On September 23, 2022, Paul was a member of a panel of medical malpractice lawyers at the Ontario Trial Lawyers Association’s annual medical malpractice conference, “Literature, Medicine & The Law: A Three-Way Street.” The panel addressed issues facing plaintiff counsel at trial, with Paul speaking on three of them: objection to demonstrative aids, the use of joint document briefs, and the cross-examination of physician experts on medical literature.
The conference theme captures something important about how a medical malpractice trial actually works in Ontario. The legal framework supplies the rules, the medicine supplies the substance, and the literature supplies the connective tissue between the two. Trial work in this area is, in large part, the disciplined navigation of that intersection.
Cross-examination of physician experts on medical literature
Physician experts at trial rely on medical literature to support their opinions. The literature itself is hearsay if relied on for the truth of its contents, and is not directly admissible on that basis. What plaintiff counsel can do is put the literature to the expert in cross-examination, and the expert’s response (or unwillingness to respond) reaches the trier of fact.
The mechanics matter. The expert is first asked whether the publication is authoritative in the relevant field. Where the expert accepts the source as authoritative, propositions from the publication can be put to the expert and the expert can be asked to comment on them. Where the expert declines to accept the source as authoritative, that answer itself becomes evidence the jury or judge can weigh, and the cross-examiner can follow up on the basis for the refusal.
The most useful sources at trial are typically those the expert has personally relied on, the clinical practice guidelines of the specialty society that governs the expert’s practice, the leading textbook in the field, and peer-reviewed studies on the specific clinical question. The expert’s own publications, if any, can be especially effective: an expert who has written something in a journal article that contradicts the position taken at trial is in a difficult position.
The strategic question is not whether literature can be used; it is which sources to identify, in what order to put them, and how to anticipate the responses. That work is done well before the expert takes the stand.
Joint document briefs
Most medical malpractice trials involve documentary evidence running to thousands of pages of hospital charts, outpatient records, imaging, pathology, and treatment notes. The use of joint document briefs is now standard practice, and the Court of Appeal addressed their proper management at length in Girao v Cunningham, 2020 ONCA 260.
Several practical points follow from Girao.
The categorization of documents in the brief matters. A document admitted as a business record under s 35 of the Evidence Act, RSO 1990, c E.23, is admitted for the fact of the event recorded but not for any opinion, diagnosis, history, or recommendation contained in it. A document admitted as a medical practitioner’s report under s 52 is treated differently: subject to the notice requirements and the practitioner’s availability for cross-examination, it can be admitted for the truth of its contents. The distinction is important because hospital records routinely contain both kinds of content.
The marking of exhibits as numbered (which go into the jury room) versus lettered (which do not) carries real consequences. A document marked numerically goes with the jury during deliberations. A document marked alphabetically is part of the record but not in the jury’s possession. The default mode in many trials is to mark everything numerically without thinking about it, and Girao is a useful caution against that habit.
The admissions recorded with each document should be express. Whether the document is admitted for the truth of its contents, only as a business record, or only for the fact that it was created should be stated on the record. A vague joint book of documents is an invitation to mid-trial disputes that should have been resolved at the pre-trial.
Objection to demonstrative aids
Demonstrative aids are not evidence. They are tools to help the trier of fact understand evidence: anatomical diagrams, timelines, simplified flow charts, X-ray viewers, three-dimensional models. The trial judge has discretion to permit or refuse their use, and that discretion is exercised case by case.
Common bases for objection include the following. The aid does not accurately represent the underlying evidence (for example, an anatomical diagram that overstates the surgical field, or a timeline that omits material entries from the chart). The aid imports facts not in evidence (for example, a 3-D rendering of an injury that requires assumptions the evidence has not established). The aid is unfairly prejudicial in the way it presents the material (for example, a dramatic animation that magnifies the harm beyond what an audited rendering would support). The aid should not go to the jury room because it is not evidence in its own right.
The plaintiff faces these objections from both directions. Defence-prepared aids will be tested by plaintiff counsel, and plaintiff-prepared aids will be tested by defence counsel. The discipline is to prepare aids that are tightly grounded in the evidence, that can be authenticated by a witness, that the trier of fact can use without losing the underlying facts, and that will withstand the objections that are foreseeable from the outset.
The most effective demonstrative aids in medical malpractice trials tend to be the simplest ones. A clean chronology drawn from the medical records, with each entry tied to a specific document in the joint document brief, communicates more than a complex animation and is harder to object to.
Practical observations
The three issues addressed at the panel share a common feature. Each of them sits at the intersection of medicine, literature, and law, and each of them rewards careful preparation in the months and years before trial begins. Cross-examination on literature requires the literature to be identified, accepted as authoritative, and put to the expert in a sequence the cross-examiner has thought through. Joint document briefs require categorization choices made at the pre-trial. Demonstrative aids require evidentiary foundations built into the trial plan.
None of that work is glamorous, and none of it happens in front of the jury. It is the work that determines whether the jury sees a case that has been carefully constructed or a case that is being pieced together in real time.ears of the file. Most of the issues that arise during trial were foreseeable. The qualification challenge was foreseeable when the expert was retained. The documentary evidence question was foreseeable when the records were assembled. The jury communication challenge was foreseeable when the case was framed at the pleading stage. The lawyer who manages these issues effectively at trial is usually the lawyer who anticipated them well before trial began.
The remaining trial issues, the ones that genuinely could not have been anticipated, are managed by clear thinking in real time. There is no substitute for that, and it is the part of the work that experience builds.een anticipated, are managed by clear thinking in real time. There is no substitute for that, and it is the part of the work that experience builds.
