Is applicant's death due to physician error? The Estate of Carlo Demarco et al. v. Dr. Martin et al., 2018 ONSC 5948

November 01, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

The Estate of Carlo Demarco et al. v. Dr. Martin et al., 2018 ONSC 5948

Date of Decision: October 5, 2018
Heard Before:  Justice A.K. Mitchell

Death Caused by Physician’s Failure to Act in Timely Manner: applicant claims that physicians failure to refer to specialist contributed to death of patient; defendant claims the patient would have died regardless of the referral as the waitlist period was longer than the time in which the patient died; applicant refutes physicians calculation of waitlist times and calls evidence hearsay

The Estate of Mr. Demarco allege that the defendant, Dr. Rene Martin’s admitted failure to send a cardiology referral on June 13, 2011 caused the sudden death of Carlo DeMarco on August 21, 2011. The defendant admits that his failure to send the referral to Dr. W on June 13, 2011 constitutes a breach of the standard of care of a physician practicing family medicine in Ontario in the summer of 2011. An autopsy revealed that Mr. DeMarco’s cause of his death was cardiac arrhythmia.
Dr. Martin defends this claim, in part, on the basis that had the referral been sent on June

13, 2011, Mr. DeMarco would not have undergone a stress test and received treatment for his coronary artery disease before the events of August 20, 2011 which led to his sudden death, based on the average wait time for non-urgent referrals to Dr. W, in other words his breach of the standard of care did not cause the death of Mr. Demarco.

Dr. W testified at trial that the average wait time in the summer of 2011 for a stresstest for patients referred to him on a non-urgent basis was 6-8 weeks. He went through the methodology his office uses to prioritize patients.

The plaintiffs submit that in arriving at the 6-8 week estimate, Dr. W relied on areview of patient records and information summarized in the chart which was the combined work product of a software developer and a technologist, both employees of Dr. W. The plaintiffs’ concern lies in the fact that Dr. W did not personally conduct the review or verify independently the accuracy of the information contained in the chart. On that basis the information contained in the patient records is hearsay and the information contained in the chart is hearsay because both the records and the summary of information contained in the chart were not prepared by Dr. W, and his evidence is, therefore, inadmissible.

The defendant takes the position that neither the information contained in the patientrecords nor the extracted information summarized in the chart are hearsay and both are therefore admissible.


The plaintiffs challenge the admissibility of those parts of Dr. W’s evidence that support his estimated wait time of 6-8 weeks and challenge the average wait time of 59 days for the 75 patients referred to him in June 2011 for a routine stress test. The plaintiffs challenge the calculation of 59 days because Dr. W was not involved in the process which generated the summary of information which provided the foundation for the 59 day estimate.

The Justice reviewed hearsay noting that classic hearsay evidence consists of an out of court statement that is being tendered for its truth. Hearsay is presumptively inadmissible.

Hearsay has four essential elements: (i) a declarant; (ii) a recipient; (iii) a statement; and(iv) its purpose is to prove the truth of the statement and not that the statement was made. Such a purpose offends a cardinal underpinning of due process of law being the right to cross-examine the declarant to test the reliability of the out-of-court statement.

Neither the chart nor the 75 patient records were sought to be made exhibits at trial. Dr. W testified that the average wait time for the 75 patients referred in June 2011 was 59 days. Although he did not calculate the figure – no one disputes that it is a correct mechanical calculation having regard to the individual wait time for each of the 75 patients listed in the chart.

The chart was the tool used by Dr. W to refresh his memory of dates and assessmentsrelating to the 75 patients referred for a stress test in June 2011 for the purpose of supporting his original evidence of a 6-8 week average wait time for referrals received in the summer of 2011. The plaintiffs were entitled to test Dr. W’s evidence which they did both at trial and earlier on Dr. W’s cross-examination as part of their production motion.

The process undertaken to prepare the chart was challenged at trial.  It is the reliability of the process undertaken to generate the chart and not the reliability of the information contained in the chart itself that the plaintiffs challenge. Weaknesses or limitations in the process undertaken by Dr. W’s administrative staff goes to the weight and reliability of the 6-8 week estimate and more importantly the 59 day average wait time calculated from information contained in the patient records for the 75 patients referred for a stress test in June 2011.

In this case, Dr. W is ostensibly the declarant of the information contained in the patient records. The patient records, from which the information contained in the chart was extracted, contain the first-hand knowledge of Dr. W. Dr. W received the 75 patient referrals directly and would therefore have known the date on which they were received. Dr. W reviewed each referral and made a decision whether the referral was routine or urgent. Dr. W attended with each of the 75 patients on the date on which their respective stress test was conducted and therefore knew the date of the stress test.  Understandably given his patient load coupled with the passage of more than 7 years’ time, Dr. W no longer recalls the is specific details of these 75 patient encounters. He turned to his patient records to assist with his recollection. The information contained in the patient charts serves  to refresh his memory of events and decisions in which he was directly involved during the summer of 2011. The chart is a summary of information extracted from the patient charts and contains no new information.

Human error inevitably occurs from time to time when individuals are asked to perform tasks including employment-related tasks. It is possible that the original information contained in the patient records was transcribed incorrectly. It is possible that the software “code” developed to extract from Dr. W’s patient data base only those referrals received in June 2011 did not capture all referrals meeting the necessary criteria. It is possible that errors were made by the technologist when summarizing the data from the 75 patient records and preparing the chart. I have no doubt that if called to testify, both the programmer and the technologist would admit to this possibility for error. However, their admission would do little to assist the court in determining the average wait time for a stress test referral to Dr. W in June 2011.

The 75 patient records contain the first-hand knowledge of Dr. W recorded contemporaneously with the event (referral, assessment or stress test, as the case may be) and are therefore inherently reliable. These patient records are business records. That is they were prepared in the ordinary course of Dr. W’s cardiology practice by individuals trained and skilled in preparing them. The possibility of error during the  extracting of information from the patient records and the summarizing of this information in the chart exists. So too (to a lesser extent) the possibility of personal bias leading to the misrepresenting of information summarized in the chart also exists. However, there is no better aid available to refresh Dr. W’s memory as to the estimated wait time for a referral made in June 2011 than the information summarized in the chart.

In determining the weight to be afforded Dr. W’s evidence the Court must consider these inherent weaknesses in the reliability of the process undertaken to arrive at the 59 day estimate. However, these weaknesses do not render Dr. W’s evidence inadmissible. Dr. W is not relying on the truth of the contents of the information contained in the chart.

Dr. W with respect to his estimated wait time is either hearsay or it is not hearsay. His evidence does not change its character simply because Dr. Martin paid Dr. W to do a more comprehensive and reliable review of his patient records than what Dr. W was prepared to do or did do in response to the plaintiffs’ motion. The character of his evidence does not change simply because that evidence is now more reliable. Throughout this litigation, Dr. W has consistently relied on the assistance of others to inform his evidence and refresh his memory of average wait time in summer 2011. The plaintiffs did not renew their motion for production of Dr. W’s records at trial.

Therefore, I have no authority to consider or order production of the patient records upon which Dr. W relied in arriving at his estimate.


The evidence of Dr. W is admissible in its entirety. The chart remains a lettered exhibit as agreed by the parties. Concerns with respect to the manner in which the relevant patient records were summarized and the coding used to extract information from the patient records goes to the weight to be given Dr. W’s evidence regarding the average wait time for a stress test referral in June 2011.


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