On April 8, 2024, the Ontario Superior Court of Justice dismissed the action against two eastern Ontario physicians, Dr. Johnny Brisebois (“Dr. Brisebois”) and Dr. Pablo Romero-Sierra (“Dr. Romero-Sierra”) for alleged medical negligence. The Plaintiff, Frank Papineau, alleged that the physicians negligently failed to diagnose him with Lyme disease and provide him with appropriate treatment. 

The Plaintiff visited the hospital in April 2010, concerned about a possible tick bite and a rash. He alleged that Dr. Brisebois, a family physician who worked in the emergency department of the Kemptville District Hospital (“KDH”), failed to investigate and diagnose his condition properly and that Dr. Brisebois should have but did not prescribe antibiotics that would have prevented Lyme disease from developing.

Dr. Romero-Sierra was the Plaintiff’s family physician for many years. The Plaintiff alleged that for two years following his visit to the KDH emergency department, he repeatedly asked Dr. Romero-Sierra if he might have Lyme disease but Dr. Romero-Sierra repeatedly “blew off” his concerns.

In September 2012, the Plaintiff was diagnosed with Lyme disease in the United States.

The Plaintiff alleged that the negligence of Dr. Brisebois and Dr. Romero-Sierra caused him years of unnecessary suffering and cost him hundreds of thousands of dollars in lost income.

After considering all of the evidence, the judge was not persuaded that either Dr. Brisebois or Dr. Romero-Sierra fell below the standard of care of reasonable physicians in the circumstances.

The four issues at trial were as follows:

1. Did Dr. Brisebois breach the applicable standard of care? 
2. Did Dr. Romero-Sierra breach the applicable standard of care?
3. If Dr. Brisebois or Dr. Romero-Sierra or both defendants breached the applicable standard of care, did the breach or breaches cause the Plaintiff’s alleged loss?
4. If there was a breach of the standard of care and the breach or breaches caused the Plaintiff’s alleged loss, what are the plaintiff’s damages?

The judge, citing Henry v Boivin et al, 2023 ONSC 6632, adopted the following description of the standard of care: 

The standard of care of a medical practitioner is to exercise a reasonable degree of skill, knowledge and care that could reasonably be expected of a normal, prudent practitioner of the same experience and standing. The standard of care is not perfection. A defendant physician cannot be judged in hindsight, or with an outcome-based retrospective approach…A breach of the standard of care is not sufficient to establish negligence. Causation is also required.

1. Did Dr. Brisebois breach the applicable standard of care?

The judge accepted Dr. Brisebois’s reasons for ruling out Lyme disease. The KDH triage nurse’s notes said, “out cutting wood yesterday a.m.” and “got bit by an insect.” Dr. Brisebois’s notes also said, “bug bite onto Rt arm – 36 hrs ago – thinks was an insect and not tick.” While the Plaintiff did not recall ever using the word “insect” during his discussion with Dr. Brisebois and stated that he and Dr. Brisebois had a disagreement over whether he had been bitten by a tick, the judge accepted the triage nurse’s notes and Dr. Brisebois’ notes because (1) they were consistent with each other; (2) they were taken by two different people who spoke to the Plaintiff separately; (3) they were made while or shortly after the triage nurse and Dr. Brisebois each spoke to the Plaintiff; (4) Dr. Brisebois said the triage nurse had about 30 years’ experience and he had complete faith in her; (5) the triage nurse and Dr. Brisebois had no reason not to record accurately what the Plaintiff told them; and (6) the Plaintiff could not explain why the notes were so different from his recollection.

Although the Plaintiff had told Dr. Brisebois that he had been bitten by an insect and not a tick, the judge was satisfied that Dr. Brisebois nonetheless considered the possibility that the Plaintiff was bitten by a tick and that Lyme disease was a possibility because Dr. Brisebois’ discharge notes instructed the Plaintiff to return to the emergency room if his rash developed into “EM”, a reference to erythema migrans.

While the Plaintiff insisted that he was bitten the morning of April 10, 2010, about four and a half days before he went to the KDH emergency department the night of April 14, 2010, the judge accepted that the Plaintiff told the triage nurse that he had been bitten “yesterday” and told Dr. Brisebois that he had been bitten 36 hours earlier. Because the Plaintiff met with Dr. Brisebois around 11 p.m. on April 14, 2010, 36 hours earlier would have been around 11 a.m. on April 13, 2010 (i.e., the previous day). 

The judge accepted that when Dr. Brisebois prescribed amoxicillin for 10 days, it was to treat the Plaintiff’s cellulitis and sinusitis. As such, the judge found that Dr. Birsebois did not breach the standard of care.

2. Did Dr. Romero-Sierra breach the applicable standard of care?

The Plaintiff argued that Dr. Romero-Sierra gave the Plaintiff the requisition for a Lyme screening test on November 29, 2011, without asking the Plaintiff why he wanted the test. While the judge agreed that a physician should not order a diagnostic test without first determining why the patient is requesting the test, the judge also stated that Dr. Romero-Sierra’s decision to give the Plaintiff the requisition for a Lyme disease test on November 29, 2011, without asking him why he wanted it, was a judgment call he was entitled to make and did not fall below the standard of care in the circumstances. The request was made at the end of a double counselling session with Dr. Romero-Sierra. Dr. Romero-Sierra’s notes referred to depression and “+ +” anxiety. The Lyme screening test is not an invasive test and is performed following a regular blood test. Dr. Romero-Sierra found that patients who requested Lyme disease tests when they were worried about what was wrong with them find the negative results reassuring. The judge found that “Dr. Romero-Sierra made a reasonable judgement call at the end of a 40-minute session with an anxious patient to give the patient a requisition for a test, in the expectation that the result would be negative, and the patient would then have one fewer thing to worry about.” 

