The deck can certainly feel stacked against Plaintiffs’ counsel when preparing for the examination for discovery of a defendant in a medical malpractice case. Unlike in many other types of claims, the examination of a defendant healthcare practitioner usually involves delving into the intricacies of the diagnosis, management, and treatment of complex medical conditions, all of which the Defendant has learned about over the course of years with the benefit of formal education and clinical experience. What makes it even more daunting is the use of “medical-ease” -- an entirely new and strange language. Imagine preparing to do an examination for discovery in a motor vehicle case, having never seen a road or a car before and then doing the discovery in a foreign language, and you start to see the picture. Effective use of the law, tricks, tips, and a lot of learning from self-study and the right experts can help ensure you get the information you need to conduct a thorough and relevant examination of a healthcare Defendant.
CHARACTERISTICS OF THE TYPICAL MEDICAL MALPRACTICE CLAIM
The majority of medical malpractice cases will have at least some of the following characteristics that can increase the complexity or need for preparation in advance of a Defendants’ examination for discovery:
- The negligence may involve areas of specialized medicine that will impact either or both of standard of care and causation;
- The negligence may involve more than one point in time, and may involve years of diagnosis, care, and treatment involving some or all of the parties;
- Relevant health information, even if not related to the negligent conduct itself, may also span further years either before the relevant negligence, or after it;
- As a result of an extended time frame, or as a result of there being multiple defendants, the medical records relevant to the liability issues may number in the thousands of pages, may involve hundreds of practitioners, and may involve various areas of medical, nursing, or other expertise;
- Some medical records have become electronic, resulting in liability records that include a mixture of handwritten documents, electronic records, and meta-data;
- A full chronological picture of the events may require interweaving two or more sets of medical records from various healthcare providers with different interpretations of your client’s symptoms or condition;
- Some relevant or important information is protected from disclosure to Plaintiffs under the Quality of Care Information Protection Act, 2004;1
- The Canadian Medical Protective Association has a policy of not making “economic settlements.” The very real possibility of the transcript that is being created being used at trial should always be borne in mind.
This list is by no means exhaustive. The particular characteristics and challenges of medical malpractice cases will vary with each case. In virtually all cases, however, early preparation will allow Plaintiffs’ counsel to focus on the challenges that need the most attention. Two areas of preparation are worth special mention.
Learning the Medicine to Crystallize Your Theory
Learning the medicine has many benefits -- the obvious one being that you understand the ideas and processes being discussed in the medical records, along with the lingo used by the practitioners you will be examining. It is also important to know the medicine so that you can have a firm grip on the standard of care and causation issues. Understanding the medicine will ensure you ask the necessary and appropriate questions about what a physician or nurses’ standard practice is (because you will know what it should be), and will also ensure that you ask the necessary questions about alternative treatment options and treatment timing in relation to the causation issues. Perhaps most importantly, understanding the medicine will allow you to forget about the medicine (at least for now) and focus on the “thing(s)” that make your case a winning case. If you don’t know the medicine well enough to look past it and see the case as an advocate, you may miss the mark on what information you should really be going after.
If time allows, if the negligence involves diagnosis, treatment, or complex care decisions, if the entire area of medicine is new to counsel, and if the issues are particularly complex, it is often essential to seek the advice of an expert in advance of the examinations for discovery. Unless the case involves a simple failure to review a report that was in the physician’s file, for example, or involves a clear and straightforward error, counsel should try and consult with an expert as soon as possible after being retained on a case. With the Court of Appeal’s pronouncement in Moore v Getahun, it is now clear that counsel can utilize the assistance of an expert in advance of discoveries without being compelled to keep all discussions in writing, and without being worried that counsel for the Defence will have an opportunity to sift through an expert’s file.2 Informal discussions with key experts can be an invaluable way to learn the medicine and learn how to focus your examination for discovery. If, for whatever reason, an expert has been hard to come by, counsel should try using journal articles, textbooks, and online resources like Up-to-Date. Ideally, both types of resources should complement each other with the goal of having counsel feel well versed and comfortable with the medicine before stepping into the examination for discovery.
