The debate continues as to whether family physicians may testify as experts or only as fact witnesses. In this case, the issue arose with a bit of a twist: the court opened the door for the plaintiff’s family doctor to testify as an expert on the issue of standard of care in a medical malpractice action. In other words, the treating physician would be testifying, not as to damages, but on the issue of liability.
In Farooq v. Miceli, 2012 ONSC 558 (CanLII), the defendant doctor brought a motion for summary judgment on the basis that the plaintiff had failed to obtain an expert’s report on the standard of care.
The motion was heard by Mr. Justice Peter D. Lauwers, who conditionally dismissed it (see below). Counsel for the plaintiff evidently argued that the plaintiff’s family doctor, who had testified that the defendant’s discipline hearing before the College of Physicians and Surgeons, could supply the requisite expert evidence.
Justice Lauwers began by voicing some unhappiness over the changes that have been made to rule 53.03. He said that “one of the regrettable side effects of the changes to the rules has been to sow some confusion about the evidence that can be given by individuals who may not be qualified to be experts under the rule 53.03 but who nonetheless have relevant evidence to give that includes an element of expertise. The best example of such a witness is a treating physician.”
His Honour went on to say that, “for practical purposes, treating physicians have always been allowed to give evidence and have been allowed to give opinion evidence about their working diagnosis and working prognosis. Treating physicians use their expertise to form opinions routinely in the examination of patients, in their assessment of patients and in their treatment.”
Justice Lauwers referred to several cases: Beasley v. Barrand, 2010 ONSC 2095 (CanLII), Gutbir v. University Health Network, Nicholson, 2010 ONSC 6394 (CanLII), Williams v. Bowler, 2005 CanLII 27526 (ON SC), Chrappa v. Ohm, 1996 CanLII 8002 (ON SC) and Greer v. Horton,  O.J. No. 4826 (S.C.). He adopted the following observation, made by Madam Justice Toscano-Roccamo in Williams v. Bowler:
A medical witness who “wears two hats”, and who testifies both as a treating physician and as an expert may, depending on the circumstances of the case, be in the best position to offer first-hand observations as to the patient’s condition over the course of medical history; however, to the extent that the physician has any personal interest in the outcome of the case or lacks the objectivity and independence essential to the medical expert, this may adversely affect the weight to be given to the expert testimony.
(The same passage was also quoted with approval by Madam Justice Wilson in the Gutbir case.)
Justice Lauwers also noted, based on his review of the authorities, that family doctors who testify as experts are subject to challenge in cross-examination.
His Honour then concluded that the plaintiff’s family physician could testify on the issue of standard of care, provided that the requirements of rule 53.03 were satisfied:
Based on the foregoing, I conclude that Dr. Sidhu is not incapable of providing an expert opinion to the court on the standard of care applicable to Dr. Miceli [the defendant]. I put the proposition that way because the final decision on Dr. Sidhu’s qualifications is that of the trial judge after a voir dire. My decision is simply that Dr. Sidhu is not disqualified because he was and is Mr. Farooq’s treating physician.
Accordingly, if Dr. Sidhu prepares and serves a report that complies in substance with rule 53.03 within 30 days of the date of this order, the motion will be dismissed with costs to the plaintiff.
We have not been able to find another case in which a treating physician has been permitted to give expert evidence on the issue of standard of care in a professional negligence case (which is not to say that no such decision exists). However, Justice Lauwers’ decision does seem to run contrary to the trend of the jurisprudence since the Rules of Civil Procedure were amended. In Leonard v. Kline, 2011 ONSC 2730 (CanLII) for instance (a case about which we commented in an earlier post), Justice Gregory Ellies seemed to take it as a given that treating physicians would only be permitted to testify as fact witnesses.
Likewise, in the Gutbir case, to which Justice Lauwers made reference, Madam Justice Wilson said that “counsel were candid in their acknowledgment that they were not aware of any decisions dealing with treating doctors qualified as experts in medical negligence cases tried with a jury since the amendments to rule 53 in January 2010”. She went on to say:
While counsel for the Plaintiffs referred to several cases in which treating physicians were qualified by the court to give expert testimony, in my view these cases were not helpful to the issue I must determine because the facts were very different. In M.(N.) v. Alberta (Public Trustee) (2003), 34 C.P.C. (5th) 225 (Alta. C.A.), the judge stated that in a small centre, it was not uncommon for treating doctors to be expert witnesses at trial and opinion evidence was usually sought from treating specialists. That is certainly not the case in the city of Toronto.”
However, so far as we can see, even in the cases in which there was a debate as to whether or not the family physician could properly testify, it was the issue of damages upon which the treating doctor was being asked to opine. There, at least, the greater familiarity with the plaintiff that the family doctor would obviously enjoy might allow him or her to provide greater assistance to the court with respect to the plaintiff’s prognosis, likelihood of employment, etc.
Eliciting opinion evidence from the plaintiff’s family doctor on the issue of liability seems to us to be quite a bit more controversial. In that context, being a treating physician affords no obvious benefit over the testimony of a medical witness who has had no ongoing relationship with the plaintiff. It seems to us that permitting family doctors to offer opinion evidence on the issue of standard of care ought not to be encouraged.