Home > Case Law Studies, Expert Witness > Lacked independence and objectivity of Expert Witness: Day v. Karagianis (Newfoundland)

Lacked independence and objectivity of Expert Witness: Day v. Karagianis (Newfoundland)

[4] The specific duties and responsibilities of an expert witness who testifies at a trial were outlined by Cresswell J. in The Ikarian Reefer (1993), 2 Lloyds Reports 63 (Comm. Ct. Q.B. Div.) at page 81 (edited) as follows:

1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.

2. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise.

3. An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.

4. An expert witness should make it clear when a particular question or issue falls outside his expertise.

5. If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one. In cases where an expert witness who has prepared a report could not assert that the report contained the truth,  [*3] the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report.

6. If, after exchange of reports, an expert witness changes his view on a material matter having read the other side’s expert’s report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the Court.

7. Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports.”

[5] Generally, in medical malpractice cases, the parties engage the services of expert witnesses who prepare reports and testify at the trial. In preparing the reports and during their testimony the experts have a duty to the Court:

(a) to be true to their profession or discipline;

(b) to be as objective and independent as the circumstances permit;

(c) to refrain from acting as an advocate;

(d) to avoid any predetermination or bias;

(e) to refrain from giving legal opinions; and

(f) to avoid pejorative or judgmental language.  [*4]

[11] Some examples of pejorative and judgmental language used by Dr. Stein in the Report are as follows:

(a) Therefore certification contravenes … the Mental Health Act (page 9)

(b) This is evidence of unethical behaviour on Dr. Craig’s part. (page 11)

(c) The confirmation of certification was illegal. (page 20)

(d) Ms. Day was detained illegally. (page 26)

(e) The Mental Health Act was breached when Ms. Day’s appeal for release went unheard. (page 26)

(f) This is a blatant abuse of power on [*13] the part of the physicians. (page 26)

(g) Several breaches of the Mental Health Act occurred. (page 28)

(h) This statement of Dr. Craig’s is incorrect (page 3 of Appendix IX)

(i) This is documented in Dr. Craig’s progress note of December 5th and is unethical and dangerous practice. (page 4 of Appendix IX)

[12] I find that the Report is inadmissible as evidence in whole or in part because it:

(a) lacked independence and objectivity;

(b) contained pejorative and judgmental language;

(c) made legal interpretations and conclusions;

(d) was an instrument of advocacy and argument on behalf of the Plaintiff; and

(e) failed to confine itself to the appropriate area of expertise.

******************************************************************************************************

Between Judith Day, plaintiff, and James Karagianis, first defendant, and David Craig, second defendant, and The Health Care Corporation of St. John’s, third defendant
INDEXED AS: Day v. Karagianis
Docket: 1998 St. J. No. 4087
Newfoundland and Labrador Supreme Court – Trial Division
St. John’s, Newfoundland and Labrador
JUDGES: Halley J.
[2005] N.J. No. 23; 2005 NL.C. LEXIS 16; 2005 NLTD 21

DATE INFORMATION: January 11-13, 2005 Judgment: January 26, 2005.
JUDGMENT DATE: January 26, 2005
SUMMARY: [*1] Facts: A psychiatrist prepared a written report on behalf of the Plaintiff in relation to her claim of medical malpractice.

Issue: Is the report admissible as evidence?

Held: The report was ruled inadmissible because it: (a) lacked independence and objectivity; (b) contained pejorative and judgmental language; (c) made conclusions and interpretations of the law; (d) was an instrument of advocacy and argument on behalf of the Plaintiff; and (e) failed to confine itself to the appropriate area of expertise.

COUNSEL:
Judith Day representing herself

Peter N. Browne, counsel for the First and Second Defendants

Daniel M. Boone, counsel for the Third Defendant

JUDGMENT:
DECISION OF HALLEY, J.

[1] HALLEY J.:– The Plaintiff has commenced this action against the Defendants alleging medical malpractice.

[2] The Plaintiff wishes to introduce as evidence a medico-legal report pursuant to Rule 46.07 of the Rules of the Supreme Court, 1986. That report was prepared by Dr. Eleanor Stein, who is a psychiatrist practicing in Calgary, in the Province of Alberta (“Report”).