The judge did find that Dr. Romero-Sierra fell below the standard of care by agreeing to rewrite the prescriptions of Dr. McShane, an American physician who diagnosed the Plaintiff with Lyme disease, when Dr. Romero-Sierra did not believe that the Plaintiff had Lyme disease. However, the Plaintiff did not plead in his statement of claim that Dr. Romero-Sierra’s alleged negligence included improperly prescribing medication for Lyme disease. Instead, his complaints were that he failed to diagnose and treat Lyme disease and failed to prescribe proper medication. 

The judge also found that the Plaintiff “launched an aggressive assault on Dr. Romero-Sierra’s integrity and reputation.” The Plaintiff’s counsel accused Dr. Romero-Sierra of lying about several different matters, destroying hospital records, fabricating notes and over-billing OHIP. Despite some contradictions in Dr. Romero-Sierra’s testimony, the judge did not consider them to be evidence of dishonesty. The judge stated that “[l]itigants should be hesitant to accuse other litigants of dishonesty, particularly where the litigant on the receiving end is a professional whose reputation is essential to their livelihood.” The judge concluded that Dr. Romero-Sierra did not deserve the treatment he received from the Plaintiff and his counsel at trial.

3. If Dr. Brisebois or Dr. Romero-Sierra or both defendants breached the applicable standard of care, did the breach or breaches cause the plaintiff’s alleged loss?

The Plaintiff argued that had Dr. Brisebois treated him properly, his Lyme disease could have been cured and that Dr. Romero-Sierra’s neglect resulted in the delayed diagnosis of his Lyme disease and contributed to the severity of his condition. The Defendants argued that the Plaintiff failed to prove causation in that he had not proven that he had Lyme disease. Further, the Defendants argued that to prove causation with respect to Dr. Brisebois, the Plaintiff must prove that in April 2010, he was bitten by a tick with the Borrelia burgdorferi bacterium and that the tick transmitted the bacterium to him. He must also prove that he had Lyme disease when he was treated by Dr. Romero-Sierra from July 2010 to September 2012. The Defendants argued that the Plaintiff failed to prove these facts. 

The judge concluded that, had the Defendants breached the standard of care, their breach or breaches did not cause the Plaintiff’s alleged loss. The judge found that the Plaintiff did not believe he had been bitten by a tick when he attended at the KDH emergency department on April 14, 2010, because he told both the triage nurse and Dr. Brisebois that he was bitten by an insect, not a tick. The judge accepted that the Plaintiff was an experienced outdoorsman who had seen and was familiar with ticks prior to April 2010, and no one was closer to the object on his arm than he was. Therefore, while the Plaintiff could have been mistaken, he was in the best position to provide evidence as to whether he had been bitten by a tick.

The timing of the Plaintiff’s bite was also relevant to the judge’s consideration of whether the Plaintiff had proven that he was bitten by a tick, because the erythema migrans rash typically does not appear until at least three days after its host has been bitten by a tick. The Plaintiff was adamant that he was bitten on April 10, 2010, about four and a half days before he visited the KDH emergency department the night of April 14, 2010. However, the judge found that the Plaintiff was bitten on April 13th, 2020, the day before he attended at the KDH emergency department, because the triage nurse’s note on April 14, 2010 said that the Plaintiff had been cutting wood “yesterday”, and the Plaintiff told Dr. Brisebois that he had been bitten 36 hours earlier. While the Plaintiff disagreed with the triage nurse’s note and Dr. Brisebois chart, he had no documentary evidence that he was bitten on April 10, 2010.

The judge also did not accept the Lyme disease diagnosis of Dr. McShane finding that Dr. McShane did not have all the relevant information when she made that diagnosis, such as the fact that the Plaintiff thought he had been bitten by an insect, that his rash appeared fewer than 36 hours after he was bitten, that the rash was painful, swollen and warm and that an emergency room physician, who saw the rash and spoke with the Plaintiff, diagnosed cellulitis and not erythema migrans.

4. If there was a breach of the standard of care and the breach or breaches caused the Plaintiff’s alleged loss, what are the Plaintiff’s damages?

The judge would have assessed the Plaintiff’s general damages at $100,000 against Dr. Brisebois only and not Dr. Romero-Sierra, and only if he had found that Dr. Brisebois’ treatment of the Plaintiff fell below the standard of care and that the Plaintiff had Lyme disease. The judge would not have assessed any damages against Dr. Romero-Sierra because the Plaintiff did not mention Lyme disease to Dr. Romero-Sierra until November 2011 when the window for preventing the development of Lyme disease would have closed. 

Decision Date: April 8, 2024 

Jurisdiction: Ontario Superior Court of Justice 

Citation: Papineau v Romero-Sierra et al, 2024 ONSC 1659 (CanLII)