Early Document Gathering and Review
Understanding your case well in advance of the examination is vital to ensuring you are asking all the necessary questions. In order to ensure that you, and your expert, have the clearest picture possible of the case, a well-drafted discovery plan should be used along with a detailed review of all available documentation. In accordance with Rule 29.01 of the Rules of Civil Procedure (Ontario), every case should have a well-developed and well-thought out Discovery Plan. This is a rule that Plaintiffs’ counsel should use to their advantage. A well thought out discovery plan will allow you the opportunity to consider all of the different aspects of your case that may be relevant. It will also assist in identifying what records should be included in the opposing party’s productions and reviewed well in advance of the examination for discovery. Particular consideration should be given to whether or not any of the following documents should be requested before you examine a healthcare practitioner Defendant:
- Electronic records that may not have been produced when you ordered the records to investigate the claim;
- Records from other departments within a hospital that often keep their own records such as out-patient clinics;
- Actual copies of the relevant radiology imaging, including radiology requisitions and protocolling documents;
- Paging records, locating records, or meta-data such as formal audit trails; and,
- Screenshots, internal logs, and on-call schedules or staffing schedules.
If you are able to get and review the necessary information in your case in advance, you can refine your theory and ensure that you are asking all of the pertinent questions that you will inevitably need answers to down the line. Preparing for these examinations well in advance by reviewing the medicine and knowing the available record will increase counsel’s confidence and ensure that counsel appears knowledgeable and effective while examining a healthcare practitioner Defendant.
TOOLS FOR THE EXAMINATION
The scope of an examination for discovery of a healthcare professional is the same as with any other defendant, but with potentially very different consequences. The scope of the appropriate examination remains the “knowledge, information, and belief” of the deponent. As medical professionals are experts in their field, however, an examination for discovery is an important part of exploring just what “knowledge” a Defendant has about the area of medicine relevant to the case. Counsel can use the examination as an opportunity to establish basic, but strategic, points about the medicine at issue in the case. Recall that the case law has determined that counsel can ask about expert opinions that fall within the witnesses’ every day expertise.3 Asking about a Defendant’s knowledge and expertise may also include asking a Defendant radiologist or other similar Defendant to review the relevant medical imaging (or other evidence, such as fetal strips) during the examination. This will allow the examiner to get the Defendant’s evidence on these vital issues early, and get the Defendant to explain how they generally review it, what they were thinking or would have been thinking, or what their usual practice was.
Expert Evidence on the Standard of Care
An important caveat to the permissible practice of having a Defendant give you their evidence based on their expertise is that a Defendant witness cannot be asked to comment on the standard of care of another Defendant. That being said, creative question asking can result in various proper questions that get similar evidence anyway, including having a witness comment on issues in a general sense (see above), and in the context of hospital or multi-disciplinary team cases by having a witness comment on what they would have expected to have been told by another Defendant, what they would have expected to have happen (due to another Defendant), or similar questions. Questions relating to how the Defendants expected each other to work on their team are directly relevant, proper, and should be asked.
Although such questions are often objected to by counsel for the Defendant, hypothetical questions are allowed, so long as they aren’t speculative in nature.4 A common scenario in modern healthcare is the “team approach” which has various professionals, with various specialties, participating in aspects of a patient’s care to varying degrees. This model requires effective communication between members of the team. As such, the negligence being claimed when such teams are involved may involve a failure of one piece of information to make it from one member of the team to another. With these cases, and indeed many others, counsel should ensure that they ask questions relating to how, or in what way, the missing piece of the puzzle would have made a difference in the Defendant’s thoughts, actions, or in a patient’s outcome. Such questions will often provide vital information. Counsel should not shy away from asking hypothetical questions that are pertinent to how decisions were made and information was obtained, and at the very least, should get such questions on the record and strongly consider the need for a motion in the event they are not answered.
Managing “invariable practice” evidence
Given the large number of patient interactions a health professional may have during a day, week, or year; it is not uncommon to examine Defendants who have unclear or incomplete memories of the events and interactions at issue. Importantly, a practitioner’s “invariable practice” is often led by the Defendants at trial, and accepted by triers of fact as compelling evidence of what likely occurred in a particular patient’s situation. In order to ensure that counsel has the information needed, it is imperative that a health practitioner’s “invariable practice” is probed during an examination for discovery. Luckily, the recent Court of Appeal decision Barber v. Humber River Regional Hospital5 reminds us that although “invariable practice” evidence can be persuasive and powerful, a trier of fact is not required to accept it to explain what happened in a particular instance. Regardless of whether or not it is ultimately accepted at trial, and to ensure counsel has all the possible pieces of the puzzle, asking about “invariable practice” as well as the particulars of the case at hand, is an absolute must.