[3] This is an application by the First and Second Defendants for an order that the Report should be ruled inadmissible as evidence in this trial.  [*2]

I. EXPERT EVIDENCE

[4] The specific duties and responsibilities of an expert witness who testifies at a trial were outlined by Cresswell J. in The Ikarian Reefer (1993), 2 Lloyds Reports 63 (Comm. Ct. Q.B. Div.) at page 81 (edited) as follows:

1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.

2. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise.

3. An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.

4. An expert witness should make it clear when a particular question or issue falls outside his expertise.

5. If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one. In cases where an expert witness who has prepared a report could not assert that the report contained the truth,  [*3] the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report.

6. If, after exchange of reports, an expert witness changes his view on a material matter having read the other side’s expert’s report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the Court.

7. Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports.”

[5] Generally, in medical malpractice cases, the parties engage the services of expert witnesses who prepare reports and testify at the trial. In preparing the reports and during their testimony the experts have a duty to the Court:

(a) to be true to their profession or discipline;

(b) to be as objective and independent as the circumstances permit;

(c) to refrain from acting as an advocate;

(d) to avoid any predetermination or bias;

(e) to refrain from giving legal opinions; and

(f) to avoid pejorative or judgmental language.  [*4]

II. FACTS

[6] In determining whether the Report is admissible as evidence, I find the following excerpts particularly troubling:

(a) Summary Re: Committal

The Mental Health Act in use at the time of the committal of this patient required that the patient 1. has a mental disorder – this appears to have been true at the time of the admission though the diagnosis was incorrect, 2. is unwilling to accept admission – This was not true, since the patient willingly accepted the transfer to the Waterford after being told there were no beds at the HSC; and knowing that she was ill with the same thing she had had 10 years ago, likely a toxic drug reaction, 3. is a danger to him/herself, the safety of others or property. There was no evidence of #2 or #3. Therefore the act of committal was invalid in this case. (page 8)

(b) Several breaches of the Mental Health Act were committed during this admission:

1. The patient came to hospital voluntarily and asked to be admitted and supervised. Therefore certification contravenes Chapter M-9 section 6d of the Mental Health Act. The certification paper signed by Drs. Pratt and Karagianis incorrectly state that the patient refused admission.  [*5]

2. The patient showed no signs of mental disorder and certainly posed no threat to herself, others or property from the third day of admission onwards. The certificate should have been lifted at that time.

3. At no time was the patient noted to be incompetent. Yet when she began refusing to take her medication due to side effects, the staff told her that she could be forced to take medication if she did not comply.

4. The patient completed the application to go to the Review Board. A signed, dated copy of that application is attached as Appendix V. This application was not submitted to the review board until three weeks later. This is evidence of neglect as defined by Chapter M-9 section 20 of the Mental Health Act.

5. The patient’s certification was confirmed 15 days after admission. By this time the patient had been repeatedly reported as acting normally in the nursing notes. There was no evidence of mental illness nor danger to herself, others or property. Therefore, the confirmation of certification was illegal.

6. The confirmation of certification was completed by a Dr. Coovadia. The patient has no recollection of ever meeting or talking to this physician. In her personal [*6] diary written during hospitalization there is no mention of such a meeting. In the medical record there are no notes from Dr. Coovadia. On the certification form of May 30th, Dr. Coovadia uses only words already used in the medical record by other observers. There is no evidence that he ever interviewed the patient. Therefore the confirmation of certification was not completed in accordance with Chapter M-9 section 5(4)a of the Mental Health Act, requiring that the physician shall “personally examine” the patient before completing a certificate”. (page 9)

(c) Summary re: Drug Side Effects

The admission progress notes show a temporal connection between the use of lithium and the patient’s side effects of nausea and vomiting. Ms. Day’s protests of the same were repeatedly ignored. In the progress notes of December 5th, Dr. David Craig states that he is intentionally prescribing twice the necessary amount of medication. Given the severity of the side effects the patient experienced on a low dose of lithium, this order puts the patient at serious risk of toxicity. The discharge summary implies that the patient’s nausea and vomiting (side effects of treatment prescribed by Dr. Craig)  [*7] were psychogenic or voluntary to try to avoid discharge. Given the patient’s dislike and distrust of hospitals since the Waterford admission such an assumption seems very unlikely. Ms. Day was at no point judged as incompetent nor was she certifiable under the Mental Health Act. This is evidence of unethical behaviour on Dr. Craig’s part. (page 10)

