201; 2000 SCC 43, refd to. [para. 39].

R. v. J.-L.J., [2000] 2 S.C.R. 600; 261 N.R. 111; 2000 SCC 51, refd to. [para. 40].

R. v. Abbey (W.N.) (2009), 254 O.A.C. 9; 97 O.R.(3d) 330; 2009 ONCA 624, refd to. [para. 41].

R. v. M.C. (2014), 325 O.A.C. 1; 2014 ONCA 611, refd to. [para. 43].

R. v. A.K. (1999), 125 O.A.C. 1; 45 O.R.(3d) 641 (C.A.), refd to. [para. 48].

R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30, refd to. [para. 57].

R. v. Boucher (E.), [2005] 3 S.C.R. 499; 342 N.R. 42; 2005 SCC 72, refd to. [para. 57].

R. v. Thomas (R.), [2006] O.T.C. 40; 207 C.C.C.(3d) 86 (Sup. Ct.), refd to. [para. 66].

Kurdina v. Gratzer - see Kurdina v. Dief et al.

Kurdina v. Dief et al., [2010] O.A.C. Uned. 199; 2010 ONCA 288, refd to. [para. 67].

ter Neuzen v. Korn - see Neuzen v. Korn.

Neuzen v. Korn, [1995] 3 S.C.R. 674; 188 N.R. 161; 64 B.C.A.C. 241; 105 W.A.C. 241, refd to. [para. 68].

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201; 2002 SCC 56, refd to. [para. 92].

Woods et al. v. Jackiewicz et al., [2013] O.T.C. Uned. 519; 2013 ONSC 519, refd to. [para. 95].

Authors and Works Noticed:

Bryant, Alan W., Lederman, Sidney N., and Fuerst, Michelle K., Sopinka, Lederman & Bryant: The Law of Evidence in Canada (3rd Ed. 2009), para. 12.107 [para. 47].

Paciocco, David M. and Stuesser, Lee, The Law of Evidence (5th Ed. 2008), pp. 192, 204 [para. 66].

Counsel:

Richard M. Beamish, Jason D. Kendall and Sadira M. Garfinkel, for the plaintiffs;

G. Todd Campbell and Tyler J. Kochanski, for the defendants, J.N.K. Odim and N. Giddins.

This motion was heard by Joyal, C.J.Q.B., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on February 5, 2015.