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1 2 3 THE INQUIRY INTO PEDIATRIC FORENSIC 4 PATHOLOGY IN ONTARIO 5 6 7 8 ******************** 9 10 11 BEFORE: THE HONOURABLE JUSTICE STEPHEN GOUDGE, 12 COMMISSIONER 13 14 15 16 Held at: 17 Offices of the Inquiry 18 180 Dundas Street West, 22nd Floor 19 Toronto, Ontario 20 21 22 ******************** 23 24 January 11th, 2008 25

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1 Appearances 2 Linda Rothstein (np) ) Commission Counsel 3 Mark Sandler (np) ) 4 Robert Centa (np) ) 5 Jennifer McAleer ) 6 Johnathan Shime (np) ) 7 Ava Arbuck (np) ) 8 Tina Lie (np) ) 9 Maryth Yachnin (np) ) 10 Robyn Trask ) 11 Sara Westreich (np) ) 12 13 Brian Gover (np) ) Office of the Chief Coroner 14 Luisa Ritacca ) for Ontario 15 Teja Rachamalla (np) ) 16 17 Jane Langford (np) ) Dr. Charles Smith 18 Niels Ortved (np) ) 19 Erica Baron ) 20 Grant Hoole (np) ) 21 22 William Carter ) Hospital for Sick Children 23 Barbara Walker-Renshaw(np) ) 24 Kate Crawford ) 25

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1 APPEARANCES (CONT'D) 2 Paul Cavalluzzo (np) ) Ontario Crown Attorneys' 3 Association 4 5 Mara Greene (np) ) Criminal Lawyers' 6 Breese Davies (np) ) Association 7 Joseph Di Luca (np) ) 8 Jeffery Manishen (np) ) 9 10 James Lockyer (np) ) William Mullins-Johnson, 11 Alison Craig ) Sherry Sherret-Robinson and 12 Phillip Campbell (np) ) seven unnamed persons 13 Peter Wardle (np) ) Affected Families Group 14 Julie Kirkpatrick (np) ) 15 Daniel Bernstein ) 16 17 Louis Sokolov ) Association in Defence of 18 Vanora Simpson (np) ) the Wrongly Convicted 19 Elizabeth Widner (np) ) 20 Paul Copeland (np) ) 21 22 Jackie Esmonde (np) ) Aboriginal Legal Services 23 Kimberly Murray (np) ) of Toronto and Nishnawbe 24 Sheila Cuthbertson (np) ) Aski-Nation 25 Julian Falconer (np) )

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1 APPEARANCES (cont'd) 2 Suzan Fraser (np) ) Defence for Children 3 ) International - Canada 4 5 William Manuel (np) ) Ministry of the Attorney 6 Heather Mackay (np) ) General for Ontario 7 Erin Rizok ) 8 Kim Twohig (np) ) 9 Chantelle Blom (np) ) 10 11 Natasha Egan (np) ) College of Physicians and 12 Carolyn Silver (np) ) Surgeons 13 14 Michael Lomer (np) ) For Marco Trotta 15 Jaki Freeman (np) ) 16 17 Emily R. McKernan (np) ) Glenn Paul Taylor 18 19 20 21 22 23 24 25

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1 TABLE OF CONTENTS Page No. 2 3 PAUL THORNER, Sworn 4 5 Examination-In-Chief by Ms. Jennifer McAleer 6 6 Cross-Examination by Ms. Erica Baron 136 7 Cross-Examination by Mr. Daniel Bernstein 141 8 Cross-Examination by Mr. William Carter 147 9 10 Certificate of transcript 169 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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1 --- Upon Commencing at 9:31 a.m. 2 3 THE REGISTRAR: All rise. Please be 4 seated. 5 COMMISSIONER STEPHEN GOUDGE: Good 6 morning. Ms. McAleer. 7 MS. JENNIFER MCALEER: Good morning, Mr. 8 Commissioner. This morning we have Dr. Paul Thorner, a 9 surgical pathologist from the Hospital for Sick Children. 10 I ask Mr. Registrar if he could swear in the witness. 11 12 PAUL THORNER, Sworn 13 14 EXAMINATION-IN-CHIEF BY MS. JENNIFER MCALEER: 15 MS. JENNIFER MCALEER: Good morning, Dr. 16 Thorner. 17 DR. PAUL THORNER: Good morning. 18 MS. JENNIFER MCALEER: Dr. Thorner, the 19 first tab of the binder before you, you will find a copy 20 of your curriculum vitae. You have that? 21 DR. PAUL THORNER: I do. 22 MS. JENNIFER MCALEER: And I understand 23 that you obtained your degree in medicine from the 24 University of Toronto between 1974 and 1978? 25 DR. PAUL THORNER: That's correct.

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1 MS. JENNIFER MCALEER: Following that, 2 you did a one (1) year internship in internal medicine? 3 DR. PAUL THORNER: Yes. 4 MS. JENNIFER MCALEER: I understand 5 though that after that you transferred to pathology, is 6 that correct? 7 DR. PAUL THORNER: That's correct. 8 MS. JENNIFER MCALEER: And then you did 9 your residency in anatomical pathology between 1979 and 10 1982? 11 DR. PAUL THORNER: Correct. 12 MS. JENNIFER MCALEER: And you did that - 13 - if we look at page 3 of your resume at the top, we see 14 that you actually did that at a number of hospitals in 15 the Toronto area? 16 DR. PAUL THORNER: Correct. 17 MS. JENNIFER MCALEER: And following 18 that, I understand, from 1982 to 1985, you were a Fellow 19 at the Research Institute affiliated with the Hospital 20 for Sick Children? 21 DR. PAUL THORNER: That's true. 22 MS. JENNIFER MCALEER: And what is the 23 Research Institute? 24 DR. PAUL THORNER: It's a parallel 25 institute. It's part of the Hospital for Sick Children.

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1 It's the institute that's responsible for all the 2 research activities that occur in the hospital. 3 MS. JENNIFER MCALEER: And then following 4 that, you obtained your PhD in Experimental Renal 5 Pathology from the Department of Cellular and Molecular 6 Pathology in 1987? 7 DR. PAUL THORNER: That's correct. 8 MS. JENNIFER MCALEER: And your 9 supervisor while you were doing your PhD was Dr. Baumal 10 for the Hospital for Sick Children? 11 DR. PAUL THORNER: Right. 12 MS. JENNIFER MCALEER: And what was Dr. 13 Baumal's -- Baumal's particular areas of expertise? 14 DR. PAUL THORNER: He was a renal 15 pathologist and an immunologist. 16 MS. JENNIFER MCALEER: And I also 17 understand that while you were doing your PhD in 18 experimental renal pathology, you actually started 19 working at the Hospital for Sick Kids in or about 1985? 20 DR. PAUL THORNER: That's true. 21 MS. JENNIFER MCALEER: And that you -- 22 from 1985 to 1987, although you were not on staff per se, 23 you were, in fact, working within the pathology 24 department at the Hospital for Sick Children? 25 DR. PAUL THORNER: That's right.

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1 MS. JENNIFER MCALEER: And then, from 2 looking at your resume on page 2, under Previous Academic 3 Appointments, we see that in 1990 you became the Director 4 of Surgical Pathology at the Hospital for Sick Children? 5 DR. PAUL THORNER: That's right. 6 MS. JENNIFER MCALEER: And then following 7 the amalgamation at the hospital in 1996, you became the 8 Associate Head of the Division of Pathology? 9 DR. PAUL THORNER: That's right. 10 MS. JENNIFER MCALEER: And you continue 11 to maintain that position, Dr. Thorner? 12 DR. PAUL THORNER: I do. 13 MS. JENNIFER MCALEER: Okay. And then we 14 see from your resume that you have received, on page 3, a 15 number of honours and awards; that you have been 16 affiliated with a number of professional associations; 17 that you have authored, or co-authored, in excess of two 18 hundred (200) refereed academic articles? 19 DR. PAUL THORNER: That's correct. 20 MS. JENNIFER MCALEER: You've written for 21 chapters in a number of publications we see on page 29 of 22 your resume. 23 DR. PAUL THORNER: Right. That's right. 24 MS. JENNIFER MCALEER: And then you have 25 a smaller number of non-refereed publications;

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1 manuscripts; a lot of writing, Dr. Thorner. 2 DR. PAUL THORNER: It keeps me busy. 3 MS. JENNIFER MCALEER: Fair to say you've 4 been rather active, academically. 5 DR. PAUL THORNER: It -- it goes with the 6 job. 7 MS. JENNIFER MCALEER: All right. If we 8 could then talk a little bit more about the job. 9 In particular, starting with the period 10 between 1985 and 1987 when I understand you were at the 11 Hospital for Sick Children, but doing what I understand 12 locum, because you were still doing your PhD, right? 13 DR. PAUL THORNER: That's right. 14 MS. JENNIFER MCALEER: And can you 15 describe the work you were doing at the Hospital for Sick 16 Kids during that two (2) year period? 17 DR. PAUL THORNER: In the locum, you 18 mean. 19 MS. JENNIFER MCALEER: Correct. 20 DR. PAUL THORNER: It was -- Dr. Phillips 21 had asked me to -- if I could help out on the autopsy 22 service. 23 So it was really limited to autopsies 24 during that period. And at that time, it include -- when 25 I started, it included both medicolegal and hospital

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1 autopsies, but I soon discontinued the medicolegal work 2 and was doing only hospital autopsies. 3 MS. JENNIFER MCALEER: And why did you 4 discontinue the medicolegal work? 5 DR. PAUL THORNER: I didn't really feel I 6 was qualified to do that type of work. I didn't have the 7 training that I wanted to have, or I felt I needed, for 8 that type of work. 9 MS. JENNIFER MCALEER: And what kind of 10 training would that have been, Dr. Thorner? 11 DR. PAUL THORNER: I had the training 12 that most people had at that time that was recommended to 13 us. It was an optional rotation, and it was one (1) 14 month at the coroner's building under Dr. Hillsdon Smith. 15 MS. JENNIFER MCALEER: And you had 16 completed that one (1) month with Dr. Hillsdon Smith? 17 DR. PAUL THORNER: Yes. 18 MS. JENNIFER MCALEER: So you had the 19 same amount of training in medicolegal work as your 20 colleagues, if I understand it. 21 DR. PAUL THORNER: It was an optional 22 rotation. Not everybody took that rotation. 23 MS. JENNIFER MCALEER: I see. So despite 24 having taken that rotation, you still felt that you 25 weren't sufficiently qualified to do the medicolegal

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1 work? 2 DR. PAUL THORNER: Yes. 3 MS. JENNIFER MCALEER: And at the time, 4 which of your colleagues were doing the medicolegal work? 5 DR. PAUL THORNER: In the Hospital for 6 Sick Children? 7 MS. JENNIFER MCALEER: Correct. 8 DR. PAUL THORNER: Dr. Mancer; Dr. Cutz; 9 Dr. Becker, I think was. 10 MS. JENNIFER MCALEER: Was Dr. Smith 11 there at the time? 12 DR. PAUL THORNER: And Dr. Smith was. 13 Yes. 14 MS. JENNIFER MCALEER: And when you 15 expressed -- you expressed to Dr. Phillips, I take it, 16 that you didn't want to do the medicolegal work? 17 DR. PAUL THORNER: Yes. 18 MS. JENNIFER MCALEER: And did you 19 explain to him the reasons why? 20 DR. PAUL THORNER: I did. 21 MS. JENNIFER MCALEER: And what was his 22 reaction? 23 DR. PAUL THORNER: He was understanding, 24 and he felt just the same, that the work needed to be 25 done and if I were not doing it and someone else had to

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1 pick that up, and he left it to me that if I could find 2 someone that would take that work, it was fine for me to 3 exchange that -- some of that work for some other work. 4 MS. JENNIFER MCALEER: And did you, in 5 fact, find someone to take on your medicolegal work? 6 DR. PAUL THORNER: I did. I asked Dr. 7 Smith if he was interested in doing the additional 8 forensic cases, and he was. And he was interested in my 9 taking some of his surgical pathology work so we traded 10 that. 11 MS. JENNIFER MCALEER: All right. And 12 how long after starting at the Hospital for Sick Kids in 13 1985 would you have engaged in that transfer of work to 14 Dr. Smith? 15 DR. PAUL THORNER: It was just a few 16 months into it. I think I started in July, and by 17 November, I had transferred. I -- I didn't do any 18 medicolegal cases after November. 19 MS. JENNIFER MCALEER: All right. 20 COMMISSIONER STEVEN GOUDGE: Dr. Thorner, 21 if I asked you a little bit about what you felt lacking, 22 was it actually the pathology of the autopsy, or was it 23 more related to the part of the forensic pathology work 24 that involved actual interface with the Justice System? 25 DR. PAUL THORNER: I think it was both of

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1 those aspects. The -- the reason we were recommended to 2 take a forensic rotation to begin with, by our Program 3 Coordinator, was to field exam questions, basically. 4 COMMISSIONER STEPHEN GOUDGE: Right. 5 MR. PAUL THORNER: So the rotation was 6 really geared towards reading and being able to answer 7 questions orally or written questions, and it wasn't very 8 oriented towards practical aspects of doing the -- a 9 forensic type autopsy and the techniques involved there 10 and -- 11 COMMISSIONER STEPHEN GOUDGE: Right from 12 the beginning of doing the autopsy through to preparing 13 the report -- 14 MR. PAUL THORNER: Right. 15 COMMISSIONER STEPHEN GOUDGE: -- and -- 16 MR. PAUL THORNER: I mean, there really 17 was no teaching in the -- 18 COMMISSIONER STEPHEN GOUDGE: Of any of 19 that. 20 MR. PAUL THORNER: No. 21 COMMISSIONER STEPHEN GOUDGE: Okay. And 22 that's obviously -- given the significant experience you 23 had in hospital pathology -- quite different from the 24 pathology you had been doing in your hospital pathology. 25 MR. PAUL THORNER: Oh, yes, very, very

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1 different; it's a different world completely. 2 COMMISSIONER STEPHEN GOUDGE: Okay. Both 3 in terms of what I would call the medical side of it and 4 the legal side of it. 5 MR. PAUL THORNER: Absolutely. 6 COMMISSIONER STEPHEN GOUDGE: Yes, 7 thanks. 8 9 CONTINUED BY MS. JENNIFER MCALEER: 10 MS. JENNIFER MCALEER: As far as you 11 know, Dr. Thorner, did anybody else share your view at 12 the hospital that they did not feel comfortable 13 performing medical forensic -- or medicolegal autopsies? 14 MR. PAUL THORNER: No, I'm not aware 15 anybody voiced that view to me. 16 MS. JENNIFER MCALEER: Now, I understand 17 that when you started full time or when you came on staff 18 at the Hospital for Sick Children in 1987, you were still 19 doing a mix then of surgical pathology and hospital 20 autopsy work. 21 MR. PAUL THORNER: That's correct. 22 MS. JENNIFER MCALEER: Okay. And could 23 you provide us with a bit of a breakdown as to how much 24 of each you were doing? 25 MR. PAUL THORNER: I was doing mainly

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1 surgical pathology work at that point in time. 2 MS. JENNIFER MCALEER: Would that be -- 3 so certainly in excess of 50 percent of your practice? 4 MR. PAUL THORNER: I don't recall exactly 5 the breakdown at that point. There was a gradual 6 transition from when I started to acquiring more and more 7 surgical pathology time and less and less autopsy time. 8 MS. JENNIFER MCALEER: And currently, Dr. 9 Thorner, are you doing exclusively surgical pathology? 10 MR. PAUL THORNER: I am, and I have been 11 for some time. 12 MS. JENNIFER MCALEER: Okay. Can you -- 13 can you date that at all? 14 MR. PAUL THORNER: I would say at least 15 fifteen (15) years. 16 MS. JENNIFER MCALEER: Okay. And 17 generally speaking, Dr. Thorner, when -- when we talk 18 about surgical pathology, what are we talking about, what 19 -- what is surgical pathology? 20 MR. PAUL THORNER: Surgical pathology is 21 the examination of any specimen that's obtained from a 22 patient while they're still alive essentially, and it 23 could be a biopsy, it could be a large operation 24 specimen, it could be fluids, but the patient has to be 25 alive; that's really the mai -- basic difference between

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1 that and an autopsy. 2 MS. JENNIFER MCALEER: And, as I 3 understand it, Dr. Thorner, often the surgical 4 pathologist be -- could be called upon by a surgeon who 5 would want a biopsy tested in the middle of the surgery, 6 for example. 7 MR. PAUL THORNER: Yes. 8 MS. JENNIFER MCALEER: And that would be 9 a situation where you would need a result very quickly, 10 correct? 11 MR. PAUL THORNER: Yes. 12 MS. JENNIFER MCALEER: And that in other 13 occasions, perhaps, the surgical pathologist would have 14 more time to look at the specimens and develop a 15 diagnosis, perhaps not immediately, but over a number of 16 days -- 17 MR. PAUL THORNER: Right. 18 MS. JENNIFER MCALEER: -- is that 19 correct? 20 MR. PAUL THORNER: That's correct. 21 MS. JENNIFER MCALEER: Okay. Now, I 22 understand that in 1990, you were actually promoted to 23 the position of the Staff Pathologist in charge of 24 surgical pathology. 25 MR. PAUL THORNER: That's right.

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1 MS. JENNIFER MCALEER: And if we turn to 2 Tab 3 in the binder in front of you, we will see a memo 3 from Dr. Phillips indicating that as of March 9th, 1990 4 you, in fact, have the position, do you not? 5 MR. PAUL THORNER: That's correct. 6 MS. JENNIFER MCALEER: And what were the 7 responsibilities as the Director of Surgical Pathology? 8 MR. PAUL THORNER: There weren't many at 9 that point; it was really an advisory position to Dr. 10 Phillips. He was interested in bringing in new 11 technology and new diagnostic testing for the department, 12 and he saw someone who had just graduated as to someone 13 who could facilitate that. 14 MS. JENNIFER MCALEER: And was there also 15 a role with respect to preparing the duty roster for 16 those working in the Pathology Department or did that not 17 come until later? 18 MR. PAUL THORNER: I -- I picked that up 19 from Dr. Mancer, and I was responsible for doing the duty 20 roster. 21 MS. JENNIFER MCALEER: And in -- was that 22 in or around the time you became the Director of Surgical 23 Pathology? 24 MR. PAUL THORNER: Yes, yes. 25 MS. JENNIFER MCALEER: And, as I

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1 understand it, in that role of Director of Surgical 2 Pathology, you didn't have any discipline or supervisory 3 role with respect to your colleagues, did you? 4 MR. PAUL THORNER: No, none. 5 MS. JENNIFER MCALEER: Okay. And what 6 was your understanding with respect to Dr. Smith's role, 7 because we see that at the same time, according to this 8 memo, he is promoted to the position of Staff Pathologist 9 in charge of autopsy services? 10 MR. PAUL THORNER: Yeah, I'm not really 11 sure what that position entailed for him to do. 12 MS. JENNIFER MCALEER: Okay. And then we 13 know, Dr. Thorner, that in around the end of 1991, 14 beginning of 1992, that the -- the OPFPU, the Forensic 15 Pathology Unit at the Hospital for Sick Children, opened, 16 you're aware of that? 17 MR. PAUL THORNER: I'm aware that it 18 opened. 19 MS. JENNIFER MCALEER: Okay. And what 20 was your understanding as to the role of this new unit 21 within the hospital? 22 MR. PAUL THORNER: I wasn't really 23 involved in the unit so I'm not really sure what the role 24 of it specifically was for the hospital. 25 MS. JENNIFER MCALEER: It was a rather

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1 small department at the time though: Did you -- do -- do 2 you remember any kind of communication as to what this 3 unit was going to do? What the goals were? Who would be 4 working in it? 5 DR. PAUL THORNER: I don't remember any 6 specific communications. I assumed it was a continuation 7 of the forensic pathology service that had been going on 8 when I joined the hospital. 9 MS. JENNIFER MCALEER: Did you have any 10 views, Dr. Thorner, as to whether or not it was 11 appropriate to have a forensic pathology unit within the 12 Department of Pathology at that time? 13 DR. PAUL THORNER: Well it seemed an 14 appropriate thing, because we had the pediatric expertise 15 within that hospital, so it seemed appropriate to do such 16 cases in the hospital. 17 MS. JENNIFER MCALEER: And were you aware 18 of the fact that eventually Dr. Smith was appointed the 19 Director of the Unit? 20 DR. PAUL THORNER: Yes, I was aware of 21 that. 22 MS. JENNIFER MCALEER: And what were your 23 views, if you had any, with respect to whether or not Dr. 24 Smith was an appropriate person to put in the position of 25 Director of the unit?

