Michael Ford (post until Oct. 31/19)
ADR, Civil Litigation

Issue over doctor's notes among 'worst' trial experiences: Cherniak

The confusion that arose over the handwritten notes of a family doctor during a trial in the late 1970s remains one of the “worst” experiences Toronto lawyer and arbitrator Earl Cherniak has ever had in court, he writes in the Summer 2018 issue of the American College of Trial Lawyers (ACTL) Journal.

In the journal’s war story series — which highlights something that happened to a fellow of the ACTL during a trial — Cherniak, partner with Lerners LLP and ACTL fellow, recounts a case that centred on the events of December 1973, when a healthy 29-year-old married father of four attended the emergency department at a teaching hospital in London, Ont., complaining of symptoms including a severe throbbing headache, nausea, dizziness, numbness and photophobia.

The man, writes Cherniak, was seen by a doctor studying for a PhD in neurophysiology at another teaching hospital, and moonlighting as an emergency physician, examined for 15 or 20 minutes, and discharged with a diagnosis noted on the hospital chart of “migrainous headache plus nervous overtone.” He was prescribed six 292 (acetylsalicylic acid, codeine and caffeine) and six valium pills.

“In fact, the young man was suffering from the early stages of a subarachnoid hemorrhage (an early bleed), which would have been caught had a lumbar tap been done.” After resuming normal duties later that month, writes Cherniak, the man collapsed in his car, was admitted to hospital, and died before surgery could be performed.

“If the young man indeed had a history of migraine headaches, the emergency diagnosis, though inadequate given the symptoms, was arguably, based on the expert evidence, not negligent. But if that history was wrong, or created after the fact, quite a different outcome. The evidence of the patient’s wife, parents, friends and co-workers was that he had never in his life suffered from, complained or been treated for migraine headaches,” he adds.

Although the case was a battle of competing neurosurgical expert evidence and the accuracy and provenance of the emergency doctor’s notes, critical to the case, says Cherniak, was the evidence of the man’s long-time family doctor that there was not only no history of migraine headaches, he had never complained of headaches at all.

By the time of the trial in 1977, the family doctor had moved to Houston, Texas.

“By coincidence, the family doctor had also been my family doctor and a close friend for years, so I knew him well. I proposed to, and did, put his evidence in by filing his handwritten office notes covering about 10 years before 1973, which were unremarkable, and showed no complaint of or treatment for headaches,” says Cherniak.

As he explains, the family doctor’s notes were as expected for the period —“Handwritten, somewhat difficult to read entries, covering a period of years, in different inks, written on a pad supplied by a pharmaceutical company.”

However, says Cherniak, the first witness called by the defence one day was from that pharmaceutical company, who testified that the form on which the family doctor’s notes were written had not been produced until 1973.

“I was taken completely by surprise, and almost physically sick. As soon as I got back to the office, I called my friend in Houston,” to ask for an explanation, writes Cherniak.

“Sheepishly, he explained that he was so embarrassed by the state of his original record that when he knew they were to be filed in court, he recopied them on a new form, different inks and all.”

“I said, 'get on a plane immediately. You have to testify about this in London (his hometown) tomorrow.'

“He did, his explanation was accepted, problem solved. The trial judge accepted the evidence of the widow’s family and experts, and she and her children were compensated. But it remains one of the worst experiences I ever had in court,” writes Cherniak.

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