A case comment on the recent medical malpractice decision, Sutherland et al. v Booth, and how to work with and prepare your expert witnesses.
Written by Joseph Ur, JSU LAW
Pictured above: an expert, relying on flimsy facts.
A recent decision of the Ontario Superior Court, Sutherland et al. v Booth, 2024 ONSC 127 is a case study in (i) how to engage and prepare an expert in medical malpractice cases; and (ii) how to cross-examine a witness whose evidence is based on erroneous assumptions. It should be studied by anyone looking to engage experts in litigation.
The key takeaways from this case:
Choose your experts with care, and be willing to look at their conclusions, and the factual foundations for those conclusions, with a critical eye; and
If you can show the court, through effective cross-examination, that the opinion given by an expert witness is based on mistakes or assumptions not borne out in the evidence, you can convince the court to give that opinion little to no weight.
Background
The case is a tragic one. A patient attended the emergency room and was treated under the supervision of the defendant, Dr. Booth. Dr. Booth’s impression and plan at discharge was “intoxication”. The patient was discharged home and went to sleep. The next morning, the patient was in significantly worse condition. On arrival at the hospital, doctors determined that the patient had suffered a stroke, and was left brain-dead. The patient was pronounced dead three days later.
The patient’s family brought an action in medical negligence against Dr. Booth for her failure to detect the stroke. After a 15-day trial in 2023, the action was dismissed for the Plaintiff’s failure to show that Dr. Booth fell below the standard of care.
Analysis
This case turned entirely on the difference in the parties’ standard of care experts. The plaintiff’s expert made mistakes and overstatements, while the defendant’s expert’s review was measured and grounded in the facts of the case.
The decision, written by Justice Gareau, contains a scathing review of the Plaintiff’s standard of care expert, Dr. Edwin Brankston. Gareau J. meanwhile lavished praise on defence counsel’s masterful takedown of Dr. Brankston’s opinion through cross-examination, which in his Honour’s words, was akin to “a surgeon’s scalpel”.
Dr. Brankston’s opinion was based on five pillars or conclusions. Through her cross-examination, defence counsel pointed out that Dr. Brankston’s conclusions were based on erroneous facts, which he admitted he was in error on. Among other things, Dr. Brankston:
thought Dr. Booth assessed the patient twice when in fact she assessed her five times;
thought Dr. Booth did not inquire into the respiratory, abdominal, or urinary condition of the patient, when in fact Dr. Booth’s dictated notes indicated to the contrary, as evidenced by her reported negative findings;
erroneously concluded that paramedics observed and reported that the patient had slurred speech, when in fact this was verbal history, given from the patient’s parents to the paramedics;
admitted that, based on her examination notes, Dr. Booth did consider other differential diagnoses other than intoxication, contrary to his initial criticism in his evidence in-chief; and
erroneously concluded that Dr. Booth didn’t examine the patient’s cerebellar functioning, when her notes indicated that she asked the patient to move her limbs, assessed her speech, and tested for the presence or absence of nystagmus, all of which indicated an assessment of cerebellar functioning;
Through cross-examination, and by skillfully showing how Dr. Brankston’s conclusions were based on facts not borne out in the evidence, defence counsel was able to entirely nullify the Plaintiff’s only standard of care expert.
"It would be dangerous, even on a balance of probabilities, for the court to accept the evidence..."
Dr. Brankston was forced to admit on several occasions that he was wrong in his conclusions and stated facts incorrectly; his evidence was rejected to such a degree that, in the words of Justice Gareau, it would have been dangerous for the court to accept:
[141] …The conclusions reached by Dr. Brankston and the foundations for the opinion reached by him are so replete with errors, misinterpretations and misunderstandings, as acknowledged by him in his evidence, that little weight can be given to the opinion that he provided to the court. It would be dangerous, even on a balance of probabilities, for the court to accept the evidence of Dr. Brankston to conclude that Dr. Karen Both failed to meet the standard of care expected of an emergency physician on October 17, 2013.
On the contrary, the standard of care expert for the defendant, Dr. Marco Sivilotti, seemingly performed well, and his conclusions were unshaken on cross-examination. Gareau J. found Dr. Sivilotti to be extremely knowledgeable, confident in his evidence and opinions, and described the basis of his conclusions in a clear and confident manner based on all the facts at hand. Gareau J. found Dr. Sivilotti to be “a textbook expert witness” and (amusingly) wrote “Dr. Sivilotti’s presentation in his evidence was smooth, not disjointed. I would describe Dr. Sivilotti as being as smooth as fine Italian silk.”
It is also worth noting that Justice Gareau preferred Dr. Sivilotti’s evidence in part because of his superior or more suitable credentials to those of Dr. Brankston, at least for the case at hand. Where Dr. Branston practiced emergency medicine on a part time basis, Dr. Sivilotti had immersed himself in emergency medicine fully and completely since graduating from medical school. [Para. 140]
Takeaways
Experts in medical malpractice cases are often chosen and engaged by counsel based simply on the fact that they can given a supportive opinion for the litigant that hires them – defendants and plaintiffs alike.
While it’s difficult to do so, litigators need to be willing and able to challenge the opinions of their own experts.
You must be able, with a critical eye, to review the facts of the case against the expert’s conclusions, just as you would do if you were opposing counsel tasked with cross-examining the expert. If an expert overstates or assumes something, be prepared for those aspects of the expert’s opinion to be challenged on cross-examination.
On cross-examination – be willing to dig into the foundation for a witness’s evidence and conclusions. Point out inconsistencies, demonstrate where assumptions have been made without factual backing, and give the court a reason to question the witness’s statements or even their credibility. If you succeed in doing this, like counsel in Sutherland et al. v Booth did to such a degree, the court may give less or no weight to that witness’s evidence.