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1 DR. PAUL THORNER: I never had any obs -- 2 occasion to observe Charles Smith in -- in working. But 3 the message that we were getting is that Charles Smith 4 was an excellent forensic pathologist, so it seemed to be 5 an appropriate appointment that he would be the head of 6 it. 7 MS. JENNIFER MCALEER: And from whom were 8 you receiving that message? 9 DR. PAUL THORNER: Just the -- sort of 10 the reputation that he had. 11 MS. JENNIFER MCALEER: That was the 12 general understanding within the department? 13 DR. PAUL THORNER: Yes. 14 MS. JENNIFER MCALEER: Of you and your 15 colleagues? 16 DR. PAUL THORNER: I believe so. 17 MS. JENNIFER MCALEER: Okay. And then as 18 we mentioned previously, the -- the departments -- or 19 number of departments within the hospital were actually 20 amalgamated in or around 1995/'96, to form the Department 21 of Pediatric Laboratory Medicine. 22 Is that correct? 23 DR. PAUL THORNER: That's correct. 24 MS. JENNIFER MCALEER: And can you just 25 briefly describe that? What -- what happened? What was

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1 amalgamated? 2 DR. PAUL THORNER: Well prior to that the 3 -- there -- we had -- our lab services were separate 4 departments. So we had a Department of Pathology, 5 Department of Microbiology, Department of Virology, 6 Biochemistry. And these were very small departments, the 7 Department of Virology was one (1) person, and Dr. Becker 8 felt it didn't make sense to have separate departments. 9 There was a general trend across Toronto 10 to amalgamate these clinical labs into one (1) service. 11 And he was -- he was for that trend, and amalgamated all 12 the labs to make it a larger, stronger body in the 13 hospital. 14 MS. JENNIFER MCALEER: And I understand 15 the pathology department then became the Division of 16 Pathology? 17 DR. PAUL THORNER: That's correct. 18 MS. JENNIFER MCALEER: And Dr. Becker 19 became the Chief of the DPLM, the overall department? 20 DR. PAUL THORNER: Right. 21 MS. JENNIFER MCALEER: And he was also 22 the head of pathology? 23 DR. PAUL THORNER: That's right. 24 MS. JENNIFER MCALEER: And you -- your 25 position changed somewhat, but instead of being the

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1 Director of Surgical Pathology, you then became the 2 Director -- sorry, the -- the Director of Surgical 3 Pathology position and the Director of Autopsy Pathology, 4 the position had been held by Dr. Smith, but both of 5 those positions were eliminated. 6 And you then became the associate head of 7 the division? 8 DR. PAUL THORNER: That's correct. 9 MS. JENNIFER MCALEER: Okay. And what 10 were your duties as the associate head of the division? 11 DR. PAUL THORNER: I -- I still 12 maintained the duty of creating the duty roster for the 13 pathologists, and I had the responsibility of tracking 14 incomplete reports and reporting those to Dr. Becker on a 15 monthly basis. 16 MS. JENNIFER MCALEER: And in understand 17 you would also code all surgical pathology cases? 18 DR. PAUL THORNER: Yeah, we had become 19 computerized around that period, and it was now possible 20 to code the surgical specimens in the database, so I did 21 that on a daily basis. 22 MS. JENNIFER MCALEER: All right. So 23 with respect to those three (3) separate heads of 24 responsibility, I'd like to talk a little bit more about 25 the first one, which is the preparation of the duty

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1 rosters. 2 DR. PAUL THORNER: Mm-hm. 3 MS. JENNIFER MCALEER: And if we could 4 turn to Tab 14 in the binder. We have an example of the 5 duty roster for 1996. 6 Now is that a document you would have pref 7 -- prepared, Dr. Thorner? 8 DR. PAUL THORNER: Yes. 9 MS. JENNIFER MCALEER: And can you 10 explain briefly to the Commissioner how you would prepare 11 this document? 12 DR. PAUL THORNER: The -- I'd have -- 13 there were four (4) columns as you can see, that a person 14 needed to be assigned to. We had different 15 responsibilities that people would cover on a weekly 16 basis. 17 One (1) person would cover the surgical 18 pathology service, another one would be on the hospital 19 autopsy service. There was a person to be on the 20 medicolegal service, and then someone to cover the 21 weekends. And depending upon the pathologists, some 22 people covered more than one (1) activity in a particular 23 week. You can see some of these have the same person on 24 for autopsy and medicolegal, and in other lines we have 25 different people.

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1 And the same is true for the weekends. 2 Some people would cover all aspects of weekend duty, and 3 some people would only cover some of it, so it was 4 necessary to assign two (2) or three (3) people to a 5 weekend. 6 MS. JENNIFER MCALEER: And I understand, 7 Dr. Thorner, there was a formula that set out the 8 proportions of -- of work that each pathologist would do, 9 is that correct? 10 DR. PAUL THORNER: Right. The -- I had a 11 formula of -- for each pathologist how much of each of 12 these areas they would cover. And then I would plug that 13 into the schedule, according to that formula. 14 MS. JENNIFER MCALEER: So hypothetically 15 then if you had you, Dr. Thorner, then you would have 16 four (4) weeks out of the year you would do medical -- or 17 you would do hospital work and the rest you would do 18 surgical? I mean, explain a little bit how that formula 19 works? 20 DR. PAUL THORNER: Okay. The -- usually 21 I did them in blocks of ten (10) weeks, and then I knew 22 for each pathologist -- pathologist A would do four (4) - 23 - four (4) weeks of ten (10) surgicals, two (2) weeks out 24 of ten (10) hospitals, zero out of ten (10) medicolegal. 25 And pathologist B might do zero out of ten

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1 (10) surgicals, five (5) out of ten (10) autopsy, five 2 (5) out of ten (10) medicolegal. And it was just a 3 question of filling in the squares to make it all add up. 4 MS. JENNIFER MCALEER: I see. And then I 5 understand with respect to column B, the title, 6 "Surgical" that this doesn't actually include all 7 surgical work. That there was, in fact, a -- a 8 channelling of certain subspecialty work away from the 9 rostered pathologist? 10 DR. PAUL THORNER: That's -- 11 MS. JENNIFER MCALEER: Can you -- 12 DR. PAUL THORNER: That's correct. 13 MS. JENNIFER MCALEER: -- can you explain 14 that to the Commissioner? 15 DR. PAUL THORNER: Okay. The -- bas -- 16 the person on the surgical pathology service was 17 essentially the default recipient of biopsies that were 18 taken that week. And -- but some biopsies would be 19 redirected to people who had a particular expertise in -- 20 in that area. 21 For example, all the kidney biopsies would 22 be redirected to a kidney pathologist, and all liver 23 biopsies would be redirected to a liver pathologist. So 24 the person on the surgical pathology service may or may 25 not be reading those specimens depending upon whether it

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1 was their area of expertise or not. 2 MS. JENNIFER MCALEER: I see. So those 3 that were redirected were liver, renal, gastrointestinal? 4 Were there any other categories? 5 DR. PAUL THORNER: It -- it varied over 6 the times. At some points, we redirected the cardiac 7 specimens, and other times we did not, and at some points 8 we redirected the transplant specimens, and sometimes we 9 did not. It depended a bit on -- it changed over -- over 10 time. 11 MS. JENNIFER MCALEER: So, for example, 12 we know that Dr. Cutz does a lot of surgical pathology, 13 but we don't see him on page 1 of this list under the 14 surgical pathology column. That's because he would be 15 doing a lot of the subspecialty work that would be 16 redirected to him, is that correct? 17 DR. PAUL THORNER: That's true. 18 MS. JENNIFER MCALEER: Okay. And were 19 most of the polo -- pathologists or were all of the 20 pathologists expected to have or to develop the 21 subspecialty in surgical pathology? 22 DR. PAUL THORNER: It was encouraged for 23 them to do that because we had a small number of 24 pathologists as a working group, and we have a large 25 number of specialists within the hospital in pediatrics

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1 and surgery. And they wanted -- they required a certain 2 level of expertise in the biopsies, so they -- we 3 certainly were encouraging people to have subspecialty 4 areas. 5 MS. JENNIFER MCALEER: And what were your 6 particular areas of specialty -- 7 DR. PAUL THORNER: Mine are -- 8 MS. JENNIFER MCALEER: -- or 9 subspecialty? 10 DR. PAUL THORNER: Sorry. Mine are 11 kidney and tumour pathology. 12 MS. JENNIFER MCALEER: So when you say, 13 "tumour" that means you'd be working with the oncology 14 surgeons? 15 DR. PAUL THORNER: That's right. 16 MS. JENNIFER MCALEER: And did Dr. Smith 17 have a subspecialty? 18 DR. PAUL THORNER: We thought his was 19 forensic. 20 MS. JENNIFER MCALEER: Did he have a 21 subspecialty in surgical pathology? 22 DR. PAUL THORNER: Not initially. Later 23 on he was encouraged to pick up some -- to start learning 24 the kidney pathology and then help out with the signing 25 out of those cases. But he didn't do that initially.

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1 MS. JENNIFER MCALEER: All right. And do 2 you know anything about how he came to -- or you said he 3 came to have an interest in kidney pathology or was he 4 encouraged to have an interest in kidney pathology or -- 5 or how did that work? 6 DR. PAUL THORNER: What had happened was 7 we had two (2) kidney pathologists, and one (1) of them 8 left which only left myself, and so Dr. Becker approached 9 Dr. Smith, could he consider learning kidney pathology in 10 greater depth so that he could help read some of the 11 specimens 'cause I would not be available fifty-two (52) 12 weeks of the year to handle them. 13 MS. JENNIFER MCALEER: And was Dr. Smith 14 receptive to that? 15 DR. PAUL THORNER: Yes, he was. 16 MS. JENNIFER MCALEER: And since you had 17 already developed a specialty in that area, did you, in 18 fact, review doctors -- Dr. Smith's work in that area? 19 DR. PAUL THORNER: Initially, I reviewed 20 some of the cases, and then later on Charles became more 21 -- Dr. Smith became more independent and was handling the 22 cases himself. But he would bring cases for me to look 23 at even then. 24 MS. JENNIFER MCALEER: And what 25 impression did you have from reviewing his work, Dr.

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1 Thorner? 2 DR. PAUL THORNER: I thought he was doing 3 a very good job as a renal pathologist, kidney 4 pathologist. 5 MS. JENNIFER MCALEER: All right. And 6 did you indicate that at some point he stopped doing that 7 or as much of it? 8 DR. PAUL THORNER: We had -- Dr. Smith 9 had become more and more interested in -- in doing 10 forensic work, and we had -- so he became increasingly 11 busy doing forensic work. And then we had some new staff 12 people come along and they had an interest in kidney 13 work, one (1) of them did, so that person picked -- or 14 that staff person picked up the kidney work, and Charles 15 wasn't doing it at that point in time. But later on that 16 person left, and Char -- the kidney work returned to 17 Charles. 18 MS. JENNIFER MCALEER: All right. Now, 19 you indicated the second thing that you did is as the 20 Associate Head of the department was to look at the 21 incomplete cases. And what did that involve, Dr. 22 Thorner? 23 DR. PAUL THORNER: It involved doing 24 computer search at the end of each month to determine 25 which cases were incomplete at that point in time. And

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1 then the computer would tell you how many days they were 2 incomplete by. And it would be in each category; the 3 surgicals, the autopsies, the forensic cases. 4 MS. JENNIFER MCALEER: And then what 5 would you do with that list of incomplete cases? 6 DR. PAUL THORNER: I would supp -- I gave 7 a list of the entire number of cases for all the staff to 8 Dr. Becker. And then each pathologist got their own 9 particular list of cases. 10 MS. JENNIFER MCALEER: And would you ever 11 engage in any discussions with the individual 12 pathologists about their list of incomplete cases? 13 DR. PAUL THORNER: No, not really. I 14 mean, it might be just to say, Here is your list of 15 incomplete cases, but I didn't discuss the cases with 16 them. 17 MS. JENNIFER MCALEER: All right. So you 18 wouldn't discuss reasons why cases were not complete 19 then? 20 DR. PAUL THORNER: No. 21 MS. JENNIFER MCALEER: And did you engage 22 in any discussions with Dr. Becker about the list of 23 incomplete cases? 24 DR. PAUL THORNER: Yes. 25 MS. JENNIFER MCALEER: And what was the

32

1 nature of those discussions? 2 DR. PAUL THORNER: It would be to point 3 out to him which cases were particularly overdue. And 4 then I left it for him at that point to follow up on 5 that. 6 MS. JENNIFER MCALEER: And would he 7 report back to you or tell you what efforts he'd made to 8 try and get people to complete their cases? 9 DR. PAUL THORNER: Not usually. I mean, 10 he might report back saying he had talked to someone 11 about an incomplete case. 12 MS. JENNIFER MCALEER: Okay. 13 DR. PAUL THORNER: And there were some 14 memos that were sent that we've seen. 15 MS. JENNIFER MCALEER: All right. With 16 respect to the incomplete cases, what was your impression 17 or -- or what impression did you form as a result of 18 reviewing Dr. Smith's list of incomplete cases? 19 DR. PAUL THORNER: Well, he certainly had 20 the longest list of incomplete cases and the ones that 21 were incomplete for the greatest period of time. 22 MS. JENNIFER MCALEER: And were those in 23 all areas or limited to particular areas? And when I say 24 "areas," I'm speaking of the fact that there'd be 25 surgical cases, there'd be hospital autopsies, and

33

1 there'd be medicolegal autopsies, correct? 2 DR. PAUL THORNER: That's correct. 3 MS. JENNIFER MCALEER: All right. So 4 were the cases that he had difficulty completing in one 5 (1) particular area or were they across the board? 6 DR. PAUL THORNER: No, it was across the 7 board. 8 MS. JENNIFER MCALEER: All right. And 9 just to follow up on an earlier question -- but did -- 10 did you speak to Dr. Smith about the reason why he was 11 having difficulty completing some of those cases? 12 DR. PAUL THORNER: No, I did not. 13 MS. JENNIFER MCALEER: Okay. Did you 14 form any impression as to why he was having difficulty 15 completing those cases? 16 DR. PAUL THORNER: Well, I -- I would 17 think he -- he didn't seem to be a very efficient worker. 18 So it seemed to me that -- that that was the problem. 19 The -- his office was generally disorganized and it 20 seemed to me that it's -- he had a problem with the work 21 practice and just how to get down doing the work. 22 MS. JENNIFER MCALEER: All right. And 23 what were the -- the departmental standards at the time 24 with respect to when cases should be completed? 25 DR. PAUL THORNER: Those were brought in

34

1 by Dr. Becker. Prior to his administration, we didn't 2 have any specific standards. And Dr. Becker wanted to 3 introduce standard turnaround times. There was an 4 increasing trend at that time for maintaining quality 5 indicators, and so Dr. Becker started that for our 6 department. 7 MS. JENNIFER MCALEER: And what were 8 those turnaround times? If we start by looking at 9 surgical pathology? 10 DR. PAUL THORNER: My recollection of 11 that is that we decided 80 percent of the cases would be 12 -- should be complete within four (4) working days. We 13 felt 80 percent represented the more straightforward 14 cases, and that that was an -- an achievable goal to get 15 those completed in four (4) days. 16 And the more complicated cases, we 17 expected would take longer. 18 MS. JENNIFER MCALEER: And -- so that 19 would be the other 20 percent that were more complicated? 20 DR. PAUL THORNER: Right. 21 MS. JENNIFER MCALEER: And how well did 22 Dr. Smith do at meeting those goals? 23 DR. PAUL THORNER: Very poorly. 24 MS. JENNIFER MCALEER: And how would you 25 compare him to his colleagues?

35

1 DR. PAUL THORNER: Most people met the 2 goals. 3 COMMISSIONER STEPHEN GOUDGE: Completed 4 meant preparing the report for the clinician? 5 DR. PAUL THORNER: That's correct. The 6 four (4) days was from the time of receipt -- 7 COMMISSIONER STEPHEN GOUDGE: Time of 8 receipt -- 9 DR. PAUL THORNER: -- up to the time 10 that -- 11 COMMISSIONER STEPHEN GOUDGE: -- to 12 analysis to preparation of report that goes back to the 13 clinician? 14 DR. PAUL THORNER: Right. When the date 15 completed's in the computer. So the report had to be 16 finished. 17 COMMISSIONER STEPHEN GOUDGE: And signed 18 off and out it goes from the department? 19 DR. PAUL THORNER: That's right. 20 21 CONTINUED BY MS. JENNIFER MCALEER: 22 MS. JENNIFER MCALEER: And what was the 23 expected completion time for autopsy cases? 24 DR. PAUL THORNER: I believe it was three 25 (3) months.

36

1 MS. JENNIFER MCALEER: And how did Dr. 2 Smith do with that? 3 DR. PAUL THORNER: He was behind on those 4 as well. 5 MS. JENNIFER MCALEER: And how did he 6 compare to his colleagues? 7 DR. PAUL THORNER: I think he was behind 8 on more cases and for longer periods of time than his 9 colleagues. 10 COMMISSIONER STEPHEN GOUDGE: What is the 11 mark of a completed hospital autopsy, Dr. Thorner? 12 DR. PAUL THORNER: Essentially the same 13 thing, a completed report that's been signed off. 14 COMMISSIONER STEPHEN GOUDGE: That goes 15 back to the clinician that was responsible for the 16 patient who died? 17 MR. PAUL THORNER: That's right. 18 COMMISSIONER STEPHEN GOUDGE: Okay. 19 20 CONTINUED BY MS. JENNIFER MCALEER: 21 MS. JENNIFER MCALEER: All right, Dr. 22 Thorner, if we could turn to Tab 11 now, please. 23 COMMISSIONER STEPHEN GOUDGE: Well, can I 24 ask -- 25 MS. JENNIFER MCALEER: Oh, certainly.

37

1 COMMISSIONER STEPHEN GOUDGE: -- did you 2 have a time line for the medicolegal? 3 MR. PAUL THORNER: I believe it was the 4 same, the three (3) months. 5 COMMISSIONER STEPHEN GOUDGE: Measured 6 by...? 7 MR. PAUL THORNER: The date of the 8 autopsy. 9 COMMISSIONER STEPHEN GOUDGE: From the 10 date of autopsy to signing out of post-mortem report? 11 MR. PAUL THORNER: Yes. 12 COMMISSIONER STEPHEN GOUDGE: Okay. 13 14 CONTINUED BY MS. JENNIFER MCALEER: 15 MS. JENNIFER MCALEER: So the same for 16 the medicolegal and the hospital autopsies. 17 MR. PAUL THORNER: I believe that was 18 true. 19 MS. JENNIFER MCALEER: Okay. 20 COMMISSIONER STEPHEN GOUDGE: And then 21 how did he do with those? 22 MR. PAUL THORNER: I think he was also 23 equally slow on those. 24 COMMISSIONER STEPHEN GOUDGE: Yes. 25

38

1 CONTINUED BY MS. JENNIFER MCALEER: 2 MS. JENNIFER MCALEER: So, at Tab 11, Dr. 3 Thorner, there is a letter from Dr. Becker to Dr. Smith 4 dated July 20th, 1995, and as I understand it, prior to 5 preparing for your evidence here, you had not previously 6 seen this letter. 7 MR. PAUL THORNER: That is correct. 8 MS. JENNIFER MCALEER: Okay. I want to 9 review it with the -- with you, anyway, because it does 10 speak about some surgical pathology cases and because, 11 unfortunately, Dr. Becker isn't with us any longer, so 12 let me ask you a couple of questions to see if you can be 13 of assistance. 14 The letter starts that: 15 "This letter is to inform you that you 16 have failed to meet departmental 17 standards. As you know, these are 18 guidelines which were established and 19 agreed upon in 1994 by all staff 20 pathologists, including yourself. You 21 were informed about three (3) 22 incomplete cases from early March 23 1995..." 24 And then Dr. Becker lists the cases. 25 "...on five (5) separate occasions,

39

1 including my most recent note to you at 2 the beginning of July. If the case is 3 a diagnostically difficult one (1) for 4 you, you have the option of asking one 5 (1) of the other surgical pathologists 6 to sign out the case." 7 Now let me just stop there, Dr. Thorner. 8 Did Dr. Smith ever ask you for assistance with respect to 9 any of the surgical pathology cases he was working on? 10 MR. PAUL THORNER: No, he did not. 11 MS. JENNIFER MCALEER: Okay, did he -- 12 COMMISSIONER STEPHEN GOUDGE: These are 13 all surgical cases from the designation. 14 MR. PAUL THORNER: Yes, they are. 15 16 CONTINUED BY MS. JENNIFER MCALEER: 17 MS. JENNIFER MCALEER: All right. And we 18 con -- can -- can we tell, Dr. Thorner, from the -- from 19 the designation that -- when these cases were originally 20 prepared? 21 MR. PAUL THORNER: I would have to have 22 the report. 23 MS. JENNIFER MCALEER: I see. 24 MR. PAUL THORNER: If I had a copy of the 25 report, I could tell you.