(d) Regarding the truthfulness of Dr. Craig

It seems that Dr. Craig was not being entirely truthful in his answers to the interrogatories. He states in point 12 that he “has no personal recollection of any statements by Ms. Day concerning her previous psychiatric history or any disagreement with the interpretation of the history of her illness. There are several clear references to this in the medical record:

Appendix IV. May 19/10 “Judy believes she has been given the wrong diagnosis and will not take Lithium”.

Appendix IV, May 21/16 “Judy maintains that she had another psychotic episode due to Trinalin and that manic depression is not her problem?”

Appendix VI, November 27/9-12 “Increasingly hyper and came into hospital before I reach the point of an outburst”. Judy was prescribed Prozac 20 mg and Lithium by Dr. Karagianis, which [*8] she believed was causing her problem.

Appendix VI, November 29/18 “Does not believe she is bipolar”. (page 17)

(e) Summary of Statement of Claim:

To treat, as Dr. Karagianis suggests, only when diagnosis has been established results in substandard medical care. Kroenke et al published a well known paper in 1989 showing that only 16% of patients presenting to primary care with a variety of non-specific symptoms such as: pain, fatigue, dizziness, headache, edema, back pain, dyspnea, insomnia, abdominal pain, numbness, impotence, weight loss, cough, and constipation were found to have a provable organic etiology (Kroenke & Mangelsdorff, 1989). Therefore treating on the basis of diagnosis would leave 84% of patients with inadequate treatment. In these cases one must treat on a symptomatic basis.

Ms. Day’s diagnosis was unclear at the time of admission and she had an underlying diagnosis (Fibromyalgia), which was not made by the attending staff. Therefore treating based on diagnosis resulted in harm, whereas listening to the patient and treating on a symptomatic basis, as was done in 1983 by Dr. Jain, may well have averted the severe consequences which resulted. (page 25)

(f) Abuse [*9] of power resulting in harm

Ms. Day was threatened with assaultive action (intramuscular drugs) if she did not comply with oral treatment and therefore complied, but suffered significant side effects from the treatment. This is a blatant abuse of power on the part of the physicians. The patient’s repeated complaints of side effects were ignored. The diagnosis and treatment during the Waterford admission influenced future care and Ms. Day remains labelled with the moniker of Bipolar Disorder to this day, even though since January 19, 1998, she decided to cease all medication and direct her own treatment. The involuntary hospitalization and misdiagnosis of Bipolar Disorder caused Ms. Day pain and suffering through a) alienation from her family, 2) the psychological impact of having her basis right of freedom removed, 3) the physical and cognitive effects of the involuntary medication and 4) loss of her job and income as a direct result of misdiagnosis, stigma in the workplace induced by Dr. Craig’s communication and drug side effects. (pages 26 & 27)

(g) Misdiagnosis

Physicians like other human beings can and do make mistakes. Therefore the initial misdiagnosis of Bipolar disorder [*10] rather than drug induced psychosis is not in itself negligent. It can be difficult to differentiate between psychotic conditions in the moment. However negligence occurred cumulatively over time when the patient’s version of events, including her personal health history, was ignored and when she was treated against her will in a harmful manner over a 2 year period.

