Fw: [CFSgroup] FW: Inquest Update - CCWG Info Bulletin - December 12, 2003

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[CFSgroup] FW: Inquest Update - CCWG Info Bulletin - December 12, 2003

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S. Baker, D.C., D.A.B.C.O., D.A.B.F.P., D.A.B.C.C.

Rincon Chiropractic Associates

5001 E. 5th St.

Tucson, AZ. 85711

520.323.2888-voice

520.323.9102-fax

rinconchiro@...

-----Original Message-----From: chirosci-list-bounces@... [mailto:chirosci-list-bounces@...] On Behalf Of NeroSent: Friday, December 12, 2003 3:04 PMchirolist@...; chirosci-list@...Subject: FW: Inquest Update - CCWG Info Bulletin - December 12, 2003

Information Bulletin>From the Chiropractic Communications Working Group

Inquest, December 11, 2003

Counsel for the Coroner's Office Summation

Mr. O'Marra, counsel for the Coroner, rhetorically asked, "What is an inquest?" He answered that it is an inquiry that allows questions to be asked about the circumstances of a person's death so that we can better understand and learn from that death. He noted that an inquest is neither a trial, a preliminary round to civil litigation, a Royal Commission, a public platform, a campaign, a lobby nor a crusade. He felt fortunate that he had become involved at a late stage in the process so that he could distance himself from the litigious and acrimonious atmosphere which has characterized this inquest. He insisted that the jury should not allow this acrimony and antipathy to deflect them from fulfilling their obligations to determine the truth as best they could.

After thanking the jurors for their time and forbearance, Mr. O'Marra proceeded with general comments. He noted that jurors should be envied for the task they have undertaken and should be assured that their time has been very well spent, as every inquest is important to the family and to society at large in advancing public interest and safety. He advised the jury to dispel their annoyance at the lengthiness of procedures and focus solely on the evidence before them.

He noted that the jury was to ascertain the circumstances of death; they are asked to consider three possible causes of death at this Inquest: accidental, natural or undetermined. He stated that the inquest is to focus attention on what may be preventable death and that Coroner's Act prohibits the jury from finding fault or guilt. He noted that the standard of proof at an inquest was not 'beyond a reasonable doubt' as in higher courts but rather the 'balance of probability'. He also noted that the jury need not be unanimous in their verdict or recommendations; a simple majority was enough.

A determination of natural causes would be rendered if the jury felt that Ms. ' death was due to disease or complication from disease. A determination of accident would indicate the jury felt that her death was caused inadvertently without foresight or expectation. If there is inadequate evidence to draw firm conclusions or if evidence points equally to two or more causations, then the jury may render a decision that the cause of her death is undetermined. Mr. O'Marra strongly emphasized that a jury's choice of undetermined is not a failure to make a decision. In fact, he suggested that, where the medical evidence was so clearly divided, then a choice of undetermined would be quite a reasonable conclusion. He noted that experts' views on this case could be characterized as polar opposites. He found it troubling that so many experts can look at the same material and see different things and arrive at different conclusions. Moreover, he found it even more troubling that experts can look at the same material, see the same things and still reach different conclusions. He stressed that expert testimony beyond the experts' areas of expertise is to be discarded. He also noted that speculations should be discarded. Jurors should ask themselves the following questions of all the witnesses, experts or otherwise. Is the evidence unbiased? Is the witness credible? Does the witness acknowledge weaknesses and deficiencies in their observations?

Mr. O'Marra then turned to recommendations noting that those made by counsel or by the coroner may be adopted, amended, rejected or discarded. The jury may also fashion their own recommendations. All recommendations should be:

reasonable and practical

they should reflect the issues

they should be based on the facts and evidence given in testimony

they must be and seem credible

they must be high quality not large quantity.

Mr. O'Marra noted that there were three groups of experts. The first believed that Ms. ' death resulted from trauma. The second saw injury due to atheroma and plaque which caused thrombosis through a natural disease process. The third group suggested it could be either. In the trauma group, he listed Drs. Deck, Pollanen (at first), Norris, Fournasier, Cheung, , and Rathbone. In the atheroma group, he listed Drs. Pollanen (in his later reports), Rosso, Upton, Haldeman, Moulton, , Willinsky, Sackett and Herzog. In the third group, the "I-don't-know" group, he listed Dr. Whitwell.

He then reviewed Ms. ' history from August 26, 1996 noting that she may have complained of neck pain following manipulation. At some point she was also unsteady on her feet and experienced visual problems although she may have worked during the week following her manipulation. By September 1, 1996 she was in hospital complaining of dizziness, disorientation and neck pain. A CT scan showed cerebral infarction.

At this point in his summation he reviewed the thesis statements of some expert witnesses noting that some changed groups. Dr. Deck started with the trauma group but later testified that he did not know the cause, while Dr. Pollanen, who began with the trauma group, joined the 'I-don't-know' group but finally concluded that death was due to atheroma. He also noted that Dr. Norris' views of dissection due to trauma were based on the early Deck-Pollanen report and newspaper accounts. Dr. testified that the trauma was due to a sub endothelial dissection. However, this could not be seen except by its apparent effect.