40

1 MS. JENNIFER MCALEER: All right. And 2 we're going to look at the second one (1), first of all, 3 S1065. If we go to Tab 4, we -- we have, Mr. 4 Commissioner, obtained the documents that refer to that - 5 - that second of the three (3) cases, the S1065. 6 COMMISSIONER STEPHEN GOUDGE: Sorry, what 7 tab? 8 MS. JENNIFER MCALEER: So if we go to Tab 9 4, please. 10 COMMISSIONER STEPHEN GOUDGE: Thank you. 11 12 CONTINUED BY MS. JENNIFER MCALEER: 13 MS. JENNIFER MCALEER: Now, Dr. Thorner, 14 I know that you had not previously seen this letter, 15 either, before we started preparing for your testimony, 16 but you've now had the opportunity to review this letter? 17 MR. PAUL THORNER: Yes. 18 MS. JENNIFER MCALEER: And it's a letter 19 from parents to Dr. Greenberg, who is the Chief of 20 Oncology, with respect to a fibular resection of Ewing's 21 sarcoma. I understand that's a type of cancer? 22 MR. PAUL THORNER: That's true, it's a 23 bone cancer. 24 MS. JENNIFER MCALEER: All right. And 25 the parents make reference in the last sentence at the

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1 first paragraph that the operative report states: 2 "The pathology specimen will be 3 reviewed for adequacy of the margins 4 which were clinically clear." 5 Skip down. 6 "It is now almost four (4) months since 7 the surgery, and we have heard nothing 8 related to the pathology of the 9 resected tumour. I expect you are very 10 aware of the need for accurate 11 information to bolster the moral -- the 12 moral of chemotherapy patients. The 13 child has had a particularly difficult 14 time this past month, and being able to 15 assure him the tumour was removed in 16 its entirety would make a tremendous 17 difference as he goes into his final 18 session of chemotherapy." 19 So this is essentially a letter from 20 parents complaining that they haven't received the 21 information that they want with respect to the status of 22 their child's cancer, isn't that correct? 23 MR. PAUL THORNER: That's correct. 24 MS. JENNIFER MCALEER: Okay. So then if 25 we turn to tab -- and if it's four (4) months, that we

42

1 can agree is past the -- the guidelines that would have 2 been expected. 3 MR. PAUL THORNER: The -- this is a bone 4 tumour which would take longer to sign out than the four 5 (4) days, but -- 6 MS. JENNIFER MCALEER: I see, so it would 7 be in that 20 percent of more complicated cases. 8 MR. PAUL THORNER: That's right. 9 MS. JENNIFER MCALEER: All right. 10 MR. PAUL THORNER: But four (4) months is 11 -- is well past what would be acceptable. 12 COMMISSIONER STEPHEN GOUDGE: Just in a 13 sentence, Dr. Thorner, why is a bone specimen more 14 complicated to read than, you know, a kidney -- 15 MR. PAUL THORNER: Right. I'm -- I 16 didn't mean to imply it was more difficult to read, it's 17 more difficult to -- more difficult to process. 18 COMMISSIONER STEPHEN GOUDGE: -- why 19 would it take long? 20 MR. PAUL THORNER: It's the processing. 21 We cannot cut bone with our knives, so -- 22 COMMISSIONER STEPHEN GOUDGE: So you have 23 to process it first? 24 MR. PAUL THORNER: You have to remove all 25 the calcium, and that takes a certain period of time

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1 before -- 2 COMMISSIONER STEPHEN GOUDGE: I see. 3 MR. PAUL THORNER: -- you can make the 4 bone soft enough to cut. It takes -- usually this type 5 of specimen would take about two (2) weeks to complete -- 6 COMMISSIONER STEPHEN GOUDGE: Right. 7 MR. PAUL THORNER: -- from start to 8 finish. 9 COMMISSIONER STEPHEN GOUDGE: Right. 10 Oncology readings surely have a priority? 11 DR. PAUL THORNER: Absolutely. 12 COMMISSIONER STEPHEN GOUDGE: I mean 13 wouldn't it be expected they'd be done faster than three 14 (3) months? 15 DR. PAUL THORNER: Oh, absolutely. Two 16 (2) weeks would be the average turn around -- 17 COMMISSIONER STEPHEN GOUDGE: So you -- 18 DR. PAUL THORNER: -- so respective turn 19 around time for this. 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 Okay, thanks. 22 23 CONTINUED BY MS. JENNIFER MCALEER: 24 MS. JENNIFER MCALEER: And just generally 25 speaking, Dr. Thorner, as I understand it, there --

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1 there's a priority that -- that surgical takes priority 2 over autopsy, is that correct? 3 DR. PAUL THORNER: That's correct. 4 MS. JENNIFER MCALEER: Is there an 5 understanding within the hospital that -- 6 DR. PAUL THORNER: Right. 7 MS. JENNIFER MCALEER: -- if you're -- if 8 you're really busy and you need to rank your work, you're 9 going to make the surgical pathology the priority? 10 DR. PAUL THORNER: That's what's 11 expected, yes. 12 MS. JENNIFER MCALEER: And -- and why is 13 that, Dr. Thorner? 14 DR. PAUL THORNER: Because of their live 15 patients. They're waiting for results. There may be 16 therapy decisions that are hanging on the pathology 17 report that -- that has to be done in a timely fashion. 18 MS. JENNIFER MCALEER: Right. So now, if 19 we turn to Tab 5, we see that Dr. Greenberg has 20 responded. And Ms. Trask has just reminded me that I 21 need to indicate the PFP numbers. Tab 5 is PFP137832. 22 And this is Dr. Greenberg's response to 23 the parents dated July 19th, 1995. Basically it's -- 24 it's an apology, isn't it, Dr. Thorner? 25 DR. PAUL THORNER: Yes, it is.

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1 MS. JENNIFER MCALEER: Then we turn to 2 Tab 6, and we see that Dr. Greenberg is then bringing 3 this to Dr. Becker's attention. 4 Presumably because he's Head of the 5 pathology department at that time? 6 DR. PAUL THORNER: That's correct. 7 MS. JENNIFER MCALEER: Indicating it's 8 not clear to him why this delay has occurred. Do you see 9 that, Dr. Thorner? 10 DR. PAUL THORNER: Yes. 11 MS. JENNIFER MCALEER: And then if we go 12 to Tab 7, which if PFP137833, we have Dr. Becker writing 13 directly to the parents as well. Again, apologizing, and 14 confirming for the parents that, in fact, the -- the 15 cancer has not spread. 16 Is that essentially what's... 17 DR. PAUL THORNER: The -- he's confirmed 18 that the cancer was entirely removed in that oper -- 19 operative procedure. 20 MS. JENNIFER MCALEER: Right, so that -- 21 DR. PAUL THORNER: And that -- 22 MS. JENNIFER MCALEER: -- the work they 23 were waiting -- it's good news, right? 24 DR. PAUL THORNER: Yes, it's good news, 25 right.

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1 MS. JENNIFER MCALEER: Okay. And then 2 indicating in the last paragraph: 3 "We've instituted further internal 4 department controls so that such 5 reporting delays will be future -- will 6 in the future be avoided." 7 Do you know what those may have been, Dr. 8 Thorner? 9 DR. PAUL THORNER: Oh, I think he's 10 referring to the turn around times, the standardization 11 of that, and the generation of the incomplete list 12 following all of these incomplete reports more closely 13 than had been done before. 14 MS. JENNIFER MCALEER: All right. And 15 then if we flip ahead to Tab 12, PFP137841, we then have 16 Dr. Becker closing the loop by writing back to Dr. 17 Greenberg. And at the last sentence of the first 18 paragraph he indicates: 19 "I have also indicated to the 20 pathologist responsible for completing 21 the report that this was a lapse in 22 standards which was regrettable." 23 And then he indicates in the second 24 paragraph: 25 "It should, of course, be noted that

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1 close to eight thousand (8,000) 2 specimens are examined per year, and 3 such a delay have not, to my knowledge, 4 previously occurred." 5 Would that be consistent with your 6 experience, Dr. Thorner? 7 DR. PAUL THORNER: It's difficult to know 8 how long the reports took before the computer time that 9 we had, because it was -- we didn't really track them and 10 it was really on the honour system of the pathologist to 11 complete their reports. 12 But there was no way of tracking them so 13 it may refer to that that we're only recently getting 14 this computer experience to see how late these cases are, 15 and this was the oldest one (1) that he had encountered. 16 MS. JENNIFER MCALEER: All right. And do 17 you recall, Dr. Thorner, did you have any discussions 18 with either Dr. Greenberg or Dr. Becker about this 19 particular case? 20 DR. PAUL THORNER: I don't recall having 21 any discussions about this. 22 MS. JENNIFER MCALEER: All right. So 23 turning back to Tab 11, which was the July 20th, 1995 24 letter, the PFP137837. So that's the -- the middle case 25 that we -- S1065.

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1 With respect to the other two (2) cases, 2 Dr. Thorner, I understand that you've had the opportunity 3 to look at the post-mortem examination report -- the 4 hospital copy of the post-mortem examination report -- 5 correct? 6 DR. PAUL THORNER: These are not post- 7 mortem. 8 MS. JENNIFER MCALEER: Sorry, what -- 9 what would you call them, surgical reports? 10 DR. PAUL THORNER: These are surgical 11 reports. 12 MS. JENNIFER MCALEER: Surgical reports. 13 DR. PAUL THORNER: The patients are -- 14 MS. JENNIFER MCALEER: Right. My -- 15 DR. PAUL THORNER: -- they're alive. 16 MS. JENNIFER MCALEER: -- right, my 17 apology. So you've looked at the other two (2) surgical 18 reports? 19 DR. PAUL THORNER: That's correct. 20 MS. JENNIFER MCALEER: And you've only 21 had the opportunity to look at the report, as I 22 understand it? 23 DR. PAUL THORNER: Right. 24 MS. JENNIFER MCALEER: You haven't seen 25 any correspondence from Dr. Becker or Dr. Smith about

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1 delay issues with respect to those particular reports? 2 DR. PAUL THORNER: No, nothing. 3 MS. JENNIFER MCALEER: And were you able 4 to determine what was the reason for the delay by looking 5 at those reports, Dr. Thorner? 6 DR. PAUL THORNER: No. 7 MS. JENNIFER MCALEER: Okay. And those - 8 - those reports, Mr. Commissioner, they're not in our 9 database. Dr. Thorner just had the opportunity to look 10 at them yesterday, I understand? 11 DR. PAUL THORNER: That's right. 12 MS. JENNIFER MCALEER: Okay. 13 COMMISSIONER STEPHEN GOUDGE: Were they 14 oncology cases? 15 DR. PAUL THORNER: No, they were not. 16 17 CONTINUED BY MS. JENNIFER MCALEER: 18 MS. JENNIFER MCALEER: Do you recall what 19 kind of cases they were? 20 DR. PAUL THORNER: One (1) was a -- a 21 lymph node biopsy, that may have been of interest to 22 oncology -- 23 COMMISSIONER STEPHEN GOUDGE: Yes, 24 exactly. 25 DR. PAUL THORNER: -- as to whether there

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1 was tumour or not in it, but it was benign, so oncology 2 would not have been involved. 3 COMMISSIONER STEPHEN GOUDGE: Right. 4 DR. PAUL THORNER: And the other was a 5 kidney stone. 6 COMMISSIONER STEPHEN GOUDGE: Right. 7 8 CONTINUED BY MS. JENNIFER MCALEER: 9 MS. JENNIFER MCALEER: And you indicated 10 that -- that the case that we looked at in more detail 11 was one (1) that fell within the 20 percent of 12 complicated types of surgical pathology? 13 DR. PAUL THORNER: Right. 14 MS. JENNIFER MCALEER: Would the lymph 15 node biopsy have fallen within that 20 percent? 16 DR. PAUL THORNER: It would in this case 17 because Dr. Smith carried out some additional special 18 testing on that case, and that would've taken it beyond 19 four (4) days. 20 MS. JENNIFER MCALEER: So it wasn't a 21 straightforward case? 22 DR. PAUL THORNER: No. 23 MS. JENNIFER MCALEER: And were you able 24 to determine how long it had taken to complete that 25 report?

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1 DR. PAUL THORNER: I bel -- I think it 2 was about four (4) months -- 3 MS. JENNIFER MCALEER: Okay. 4 DR. PAUL THORNER: -- that it took him 5 that long. 6 MS. JENNIFER MCALEER: And should it have 7 taken that long? 8 DR. PAUL THORNER: No. 9 MS. JENNIFER MCALEER: With respect to 10 the second case, the -- the kidney stone, would that fall 11 within the 20 percent of more complicated cases? 12 DR. PAUL THORNER: Yes. 13 MS. JENNIFER MCALEER: And why is that, 14 Dr. Thorner? 15 DR. PAUL THORNER: Because it requires a 16 chemical analysis of what the stone is composed of. 17 MS. JENNIFER MCALEER: And do you recall 18 how long it took to complete that report? 19 DR. PAUL THORNER: Also about four (4) 20 months. 21 MS. JENNIFER MCALEER: And should it have 22 taken that long? 23 DR. PAUL THORNER: No. 24 MS. JENNIFER MCALEER: All right. So 25 staying with the July 20th letter, second last paragraph:

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1 "I'm advising you that you must 2 strictly adhere to the departmental 3 guidelines. Furthermore, I would like 4 to -- would also like to suggest that 5 it would be to your benefit to 6 participate, sometime in the next year, 7 in a CME course in surgical pathology 8 in order to enhance your diagnostic 9 skills." 10 First of all, from -- from reviewing these 11 -- these three (3) cases in the brief way that you've 12 been able to, Dr. Thorner, are -- are -- do you know, are 13 these cases that were not completed in a timely fashion 14 because of diagnostic difficulties or are you able to 15 say? 16 DR. PAUL THORNER: No, they were quite 17 straightforward cases. 18 MS. JENNIFER MCALEER: All right. So you 19 don't know why they weren't completed in a timely manner, 20 is that correct? 21 DR. PAUL THORNER: That's correct. 22 MS. JENNIFER MCALEER: And there's a 23 reference to taking a CME course. Do you know if Dr. 24 Smith ever took that course? 25 DR. PAUL THORNER: I'm not aware whether

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1 he did or not. 2 MS. JENNIFER MCALEER: Okay. All right. 3 If we could turn to Tab 15, please. This is PFP137855. 4 And again, Dr. Thorner, you had not previously seen this 5 document before preparing for today's testimony? 6 DR. PAUL THORNER: No, I have not. 7 MS. JENNIFER MCALEER: Just a question 8 about Dr. Becker and his practice. This -- this letter 9 is not on letterhead, it's not signed. Do you know if 10 Dr. Becker had a practice of drafting letters that he 11 would then discuss with his staff as opposed to actually 12 sending them to his staff? 13 DR. PAUL THORNER: I can't say I have any 14 personal experience with that. He didn't discuss any 15 letters with me rather than send them, but it's certainly 16 possible that he did that. And -- and this doesn't look 17 like a letter he would send out. 18 MS. JENNIFER MCALEER: Why do you say 19 that? 20 DR. PAUL THORNER: As you've pointed out, 21 it's not on letterhead, it's not signed, it has a blank 22 in the fourth line here. This is not a complete letter. 23 MS. JENNIFER MCALEER: Okay. 24 DR. PAUL THORNER: This is not the type 25 of work he would do.

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1 MS. JENNIFER MCALEER: All right. This - 2 - this letter also pertains to the signing out of 3 surgical cases. If you look down half way through the 4 first paragraph it says: 5 "This third time around we cannot 6 tolerate any delays. If the cases are 7 not signed out according to the 8 standards in the Division of Pathology 9 then this matter will be raised at a 10 higher level and appropriate steps will 11 be taken." 12 What would have been the higher level, Dr. 13 Thorner? 14 DR. PAUL THORNER: I'm not sure what he 15 was thinking about at that point. I mean, there -- I can 16 tell you what higher levels there might be, but I don't 17 know that he was considering those specifically. 18 MS. JENNIFER MCALEER: What would be the 19 next higher level if -- if Dr. Becker can't get the -- 20 the reports completed in a timely fashion or can't make 21 sure that his pathologists do, what's -- what's the next 22 level? 23 DR. PAUL THORNER: He has the control 24 over salary, so he certainly could adjust someone's 25 salary if he felt that there -- there was a need to do

55

1 that. Above that, I suppose he could report it to the 2 vice president that he reports to, or he could take it to 3 the Medical Advisory Board, or he could -- then there are 4 different bodies he could report to. 5 I don't know that he was considering any 6 of those. I never heard him mention that. 7 MS. JENNIFER MCALEER: All right. 8 Turning to Tab 16 then, please, PFP137854. Now, this is 9 a series of emails with respect to an -- an issue 10 involving a Rafael Schneider. Who's -- who's Rafael 11 Schneider? 12 MR. PAUL THORNER: Dr. Schneider's a 13 rheumatologist at the Hospital for Sick Children. 14 MS. JENNIFER MCALEER: Okay. And you've 15 authored some of these emails, correct? 16 MR. PAUL THORNER: That's -- that's 17 correct. 18 MS. JENNIFER MCALEER: Okay, can you 19 briefly describe what's -- what's the issue here, Dr. 20 Thorner? 21 MR. PAUL THORNER: I guess Dr. Schneider 22 brought in a outside slides for an opinion, and that was 23 given a number here. 24 MS. JENNIFER MCALEER: I'm sorry, brought 25 in extra outside slides for...?

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1 MR. PAUL THORNER: Outside slides for an 2 opinion. 3 MS. JENNIFER MCALEER: An opinion, thank 4 you. 5 MR. PAUL THORNER: In other words, it was 6 a -- not a biopsy done within the hospital; he's brought 7 in a -- presumably had a patient coming in and the 8 patient had had an outside biopsy and he wanted it 9 reviewed. 10 MS. JENNIFER MCALEER: All right. 11 MR. PAUL THORNER: So it -- it was, 12 according to this memo, and I don't recall any of this 13 specifically, but according to the memo, it was -- the 14 biopsy was assigned to Charles Smith and then -- 15 MS. JENNIFER MCALEER: He never received 16 a written report, he's indicating. 17 MR. PAUL THORNER: Right, he's never 18 received a report on it and the -- the biopsy remained on 19 the incomplete list -- 20 MS. JENNIFER MCALEER: I see. 21 MR. PAUL THORNER: -- for -- for some 22 time. 23 MS. JENNIFER MCALEER: And then Dr. Smith 24 provides an explanation with respect to waiting for 25 additional slides.

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1 MR. PAUL THORNER: Right, it -- according 2 to what Dr. Smith's written, he looked at the slides that 3 were there and then was waiting for some additional ones 4 and returned the original slides to the referring doctor. 5 MS. JENNIFER MCALEER: And then we see 6 from Dr. Schneider's response, it's the second email from 7 the top, that it was clear from the review that there was 8 no facilitis (phonetic). 9 MR. PAUL THORNER: Right. 10 MS. JENNIFER MCALEER: 11 "Since that is what we were most 12 interested in, I would think it would 13 be reasonable to leave it at that. I 14 don't think it's necessary to request 15 slides again." 16 So what -- what do you take from that, Dr. 17 Thorner? 18 MR. PAUL THORNER: It appeared that 19 Charles was waiting for additional slides to arrive 20 before he was going to write the report on this and had 21 not done any writing, and then Dr. Schneider has 22 indicated that he didn't really need to wait for the 23 additional slides, he would like the report based on the 24 original slide that he had -- that Dr. Smith had 25 received.

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1 MS. JENNIFER MCALEER: Right, so he just 2 wants a report on the slides he had provided. 3 MR. PAUL THORNER: That's right, he wants 4 the report. 5 MS. JENNIFER MCALEER: And then at the 6 top, the -- the first email on the page, is basically 7 you're forwarding this whole series on to Dr. Becker with 8 your comments, correct? 9 MR. PAUL THORNER: That's correct. 10 MS. JENNIFER MCALEER: And you mention: 11 "It's a referral case" 12 And then you say, also: 13 "This case is not currently on the CS's 14 -- [sorry] on CS's [which should be 15 Dr. Smith] -- " 16 MR. PAUL THORNER: That's correct. 17 MS. JENNIFER MCALEER: 18 " -- incomplete list since he filled in 19 the date finalized as the same date as 20 he received the biopsy after the case 21 had been on his incomplete list for 22 several months. Overlooking the issue 23 of how honest this tactic is, the case 24 is not complete since there is no 25 report in the database."

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1 Now, what's going on here, Dr. Thorner? 2 MR. PAUL THORNER: It appears to me that 3 Dr. Smith felt that the -- since -- since Dr. Schneider 4 didn't need the additional slides reviewed that the 5 review of the case was complete. 6 And then he has signed the case off but 7 didn't actually write a report on the case, and the date 8 that he signed it off is not the date that he was doing 9 it. He actually backdated the specimen to the date it 10 was received, so it looks like he completed the case the 11 same day that it receive -- that it was received, which 12 is not possible to do. 13 But moreover, there's no report, so he 14 didn't actually complete anything. 15 MS. JENNIFER MCALEER: So there's two (2) 16 things going on. 17 MR. PAUL THORNER: That's correct. 18 MS. JENNIFER MCALEER: First of all, it 19 shouldn't be signed out, to use your -- your lingo -- 20 MR. PAUL THORNER: That's right. 21 MS. JENNIFER MCALEER: -- it shouldn't be 22 signed out because there still is no report. 23 MR. PAUL THORNER: That's right. 24 MS. JENNIFER MCALEER: And the surgeon 25 still wants a report.

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1 MR. PAUL THORNER: That's right. 2 MS. JENNIFER MCALEER: The second thing, 3 it's been backdated, and I take it that would be 4 inconsistent with hospital policy to backdate. 5 MR. PAUL THORNER: Absolutely. 6 MS. JENNIFER MCALEER: Okay. And did you 7 have any follow-up conversation with Dr. Becker or Dr. 8 Smith about this issue? 9 MR. PAUL THORNER: I did not. 10 MS. JENNIFER MCALEER: All right, turning 11 to Tab 17, please, PFP056458. Now, this is a memo from 12 Dr. Smith to Dr. Chiasson of September 23rd, 1996. 13 Again, I understand that you had not previously seen this 14 memo, Dr. Thorner. 15 MR. PAUL THORNER: No, I have not. 16 MS. JENNIFER MCALEER: Yet there is a 17 reference to you in the first paragraph of the memo. 18 It's a little bit difficult to read, so I'll -- I'll try 19 my best here: 20 "David, I have been in Court in Elliot 21 Lake early Thursday morning, so I have 22 to leave here on Wednesday afternoon. 23 I won't be able to attend rounds. In 24 fact, it's a real hassle because I am 25 on surgicals this week and Glen Taylor

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1 is in Halifax at the Royal College CAP 2 meetings, and Paul Thorner will only 3 cover surgicals for me for one (1) day. 4 So I have to drive up to Elliot Lake on 5 Wednesday evening and then drive back 6 on Thursday evening, since the airline 7 schedule would otherwise require that I 8 miss more than one (1) day of work. 9 [open bracket] (Paul Thorner's latest 10 response on why we do BAL's on our 11 sudden death cases, even though it 12 gives us a higher yield on viral 13 studies. [open quotation marks] 'Who 14 cares if you find a virus or not. The 15 kid's dead.') [closed quotation marks; 16 closed round bracket]" 17 Now, Dr. Thorner, first of all, what's a - 18 - what's a ba -- a BAL? 19 DR. PAUL THORNER: A BAL is -- refers to 20 Bronchoalveolar Lavage. It's a technique where you 21 insert fluid, usually saline, into the upper airways, and 22 you can wash down into the lower airways. Then you can 23 recover the fluid back, and you can send that fluid for 24 analysis. 25 MS. JENNIFER MCALEER: All right. And

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1 when would one normally do a -- a BAL? 2 DR. PAUL THORNER: It's usually done on 3 patients that are having difficulties with breathing, and 4 instead of doing a lung biopsy which is invasive, it's 5 easier to just -- you can get a sample of what's going on 6 deep in the lungs by using this technique and recovering 7 the fluid. And you can analyse for many of the same 8 things, particularly infections. 9 MS. JENNIFER MCALEER: And at this time, 10 in 1996, did you have any knowledge as to whether or not 11 BALs were being performed as part of post-mortem 12 examinations in some circumstances? 13 DR. PAUL THORNER: No, I had no knowledge 14 of that. I'm not involved in the investigation of the 15 post-mortems. 16 MS. JENNIFER MCALEER: And did you -- do 17 you recall having any discussion with Dr. Smith about 18 BALs, and their use in post-mortem examinations? 19 DR. PAUL THORNER: No. I don't recall 20 that. 21 MS. JENNIFER MCALEER: And -- 22 DR. PAUL THORNER: I don't see why I 23 would be discussing that with Dr. Smith. 24 MS. JENNIFER MCALEER: And Dr. Smith 25 purports to quote you. Do you recall saying this, Dr.