The diagnostic criteria for Fibromyalgia were published in 1990. By 1995, the diagnosis of Fibromyalgia should have been well known to all psychiatrists. Whereas Dr. Jain could be excused for misdiagnosing continued infection, pain and fatigue as signs of depression, this was no longer acceptable in 1995. Never the less, both Drs. Karagianis and Craig would have avoided negligent behaviour if they had listened to the patient, instead of insisting they knew best. The dismissal of Fibromyalgia as a psychiatric or psychosomatic disorder is not acceptable. Deale & Wessely, conservative researchers from Oxford University in the UK have reported that “of patients with Chronic Fatigue Syndrome (a similar and overlapping disorder to Fibromyalgia) who had previously been given a psychiatric diagnosis, 68% had been misdiagnosed”  [*11] (Deale & Wessely, 2000). If this is true then a majority of the 500,000 persons in Canada with Fibromyalgia have likely been misdiagnosed. If Ms. Day’s case is successful, health care for many of these may improve”. (page 27)

(h)

In conclusion I find the case presented by Ms. Day to be strongly supported by the medical record. Several breaches of the Mental Health Act occurred. She was misdiagnosed and mistreated and suffered harm as a result. Her opinions were not listened to. She was not treated with respect. The health care system failed Ms. Day in that it did not follow the credo that has defined medicine since it’s inception “first do no harm”. (page 28)

IV. ANALYSIS

[7] On the basis of the Report (in general) and the above excerpts (in particular) the following are my findings:

(a) Mental Health Act

[8] Throughout her Report, Dr. Stein makes numerous references to the Mental Health Act, R.S.N.L., 1990, c. M-9 (“Act”). She interpreted certain provisions of the Act and concluded that the Defendants breached the provisions of the Act. This clearly went beyond the mandate of an expert in preparing a medico-legal report. Legal findings and factual inferences are the  [*12] sole responsibility of the trier of fact.

(b) Statement of Claim

[9] Dr. Stein quoted extensively from the Statement of Claim. She considered the allegations of negligence and concluded that the Defendants were guilty of medical malpractice. Again, these are findings which are reserved exclusively for the trier of fact.

(c) Advocacy

[10] The arguments on behalf of the Plaintiff which permeate the Report amount to advocacy which would be acceptable in a legal brief prepared by a lawyer but is fatal in a report prepared by an expert witness. It is a breach of the expert’s duty to the Court to provide an objective and independent opinion.

(d) Pejorative remarks

[11] Some examples of pejorative and judgmental language used by Dr. Stein in the Report are as follows:

(a) Therefore certification contravenes … the Mental Health Act (page 9)

(b) This is evidence of unethical behaviour on Dr. Craig’s part. (page 11)

(c) The confirmation of certification was illegal. (page 20)

(d) Ms. Day was detained illegally. (page 26)

(e) The Mental Health Act was breached when Ms. Day’s appeal for release went unheard. (page 26)

(f) This is a blatant abuse of power on [*13] the part of the physicians. (page 26)

(g) Several breaches of the Mental Health Act occurred. (page 28)

(h) This statement of Dr. Craig’s is incorrect (page 3 of Appendix IX)

(i) This is documented in Dr. Craig’s progress note of December 5th and is unethical and dangerous practice. (page 4 of Appendix IX)

[12] I find that the Report is inadmissible as evidence in whole or in part because it:

(a) lacked independence and objectivity;

(b) contained pejorative and judgmental language;

(c) made legal interpretations and conclusions;

(d) was an instrument of advocacy and argument on behalf of the Plaintiff; and

(e) failed to confine itself to the appropriate area of expertise.

[13] Although the Report is inadmissible as evidence, this ruling does not preclude the Plaintiff from calling Dr. Stein to testify at this trial. In the event that Dr. Stein is called to testify, the following shall apply to her testimony to ensure that her evidence complies with this ruling:

(a) she shall be examined as to her professional qualifications and, if qualified to testify as an expert, the appropriate areas or her expertise shall be determined;

(b) Dr. Stein shall be examined [*14] by the Plaintiff on the basis of a series of hypothetical questions;

(c) that during her testimony Dr. Stein shall be directed to:

(i) refrain from offering opinions on the interpretation of legislation or the legal responsibilities of physicians, nurses or hospital administration;

(ii) refrain from making factual inferences that do not require expert analysis;

(iii) limit her opinion on the conduct of the Defendants as to whether or not the Defendants’ conduct met or failed to meet relevant professional standards; and

(iv) generally confine her evidence to the proper and appropriate role of an expert witness.

[14] The costs of this application shall be costs in the cause.

HALLEY J.

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