Dr. Cheung's conclusion, based on angiogram, was trauma due to complete occlusion of the left vertebral artery showing a rat's tail indicating classic dissection but this was not found on autopsy. Dr. Willinsky testified that cause was not evident and occlusion was non-specific. Dr. Rathbone argued that, based on the neck pain being reported, Ms. suffered dissection on the day of manipulation. He said the atherosclerotic theorists deliberately excluded important facts. For his part Dr. Rathbone ignored her having been at work after her manipulation. He was thus guilty of deliberately excluding evidence himself, said Mr. O'Marra.

Concerning the natural disease group, their arguments are based on there being no obvious dissection, therefore no trauma. They pointed to evidence of moderate to severe atheroma at the location of thrombosis. They also pointed out that she had multiple risk factors including a family history of hypertension and heart disease. They argued that there was no evidence connecting manipulation to stroke except the coincidence of time. Dr. Sackett stated that a temporal association was not indicative of causation while Dr. Herzog's cadaveric tests indicated that force is exerted during spinal manipulation, but that it was very, very highly unlikely that manipulation could produce damage to the vertebral artery.

Dr. Whitwell is clearly independent. She claims that on the basis of pathology alone she cannot determine whether the cause is arthrosclerosis or trauma.

Mr. O'Marra then looked at the two competing theories. The trauma theory is based on pathology, symptoms and their severity, and the timing of the appearance of symptoms. He stated that the jury has heard evidence that she was at work and functioning without complaint while the jury also heard evidence that the usual onset of symptoms is immediate, severe and acute. In this, the jury must choose between the evidence of Mr. Sweeney and Ms. Ford that these symptoms appeared immediately versus the combined evidence of Ms. Snow, Ms. on and Dr. Knapp that these symptoms occurred later in the week. "You must ask yourself," he said to the jury, "are you ready to reconcile the conflict in the evidence and does it raise doubt about the trauma theory?"

Concerning the atheroma theory, this too is based on pathology but posits that she had suffered atherosclerosis intracranially. She was also at high risk for stroke due to various risk factors. Yet there is also evidence of no lipid core, no calcification, no neogenesis, no impingement of the lumen, and no plaque disruption. Mr. O'Marra suggested that this latter set of observations could raise doubt about atherosclerotic disease as cause of stroke.

Mr. O'Marra submitted that evidence was presented both in support of and denial of each theory. He also stated that this case may raise more questions than provide answers.

Mr. O'Marra then posed four choices for the jury in answering the question 'By what means did she come to her death?' First, if the jury accepts trauma theory, and the inferred dissection, temporal association and onset of symptoms, then the conclusion would be death by accident. Second, the jury could accept Dr. Sackett's evidence that there is no temporal association and insufficient evidence to determine cause and effect but that the pathology alone demonstrates trauma. The jury in this case may still find death by accident. Third, if the jury accepts the atherosclerosis theory, particularly in the absence of extra cranial dissection, then the conclusion would be death by natural causes. Fourth, if the jury is satisfied that one explanation is as likely as the others, or that one is not more likely than the others, or if the jury is confused regarding conflicting evidence, then the finding would be undetermined. Regardless of the jury's conclusion, Mr. O'Marra insisted, whether accident, natural causes or undetermined, the verdict would be valuable and sufficient.

Mr. O'Marra then considered the various recommendations made by each of the parties with standing. Mr. O'Marra considered the recommendation put forward by Mr. on behalf of the chiropractor involved that an expert in chiropractic be retained by the office of the Coroner in cases involving chiropractic treatment, was a valid and useful one. He fully endorsed all the recommendations made by Mr. Danson which called for interprofessional cooperation, the adhering to the limits of expertise in expert testimony and funding for large-scale research. Mr. O'Marra stated that if there was only one recommendation then this last one made by the profession would be the one to choose, since it called for a well-designed study to determine the relationship, if any, between spinal manipulative therapy and stroke.

Concerning recommendations from the CCO, Mr. O'Marra noted that he supported them. He also stated to the jury that Dr. Cairn's testimony had shown that the Coroner's office had already acted on many of those dealing with process, but that, nonetheless, the jury might wish to reinforce the intent of the recommendations.

Concerning Ms. Oakley's recommendations, he suggested that putting the family in the position of directing investigation is impractical, especially since investigators must be impartial. Regarding medical issues, these should be tied to facts and circumstances. He clarified that Dr. Pollanen was a consultant PhD, not a medical student or resident. He pointed out that suggesting that special funds be available for the family is problematic in that all parties at an inquest are equally important and that funds are available through legal aid. Mr. O'Marra also suggested to the jury that they reject other recommendations which imply that an inquest should be like a Royal Commission or a broad-based inquiry. He noted that many of Ms. Oakley's recommendations are a 'shopping list of reform' which go well beyond the scope of an inquest. He closed by saying whichever recommendations are chosen will be a reflection of the jury's participation in this inquest and will become the Jury Recommendations.