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1 Thorner? 2 DR. PAUL THORNER: No, I don't recall 3 saying that. It doesn't sound like something I would 4 say. It's -- it's not a very logical statement about not 5 -- that it's not -- it's essentially saying it's not 6 worthwhile to look for a virus in a post-mortem because 7 the child has already died. 8 But the whole purpose of doing the post- 9 mortem is to find out why the child died, and often we 10 run viral studies at post-mortem, and many times you 11 recover something, and it's quite helpful. 12 So it's a very illogical statement to 13 make, and I can't believe I ever made such a statement. 14 MS. JENNIFER MCALEER: All right. And 15 you don't remember ever discussing this issue with Dr. 16 Smith? 17 DR. PAUL THORNER: No. 18 MS. JENNIFER MCALEER: Okay. If we could 19 move forward to Tab 20. 20 Now this is a memo that we had previously 21 reviewed with Dr. Cutz and Dr. Taylor, Dr. Thorner, but 22 you are, in fact, the author of this memo. It's 23 PFP137857. 24 Now, Dr. Thorner, do you recall preparing 25 this memo?

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1 DR. PAUL THORNER: I don't recall 2 specifically preparing it, but it's definitely my 3 handwriting. I definitely wrote it. 4 MS. JENNIFER MCALEER: All right. And 5 why would you be preparing a memo like this to Dr. 6 Becker? 7 DR. PAUL THORNER: I don't recall the 8 specific instances here, but based on what the memo says, 9 I had just come back from a pathology conference, and 10 there were some complaints or problems that had surfaced 11 upon returning from that. 12 One of these was actually brought to my 13 attention by Dr. Cutz; and then another one (1) had been 14 brought to my attention by another doctor, one (1) of our 15 surgeons; and then the other two (2) cases were found 16 just when I'm doing the daily coding of surgical. 17 So there was a -- a group of four (4) 18 problems that surfaced shortly after returning from this 19 meeting. 20 MS. JENNIFER MCALEER: All right. So the 21 first case is one with respect to Dr. Cutz. The fourth 22 case is the other physician. Correct? 23 DR. PAUL THORNER: That's correct. 24 MS. JENNIFER MCALEER: And the two (2) in 25 the middle are the -- the two (2) that you detected from

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1 coding? 2 DR. PAUL THORNER: Right. 3 MS. JENNIFER MCALEER: All right. And 4 you've identified in your first paragraph that: 5 "I have come across four (4) recent 6 cases of Dr. Smith in which there are 7 diagnostic discrepancies." 8 Now just stopping there. What do -- what 9 do you mean, Dr. Thorner, when you use the term 10 "diagnostic discrepancy"? What -- what is a diagnostic 11 discrepancy? 12 DR. PAUL THORNER: Well, it's kind of a 13 catchall term. It's -- it could refer to a diagnosis 14 that doesn't fit that well with the clinical history, and 15 -- and the site of the specimen. It could be an 16 observation that's written in the report that doesn't 17 seem to fit with the -- the situations. Or it could be 18 of something that was missed on a slide. 19 MS. JENNIFER MCALEER: Missed in the 20 sense of a missed interpretation? 21 DR. PAUL THORNER: Correct. Yeah. 22 MS. JENNIFER MCALEER: All right. With 23 respect to the first case, the one (1) involving Dr. 24 Cutz. If we actually turn back to Tab 19, which is 25 PFP137860, we have a memo from Dr. Cutz to Dr. Becker,

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1 copied to you. 2 And I'll give -- just give you a moment, 3 Dr. Thorner. I -- I know we're moving quickly this 4 morning, but you -- just refresh your memory by looking 5 at that. 6 7 (BRIEF PAUSE) 8 9 DR. PAUL THORNER: Mm-hm. 10 MS. JENNIFER MCALEER: All right. So can 11 you briefly explain what's going on with this case, Dr. 12 Thorner? 13 DR. PAUL THORNER: It appears that Dr. 14 Smith has signed out a -- or completed a biopsy report on 15 -- this is a biopsy from the colon. And the gastro ent - 16 - gastroenterologist felt that one (1) of the items 17 mentioned in the report did not fit with what she felt 18 clinically. 19 And so she was questioning that and asked 20 Dr. Cutz to review it. And Dr. Cutz disagreed with Dr. 21 Smith's interpretation of the slides. 22 MS. JENNIFER MCALEER: All right. And 23 then -- 24 DR. PAUL THORNER: And then brought that 25 to my attention, to Dr. Becker's attention, and the

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1 Resident -- the trainee at that time took the case back 2 to Dr. Smith for a supplementary report to be issued. 3 MS. JENNIFER MCALEER: All right. So did 4 you actually review the slides in this case? 5 DR. PAUL THORNER: I did not. 6 MS. JENNIFER MCALEER: Okay. Dr. Cutz's 7 memo says: 8 "I find no evidence of small intestine 9 metaplasia." 10 Was that the -- the issue in dispute, 11 whether or not there was metaplasia? 12 DR. PAUL THORNER: Yes. 13 MS. JENNIFER MCALEER: All right. And 14 your understanding is Dr. Smith found that there was 15 metaplasia? 16 DR. PAUL THORNER: Yes. 17 MS. JENNIFER MCALEER: And what is 18 metaplasia? 19 DR. PAUL THORNER: It refers to a change 20 in the type of the lining in the bowel. And it -- for 21 example, in the large bowel, you should have a large 22 bowel lining. But if it has changed to a small bowel 23 type of lining, you would call that small bowel -- or 24 small intestine metaplasia. 25 MS. JENNIFER MCALEER: All right. And

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1 how diagnostically difficult is it to make this 2 determination? 3 DR. PAUL THORNER: It shouldn't be 4 diagnostically difficult. 5 MS. JENNIFER MCALEER: So it's something 6 that one would expect of a pathologist who does surgical 7 pathology, but you don't need to have any particular 8 submission-speciality in order to make this diagnosis 9 correctly? 10 DR. PAUL THORNER: Right. I wouldn't 11 think that you'd need to have submission-speciality 12 expertise to make that particular distinction. 13 MS. JENNIFER MCALEER: And do you know, 14 Dr. Thorner, whether there was any impact in the patient 15 as a result of this mis-diagnosis? 16 DR. PAUL THORNER: This would have no 17 patient impact. 18 MS. JENNIFER MCALEER: Is it -- is it 19 correct, Dr. Thorner, for me to call it a mis-diagnosis. 20 I don't want to overstate, but is that what we have here? 21 DR. PAUL THORNER: I -- I -- this isn't 22 actually the diagnosis. I've -- this is just something 23 that he has described in the -- in the description of the 24 biopsy, but I -- I don't think he act -- I'm not sure how 25 he actually called the biopsy at the end.

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1 But missing or overcalling this change 2 would have no patient impact at all. 3 COMMISSIONER STEPHEN GOUDGE: How common 4 would it be? 5 DR. PAUL THORNER: It's a relatively 6 common change. 7 COMMISSIONER STEPHEN GOUDGE: No, but how 8 common would the -- 9 MS. JENNIFER MCALEER: The error -- 10 COMMISSIONER STEPHEN GOUDGE: It looks to 11 me as if Dr. Cutz is saying we're going to ask Dr. Smith 12 to issue a supplementary report in this one (1) case, and 13 there's another case where he did change his report. 14 DR. PAUL THORNER: Oh, I see what you 15 mean. How common -- 16 COMMISSIONER STEPHEN GOUDGE: How common 17 is it to have that kind of quotes "mistake" made? 18 DR. PAUL THORNER: I don't -- that's not 19 common. 20 21 CONTINUED BY MS. JENNIFER MCALEER: 22 MS. JENNIFER MCALEER: All right. And 23 then turning back to Tab 20 please, which is PFP137857, 24 moving on to the second and third case. 25 DR. PAUL THORNER: Mm-hm.

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1 MS. JENNIFER MCALEER: First of all, you 2 indicated that you detected both of these when you were 3 coding. What is coding, Dr. Thorner? 4 DR. PAUL THORNER: Coding is part of our 5 -- is a database procedure we -- in our computer 6 database, I set up a function where all of the surgicals 7 can be assigned a diagnostic code and a site code, what 8 part of the body they came from. 9 And so I assign that to every case that we 10 have going through the -- the department on a daily 11 basis, and that allow -- we use that for retrieval 12 purposes. 13 MS. JENNIFER MCALEER: You use that to 14 identify trends, do you? 15 DR. PAUL THORNER: We use that in a few 16 ways. You can -- if you are interested in doing a study 17 on a particular diagnosis, then you can pull out of the 18 database all of the cases that have that diagnosis. 19 Or if you have a new test, you want to 20 test on a certain type of -- of lesion, you can do that. 21 Or we use it clinically if we have a -- a case that's in 22 maybe an unusual site, or an unusual age group, and we 23 want to see have we ever experienced that before, you can 24 do the database search and see how many patients did have 25 that disease in that site or at that age.

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1 MS. JENNIFER MCALEER: And as I 2 understand it, Dr. Thorner, the -- the coding in and of 3 itself is not designed as a quality assurance mechanism, 4 but it has a bit of an impact with respect to quality 5 assurance, because if one sees a diagnosis in a site that 6 is very unusual, that may cause one to take a second look 7 at the case, is that -- 8 DR. PAUL THORNER: That's right. 9 MS. JENNIFER MCALEER: -- correct? And 10 that's essentially what's happened in -- in these two (2) 11 cases? 12 DR. PAUL THORNER: That's right. 13 MS. JENNIFER MCALEER: All right. So 14 with respect to the first one, this case was diagnosed as 15 juvenile xanthogranuloma -- 16 DR. PAUL THORNER: That's right. 17 MS. JENNIFER MCALEER: Of the oropharynx, 18 which is an -- should that be unusual site? 19 DR. PAUL THORNER: It should be unusual. 20 MS. JENNIFER MCALEER: Okay. An unusual 21 site for this lesion. Now, with respect to this case, 22 once you went back and took a look at it you -- you 23 determined what, Dr. Thorner? 24 DR. PAUL THORNER: That the diagnosis was 25 not a juvenile xanthogranuloma, in my opinion.

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1 MS. JENNIFER MCALEER: All right. And 2 both you and Dr. Taylor took a look at that case? 3 DR. PAUL THORNER: That's correct. 4 MS. JENNIFER MCALEER: And how -- how 5 difficult of a diagnosis is the diagnosis at issue here? 6 DR. PAUL THORNER: They can be confused. 7 They are very similar appearing lesions. 8 MS. JENNIFER MCALEER: All right. So 9 what did Dr. Smith determine it was? And -- and what did 10 you and Dr. Taylor determine it was? 11 DR. PAUL THORNER: Okay. Dr. Smith felt 12 it was a juvenile xanthogranuloma. 13 MS. JENNIFER MCALEER: Okay. 14 DR. PAUL THORNER: Dr. Taylor and I felt 15 it was a granular cell tumour. 16 MS. JENNIFER MCALEER: All right. And 17 you're saying it's easy to confuse the two (2)? 18 DR. PAUL THORNER: Yes, they can be 19 confused. 20 MS. JENNIFER MCALEER: And do we know 21 whether or not that confusion would have any impact on 22 patient care, whether it did in this particular case, Dr. 23 Thorner? 24 DR. PAUL THORNER: It would not have any 25 impact. They're both benign lesions that would not

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1 require any further treatment. 2 MS. JENNIFER MCALEER: Okay. And with 3 respect to the third case then -- and -- and do you have 4 any other comments on that second case, Dr. Thorner? Is 5 that -- have we covered the issue in that case? 6 DR. PAUL THORNER: I -- I believe so. 7 MS. JENNIFER MCALEER: Okay. With 8 respect to the third case then. This case was diagnosed 9 as -- you're going to have to help me with that 10 pronunciation -- 11 DR. PAUL THORNER: Syr -- syringoma. 12 MS. JENNIFER MCALEER: -- syringoma of 13 the pallet, which would be an extremely -- again, should 14 that be unusual? 15 DR. PAUL THORNER: It -- it should. 16 MS. JENNIFER MCALEER: Okay. 17 DR. PAUL THORNER: I'm not a very good 18 typist, I'm afraid. 19 MS. JENNIFER MCALEER: All right. 20 "Extremely unusual site for this 21 lesion. On review of the slides, both 22 Dr. Taylor and myself came to the 23 diagnosis of benign embryologic cyst, 24 likely a midline fissural cyst." 25 Okay. So what is the level in -- of

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1 difficulty here in -- in making the diagnosis? 2 DR. PAUL THORNER: The -- a midline 3 fissural cyst would be -- is a -- is quite an unusual 4 lesion to -- to see in children. So I -- I'm not 5 surprised that someone without a great deal of experience 6 -- it's possible to miss that. 7 The diagnosis of syringoma is a -- very 8 unusual to make in that site because it's really a -- a 9 skin tumour. You wouldn't expect it to be in the mouth. 10 MS. JENNIFER MCALEER: All right. So 11 you're saying what you and Dr. Taylor found is difficult 12 to determine? It -- it is tricky to find that particular 13 -- what do we call it? Do we call it a disease, a 14 malformation? 15 DR. PAUL THORNER: It's a malformation. 16 MS. JENNIFER MCALEER: All right. 17 DR. PAUL THORNER: It might -- it might 18 be difficult to recognize that is what it is. 19 MS. JENNIFER MCALEER: So it's difficult 20 to recognize. 21 DR. PAUL THORNER: Yeah. 22 MS. JENNIFER MCALEER: But what Dr. Smith 23 diagnosed it to be is very unusual? 24 DR. PAUL THORNER: Yes. 25 MS. JENNIFER MCALEER: Okay. So you'd be

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1 surprised to find what Dr. Smith indicated it would be in 2 that particular area? 3 DR. PAUL THORNER: Yes, that's what 4 alerted me to the -- that the -- the coding didn't fit 5 with that site. 6 MS. JENNIFER MCALEER: Okay. And given 7 Dr. Smith's level of expertise at the time -- this is 8 1997 -- are these mistakes that one would expect to see 9 from somebody of Dr. Smith's skillset, at that time -- or 10 experience, I should say, at that time? 11 DR. PAUL THORNER: It's possible he might 12 not recognize the midline fissural cyst. 13 MS. JENNIFER MCALEER: Okay. If that's 14 the case, Dr. Taylor, then -- then -- sorry, Dr. Thorner, 15 why is Dr. Smith being given these cases? 16 DR. PAUL THORNER: The -- the cases, of 17 course, are not screened ahead of time. You -- whatever 18 comes in on the surgical pathology service that day is 19 what you receive, and you have to deal with it. We all 20 have to deal with cases that we may not be familiar with 21 or may have trouble with. 22 So there's no selection process that goes 23 on ahead of time. 24 MS. JENNIFER MCALEER: And this case 25 would not be one that would have been kind of triaged out

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1 because it fits within a -- a recognized submission- 2 specialty? 3 DR. PAUL THORNER: No. 4 MS. JENNIFER MCALEER: Right, remember 5 when we were looking at the chart, and -- 6 DR. PAUL THORNER: That's right. 7 MS. JENNIFER MCALEER: -- we said certain 8 cases don't go to those surg -- 9 DR. PAUL THORNER: Right. 10 MS. JENNIFER MCALEER: -- or those 11 pathologists on rotation because they're recognized as 12 being, perhaps, more complex? But these aren't those 13 kinds of cases? 14 DR. PAUL THORNER: No, these would just 15 go to the person on the surgical pathology service for 16 the week. 17 MS. JENNIFER MCALEER: Okay. And do we 18 know if there was any impact on patient care in this 19 third case, Dr. Thorner? 20 DR. PAUL THORNER: It would not have any 21 impact. 22 MS. JENNIFER MCALEER: And why is that? 23 DR. PAUL THORNER: It's just a 24 malformation, and once it's removed that's the -- the end 25 of the procedure. There would be no followup needed.

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1 MS. JENNIFER MCALEER: Okay. So looking 2 at the fourth case then. So according to Dr. Smith, the 3 case was a mass lesion of the cheek -- I'm sorry, not -- 4 this is according to him, that would be Dr. Forte? 5 Right. 6 DR. PAUL THORNER: Yes. 7 MS. JENNIFER MCALEER: The case was 8 brought to your attention -- 9 DR. PAUL THORNER: Yes. 10 MS. JENNIFER MCALEER: -- by Dr. Forte. 11 DR. PAUL THORNER: Yes. 12 MS. JENNIFER MCALEER: According to Dr. 13 Forte, this case was a mass lesion of the teek -- cheek 14 destroying bone, diagnosed as, open quote, "reactive," 15 close quote, on frozen section by Dr. Smith. 16 And just stopping there. As I 17 understand it, reactive means normal, correct? 18 DR. PAUL THORNER: Mm -- 19 MS. JENNIFER MCALEER: If something's 20 diagnosed as reactive, it means there's no problem? 21 DR. PAUL THORNER: No, I -- that's -- I 22 wouldn't use the term that way. 23 MS. JENNIFER MCALEER: I'm sorry. How -- 24 DR. PAUL THORNER: I'm not sure how Dr. 25 Smith uses the term, but --

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1 MS. JENNIFER MCALEER: So does reactive 2 have a certain clinical meaning? 3 DR. PAUL THORNER: It means it's 4 abnormal. So it wouldn't be normal, but -- 5 COMMISSIONER STEVEN GOUDGE: Not 6 malignant. 7 DR. PAUL THORNER: -- not malignant. 8 9 CONTINUED BY MS. JENNIFER MCALEER: 10 MS. JENNIFER MCALEER: I see. Thank you. 11 Okay. 12 And then it says: 13 "Because of the clinical suspicions -- 14 suspicion of malignancy, a second 15 biopsy was performed transorally, 16 necessitating a second incision. 17 Again, the frozen section was read as 18 reactive by Dr. Smith. The permanent 19 sections were read as embryonal 20 Rhabdomyosarcoma..." 21 DR. PAUL THORNER: Right. 22 MS. JENNIFER MCALEER: 23 "...by Dr. Smith. And Dr. Forte was 24 informed of the change in diagnosis." 25 Now, just to confirm. That is -- that is

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1 a change in diagnosis then, to go from reactive to that 2 particular condition? 3 DR. PAUL THORNER: Very definitely. 4 MS. JENNIFER MCALEER: Okay. What -- how 5 significant is that? 6 DR. PAUL THORNER: Embryonal 7 rhabdomyosarcoma is a malignancy. 8 COMMISSIONER STEVEN GOUDGE: So it's a 9 huge difference? 10 DR. PAUL THORNER: Yes. 11 12 CONTINUED BY MS. JENNIFER MCALEER: 13 MS. JENNIFER MCALEER: And how difficult 14 -- how -- what level of difficulty are we looking at 15 here, Dr. Thorner? How easily is a mistake like this 16 made? 17 DR. PAUL THORNER: Okay. We're looking 18 at -- there's two (2) confounding factors here that make 19 this more difficult or make this a -- a difficult 20 situation. 21 One (1) is the diagnosis of that 22 particular tumour can be difficult, and it -- it might be 23 possible to confuse that with an inflammatory type change 24 which may be what Dr. Smith is meaning by reactive. I 25 don't know specifically what he means by that.

