The evidence includes anonymous online reviews and complaint filed with the College
In a recent medical malpractice lawsuit, the Ontario Superior Court of Justice has refused to admit into evidence anonymous online reviews and a complaint filed with the College of Physicians and Surgeons of Ontario (CPSO).
The dispute in Lu v. Kalman, 2023 ONSC 5335, arose out of two hernia procedures that Dr. Peter Kalman performed on Changrun Lu at the Shouldice Hospital. After these procedures, Lu filed a complaint with the CPSO about the care he received. Lu alleged that the doctor did not adequately inform him of the risks, benefits and alternative treatments available. He also claimed negligence in his care from the doctors at Shouldice Hospital.
Read more: How can I sue a Canadian hospital for negligence?
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The plaintiff sought to use as evidence the decisions rendered by the CPSO's Inquiries, Complaints and Reports Committee (ICRC) and anonymous or unverified reviews of Dr. Kalman and the Shouldice Hospital from public online sources. The defendants filed a motion for an order prohibiting the plaintiff from referencing these documents at trial. The Ontario Superior Court of Justice ultimately ruled that these documents were not admissible.
Following the hernia procedures, Lu filed a complaint with the CPSO, which generated responses from the defendant physicians. The plaintiff sought to admit into evidence copies of the correspondence from the defendant physicians addressed to the CPSO in connection with the complaints. He also sought to introduce the decisions and reasons of the ICRC.
However, the court found that s. 36(3) of the Regulated Health Professions Act (RHPA) provides an absolute bar to the admissibility of a CPSO complaint in a civil action. It is a blanket prohibition against admitting in a civil proceeding any records, reports, or documents directly related to a proceeding under the RHPA.
The court ruled that the RHPA covered the two documents that the plaintiff sought to use. The first document was the decision of the ICRC, and the other documents relate to correspondence which were sent to the CPSO for consideration concerning the complaints. The court held that they both fell within the strict prohibition under the RHPA.
Lu also sought to introduce into evidence unverified or anonymous posts from alleged former patients of Dr. Kalman, which the plaintiff took from public websites such as "RateMyMD." These reports were generally critical of Dr. Kalman and included complaints similar to those being advanced by the plaintiff.
The court found that these documents were hearsay. The complaints were out-of-court statements of fact offered in a court proceeding for the truth of their contents. None of the statements fell into a recognized exception to the hearsay rule. As a result, the court found that there were presumptively inadmissible.
Furthermore, the court said these documents could not be admitted under the principled exception to the hearsay rule. The court explained that a hearsay exception can apply where it is supported by indicia of necessity and reliability.
The court found that the surrounding facts and circumstances of the cases which were the subject of the comments were not necessarily directly relevant to the facts and events in the case before the court. Accordingly, the court ruled that the necessity requirement was not satisfied. The court was concerned that allowing these statements to be admitted into evidence would result in the trial's focus being misdirected into considering the context and circumstances of other complaints against Dr. Kalman. The court believed this would distract from the main issues, which must focus on the conduct of Dr. Kalman in Lu's case.
Furthermore, the court found that the indicial of reliability was absent from the postings Lu sought to admit as evidence.
Accordingly, the court concluded that the decisions of the ICRC and Dr. Kalman's anonymous and unverified reviews should not be admitted into evidence.