The Coroner's Instructions to the Jury

Dr. McLellan began his charge to the jury by stating that the Coroner's Act guides investigations into death in the province of Ontario. The Act prescribes the decision-making process for the Coroner to determine whether an inquest should be held and how it should be conducted. The Coroner must advise the jurors of the requirements of the law and must ensure that there is a proper verdict. He reminded the jurors that they took an oath to render a true verdict in accordance with the evidence. There must be no legal findings of responsibility, no guilt or expression of liability or findings of negligence. The jury foreman must ensure that all jurors are heard and is responsible for seeing that a majority determines what is fact and what is not. He particularly pointed out that nothing in the media, no evidence or arguments or opinions of counsel can be taken as evidence, and only the jury can decide the weight to give each piece of evidence. He also noted that if any counsel misstated the evidence, then the jury could disregard such statements.

Dr. McLellan then discussed forms of evidence being oral testimony, written documents, and physical evidence entered as exhibits for study. He stated that evidence may be direct, circumstantial or hearsay. He noted that direct evidence is best in terms of credibility because it establishes a fact based on first-hand experience. The second level of evidence is circumstantial on which evidence can be inferred. The third level, hearsay, is the weakest level of evidence but may be relied upon depending on circumstances and the jury's judgment. He charged, furthermore, that all evidence is not equal, it is to be weighed and valued in determining truth.

The jury may ask: Did certain witnesses make sense? Did they have bias? Were they inconsistent? In that case, the jury is free to doubt their credibility and not lay too much weight on their testimony. He noted that high weight should be given to sworn evidence which is not contradicted and is supported by others. He further noted that one witness may be believed against many witnesses and that the jury may accept all, part of, or none of the evidence of any given witness. The jury may also weigh the manner and demeanor of witnesses in determining their credibility. Above all, the jurors were charged to use common sense in assessing evidence and in determining the probable sequence of events. He noted that the jury need not give credence to the testimony of expert witnesses when they testify on matters outside their area of expertise.

The Coroner then noted that the jury was often asked to withdraw during the inquest while counsel made submissions about the admissibility of questions. He charged that no negative inference should be made from counsel's objections.

Dr. McLellan charged that the jurors are to listen to one another's opinions and make decisions only after due deliberations applying, as a standard of proof, the concept of the 'balance of probability'. He pointed out that this is not the same as the concept 'beyond a reasonable doubt'. He noted that four of the five questions are answered, i.e. the name of the deceased, the time and date of her death, the place and cause of her death. It remains for the jury to determine the manner of death which would be submitted as one word - either natural causes or accidental or undetermined. He emphasized that undetermined is not a failure to decide.

The Coroner then turned to recommendations. He asked that the jury provide the basis for each recommendation they make. He also asked that the jury direct their recommendations to ministries and agencies as best they can. He noted that personal opinion should not form part of the recommendations. The Coroner pointed out that the secrecy of jury deliberations was to be maintained both during the sequestering and after the inquest is over for an indefinite period.

The Coroner stated that he and the Crown Counsel would review the verdict to ensure that it is a proper and true verdict within the confines of the Coroner's Act noting that if it is improper, it would be returned for clarification. When the verdict is proper and complete, it will be read aloud at the inquest, copies will be made available to counsel, parties with standing and the media. Copies will be sent to the Chief Coroner of Ontario who will then send it to the appropriate groups and agencies affected. The Coroner concluded his charge to the jury by stating that it was the Coroner's mandate in Ontario to speak for the dead to protect the living. The Coroner then instructed the jurors to retire for their deliberations.

The jury started their deliberations at 2:07 PM Eastern time.

After the jury left the Coroner informed the court that the jury was likely to return a verdict after due deliberation in early to mid January at the earliest. He also instructed all parties that the date would be provided with 48 hours' notice of the jury returning.

Further Bulletins

We do not anticipate sending further bulletins directly related to the inquest until such time as we receive notification that the jury has completed its deliberations.

The Communications Working Group is comprised of the following organizations:

The Canadian Chiropractic Association: Phone (416) 781-5656; Toll-free 1-800-668-2076; website www.ccachiro.org; e-mail ccachiro@...

Ontario Chiropractic Association: Phone (905) 629-8211; Toll-free 1-877-327-2273; website www.chiropractic.on.ca; e-mail communications@...

Canadian Memorial Chiropractic College: Phone (416) 482-2340; Toll-free 1-800-669-2959; website www.cmcc.ca; e-mail communications@...

Canadian Chiropractic Protective Association: Phone (416) 781-5656; Toll-free 1-800-668-2076; e-mail CCPAcommunications@...