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1 And the other, probably, more important 2 issue is that this is on a frozen section versus the wax 3 section, and there's quite a difference between the ease 4 of reading those slides and interpreting those two (2) 5 types of slides. 6 So a frozen section is -- is inherently 7 more difficult to interpret. 8 MS. JENNIFER MCALEER: All right. And 9 that's why you do frozen sections when you have to, but 10 if -- in ideal circumstances, you -- you do the 11 permanent, or you wait for the permanent, or you confirm 12 with the permanent, correct? 13 DR. PAUL THORNER: Right. We -- we would 14 always prefer to work with the permanent sections, rather 15 than a frozen section, if we get the choice. 16 MS. JENNIFER MCALEER: Right, but if a 17 child's in surgery, as I understand was the situation in 18 this case -- 19 DR. PAUL THORNER: Right. 20 MS. JENNIFER MCALEER: -- you have to 21 work off the frozen. 22 DR. PAUL THORNER: Right. 23 MS. JENNIFER MCALEER: Okay. And the -- 24 the paragraph continues: 25 "Of note, there is no record in this

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1 report of the results of the frozen 2 section." 3 So isn't there a -- a second problem here, 4 Dr. Thorner, which is that there's -- there's an error 5 with respect to the reading of the frozen sections, but 6 then also the -- the diagnosis from the frozen sections 7 isn't committed to writing? 8 DR. PAUL THORNER: That's right. There's 9 a reporting problem here. 10 MS. JENNIFER MCALEER: Okay. And there's 11 an expectation, I take it, that when you do a reading on 12 a frozen section that you actually author a report and 13 provide it to the physician who's asked you -- 14 DR. PAUL THORNER: It's -- 15 MS. JENNIFER MCALEER: -- to do the 16 reading? 17 DR. PAUL THORNER: Right. It's not a 18 separate report, but it is supposed to be incorporated 19 into the pathology report that you're writing. 20 There will be a paragraph, or a section, 21 that indicates what your opinion was on the frozen 22 section. 23 MS. JENNIFER MCALEER: And -- and do 24 people do that? I mean, that -- that's the guideline, 25 but do we actually -- do people do it in practice, or is

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1 it common not to do the written report? 2 DR. PAUL THORNER: No. We do it. It -- 3 it's expected. 4 MS. JENNIFER MCALEER: All right. So 5 this -- it's unusual then -- 6 DR. PAUL THORNER: Yeah. 7 MS. JENNIFER MCALEER: -- not to do the 8 report? 9 DR. PAUL THORNER: That's correct. 10 MS. JENNIFER MCALEER: Okay. And in this 11 particular case, Dr. Thorner, was there any impact on 12 patient care? 13 DR. PAUL THORNER: It -- it's a little 14 difficult to evaluate the impact on the that. 15 I think there was some impact on patient 16 care. 17 COMMISSIONER STEVEN GOUDGE: Well, if the 18 malignancy should have been spotted on the frozen 19 section, the line did not go in when it should have gone 20 in. 21 DR. PAUL THORNER: Right. The -- 22 COMMISSIONER STEVEN GOUDGE: That is the 23 impact, isn't it? 24 DR. PAUL THORNER: Right. And the -- 25 COMMISSIONER STEVEN GOUDGE: How bad a

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1 mistake is that? 2 DR. PAUL THORNER: Well, I guess that's-- 3 COMMISSIONER STEVEN GOUDGE: That's -- 4 DR. PAUL THORNER: -- I should explain 5 that. The -- obviously the ideal situation is when the 6 child has malignancy, you recognize it as malignant, and 7 at the time of the operation, and the line can be 8 inserted, and -- 9 COMMISSIONER STEVEN GOUDGE: Under the 10 same anaesthetic. 11 DR. PAUL THORNER: -- right. And then 12 the whole procedure of speaking to the parents and 13 starting the chemotherapy, then that would be the ideal 14 course of events. 15 That doesn't always happen in pathology. 16 Frozen sections can be difficult, even for the most 17 experienced of us. 18 And when we can't be sure, the -- the best 19 thing to do is lean to the benign side, because if you 20 overcall a malignancy -- let's say you call it malignant 21 and it turns out to be benign -- 22 COMMISSIONER STEVEN GOUDGE: Right. 23 DR. PAUL THORNER: -- a line has gone in 24 unnecessarily -- 25 COMMISSIONER STEVEN GOUDGE: Right.

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1 DR. PAUL THORNER: -- and that's 2 invasive. The parents may be told the child has cancer-- 3 COMMISSIONER STEVEN GOUDGE: Right. 4 DR. PAUL THORNER: -- and that has to be 5 retracted. 6 COMMISSIONER STEVEN GOUDGE: Right. 7 DR. PAUL THORNER: Chemotherapy may get 8 started. All of those things are terrible -- 9 COMMISSIONER STEVEN GOUDGE: Right. 10 DR. PAUL THORNER: -- things. So we 11 would usually lean towards the benign side -- 12 COMMISSIONER STEVEN GOUDGE: Right. 13 DR. PAUL THORNER: -- and the proper 14 thing to say to the surgeon would be I cannot tell what 15 it is. I -- I know we're into good biopsy material and 16 I'm just going to need some more time to work on this and 17 as soon as I have the permanent sections, I can make a 18 decision. 19 And the surgeon, with that information, 20 would then close and the child would have to have a 21 separate anaesthetic. 22 COMMISSIONER STEPHEN GOUDGE: That 23 depends on your reading of the frozen sample, though. 24 MR. PAUL THORNER: Right. 25 COMMISSIONER STEPHEN GOUDGE: I mean

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1 maybe if -- you didn't look at the frozen sample, so it's 2 hard for me to ask you this question, but I suppose one 3 could say, I can't tell, or the frozen sample looks 4 benign reactive, to use Dr. Smith's words. 5 How close is the call between I can't tell 6 and benign? 7 MR. PAUL THORNER: I don't know; those 8 are different calls. 9 COMMISSIONER STEPHEN GOUDGE: I know 10 they're different calls. 11 MR. PAUL THORNER: The -- 12 COMMISSIONER STEPHEN GOUDGE: How far 13 apart are they, how the -- 14 MR. PAUL THORNER: Oh, they're quite far 15 apart. 16 COMMISSIONER STEPHEN GOUDGE: You -- 17 MR. PAUL THORNER: I -- I think that -- I 18 was just explaining the situation of -- that it does 19 happen to us where we cannot tell, and then the child 20 would need a second anaesthetic. 21 COMMISSIONER STEPHEN GOUDGE: Okay. 22 MR. PAUL THORNER: That's not an unusual 23 situation. 24 COMMISSIONER STEPHEN GOUDGE: How common 25 is it that you would read a frozen sample and determine

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1 it to be benign, and then the permanent sample turns out 2 to be malignant? 3 MR. PAUL THORNER: Hopefully, I haven't 4 done it, but -- 5 COMMISSIONER STEPHEN GOUDGE: No, no, but 6 I -- and you say frozen samples are hard to read. 7 MR. PAUL THORNER: Right. 8 COMMISSIONER STEPHEN GOUDGE: It sounds 9 to me like the more likely outcome would be frozen 10 samples indeterminate and permanent samples shows 11 malignancy -- 12 MR. PAUL THORNER: That's right. 13 COMMISSIONER STEPHEN GOUDGE: -- as 14 opposed to frozen sample shows benign and permanent 15 sample shows malignant -- 16 MR. PAUL THORNER: That's right. 17 COMMISSIONER STEPHEN GOUDGE: -- and 18 that's going from black to white. 19 MR. PAUL THORNER: That's right. 20 COMMISSIONER STEPHEN GOUDGE: Thanks. 21 22 CONTINUED BY MS. JENNIFER MCALEER: 23 MS. JENNIFER MCALEER: Now, Dr. Thorner, 24 how significant is this memo? I mean is this the kind of 25 memo that you often have to write as in your role as the

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1 associate had? 2 MR. PAUL THORNER: No, I think this is 3 probably the first time I wrote such a memo. 4 MS. JENNIFER MCALEER: And what are you 5 attempting to achieve by writing a memo like this to Dr. 6 Becker? What's the purpose? 7 MR. PAUL THORNER: I'm -- I'm a little 8 unclear on the exact sequence of the timing here. My 9 purpose for the memo was to inform Dr. Becker of these 10 problems. 11 I felt that -- first of all, I didn't have 12 any authority to act on these problems in terms of any 13 discipline or take any action, so I thought -- and he 14 did, so I thought it -- my obligation and responsibility 15 was to inform him of these problems. 16 I'm not sure whether he had received Dr. 17 Cutz' letter in between my -- his and this one (1) and 18 whether he came to me to ask for additional information, 19 but whether I initiated this letter based on the 20 complaints that I had, I just can't remember the exact 21 events at that time. 22 MS. JENNIFER MCALEER: And do you recall 23 any followup with Dr. Becker about this memo? 24 MR. PAUL THORNER: It would -- again, 25 that would be the sequence of events. If I initiated

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1 this memo, then shortly after this, Dr. Becker came and 2 said he would like to know about any problems or 3 complaints related to Dr. Smith and the surgical 4 pathology service. 5 MS. JENNIFER MCALEER: All right, so you 6 do recall a conversation with Dr. Becker along those 7 lines. 8 MR. PAUL THORNER: Yes. 9 MS. JENNIFER MCALEER: But you can't 10 sequence it as to whether it happened after this memo, 11 before this memo -- 12 MR. PAUL THORNER: Right. 13 MS. JENNIFER MCALEER: -- is that 14 correct? 15 MR. PAUL THORNER: This -- right, this 16 memo may have been part of his request. 17 MS. JENNIFER MCALEER: I see. So what do 18 you recall about that conversation with Dr. Becker? 19 First of all, who was present? 20 MR. PAUL THORNER: Well, just him and 21 myself. 22 MS. JENNIFER MCALEER: All right. And 23 what was said? 24 MR. PAUL THORNER: I don't remember the 25 exact details, but it was essentially that there had been

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1 some complaints. The -- the gist of it is there had been 2 some complaints about Dr. Smith's performance on surgical 3 pathology and he wanted to become aware of what cases 4 were involved, what was the extent of the problem, and 5 then he was going to, I presume, determine the basis of 6 the problem, and then whatever action was necessary. 7 MS. JENNIFER MCALEER: So he asked you to 8 -- to do what, to -- to go out and keep an eye open, or 9 to go out and speak to clinicians in the hospital, to 10 speak to Dr. Smith's colleagues, I mean what was your 11 understanding as to what you were supposed to do after 12 that conversation? 13 MR. PAUL THORNER: I was supposed to 14 supply him with basically any surgical pathology issue 15 related to Dr. Smith's reporting and reports, regardless 16 of -- of how I came across that. 17 Now, some of that might have been through 18 checking the coding system, if I found inconsistencies 19 there, or if clinicians brought complaints to me -- 20 MS. JENNIFER MCALEER: Okay. 21 MR. PAUL THORNER: -- then I would 22 forward those complaints on to Dr. Becker. 23 MS. JENNIFER MCALEER: I mean was this -- 24 was this the beginning of an investigation, Dr. Thorner? 25 I mean were you asked to go out and investigate Dr.

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1 Smith's work and see if there were problems and bring it 2 back to Dr. Becker, or was it more a, I want to make sure 3 I know about any problems, so be sure to come back and 4 tell me, Paul, if you hear about problems with Dr. Smith? 5 MR. PAUL THORNER: Right, I think it was 6 -- it was closer to the latter. I wasn't actively 7 performing any searches or investigations; I was more a 8 passive recipient of complaints, and then I would pass 9 those on to Dr. Becker. 10 But I believe he viewed this as an 11 investigating -- he was investigating the problem. He 12 was very concerned about patient care and stan -- 13 maintaining high standards in the department. 14 So once he received a few complaints from 15 clinicians, he was going to tackle that problem and look 16 into it. 17 MS. JENNIFER MCALEER: He communicated 18 that to you? 19 DR. PAUL THORNER: Yes. 20 MS. JENNIFER MCALEER: Okay. Turning to 21 Tab 21 then, which is -- 22 COMMISSIONER STEPHEN GOUDGE: I take it 23 these are both diagnostic complaints and record keeping 24 concerns? 25 MS. JENNIFER MCALEER: With --

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1 DR. PAUL THORNER: I -- I think there's a 2 mixture of complaints there. I mean, there was some 3 diagnostic complaints and then there are -- 4 COMMISSIONER STEPHEN GOUDGE: And then 5 there is the record keeping concern that you referred to 6 in the fourth example you gave us? 7 DR. PAUL THORNER: That's a -- one (1) 8 type of record keeping -- 9 COMMISSIONER STEPHEN GOUDGE: Yes. 10 DR. PAUL THORNER: But the -- all the 11 incomplete reports that are overdue -- 12 COMMISSIONER STEPHEN GOUDGE: Right. 13 DR. PAUL THORNER: -- that's also a 14 record keeping concern. 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 17 CONTINUED BY MS. JENNIFER MCALEER: 18 MS. JENNIFER MCALEER: And -- and the 19 backdating the report? 20 DR. PAUL THORNER: The backdating is 21 another example of a record keeping concern. 22 MS. JENNIFER MCALEER: So turning then to 23 Tab 21, which is PFP137850. Now, Dr. Thorner, again you 24 had not previously seen this letter before preparing for 25 your testimony, correct?

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1 DR. PAUL THORNER: That's correct. 2 MS. JENNIFER MCALEER: And I take it you 3 have no information as to whether or not this letter was 4 ultimately sent from Dr. Becker to Dr. Smith? 5 DR. PAUL THORNER: I have no information 6 whether it was sent or not. 7 MS. JENNIFER MCALEER: Okay. And it 8 refers to you, Dr. Thorner, -- the letter refers to you 9 by name, so I'd like to review it with you in -- in 10 particular to see if you've had any conversations with 11 Dr. Becker along these lines. The letter starts: 12 "Dear Charles, 13 As you are aware, the surgery reports - 14 - [excuse me] the surgical reports for 15 which you have been responsible have 16 not been completed according to the 17 established standards agreed upon in 18 1994." 19 Now, just stopping there. Would you agree 20 with that, Dr. Thorner, that based on your work as the 21 Associate Head that -- that the reports had not been 22 completed according to established standards? 23 DR. PAUL THORNER: That's correct. 24 MS. JENNIFER MCALEER: 25 "You have received regular reminders

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1 over the past two (2) years about the 2 delays in completion of reports. An 3 example of such of a letter covering 4 the last several months is enclosed. 5 In addition, during the limited number 6 of weeks per year that you have been 7 responsible for completion of the 8 surgical reports, there have been a 9 disproportion in the number of 10 complaints about diagnostic 11 inconsistencies from pediatricians and 12 surgeons." 13 We'll stop there. Would you agree with 14 that, Dr. Thorner, that there had been a disproportionate 15 amount of complaints? 16 DR. PAUL THORNER: Yes, it did seem at 17 that period there were more complaints than we had been 18 receiving before. It seemed to be a -- a peak period. 19 MS. JENNIFER MCALEER: Sorry, that you 20 had been receiving before about Dr. Smith? 21 DR. PAUL THORNER: Yes. 22 MS. JENNIFER MCALEER: Right. But was it 23 also disproportionate to the number of complaints that 24 you had received with respect to his colleagues? 25 DR. PAUL THORNER: Oh, definitely.

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1 MS. JENNIFER MCALEER: Were you receiving 2 complaints about his colleagues? 3 DR. PAUL THORNER: Almost never. 4 MS. JENNIFER MCALEER: You -- continuing 5 with the letter: 6 "You have been made aware of most of 7 these cases either through direct 8 contact by the physicians or through 9 Dr. Paul Thorner." 10 Stopping there. Do you recall, Dr. 11 Thorner, speaking to Dr. Smith about complaints by the 12 physicians or some of the physicians at HSC? 13 DR. PAUL THORNER: I don't recall 14 speaking directly to him about that. I usually sent the 15 complaints to Dr. Becker. 16 MS. JENNIFER MCALEER: Okay. Next 17 paragraph: 18 "Neither Paul nor I can see any 19 improvement in the reporting time or 20 the accuracy of the reports over the 21 last -- over the past two (2) years." 22 Stopping again, Dr. Thorner. Would you 23 agree with that statement? 24 DR. PAUL THORNER: I would agree with the 25 reporting time issue. I'm not sure how the accuracy of

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1 the reports had been followed over the past two (2) 2 years. So I'm not exactly sure what Dr. Becker meant by 3 that. 4 MS. JENNIFER MCALEER: Next sentence: 5 "Therefore, I regret to inform you that 6 I must curtail your responsibilities in 7 surgical pathology until you prove to 8 me evidence of your successful 9 completion of continuing education 10 courses that will improve your skills 11 in surgical pathology." 12 Stopping again, Dr. Thorner. Did you have 13 any discussions with Dr. Becker about curtailing Dr. 14 Smith's responsibilities in surgical pathology? 15 DR. PAUL THORNER: I don't recall that I 16 did have any conversation related to that. The only -- 17 the only additional information I could provide is on the 18 duty roster. There was a period where Dr. Smith was off 19 the regular hospital surgical pathology. 20 MS. JENNIFER MCALEER: Right. So if we 21 turn to Tab 18, which is PFP117047, it's 117047. This is 22 the duty roster for 1997. And the letter we had just 23 been reviewing was April 18th, 1997. And if we look at 24 the surgical column, we see at line 19 that Dr. Smith is 25 on surgical pathology rotation.

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1 You see that, Dr. Thorner? 2 DR. PAUL THORNER: That's right. 3 MS. JENNIFER MCALEER: And then -- so 4 that would have been in and around the time this letter's 5 authored if we go by the date on it. And then we see 6 that he's not on the surgical rotation schedule again 7 until September -- September 15th which is line 42? 8 DR. PAUL THORNER: That's right. 9 MS. JENNIFER MCALEER: All right. So 10 that's from April to September. Would that have been an 11 unusually long gap off the surgical schedule, Dr. 12 Thorner, for Dr. Smith? 13 DR. PAUL THORNER: Yes, yes. 14 MS. JENNIFER MCALEER: Okay. And is that 15 what you mean when you say that you know that at one 16 point he came off the -- the schedule? 17 DR. PAUL THORNER: Right. He normally 18 should have been on sometime during that period. 19 MS. JENNIFER MCALEER: All right. And 20 how -- I mean, you prepared the schedules, so would you 21 have done that of your own volition, or would somebody 22 have asked you to take him off the schedule, how would 23 that work? 24 DR. PAUL THORNER: The only way he would 25 come off the schedule, if I had been asked by Dr. Becker

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1 to take him off. 2 MS. JENNIFER MCALEER: Okay. So knowing 3 that you did take him off, you're then making the next 4 connection which is Dr. Becker told you to take him off? 5 DR. PAUL THORNER: That's right. I just 6 don't happen to recall that specific conversation, but he 7 must have told me. 8 MS. JENNIFER MCALEER: All right. 9 Continuing then in the letter -- we'll come back, because 10 in fairness, Dr. Smith comes back on the surgical 11 pathology later, and I'm -- I'm going to ask you -- 12 DR. PAUL THORNER: Right. 13 MS. JENNIFER MCALEER: -- about that. 14 But continuing with the letter, there's the reference to 15 the continuing education course, and we'd seen that in 16 the 19 -- in the July 1995 letter as well, Dr. Thorner. 17 Do you recall whether or not Dr. Smith did 18 engage in any continuing education course with respect to 19 surgical pathology in or around April of 1997? 20 DR. PAUL THORNER: I don't know one way 21 or the other; whether he did or did not. 22 MS. JENNIFER MCALEER: Or at any time 23 thereafter? 24 DR. PAUL THORNER: Again, I don't know if 25 he ever did or did not.

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1 MS. JENNIFER MCALEER: Okay. The letter 2 continues: 3 "You must also demonstrate that all 4 records in the division are completed 5 in a timely fashion consistent with 6 standards established by the Hospital 7 for Sick Children. You will not be 8 doing surgical pathology on a regular 9 rotation, and accordingly, the salary 10 for the division of pathology will be 11 reduced by twenty thousand (20,000) for 12 1997." 13 Now, Dr. Thorner, did you have any 14 discussions with Dr. Becker about reducing Dr. Smith's 15 salary? 16 DR. PAUL THORNER: We did have a 17 discussion on that, and again I don't recall the specific 18 details, but he had mentioned -- Dr. Becker had mentioned 19 that -- I -- I believe, at this point in time, Dr. Smith 20 was doing surgical pathology and forensic pathology only 21 and mainly forensic pathology. 22 So Dr. Becker felt that if he took Dr. 23 Smith off the surgical pathology service, the only work 24 Dr. Smith is doing is forensic pathology work which Dr. 25 Becker felt was not hospital work.

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1 Dr. Smith was drawing a full salary from 2 the Hospital for Sick Children, and if he's no longer 3 doing surgical pathology, what is he actually doing to 4 earn a full hospital salary because he's getting paid 5 above and beyond his salary for the forensic pathology 6 cases. 7 So Dr. Becker felt that was not fair to 8 the other pathologists who were doing a lot of hospital 9 work, and if you were going to take Charles Smith off the 10 surgical pathology service, he felt he should lower 11 Charles Smith's salary due to the extra income he was 12 earning from the forensic cases, and he came up with this 13 amount of twenty thousand (20,000) based on that. 14 MS. JENNIFER MCALEER: And you -- you 15 discussed all of this with Dr. Becker? 16 DR. PAUL THORNER: Yes. 17 MS. JENNIFER MCALEER: And how did he 18 come up with the twenty thousand (20,000)? 19 DR. PAUL THORNER: Well, my understanding 20 was that the initial plan was to reduce Charles' salary 21 by the total amount of income he had made from forensic 22 cases, and I had suggested that's not fair to the other 23 pathologists, because they were earning income from the 24 forensic cases as well, and they were keeping it so it 25 wasn't fair to punish Dr. Smith for that.

