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"Seven Words of Discovery"

Although not a BC case, interesting reasons for judgement were recently brought to my attention from the Suprerior Court of Jutice, Ontario, judicially criticizing an overly “protective approach” to the defence of a medical-malpractice lawsuit.
In the recent case (Ornstein v. Stein) the defendant surgeon “mistakenly operated on the plaintiff’s thumb instead of her right fifth finger“.  He was sued for damages.  At his examination for discovery only the following seven words were extracted from him before his counsel objected to all subsequent questions:

.         Q.        Please state your full name for the record

A.        Joseph Auby Starr.

.         Q.        And you are a doctor

A.       I am.

.         Q.        And do you have a specialty?

A.       Plastic surgery.

Much of the subsequent transcript is reproduced in the reasons for judgement.  Liability was initially denied but the defendant admitted to “breaching the standard of care” shortly before his examination.  Given this admission the Defendant’s lawyer objected to all questions that followed.  Some of the objected questions included

And how long have you been carrying on as a plastic surgeon

When did you first meet the Plaintiff

Did you examine her hands at the time when you first met her?

Did you made any observations of the condition of her fingers when you first examined her?

Master Short noted that these questions were fair game and ordered the Doctor to answer them.   In addition the Plaintiff was awarded costs of $9,000.   In doing so the Court highlighted and provided comments about the protective approach the Canadian Medical Protection Association engages in when facing medical malpractice lawsuits.  Master Short provided the following comments:

[] The Strategic Plan notes that the CMPA “is owned and governed by physicians in the collective interests of the profession.” The Association’s core values guide its actions and fall within three broad commitments. In addition to a “Commitment To Responsible Governance And Management”, the other two identified commitments are relevant, in my view, to the correct approach to the resolution of this motion. In part the “Commitments” read:


• An ethical defence. The integrity and professional reputation of physician members are two of their most valued assets. The CMPA provides members with an ethical defence and, in keeping with its approach of “defending the defensible,” does not settle unsubstantiated claims for expediency or economic reasons.


• Financial compensation. If patients are proven to have been harmed as a result of negligent medical care provided by a CMPA member, assistance will be available to compensate those patients in an appropriate and timely manner. [my italics and underlining throughout]

[] The CMPA’s Strategic Plan identifies 5 desired strategic outcomes. The first of these is entitled “Strategic outcome #1 — Protecting members’ integrity”. One of the five identified Objectives in this regard reads:

“1.2 To promote appropriate measures that encourage the timely resolution of medico-legal matters. Regardless of the circumstances, medico-legal matters are stressful for all involved: physicians, other health care providers, patients and their families. The CMPA will actively promote measures that respect the right to procedural fairness and encourage the timely resolution of such matters. This will reduce system costs, improve accessibility to justice and reduce the stress experienced by physicians and their patients.” [my emphasis]

[] I am troubled that the approach taken in this case does not strike me as being in accord with the objectives described above. I would hope those responsible for the approach in this case would re-evaluate whether the strategy used in this case to date, accords with the requirements of procedural fairness in the administration of justice in present day Ontario.

examination for discovery, Ornstein v. Stein

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