A Refusal Can Be a Good Thing
When it comes to trial, and the expert medical Defendant testifies, it can be overwhelming to have not only the Defendant’s experts, but also the Defendant, provide evidence in line with the Defence medical theory of the case. This ability of Defendants to give evidence as a party and also as an expert in medicine (due to their training and experience), can be intimidating. A Defendant is not allowed to opine on the standard of care or causation directly, however, good questioning by Defence counsel at trial will allow a Defendant to discuss their training, understanding, views, and knowledge about medicine in a very credible way that is hurtful to the Plaintiff’s case. As such, it is imperative to get a Defendant’s version of the medicine at the examination. If Defence counsel refuses such questions, however, there continues to be recourse under Rule 31.07 of the Rules of Civil Procedure (Ontario). The Rule states that any question that is refused at discovery will result in that party being unable to introduce that information at trial without leave or the trial Judge. As an example, if a Defendant radiologist refuses to review relevant radiology imaging with counsel at discovery, or discuss what their recent review of the imaging has shown, the Defendant radiologist could be prevented from reviewing that imaging during the trial as part of their evidence. The exclusion of such evidence could be devastating for a Defendant at trial, as it would prevent the trier of fact from knowing or seeing what the Defendant says they really did or saw. The best way to maximize the possibility of having any information derived from refused questions excluded at trial is to ensure every refusal has some important components documented in the transcript:
- Ask clear questions and rephrase the question if necessary;
- Always ask for the basis of the refusal, repeat the reasoning on the record to ensure Defence counsel’s reasoning is also clear;
- State a brief reply or rebuttal to the stated reason for refusal;
- Clearly state that you will be relying on the Rules at trial, and will be objecting to any evidence being led through the witness on this issue at trial;
- Following the examination, write a letter to counsel re-stating that you will be relying on the Rules at trial and ask if they will reconsider their refusal.
NEVER BE AFRAID TO ASK
One of the most common difficulties in the examination for discovery process relates to the fear of asking questions when faced with a knowledgeable Defendant, especially one that is talking about complex issues that are foreign to the examiner. The reality is that with careful preparation and well-armed knowledge of the relevant medicine, the examiner can and should be able to level that playing field at least to a reasonable extent. That said, never be afraid to ask all of the questions that allow you to fully understand the Defendants’ evidence and position. All too often, counsel get intimidated by the witness’s knowledge and fail to ask follow-up questions in order to truly understand the evidence being given. As a simple rule, if you don’t have a full understanding of the evidence, there is nothing wrong with asking the witness to explain it in a manner which you can understand. This may allow you to formulate further follow-up questions which are necessary in order to tie down the evidence. While it may seem self-evident, it is always helpful to bear in mind that the evidence adduced at examination for discovery cannot hurt you in any real way. What can hurt you is not knowing in advance the evidence that the Defendant may give on a particular point until trial.
On a similar note, it is imperative that the examiner not be tied to a script in terms of the questions to be asked. In many cases, the most fruitful areas of examination arise from a careful consideration of the witness’s answers and a dissection and exploration of those answers in order to get further detail. We have no doubt all been faced with situations where we review the discovery transcript at later date and with more medical knowledge and wonder to ourselves why we did not explore a particular area further. This is an occupational hazard and can perhaps never be completely eliminated. However, it can be reduced significantly by paying careful attention to the witness’s answers and exploring all avenues opened up by those answers rather than sticking to a discovery script prepared ahead of time. Again, counsel’s ability to do this on a constructive basis will be increased exponentially the more one is prepared in advance and the more one has a consistent and coherent theory of the case and the medicine before the examination begins.
While these tips will never guarantee each and every examination for discovery will be an un-mitigated success, we hope that at least some of them may be of assistance in increasing the productivity of the examination process.
- Quality of Care Information Protection Act, 2004, SO 2004, c 3.
- Moore v Getahun, 2015 ONCA 55, 124 OR (3d) 321.
- Beber v Bloch,  OJ No 2142 at para 21, 48 CPC (4th) 153 (Ont Sup Ct J); Air Canada v McDonnel Douglas Corp,  OJ No 195 at para 81, 22 OR (3d) 140 (Ont Master).
- Motaharian v Reid,  OJ No 1947 at para 3, 39 CPC (2d) 141 (Ont H Ct J).
- 2016 ONCA 897.