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1 And I suggested, as a compromise, that he 2 should keep the income he does from forensic cases that 3 he's doing in the evenings and weekends because that was 4 not hospital paid time, and only reduce his salary by the 5 amount of forensic income he was making Monday to Friday 6 during regular hours, because he was already getting paid 7 for that time. 8 And I believe that's where the twenty 9 thousand (20,000) figure came from. 10 MS. JENNIFER MCALEER: All right. And as 11 I understand it though, Dr. Thorner, the twenty thousand 12 (20,000) would not -- it would have been reflective of 13 the amount of money that Dr. Smith was earning from doing 14 medicolegal work on a Monday to Friday, 9:00 to 5:00 15 basis? 16 DR. PAUL THORNER: I believe that's -- 17 MS. JENNIFER MCALEER: Correct? 18 DR. PAUL THORNER: -- I believe that was 19 where the number came from. 20 MS. JENNIFER MCALEER: Okay. But if Dr. 21 Smith is off surgical pathology, then really Monday to 22 Friday 9:00 to 5:00, he's doing almost exclusively 23 medicolegal work, is that correct? 24 DR. PAUL THORNER: That's right. 25 MS. JENNIFER MCALEER: All right. So the

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1 twenty thousand (20,000) is simply the -- the number from 2 the money coming from the Coroner's Office? It's not 3 reflective of his overall salary, I mean, he'd still be 4 making -- 5 DR. PAUL THORNER: That's right. 6 MS. JENNIFER MCALEER: -- he'd still 7 essentially be pulling down a full hospital salary, 8 despite the fact that Monday to Friday 9:00 to 5:00, he's 9 doing almost exclusively medicolegal work? 10 DR. PAUL THORNER: That's right. 11 MS. JENNIFER MCALEER: Okay. Minus the 12 twenty thousand (20,000)? 13 DR. PAUL THORNER: Right, right. And 14 that's why Dr. Becker wanted to adjust it. 15 MS. JENNIFER MCALEER: All right. And do 16 you know, Dr. Thorner, whether or not the salary was, in 17 fact, reduced? 18 DR. PAUL THORNER: I didn't at the time, 19 but I've heard that it was not. 20 MS. JENNIFER MCALEER: Okay. You've 21 heard that from Dr. Taylor or from the Hospital for Sick 22 Children? 23 DR. PAUL THORNER: Right. 24 MS. JENNIFER MCALEER: From the inquiries 25 they've made --

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1 DR. PAUL THORNER: Yes, from the inquiry 2 that I've heard, that hasn't -- wasn't reduced. 3 MS. JENNIFER MCALEER: Okay. All right. 4 So then moving forward. 5 COMMISSIONER STEVEN GOUDGE: Can I just 6 ask -- 7 MS. JENNIFER MCALEER: Sure. 8 COMMISSIONER STEVEN GOUDGE: -- a couple 9 of questions, Ms. McAleer? 10 You are building this letter, Dr. Thorner, 11 as the Director of Surgical Pathology. Did you have any 12 administrative responsibilities for the autopsy work -- 13 either the hospital autopsy work, or the medicolegal 14 autopsy work? At that point? 15 DR. PAUL THORNER: Nothing whatsoever. 16 COMMISSIONER STEVEN GOUDGE: Okay. But 17 you checked -- part of your administrative duties in 18 checking the timeliness of things -- 19 DR. PAUL THORNER: Yes. 20 COMMISSIONER STEVEN GOUDGE: -- involved 21 checking all three (3) components? 22 DR. PAUL THORNER: Yes. 23 COMMISSIONER STEVEN GOUDGE: And you 24 would simply, I take it, forward -- how did you do it? 25 Monthly? Is that what you said?

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1 DR. PAUL THORNER: Right. At the end of 2 each month. 3 COMMISSIONER STEVEN GOUDGE: You would 4 forward the monthly stats to Dr. Becker? 5 DR. PAUL THORNER: That's correct, 6 Commissioner. 7 COMMISSIONER STEVEN GOUDGE: And your 8 counterpart, if there was one (1), your administrative 9 counterpart for medicolegal was Dr. Smith himself? 10 DR. PAUL THORNER: For generating the 11 incomplete -- 12 COMMISSIONER STEVEN GOUDGE: Well, for 13 doing whatever administrative work there was for 14 medicolegal, where you did the administrative work for 15 surgical. 16 DR. PAUL THORNER: I believe so. I'm not 17 sure -- I guess he just did the medicolegal. I don't 18 think he would have done the hospital -- 19 COMMISSIONER STEVEN GOUDGE: Who did the 20 hospital autopsies? 21 DR. PAUL THORNER: Prob -- the 22 administrative aspect? 23 COMMISSIONER STEVEN GOUDGE: Yeah. 24 DR. PAUL THORNER: I think Dr. Becker 25 looked after that himself.

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1 COMMISSIONER STEVEN GOUDGE: Okay. 2 Because the timeliness complaints we see documented here 3 are all related to surgical. Is that -- 4 DR. PAUL THORNER: Yes. At the -- 5 certainly that I've been involved in. 6 COMMISSIONER STEVEN GOUDGE: That we have 7 seen documented. 8 DR. PAUL THORNER: Yes. 9 COMMISSIONER STEVEN GOUDGE: But there 10 clearly were timeliness deficiencies in the other two (2) 11 areas as well. 12 DR. PAUL THORNER: Yes. 13 COMMISSIONER STEVEN GOUDGE: You have 14 told us that. 15 DR. PAUL THORNER: Oh, definitely. 16 COMMISSIONER STEVEN GOUDGE: Why was it 17 that the timeliness deficiencies, particularly in the 18 medicolegal that were on the stats you sent out monthly 19 to Dr. Becker, brought to Dr. Smith's attention in the 20 same way? 21 DR. PAUL THORNER: They may have. Why 22 were they not? 23 COMMISSIONER STEVEN GOUDGE: Yeah. 24 MS. JENNIFER MCALEER: I -- 25 DR. PAUL THORNER: They may have --

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1 COMMISSIONER STEVEN GOUDGE: Or they may 2 be. I don't know. 3 DR. PAUL THORNER: I don't know. 4 5 CONTINUED BY MS. JENNIFER MCALEER: 6 MS. JENNIFER MCALEER: Yeah, I think -- I 7 think Dr. -- thank you, Ms. Trask -- I think -- Mr. 8 Commissioner. 9 But if you look at -- if you look at Tab 10 42, for example, and -- and I'll take you to something 11 else in a moment. 12 But if you look to Tab 42, the -- the list 13 of unsigned out cases that Dr. Thorner is responsible for 14 includes -- when you'd circulate the list to the 15 individual pathologists, Dr. Thorner, included both the 16 hospital autopsies; medicolegal autopsies; and surgical. 17 Right? 18 That all of that was being tracked by you 19 and provided to Dr. Becker? 20 DR. PAUL THORNER: Yeah, and also the 21 psychology cases, and the autoantibody cases as well. 22 All of the specimens. There was no -- we 23 did every type. 24 MS. JENNIFER MCALEER: Right. And then - 25 - sorry, Mr. Commissioner, but I believe there is a

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1 letter in here. 2 So, for example, if we look at Tab 29, 3 which is PFP138041. 4 This letter indicates a concern about 5 hospital cases -- several hospital cases. Now, these are 6 hospital autopsies, correct, Dr. Thorner? 7 DR. PAUL THORNER: That's correct. 8 MS. JENNIFER MCALEER: So that's -- at 9 least, going beyond the surgical -- 10 COMMISSIONER STEVEN GOUDGE: Right. 11 12 CONTINUED BY MS. JENNIFER MCALEER: 13 MS. JENNIFER MCALEER: -- Mr. 14 Commissioner. And I believe -- see that -- if we turn to 15 Tab 30, 138036. This is another one (1) about incomplete 16 surgicals. 17 If we go the next tab -- or Tab 32, which 18 is PFP138029. This is another income -- a letter to Dr. 19 Smith about incomplete reports, although again I believe 20 these are all -- there's some -- some autopsies, some 21 surgical, but we can't tell -- 22 COMMISSIONER STEVEN GOUDGE: The B cases 23 are hospital autopsies, Dr. Thorner? 24 DR. PAUL THORNER: Not necessarily. 25 COMMISSIONER STEVEN GOUDGE: Could they

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1 be medicolegal? 2 DR. PAUL THORNER: I don't think 3 medicolegals were given B numbers. 4 COMMISSIONER STEVEN GOUDGE: I don't 5 think they were either. 6 DR. PAUL THORNER: The B numbers were 7 just autopsies or surgicals. 8 COMMISSIONER STEVEN GOUDGE: Right. 9 10 CONTINUED BY MS. JENNIFER MCALEER: 11 MS. JENNIFER MCALEER: Right. So -- so 12 the letter at Tab 32 talks about both surgical and 13 autopsy, but we don't know if these are hospital autopsy, 14 or -- 15 COMMISSIONER STEVEN GOUDGE: Surgical. 16 17 CONTINUED BY MS. JENNIFER MCALEER: 18 MS. JENNIFER MCALEER: -- or surgical, do 19 we, Dr. Thorner? 20 DR. PAUL THORNER: No. We don't. 21 MS. JENNIFER MCALEER: Okay. And then if 22 we go to Tab 36, which is PFP138023, another letter about 23 delay. Sorry, I -- I know I'm going quickly. 24 DR. PAUL THORNER: I don't have -- 25 MS. JENNIFER MCALEER: Tab 36.

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1 DR. PAUL THORNER: -- I don't have a 36. 2 MS. JENNIFER MCALEER: You don't have a 3 Tab 36? 4 DR. PAUL THORNER: No. Well, I'd have to 5 look -- 6 MS. JENNIFER MCALEER: It's PFP138023. 7 DR. PAUL THORNER: It's on the screen, 8 okay. 9 MS. JENNIFER MCALEER: Great. So this is 10 another letter about delay about B cases. 11 COMMISSIONER STEPHEN GOUDGE: Let me just 12 ask the question this way. It is probably unfair to ask 13 Dr. Thorner this because all you did was forward the 14 stats to Dr. Becker. 15 Was it your sense that the department 16 generally felt that the policing of the timeliness of 17 medicolegal was the Coroner's Offices responsibility and 18 not the hospitals? 19 I mean, is that -- do you have any sense 20 about that at all? 21 DR. PAUL THORNER: I -- I don't really 22 have any sense about that. 23 COMMISSIONER STEPHEN GOUDGE: That is a 24 fair answer. 25 DR. PAUL THORNER: I -- I'm not sure I

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1 heard one way or the other. 2 COMMISSIONER STEPHEN GOUDGE: Right. 3 4 CONTINUED BY MS. JENNIFER MCALEER: 5 MS. JENNIFER MCALEER: If we look at Tab 6 43, which is PFP137793. It's an email from Maxine 7 Raymond to Lawrence Becker. There's a reference to: 8 "He's still on one (1) incomplete case 9 from 1998, ML." 10 Would that medicolegal? 11 DR. PAUL THORNER: Yes, ML was 12 medicolegal at that time. 13 MS. JENNIFER MCALEER: Okay. So there's 14 at least one (1) reference. 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 DR. PAUL THORNER: Yeah. 17 MS. JENNIFER MCALEER: And perhaps, My 18 Friends, in their examinations, might be able to pull out 19 others, but those are the ones I'm aware. 20 COMMISSIONER STEPHEN GOUDGE: Yes, I 21 mean, I -- it is unfair to ask Dr. Thorner about this, 22 and I am -- the only question I could ask is the one I 23 did ask. 24 MS. JENNIFER MCALEER: Okay. 25 COMMISSIONER STEPHEN GOUDGE: And he

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1 understandably does not have any sense of it. 2 3 CONTINUED BY MS. JENNIFER MCALEER: 4 MS. JENNIFER MCALEER: All right. So 5 going back, Dr. Thorner, to Tab 22, which is PFP137846. 6 This is another series of emails between you and Dr. 7 Becker, and an individual named Rita Pool. Do you know 8 who Dr. -- or who Rita Pool is? 9 DR. PAUL THORNER: She was involved in 10 the transplant service for the kidney transplants. 11 MS. JENNIFER MCALEER: Is she a doctor? 12 DR. PAUL THORNER: I don't believe so. I 13 -- I -- she may be a coordinator. She may be a nurse. I 14 -- I've forgotten now. 15 MS. JENNIFER MCALEER: All right. So at 16 the very bottom of the page, it looks like it's an email 17 from Dr. Becker to you, but it starts with, "I'm one (1) 18 of the coordinators for the Renal Transplant Program". 19 DR. PAUL THORNER: Yeah. 20 MS. JENNIFER MCALEER: That would 21 actually be Rita Pool, -- 22 DR. PAUL THORNER: That's Rita Pool. 23 MS. JENNIFER MCALEER: -- isn't it? 24 DR. PAUL THORNER: That's right. 25 MS. JENNIFER MCALEER: There's a bit of

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1 cutting and pasting going on here, is there? 2 DR. PAUL THORNER: Right. 3 MS. JENNIFER MCALEER: Okay. And: 4 "One (1) of our patients has a kidney 5 transplant biopsy a number of weeks 6 ago. The preliminary report apparently 7 states that it is normal. The reason 8 for doing the biopsy was to rule 9 out..." 10 You'll have to help me with that one, Dr. 11 Thorner. 12 DR. PAUL THORNER: Lymphoproliferative. 13 MS. JENNIFER MCALEER: All right. 14 "...disease as this child has had a 15 seven (7) month history of nonspecific 16 illness with changes in the EBV status. 17 As..." 18 I think that should be can be: 19 "... appreciated, the family are 20 anxious awaiting the final report. 21 Their anxiety has been increased as the 22 younger daughter has been diagnosed in 23 the past week with mono. I have been 24 unsuccessful in my attempts to reach 25 Dr. Smith to obtain a final report.

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1 I'm wondering if you are able to give 2 me some guidance in getting the answers 3 to the questions the family is asking?" 4 So this is another question -- another 5 situation where we have an anxious family awaiting a 6 result of -- is that correct, Dr. Thorner? 7 DR. PAUL THORNER: That's correct. 8 MS. JENNIFER MCALEER: All right. And 9 then you seem to be forwarding this to Dr. Becker, if we 10 look up ahead. And you -- you indicate: 11 "Keep this for your file when you tell 12 Charles he is off surgicals." 13 What does that mean, Dr. Thorner? 14 DR. PAUL THORNER: I think this refers 15 back to when I said Dr. Becker was serious about looking 16 into this problem. And -- so he was really collecting 17 information at this point to determine what the problems 18 were with Dr. Smith on the surgicals, and why were these 19 complaints coming in, and was it a problem with the 20 interpretation or bookkeeping or what was the -- the 21 source of these problems. 22 MS. JENNIFER MCALEER: It looks to be a 23 little bit more than that, Dr. Thorner, in the sense that 24 perhaps a decision's already been made, and -- and 25 there's a bit of building the file, is that fair?

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1 DR. PAUL THORNER: Yeah, he -- he was con 2 -- he was considering that. I mean, I don't think he'd 3 made the decision yet to take Dr. Smith off surgicals, 4 but that's what he was leading -- I wouldn't say leading 5 up to, but if the investigation of these problems lead to 6 that, he would have taken that step. 7 MS. JENNIFER MCALEER: All right. And 8 then we go -- sorry, did I -- did I interrupt you, Dr. 9 Thorner? 10 DR. PAUL THORNER: No, no. No, no. 11 MS. JENNIFER MCALEER: All right. So if 12 we go to the top of the -- of the email. So this is from 13 you to Ms. Pool: 14 "So far I've found that the biopsy was 15 tested for EBV. This test was complete 16 on April 7th and was positive." 17 What -- what does that mean? Is this good 18 news or bad news for the family? 19 DR. PAUL THORNER: It certainly sets the 20 pag -- the -- the concern in this patient was whether he 21 had developed this lymphoproliferative disease, which is 22 a -- EBV is a virus. That's the same virus that causes 23 mono, and that's why they were concerned the -- the 24 sister had mono. 25 MS. JENNIFER MCALEER: Oh, I see.

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1 DR. PAUL THORNER: And it can drive the 2 lymphocyte cells in the body, if your immunocompromised 3 or immunosuppressed condition as transplant patients 4 would be, the EBV can rev up the lymphocytes to become an 5 aggressive clone and eventually a type of malignancy. 6 So, they were watching closely, this 7 patient, to make sure that didn't happen because they 8 thought the patient had been exposed to EBV. And then we 9 find out the test was positive which does place the 10 patient at risk for this complication, so it was 11 important to determine whether that complication had 12 happened or not, and that's what the -- why the parents 13 are concerned. 14 MS. JENNIFER MCALEER: All right, so this 15 -- I mean this is important, isn't it, Dr. Thorner. Is 16 this -- is -- 17 MR. PAUL THORNER: Yeah, definitely. 18 MS. JENNIFER MCALEER: And -- and there's 19 been a delay here. 20 MR. PAUL THORNER: That's right. 21 MS. JENNIFER MCALEER: And do we know 22 whether that had any impact on the -- on the patient? 23 MR. PAUL THORNER: I don't know what the 24 impact was on the patient. The -- I know that the 25 genetic tests turned out to be negative so that there was

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1 no diagnosis of lymphoproliferative disease made, but I 2 don't know what the impact -- what actually happened to 3 the patient after that. 4 MS. JENNIFER MCALEER: All right. 5 COMMISSIONER STEPHEN GOUDGE: But 6 wouldn't the positive test result in some treatment for 7 the virus? 8 MR. PAUL THORNER: They would probably be 9 adjusting the degree of immunosuppression -- 10 COMMISSIONER STEPHEN GOUDGE: Yes, right. 11 MR. PAUL THORNER: -- on this patient, 12 and they needed to know if the lymphoproliferative 13 disease had kicked in, they would have to back off the 14 immunosuppression. 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 MR. PAUL THORNER: And since it hadn't, 17 they -- they knew they could go ahead and keep the 18 transplant from being rejected. 19 COMMISSIONER STEPHEN GOUDGE: Right. 20 MR. PAUL THORNER: So it was important 21 for a clinical decision, definitely. 22 COMMISSIONER STEPHEN GOUDGE: Yes. 23 24 CONTINUED BY MS. JENNIFER MCALEER: 25 MS. JENNIFER MCALEER: And it says the

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1 test was complete on April 7th and your communicating 2 this on April 23rd. Is there any reason why the -- the 3 result could not have been communicated on April 7th, as 4 far as you know, Dr. Thorner? 5 MR. PAUL THORNER: No, it should have 6 been. 7 MS. JENNIFER MCALEER: Okay. All right. 8 And then going down: 9 "I do not see that this test has ever 10 been ordered in our database. I asked 11 him to write a report now, check that 12 the test is ordered and write a 13 supplementary later when he gets the 14 results. If this does no happen, let 15 me know." 16 What's going on here, Dr. Thorner, is 17 there another issue? 18 MR. PAUL THORNER: Well, to diagnose the 19 lymphoproliferative disease you need a different test 20 from the -- the EBV test, and that -- usually we order 21 that through the database system and -- so I was just -- 22 MS. JENNIFER MCALEER: Oh, I see, that's 23 the next step, is it? 24 MR. PAUL THORNER: Right. 25 MS. JENNIFER MCALEER: Once you see that

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1 something's positive, then you take the next step and you 2 order this other test? 3 MR. PAUL THORNER: They should have been 4 ordered concurrently -- 5 MS. JENNIFER MCALEER: I see. 6 MR. PAUL THORNER: -- to save time, but I 7 -- the point I guess I was making here is I couldn't find 8 evidence that it had been ordered and, of course, that 9 would have even increased the delay, if -- if we had to 10 now order it at that point, but it turned out he -- that 11 the test had been ordered through a different route, not 12 the usual way of ordering things and that's why I 13 couldn't track it. 14 MS. JENNIFER MCALEER: I see, so it had, 15 in fact, been ordered -- 16 MR. PAUL THORNER: Yes. 17 MS. JENNIFER MCALEER: -- but not -- not 18 documented properly? 19 MR. PAUL THORNER: It wasn't ordered 20 through the database system which documented all our 21 testing, and it -- the database system wasn't that 22 rigorous as it is now. 23 MS. JENNIFER MCALEER: All right. 24 MR. PAUL THORNER: But it was ordered and 25 completed.

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1 MS. JENNIFER MCALEER: Okay. Turning to 2 Tab 24, please, which is PFP137868, and this is an email 3 from you to Dr. Smith. It -- sorry, is it an email -- I 4 guess it's an email or a memo, some kind of internal 5 hospital memo, Dr. Thorner? 6 MR. PAUL THORNER: Right, this was our 7 old inter-hospital mail -- 8 MS. JENNIFER MCALEER: All right. 9 MR. PAUL THORNER: -- system. 10 MS. JENNIFER MCALEER: And it's with 11 respect to two (2) cases regarding Dr. Greenberg again. 12 The first case deals with an issue of POG registration. 13 What is -- what is POG registration, Dr. Thorner? 14 MR. PAUL THORNER: POG was the -- 15 referred to the Pediatric Oncology Group; it's now been 16 renamed COG for Children's Oncology Group, but it's the 17 same body. 18 It's a consortium of hospitals -- 19 pediatric hospitals -- across Canada and the US, and it's 20 a way to pool pediatric oncology patients in clinical 21 trials so that you can get enough patients in in 22 different arms of clinical trials in order to determine 23 statistical differences and what are useful new therapies 24 and what are not. 25 MS. JENNIFER MCALEER: Is there any

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1 aspect of patient care? I mean if a patient is POG 2 registered, does that mean it's going to affect their 3 treatment in any way? 4 MR. PAUL THORNER: To regis -- you -- had 5 to register your patients with this consortium in order 6 to start the types of protocols they were using; they 7 weren't necessarily available in the hospital if you 8 didn't register your patients. You would use the 9 conventional therapy that was in use at that time. 10 MS. JENNIFER MCALEER: So, when you say 11 "to use the protocols", are we talking about treatment, 12 does -- 13 MR. PAUL THORNER: Yes. 14 MS. JENNIFER MCALEER: -- it's -- it's -- 15 you -- you will have access to a different kind of 16 treatment -- 17 MR. PAUL THORNER: Right. 18 MS. JENNIFER MCALEER: -- if you're 19 registered. 20 MR. PAUL THORNER: Right. 21 MS. JENNIFER MCALEER: Okay. 22 MR. PAUL THORNER: Some of these were 23 experimental regimens, testing new chemotherapy drugs. 24 MS. JENNIFER MCALEER: Okay. And -- 25 COMMISSIONER STEPHEN GOUDGE: So in

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1 return for participating, you get to be part of the 2 experimental treatment program. 3 MR. PAUL THORNER: Right. And there were 4 other benefits as well. I mean, you -- you went to 5 meetings twice a year -- 6 COMMISSIONER STEVEN GOUDGE: Right. 7 DR. PAUL THORNER: -- and they had 8 discussions -- 9 COMMISSIONER STEVEN GOUDGE: And -- and 10 the pool of knowledge -- 11 DR. PAUL THORNER: Right. 12 COMMISSIONER STEVEN GOUDGE: -- it is -- 13 DR. PAUL THORNER: It was a way of 14 increasing the pool of knowledge and testing new 15 therapies. 16 COMMISSIONER STEVEN GOUDGE: Right. 17 18 CONTINUED BY MS. JENNIFER MCALEER: 19 MS. JENNIFER MCALEER: Okay. And then 20 with respect to the second case, the mediastinal 21 teratoma. 22 DR. PAUL THORNER: Right. 23 MS. JENNIFER MCALEER: Which is immature 24 with endodermal sinus tumour. What is this case about, 25 Dr. Thorner?

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1 DR. PAUL THORNER: This is a case where 2 there was a tumour in the -- the chest of a particular 3 type, which Charles recognized correct -- Dr. Smith 4 recognized correctly. These -- these two (2) components 5 to it. 6 It had a component we call immature 7 teratoma. Another one (1) we called endodermal sinus 8 tumour. 9 And then, I guess Dr. Taylor and I were 10 reviewing the slides, and felt there was a third 11 component to this tumour that had not been mentioned. 12 And that meant a change in the treatment. 13 It would be a -- a more intensive type of 14 treatment once that third component was present. 15 MS. JENNIFER MCALEER: All right. Why 16 would you and Dr. Taylor have been reviewing the slides? 17 DR. PAUL THORNER: I don't recall 18 specifically why we were. It was -- it would be likely 19 at the request of Dr. Greenberg. 20 MS. JENNIFER MCALEER: All right. And 21 would that be usual? I mean, would you and Dr. Taylor 22 usually review all of the pathology work done, or the 23 surgical pathology work done by other pathologists in the 24 department? 25 DR. PAUL THORNER: No. No. It -- there

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1 must have been -- again, I don't recall specifically, but 2 Dr. Greenberg must have been concerned about this case 3 for some reason, and -- 4 COMMISSIONER STEVEN GOUDGE: Right. He 5 may have had a suspicion that there was something else 6 going on. 7 DR. PAUL THORNER: Either that, or it was 8 unduly late -- 9 COMMISSIONER STEVEN GOUDGE: Yeah. 10 DR. PAUL THORNER: -- and he couldn't get 11 the answer. And, so he's ask -- and he needed the answer 12 to start treatment. 13 14 CONTINUED BY MS. JENNIFER MCALEER: 15 MS. JENNIFER MCALEER: All right. So the 16 same kind of question I was asking you with respect to 17 the other cases we discussed. 18 Dr. Smith found one (1) thing. You and 19 Dr. Taylor agreed with that one (1) diagnosis, but then 20 found something else. 21 How difficult was it to make that second 22 diagnosis? 23 DR. PAUL THORNER: Well, it's an unusual 24 finding in this particular type of tumour. One wouldn't 25 normally see that.

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1 So it's -- it wouldn't be within the realm 2 of normal experience for -- for people that don't see a 3 lot of these lesions. 4 MS. JENNIFER MCALEER: So it wouldn't be 5 surprising then that Dr. Smith would -- was not able to 6 detect it? 7 DR. PAUL THORNER: I -- I think it's -- 8 it doesn't surprise me that -- that someone might miss 9 this, but I would think you could recognize the focus as 10 something that you don't recognize. That something's a 11 little bit different, and -- and -- 12 COMMISSIONER STEVEN GOUDGE: You might go 13 and ask. 14 DR. PAUL THORNER: -- and then ask for 15 help. 16 17 CONTINUED BY MS. JENNIFER MCALEER: 18 MS. JENNIFER MCALEER: Okay. All right. 19 Now if we turn -- 20 COMMISSIONER STEVEN GOUDGE: Why wouldn't 21 you do the supplementary report yourself, given Dr. 22 Smith's -- 23 DR. PAUL THORNER: Right. The -- 24 COMMISSIONER STEVEN GOUDGE: -- chronic 25 tardiness? Because Dr. Greenberg clearly wants to get on

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1 with the more aggressive treatment. 2 DR. PAUL THORNER: Right. Right. I 3 guess there were two (2) issues there. 4 One (1) was a computer issue that that 5 particular database didn't allow a different pathologist 6 to write a supplementary report. It had to be the 7 pathologist the case was recorded in, so there was a 8 bureaucratic issue there. 9 And I guess that we were concerned, maybe 10 not legitimately, about whether there would be legal 11 implications of a -- of a case that was excessively -- 12 COMMISSIONER STEVEN GOUDGE: Right. 13 DR. PAUL THORNER: -- slow, and then it 14 suddenly came to have our name on it, and then we would 15 be held responsible for the tardiness -- 16 COMMISSIONER STEVEN GOUDGE: Right. 17 DR. PAUL THORNER: -- of it. 18 COMMISSIONER STEVEN GOUDGE: Okay. 19 Thanks. 20 21 CONTINUED BY MS. JENNIFER MCALEER: 22 MS. JENNIFER MCALEER: If we can turn the 23 tab to Tab 25; PFP137824. 24 It's an email from you to Dr. Becker dated 25 -- I can't tell if that's May 5th or June --

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1 DR. PAUL THORNER: I think that was -- 2 MS. JENNIFER MCALEER: -- I'm sorry, May 3 6th or June 5th. 4 DR. PAUL THORNER: -- I think on this 5 system, that was May. 6 MS. JENNIFER MCALEER: May 6th then? 7 DR. PAUL THORNER: Right. 8 MS. JENNIFER MCALEER: All right. And 9 this -- 10 DR. PAUL THORNER: It was the day after 11 this email. 12 MS. JENNIFER MCALEER: Right, because 13 this email actually refers to the -- 14 DR. PAUL THORNER: It's the same issue. 15 MS. JENNIFER MCALEER: -- the two (2) 16 cases; of Dr. Greenberg's cases. 17 And the email starts: 18 "Another mail -- another nail for the 19 coffin. I have had two (2) more 20 complaints about CS on surgicals, both 21 from Mark Greenberg." 22 What did you mean by using that 23 expression, Dr. Thorner? 24 DR. PAUL THORNER: Well, you can tell 25 that's a -- my frustration with the situation here.

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1 This is again referring to the file Dr. Co 2 -- Dr. Becker is accumulating on Dr. Smith, looking into 3 these problems. And then we just had the previous memo, 4 where I had talked about the file, and then now we have 5 two (2) more cases that have appeared through oncology, 6 so it did seem that these were coming more frequently 7 than one might expect. 8 MS. JENNIFER MCALEER: Okay. And do you 9 recall whether there was a response from Dr. Becker? 10 DR. PAUL THORNER: I don't recall. 11 MS. JENNIFER MCALEER: Or having any 12 discussions with Dr. Becker about these two (2) cases? 13 DR. PAUL THORNER: No, I don't. 14 MS. JENNIFER MCALEER: All right. If we 15 look at Tab 37, just briefly, because I'm running out of 16 time here, Dr. Thorner. 17 But if we look at Tab 37 which is an email 18 from you to Dr. Becker, November 28th. Again we have an 19 issue of backdating? 20 DR. PAUL THORNER: That's right. 21 MS. JENNIFER MCALEER: Okay. And then if 22 we look at Tab 38 -- sorry, that was PFP137807. Then if 23 we turn to Tab 38, which is 137806, we then, again, have 24 a series of email exchanges between Dr. Smith, Dr. 25 Becker, and -- and you.

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1 DR. PAUL THORNER: Mm-hm. 2 And again, I don't want to go too quickly, 3 Dr. Thorner, so slow me down if -- if we're moving too 4 quickly, but -- 5 DR. PAUL THORNER: Thank you. 6 MS. JENNIFER MCALEER: -- again, this is 7 another issue of backdating, is it not? 8 DR. PAUL THORNER: This is the same 9 issue, I think. 10 MS. JENNIFER MCALEER: Is it the same -- 11 DR. PAUL THORNER: I think -- 12 MS. JENNIFER MCALEER: -- same case? 13 DR. PAUL THORNER: -- I think it's the 14 same thing. 15 MS. JENNIFER MCALEER: I see. Okay. And 16 -- and what's going on here, Dr. Thorner? 17 DR. PAUL THORNER: The -- okay, the -- 18 the way this was picked up was running the monthly 19 incomplete reports. A particular case showed up -- I'm 20 not sure on which month it was -- October, so on the 21 October list, two (2) cases showed up as incomplete for 22 Dr. Smith. 23 MS. JENNIFER MCALEER: As incomplete? 24 DR. PAUL THORNER: Incomplete, right. 25 And then running the November list, they were no longer

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1 on that list which means they had been completed in 2 November. And -- 3 MS. JENNIFER MCALEER: Which is a good 4 thing? 5 DR. PAUL THORNER: Right. So when I -- 6 whenever a case was completed, I would then go and code 7 it as I only coded the completed cases. So I went back 8 to those two (2) cases to code them and the dates signed 9 out for them were not in November. They were indicated 10 to be October which is not possible because they were on 11 the incomplete list for October. 12 So clearly that he -- the dates signed out 13 were not the actual dates they had been signed out. 14 MS. JENNIFER MCALEER: They'd been 15 backdated? 16 DR. PAUL THORNER: Right. 17 MS. JENNIFER MCALEER: And then Dr. Smith 18 provides an explanation which is the middle paragraph? 19 DR. PAUL THORNER: That's right. 20 MS. JENNIFER MCALEER: And then can you 21 summarize Dr. Smith's explanation? 22 DR. PAUL THORNER: As I read it, he is 23 under the impression that it's not possible to backdate 24 the surgicals; that the sur -- the -- when you completed 25 a case, it would take the current date of sign out and

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1 put that into the record, and it wasn't possible to 2 change that. 3 MS. JENNIFER MCALEER: Okay, so he's 4 saying that -- first of all, he's -- he's denying that he 5 backdated, and he's saying the computer automatically 6 assigns the date. Is that what's happening? 7 DR. PAUL THORNER: Well, the computer did 8 automatically assign the date unless you wanted to assign 9 a different date. 10 MS. JENNIFER MCALEER: I see. 11 DR. PAUL THORNER: But if -- the default 12 would be the current date that you were signing the case 13 out. 14 MS. JENNIFER MCALEER: So in order for 15 that to occur, one has to manually change that? 16 DR. PAUL THORNER: That's right. 17 MS. JENNIFER MCALEER: And you are 18 saying, in your response above, that it is possible to 19 manually change it? 20 DR. PAUL THORNER: It was definitely 21 possible. We were doing it because when we set up this 22 new database, which I believe was the early 1990s, we 23 wanted to enter in our older reports so that their 24 database would be more complete. 25 So all of the secretaries were entering --

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1 entering in older cases, and we wanted those to match the 2 original record, so we were -- they would be entering in 3 the date received and the date completed to match the 4 original dates. 5 So if -- if it weren't possible to do 6 that, all the back-entered cases would have the current 7 date, and that wasn't the case, so -- and they -- all the 8 secretaries knew how to change the date. 9 MS. JENNIFER MCALEER: Okay. Just 10 generally speaking, Dr. Thorner, what -- what were your 11 impressions of Dr. Smith, working with Dr. Smith? 12 DR. PAUL THORNER: Specifically? 13 MS. JENNIFER MCALEER: Well, let's -- 14 let's talk about this issue, did -- did you ever have any 15 reason to question Dr. Smith's integrity? 16 DR. PAUL THORNER: I thought Dr. Smith 17 had integrity, but this sort of thing is certainly 18 unprofessional, in my view. And I don't see what is 19 gained by doing this sort of thing. 20 I mean, it would easily be detected. 21 MS. JENNIFER MCALEER: What was he like 22 to work with as a colleague? 23 DR. PAUL THORNER: He was actually a very 24 good person to work with. He was collegial and friendly 25 and cooperative. I never had any negative interactions

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1 with Charles specifically, although we have a memo here 2 that would suggest that he was displeased, so. 3 MS. JENNIFER MCALEER: Sorry, which -- a 4 memo we've reviewed? Or -- 5 DR. PAUL THORNER: From one of the memos 6 we've reviewed, that -- that was making -- com -- making 7 a complaint about -- 8 MS. JENNIFER MCALEER: Oh, the -- the one 9 about the quote -- 10 DR. PAUL THORNER: -- me. 11 MS. JENNIFER MCALEER: -- from you that 12 you denied -- 13 DR. PAUL THORNER: Right. 14 MS. JENNIFER MCALEER: -- making? 15 DR. PAUL THORNER: And then not covering 16 more than one (1) day and things like that, so. 17 MS. JENNIFER MCALEER: But nothing had 18 ever actually been communicated to you over those lines? 19 DR. PAUL THORNER: No, I didn't have any 20 -- there was no overt negative reaction from Charles that 21 -- that I ever experienced. And -- nor did I see any 22 with anybody else. He was an extremely nice person to 23 work with. 24 MS. JENNIFER MCALEER: Okay. And he -- 25 at one (1) point he -- he did start doing surgical

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1 pathology work again, Dr. Thorner? 2 DR. PAUL THORNER: You mean after the 3 hiatus there? 4 MS. JENNIFER MCALEER: Yes. 5 DR. PAUL THORNER: Well, he was never 6 really off it because he was still covering the weekends; 7 surgical pathology. So it was just the Monday to Friday 8 surgical pathology he was not doing for a period of the 9 summer. 10 MS. JENNIFER MCALEER: I see. So if his 11 name is on the weekend, -- covering the weekend, then he 12 would deal with the surgical pathology that came in on 13 the weekend? 14 DR. PAUL THORNER: Yes. 15 MS. JENNIFER MCALEER: Okay. And did you 16 have any reason -- did you have any concerns with respect 17 to Dr. Smith's competency in the area of surgical 18 pathology? 19 DR. PAUL THORNER: I thought he read 20 slides in a quite satisfactory manner. I mean, there are 21 -- we have a few examples here where there were some 22 problems, and some of those were problem cases for sure. 23 But I think overall he read slides in a 24 satisfactory manner. I wasn't concerned about that. 25 COMMISSIONER STEPHEN GOUDGE: Would there

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1 be material like this in the files of -- relating to 2 other pathologists; material concerning discrepancies in 3 diagnoses and stuff like that? I mean, is that typical, 4 atypical of -- 5 DR. PAUL THORNER: It's -- it's atypical, 6 but I -- there is one (1) other pathologist that there 7 would have been a -- a small file on. 8 MS. JENNIFER MCALEER: Right. 9 DR. PAUL THORNER: But nothing of this 10 size. 11 12 CONTINUED BY MS. JENNIFER MCALEER: 13 MS. JENNIFER MCALEER: And then briefly, 14 Dr. Thorner, turning to Tab 63, which is PFP137732. And 15 I suspect that one (1) of the other lawyers may -- may 16 take you through this in greater detail than my time 17 permits, but we know that in -- in May of 2005 or 18 previous to May of 2005, Dr. -- Dr. Dimmick had been 19 retained to do a review of some of Dr. Taylor's surgical 20 -- sorry, some of Dr. Smith's surgical work for a period 21 of time in 2005, if memory serves. 22 And that Dr. Dimmick had looked at sixty 23 (60) surgical pathology cases. Were you involved in any 24 way in that review, Dr. Thorner? 25 DR. PAUL THORNER: I was not.

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1 MS. JENNIFER MCALEER: Did you have any 2 discussions with Dr. Taylor about preparing for that 3 review or why that review was done? 4 DR. PAUL THORNER: I didn't have any 5 discussions about the preparing of the review. I don't 6 recall -- there may have been -- Dr. Taylor may have 7 mentioned that they were going to do a review, but I 8 don't -- I wasn't involved in preparing it at all. 9 MS. JENNIFER MCALEER: Did Dr. Taylor 10 tell you why they were doing the review? 11 DR. PAUL THORNER: Well, there was 12 concern based on the information that had come out about 13 the forensic cases, and that there may have been 14 diagnostic problems there; that the hospital should check 15 and see whether the same occurrence was going on on the 16 surgical pathology side. 17 MS. JENNIFER MCALEER: And Dr. Dimmick 18 reported back that, in fact, he concurred with Dr. 19 Smith's diagnosis in -- in fifty-seven (57) of his 20 surgical -- fifty-seven (57) of the sixty (60) surgical 21 pathology cases, and in the remain -- remaining three (3) 22 he only disagreed in a minor way? 23 DR. PAUL THORNER: Right. 24 MS. JENNIFER MCALEER: Was that 25 information communicated back to you, Dr. Thorner?

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1 DR. PAUL THORNER: I have not seen this 2 letter before the -- this inquiry. 3 MS. JENNIFER MCALEER: Okay. 4 DR. PAUL THORNER: The -- the information 5 that was communicated back to us, and it was at a staff 6 meeting, was that Dr. Smith had undergone this review and 7 that the -- Dr. Dimmick had felt the results were 8 satisfactory. 9 MS. JENNIFER MCALEER: Okay. 10 DR. PAUL THORNER: And that was -- we 11 were not given any information about -- beyond that. 12 MS. JENNIFER MCALEER: All right. Thank 13 you, Dr. Thorner. Those are all of my questions. 14 DR. PAUL THORNER: Thank you. 15 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 16 McAleer. We will rise now until twenty (20) to 12:00, 17 and come back, I guess, with you, Ms. Baron. 18 19 --- Upon recessing at 11:20 a.m. 20 --- Upon resuming at 11:49 a.m. 21 22 THE REGISTRAR: All rise. Please be 23 seated. 24 COMMISSIONER STEVEN GOUDGE: Ms. 25 Baron...?

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1 2 CROSS-EXAMINATION BY MS. ERICA BARON: 3 MS. ERICA BARON: Good morning, Dr. 4 Thorner. My name is Erica Baron, and I'm one of the 5 lawyers for Dr. Smith. I have a few questions for you 6 today. 7 I just want to go back to something that 8 you said briefly near the end of Ms. McAleer's 9 examination with you, and you said it's not to say that 10 Dr. Smith was taken off surgicals altogether because when 11 he was on weekend coverage, he would do surgicals in 12 those circumstances. Is that right? 13 DR. PAUL THORNER: That's correct. 14 MS. ERICA BARON: Okay. And can you tell 15 me a little bit about how evening coverage was handled at 16 the Hospital for Sick Children? 17 DR. PAUL THORNER: The -- usually the 18 evening coverage was taken care of by the person who was 19 on for the coroner's service. And -- 20 MS. ERICA BARON: Right, so to the -- to 21 the extent that Dr. Smith was on for medicolegal during 22 that time period, if there was a case in the evening that 23 was surgical, he would be the one called to deal with it? 24 DR. PAUL THORNER: Yes. 25 MS. ERICA BARON: Okay. And one (1)

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1 other thing that you mentioned during Ms. McAleer's 2 examination was about the encouragement of pathologists 3 to develop submission-specialties in surgical pathology. 4 DR. PAUL THORNER: That's right. 5 MS. ERICA BARON: And is it fair to say 6 that there were some pathologists at the Hospital for 7 Sick Children who didn't do any surgical pathology at 8 all? 9 DR. PAUL THORNER: It came to be that 10 way, yes. 11 MS. ERICA BARON: So in 1997, for 12 instance, I see the names of Dr. Silver and Dr. Wilson 13 don't seem to appear anywhere on the surgical call on. 14 DR. PAUL THORNER: Right. 15 MS. ERICA BARON: Because they were only 16 doing autopsy pathology at that point? 17 DR. PAUL THORNER: For Dr. Silver that 18 was true. 19 MS. ERICA BARON: Okay. 20 DR. PAUL THORNER: Dr. Wilson was doing 21 the cardiac specimens. They were being re-routed to him. 22 His area of expertise was cardiac pathology. 23 MS. ERICA BARON: But he wasn't doing 24 general surgical work? 25 DR. PAUL THORNER: No. Nor was Dr. Cutz.

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1 MS. ERICA BARON: Okay. Now is it fair 2 to say, Dr. Thorner, that prior to preparing for the 3 Inquiry, you did not recall having any discussions with 4 anybody about concerns around the quality of Dr. Smith's 5 surgical pathology work? 6 DR. PAUL THORNER: I think that's fair. 7 MS. ERICA BARON: And that would include 8 Dr. Smith himself? 9 DR. PAUL THORNER: Yes. 10 MS. ERICA BARON: And indeed you've told 11 us today, I think, that you still don't recall any such 12 conversations? 13 DR. PAUL THORNER: That's right. 14 MS. ERICA BARON: And that would include 15 Dr. Becker? 16 DR. PAUL THORNER: That's true. 17 MS. ERICA BARON: Although today you -- 18 you seem to recall that you probably would have had such 19 conversations? 20 DR. PAUL THORNER: Right. I mean, once 21 I've seen some of these documents, I must have had some 22 conversations related to some of the inaccuracies here. 23 MS. ERICA BARON: And setting aside the 24 issue of recall -- recall of any discussions, is it fair 25 to say that prior to preparing for this Inquiry, you

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1 didn't recall any concerns at all about the quality of 2 Dr. Smith's surgical pathology work? 3 DR. PAUL THORNER: I think that depends 4 on what you mean by the quality of his work. 5 MS. ERICA BARON: Setting aside -- let's 6 say the quality of Dr. Smith's surgical diagnoses. 7 DR. PAUL THORNER: You mean the reading 8 of slides? 9 MS. ERICA BARON: Yes. 10 DR. PAUL THORNER: Yes. I thought Dr. 11 Smith could read slides -- 12 MS. ERICA BARON: Okay. 13 DR. PAUL THORNER: -- in a satisfactory 14 way. 15 MS. ERICA BARON: And you didn't remember 16 any of the individual cases that you've been taken to 17 today until being shown the documents? 18 DR. PAUL THORNER: That's correct. 19 MS. ERICA BARON: And just turning to a 20 last point briefly. 21 Of the cases that were identified with you 22 today where concerns were raised about this -- the 23 diagnoses made by Dr. Smith, would it be fair to say that 24 those cases represent a very small minority of all of the 25 surgical pathology cases that Dr. Smith did during the

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1 course of his career? 2 DR. PAUL THORNER: I think that's a fair 3 statement. 4 MS. ERICA BARON: Indeed, would you -- if 5 I were to put to you that Dr. Smith probably looked at 6 thousands of surgical pathology cases over the course of 7 his career at the Hospital for Sick Children, would you 8 agree that that's probably a fair statement? 9 DR. PAUL THORNER: Well, I haven't done 10 the numbers, but it certainly would be a -- a large 11 number of cases. 12 MS. ERICA BARON: Thinking about what an 13 average work load would be on a week that you're on 14 surgical pathology, can you give us a sense of what that 15 might -- what number that might entail? 16 DR. PAUL THORNER: Well, we have about 17 close to six thousand (6,000) surgicals a year. So I 18 guess if you divide them maybe -- we probably get maybe 19 twenty-five (25), thirty (30) cases a week that -- no, 20 no. That wouldn't be right. Maybe twenty-five (25), 21 thirty (30) a day. 22 COMMISSIONER STEVEN GOUDGE: Yeah. 23 DR. PAUL THORNER: Yeah. A hundred and 24 fifty (150), two hundred (200) a week. 25

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1 CONTINUED BY MS. ERICA BARON: 2 MS. ERICA BARON: So thinking about it in 3 that context, and having been responsible for the 4 preparation of -- of the rosters for the time period, and 5 sort of -- I -- I take it having a general sense of how 6 often Dr. Smith was on the surgical rotation, would you 7 agree that it was probably thousands of cases? 8 DR. PAUL THORNER: Yeah, I guess it would 9 work out to that. 10 MS. ERICA BARON: Okay. And of those 11 cases, where -- of the con -- of the cases where you've 12 now realized some concerns were raised, you'd agree that 13 even a smaller subset of those cases had any implication 14 for patient care? 15 DR. PAUL THORNER: Yes, that's true. 16 MS. ERICA BARON: Thank you. I think 17 those are my questions. 18 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 19 Baron. 20 Mr. Bernstein...? 21 22 CROSS-EXAMINATION BY MR. DANIEL BERNSTEIN: 23 MR. DANIEL BERNSTEIN: Good morning, Dr. 24 Thorner. My name is Daniel Bernstein, and I act for a 25 group of families and caregivers who have been affected

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1 by some of Dr. Smith's findings, and I have just a couple 2 of questions for you this morning. 3 You testified here that there was an 4 ongoing concern about Dr. Smith's backlog of cases and 5 his failure to complete reports on time, correct. 6 MR. PAUL THORNER: That's correct. 7 MR. DANIEL BERNSTEIN: And I think from 8 the documents we've seen, this was going on for quite 9 some time. We have seen documents reflecting this 10 problem going back to 1995 all the way through to, at 11 least, 2002, isn't that right? 12 MR. PAUL THORNER: That's right. 13 MR. DANIEL BERNSTEIN: So that's at least 14 approximately an eight (8) year period. 15 MR. PAUL THORNER: Correct. 16 MR. DANIEL BERNSTEIN: And would you 17 agree with me that that's an extremely long period of 18 time for these problems to persist? 19 MR. PAUL THORNER: It was a frustrating 20 problem. 21 MR. DANIEL BERNSTEIN: Okay. And you've 22 also testified that it was your impression that Dr. Smith 23 was fairly disorganized and not an efficient worker, 24 correct? 25 MR. PAUL THORNER: That's correct.

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1 MR. DANIEL BERNSTEIN: In your view, 2 Doctor, is there any relationship between Dr. Smith's 3 lack of organization in his late reporting? 4 MR. PAUL THORNER: Oh, I think so. 5 MR. DANIEL BERNSTEIN: And can you help 6 with that? What -- what do you think that relationship 7 is? Is it possible, for example, that because Dr. Smith 8 was under pressure at all times, or most times, to catch 9 up to his work, he may not have been as thorough as he 10 should have been in his evaluation of slides, for 11 example? 12 MR. PAUL THORNER: I think that's 13 possible, but there's much more to generating the 14 pathology report than just the slide reading. You have 15 to -- once you've read the slide, you have to capture the 16 information in the report accurately; it has to be 17 complete, and it has to be timely, so I think the fact -- 18 if you're disorganized and inefficient, even though you 19 read the slides perfectly well, that can interfere with 20 all of those subsequent steps, so you end up with a 21 surgical report that's late and not accurate and 22 problematic. 23 MR. DANIEL BERNSTEIN: So do I hear you 24 saying that another concern is that if a report is 25 written a certain length of time after the slides have

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1 been reviewed, that might be the cause of an inaccurate 2 report? 3 MR. PAUL THORNER: It could be, sure. 4 MR. DANIEL BERNSTEIN: Okay. So you are 5 suggesting, then, that there is a relationship between 6 organization and quality of work product, right? 7 MR. PAUL THORNER: Yes, I -- definitely. 8 MR. DANIEL BERNSTEIN: And the quality of 9 work product, obviously, can effect the quality of 10 patient care, right? 11 MR. PAUL THORNER: That's right. 12 MR. DANIEL BERNSTEIN: And in medicolegal 13 cases where autopsies are being done, and as we've seen 14 at this Inquiry, the quality of work product say, in a 15 post-mortem report, could impact the Criminal Justice 16 System, is that fair? 17 MR. PAUL THORNER: It sounds reasonable. 18 MR. DANIEL BERNSTEIN: So making sure the 19 pathologists stay on top of their work is not just an 20 administrative issue, right? It has potentially far 21 greater implications. 22 MR. PAUL THORNER: Yes. 23 MR. DANIEL BERNSTEIN: Okay. Do you 24 think that this connection between work product and 25 organization was one that the hospital appreciated back

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1 in the 1990's? 2 MR. PAUL THORNER: By the hospital, 3 you're referring to...? 4 MR. DANIEL BERNSTEIN: The Hospital for 5 Sick Kids. 6 MR. PAUL THORNER: Do you mean to a 7 specific person? And Dr. Becker was certainly aware of 8 this problem. 9 MR. DANIEL BERNSTEIN: So you think Dr. 10 Becker understood that disorganization and late reporting 11 could have an impact on patient care. 12 MR. PAUL THORNER: Oh, absolutely. 13 MR. DANIEL BERNSTEIN: Okay. 14 MR. PAUL THORNER: He -- he mentioned 15 that many times. 16 MR. DANIEL BERNSTEIN: In light of what 17 we've seen and in light of how long the problems have per 18 -- persisted, do you think that there were any other 19 techniques that should have been adopted earlier to make 20 sure that Dr. Smith was on top of his work and more 21 organized? 22 MR. PAUL THORNER: I'm not sure 23 specifically what techniques you're thinking of. 24 MR. DANIEL BERNSTEIN: I don't have 25 anything specific in mind, but we have a situation here

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1 where Dr. Smith was having problems for at least eight 2 (8) years in terms of the timing of his work, and we know 3 that that can effect the quality of his work. 4 Looking back, do you think there's 5 anything that could have been done differently to help 6 manage that problem? 7 MR. PAUL THORNER: Well, I think Dr. 8 Becker offered Charles help in -- in areas and it was up 9 to Charles to -- to accept the help, of course; if he 10 didn't -- he wasn't obligated to accept it, but Dr. 11 Becker made available secretarial support if -- if that 12 had been the problem, and he offered Charles the option 13 of having the cases transferred to someone else to speed 14 up the sign out. 15 He certainly would -- I think we've seen 16 many memos that he wrote to Charles to keep Charles 17 reminded that these difficulties were being looked at. 18 MR. DANIEL BERNSTEIN: Do you have any 19 other suggestions or ideas for how a problem like this 20 could be managed more effectively in the future? 21 MR. PAUL THORNER: I guess if I were met 22 -- if -- you know if this was a management issue -- it 23 appeared that Charles had more work than he could cope 24 with. And that may be related to his work practices and 25 organizational skills, and some re-allotment of work

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1 might have been -- might have helped things there. 2 MR. DANIEL BERNSTEIN: Thank you, Doctor, 3 those are my questions. 4 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 5 Bernstein. Finally, Mr. Carter...? 6 7 CROSS-EXAMINATION BY MR. WILLIAM CARTER: 8 MR. WILLIAM CARTER: You say that with 9 great anticipation. Commissioner, good morning. I think 10 it would be helpful, Dr. Thorner, if we just took a 11 minute to paint a picture of the characters here. 12 First of all, you're the first witness 13 we've had who was actually present during this time 14 period -- I'll -- I'll call it the mid to late '90's -- 15 when the surgical work of Dr. Smith is now under review. 16 So you had some role in collecting 17 information about that. We've heard from Dr. Taylor who 18 was not directly involved, and of course, Dr. Becker is 19 not with us, so we can't hear from him. 20 So could we just take a minute to get your 21 views on the characters here? First of all, Dr. Becker, 22 as I understand it, was a very highly regarded 23 neuropathologist, would you agree with that? 24 DR. PAUL THORNER: Absolutely. 25 MR. WILLIAM CARTER: In fact, he had

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1 outstanding academic credentials? 2 DR. PAUL THORNER: Definitely. 3 MR. WILLIAM CARTER: And clinical skills? 4 DR. PAUL THORNER: Mm-hm. 5 MR. WILLIAM CARTER: And when he became 6 the Head of the -- oh, I guess he became Chief of 7 Pathology, then he became Head of the Division of 8 Pathology in the new organization. He was undertaking a 9 re-organization of a fairly complex series of hospital 10 services? 11 DR. PAUL THORNER: That's true. 12 MR. WILLIAM CARTER: And in your 13 experience, and from your perspective, he did an 14 outstanding job, did he not? 15 DR. PAUL THORNER: Yes, I think so. 16 MR. WILLIAM CARTER: Okay. And as part 17 of that job, he had to come to grips with the personnel 18 management involved in not only the Division of Poll -- 19 Pathology, but other -- the other divisions as well? 20 DR. PAUL THORNER: Correct. 21 MR. WILLIAM CARTER: Okay. And in that 22 context, he -- and of course, we've only been focussing 23 on his involvement, and your involvement with Dr. Smith - 24 - but in that context, he'd be involved with the 25 management issues involving many, many physicians and

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1 other personnel? 2 DR. PAUL THORNER: Yes. 3 MR. WILLIAM CARTER: And the -- I think 4 it would be fair to say, would it not, that from your 5 perspective, Dr. Becker took the -- his role as a manager 6 of this complex new department very seriously? 7 DR. PAUL THORNER: Absolutely. 8 MR. WILLIAM CARTER: And he wanted to do 9 his very best to improve the performance of the members 10 of the Division of Pathology, including Dr. Smith? 11 DR. PAUL THORNER: Yes. 12 MR. WILLIAM CARTER: And that was for a 13 number of reasons. One (1), of course, he wanted to 14 improve the clinical outcomes for hospital patients? 15 DR. PAUL THORNER: Yes. 16 MR. WILLIAM CARTER: And he wanted to 17 ensure that the Division met the highest possible 18 standards within the profession? 19 DR. PAUL THORNER: Right. 20 MR. WILLIAM CARTER: And, in fact, one 21 (1) of the things he did, was he, in consultation with 22 members of the Division, formulated some new standards, 23 which you told us about this morning, which -- having to 24 do with turn around times for surgical pathology and for 25 the autopsy reports?

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1 DR. PAUL THORNER: Yes. 2 MR. WILLIAM CARTER: Okay. And those 3 were, in fact, hospital standards, those weren't 4 necessarily standards of the wider profession, is that 5 fair? Those were generated within the hospital according 6 to what the hospital felt its responsibilities were to 7 its patients. 8 DR. PAUL THORNER: Yeah, we generated 9 those within our department. 10 MR. WILLIAM CARTER: Right. Now let's -- 11 and -- and would agree with me Dr. Becker was a fairly 12 serious individual? 13 DR. PAUL THORNER: Yes, I do. 14 MR. WILLIAM CARTER: Yeah. I don't mean 15 humourless, I just mean he took his job seriously? 16 DR. PAUL THORNER: He took his job very 17 seriously. 18 MR. WILLIAM CARTER: Yeah. Now Dr. Smith 19 was a colleague who was at the hospital for a short time 20 before your arrival, is that fair? 21 DR. PAUL THORNER: True. 22 MR. WILLIAM CARTER: But he was more or 23 less your generation of physicians? 24 DR. PAUL THORNER: Yes. 25 MR. WILLIAM CARTER: And so he was a

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1 contemporary within that context? 2 DR. PAUL THORNER: Yes. 3 MR. WILLIAM CARTER: And your 4 understanding of Dr. Smith's role in the Division or 5 Department of Pathology, when you arrived, was that he 6 was one (1) of the physicians involved in providing the 7 broad consultation service, but he was demonstrating an 8 interest in the forensic realm? 9 DR. PAUL THORNER: That's correct. 10 MR. WILLIAM CARTER: And over time, he, 11 kind of, became pre-eminent in the forensic realm, is 12 that fair? 13 DR. PAUL THORNER: I think that's fair. 14 MR. WILLIAM CARTER: And that may have 15 occurred for a number of reasons. One (1) of which his 16 own interest in the field, would that be reasonable? 17 DR. PAUL THORNER: Yes. 18 MR. WILLIAM CARTER: And another may be a 19 concomitant lack of interest of his colleagues in the 20 field? 21 DR. PAUL THORNER: I suppose that's fair. 22 MR. WILLIAM CARTER: Okay. So -- and I 23 guess part of the picture too is he appeared to be 24 successful, to use a -- an undefined term, in that field 25 as well? In other words, he was getting satisfaction

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1 apparently from his client, the Coroner's Office? 2 DR. PAUL THORNER: Yes. 3 MR. WILLIAM CARTER: Okay. Now, just 4 dealing for a moment with the structure of the surgical 5 pathology, I -- you've told us that many of the 6 pathologists developed subspecializations. I take it 7 that there are some areas or some departments of 8 pathology in other institutions where that is the model, 9 is it not? 10 There's kind of -- everybody has a 11 subspecialization? There are no generalists? 12 DR. PAUL THORNER: I'm not sure there are 13 no generalists in some places, but there certainly are 14 departments where every biopsy is rerouted to a 15 subspecialist. 16 MR. WILLIAM CARTER: Okay. Maybe I 17 should put it this way. There's -- there's no fixed 18 model in a -- a hospital setting like the Hospital for 19 Sick Children for how the work is going to be divided 20 among the pathologists? 21 DR. PAUL THORNER: No, it's -- it's up to 22 us to decide that. 23 MR. WILLIAM CARTER: And it varies from 24 site to site, I assume? 25 DR. PAUL THORNER: Yes.

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1 MR. WILLIAM CARTER: Depending on the 2 skillset and interests of the pathologists and the 3 workload they face? 4 DR. PAUL THORNER: Yes. And the number 5 of pathologists you have available. 6 MR. WILLIAM CARTER: Right. So those 7 would be the -- the variables in the matrix? 8 DR. PAUL THORNER: Right. 9 MR. WILLIAM CARTER: Okay. And in -- in 10 your particular matrix back in the mid to late '90s, the 11 workload assigned to the pathologists would vary 12 depending on the number of pathologists, is that fair? 13 DR. PAUL THORNER: That's true. 14 MR. WILLIAM CARTER: 'Cause there's a 15 certain dynamic among the medical staff, is there not? 16 DR. PAUL THORNER: Mm-hm. 17 MR. WILLIAM CARTER: Some come and go? 18 DR. PAUL THORNER: Right. 19 MR. WILLIAM CARTER: And it's not fixed? 20 DR. PAUL THORNER: That's right. 21 MR. WILLIAM CARTER: And the ones that 22 come and go may have more or less specialization in 23 various subspecialties. So if you lose somebody who's 24 interested in cardiology that creates a problem if you 25 don't have somebody else to -- who has that special

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1 interest? 2 DR. PAUL THORNER: That's right. 3 MR. WILLIAM CARTER: So you'd have to 4 spread the interest in cardiology over those who remain? 5 DR. PAUL THORNER: Right. 6 MR. WILLIAM CARTER: Or find a -- a 7 replacement? 8 DR. PAUL THORNER: Right. 9 MR. WILLIAM CARTER: Okay. And in the 10 case at the Hospital for Sick Children, some of your, I 11 guess -- I guess the people who refer the biopsies or 12 specimens to you are, in a way, like your clients, are 13 they not? 14 There are certain physicians with certain 15 specialties who develop relationships with certain of the 16 pathologists based on the interest of the pathologist and 17 the type of work that the surgeon is doing? 18 DR. PAUL THORNER: Yes, that's true. 19 MR. WILLIAM CARTER: And as I understand 20 it, those kinds of relationships had developed in the 21 1990s whereby the GI work was being done by Dr. Cutz? 22 DR. PAUL THORNER: Yes. 23 MR. WILLIAM CARTER: Is that reasonable? 24 DR. PAUL THORNER: Yes, yes, that's -- 25 MR. WILLIAM CARTER: Okay. Okay. And so

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1 he was, kind of, the dedicated GI pathologist during the 2 -- the week? 3 DR. PAUL THORNER: Yes. 4 MR. WILLIAM CARTER: Okay. And that 5 meant that his name didn't appear on the surgical roster 6 because the surg -- the GI specimens during the week were 7 going to be sent to him anyway? 8 DR. PAUL THORNER: That's correct. 9 MR. WILLIAM CARTER: Okay. And the same 10 would be true of Dr. Wilson who was the cardiac 11 specialist? 12 DR. PAUL THORNER: Yes. 13 MR. WILLIAM CARTER: And so we don't see 14 Dr. Wilson's name on the surgical list, as a rule, 15 because - any cardiac work would be sent to him and would 16 not be sent to the surgical -- the person who's covering 17 surgery during the week? 18 DR. PAUL THORNER: That's true. 19 MR. WILLIAM CARTER: Okay. And I take it 20 that -- and I think you told us that there was some 21 specialization in the renal area as well. And I -- and - 22 - but renal work and the oncology work was being done by 23 the general surgicals, is that fair? 24 DR. PAUL THORNER: No. 25 MR. WILLIAM CARTER: Okay.

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1 DR. PAUL THORNER: The renal work was 2 being redirected. 3 MR. WILLIAM CARTER: I see. I 4 misunderstood that. The oncology was being done by the 5 general sur -- 6 MR. PAUL THORNER: The oncology remained 7 in the general pool. 8 MR. WILLIAM CARTER: And those 9 specialists who had an interest, or those cardiologists 10 and cardiac surgeons who were doing work that required 11 cardiac pathology, would have a direct relationship say, 12 with Dr. Wilson, is that right? 13 MR. PAUL THORNER: And later when Dr. 14 Taylor came on staff. 15 MR. WILLIAM CARTER: Right. And they may 16 well have considered that an advantage that -- that 17 developed as a result of the way the -- these 18 relationships developed, is that fair? 19 MR. PAUL THORNER: Definitely. 20 MR. WILLIAM CARTER: And as I understand 21 it, Dr. Greenberg, who was the oncologist, to your 22 knowledge, was interested in developing a captive or 23 dedicated submission-specialist in the oncology area, is 24 that fair? 25 MR. PAUL THORNER: Yes, he was.

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1 MR. WILLIAM CARTER: Okay, ca -- what can 2 you tell us about that? 3 MR. PAUL THORNER: As you've outlined, 4 the certain pediatric and surgical specialties had a 5 dedicated pathologist, and -- and that really came about 6 because the -- there was an increasing complexity in 7 pediatric medicine. 8 And especially, at that time, when there 9 was a lot of genetic -- new genetic work coming out, and 10 so it became not really possible to be an expert in 11 everything, and there was a desire for the pediatricians 12 to have someone to go to who they felt was an expert in 13 reading their biopsies. 14 Even though the other people may have been 15 competent, they -- they didn't have the added level of 16 expertise that the pediatricians at the hospital needed, 17 and they were working at a very high level of excellence. 18 And so Dr. Greenberg felt that if that -- 19 if that were possible for the kidney doctors and the 20 liver doctors and the gastroenterologists, why shouldn't 21 it be possible for oncology; that that surely is as 22 important a specialty in children as anything else, so he 23 was interested in trying to arrange that within our 24 department. 25 MR. WILLIAM CARTER: Okay, and do you

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1 know what discussions -- did he have any discussions with 2 you about that? 3 MR. PAUL THORNER: Yes, that -- that's -- 4 we had that sort of discussion -- 5 MR. WILLIAM CARTER: Okay. 6 MR. PAUL THORNER: -- as I related. 7 MR. WILLIAM CARTER: Okay. Did you have 8 any discussions with Dr. Becker about that? 9 MR. PAUL THORNER: I -- Dr. Becker -- I 10 believe Dr. Greenberg had also spoken to Dr. Becker 11 because Dr. Becker had spoken to me about the same issue 12 and whether that were possible or not. 13 And it would have meant a difficult type 14 of rescheduling, and it would have caused problems with 15 the people that we had so we decided not to go that 16 route. 17 MR. WILLIAM CARTER: Okay. Now, some of 18 the clinical discrepancies that you've given evidence 19 about related to Dr. Greenberg's patients. 20 MR. PAUL THORNER: Right. Most of the 21 complaints, actually, that we have came from oncology. 22 MR. WILLIAM CARTER: Okay. 23 MR. PAUL THORNER: The vast majority of 24 them. 25 MR. WILLIAM CARTER: Now, is there, in --

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1 in your judgment, any relationship between that source of 2 complaints and the desire of Dr. Greenberg to develop a 3 captive and discreet pathologist? 4 MR. PAUL THORNER: Yes, I think there 5 was, because it's right around the same time that he was 6 asking for this. And he was trying to make the case, I 7 think, that he needed to have biopsies rerouted to 8 submission-specialists who had an interest in oncology 9 and knew all the -- the new molecular genetic techniques. 10 MR. WILLIAM CARTER: Making the case by 11 indicating that by referring his work to those who, such 12 as Dr. Smith, who were on the surgical rotation, he 13 wasn't getting the kind of excellence that was available 14 to some of his colleagues who had captive pathologists. 15 MR. PAUL THORNER: That's right, and he - 16 - the reports may not have contained the information they 17 needed or he wasn't getting them in the reasonable period 18 of time, and he wanted the oncology biopsies to go to 19 particular pathologists. 20 MR. WILLIAM CARTER: Okay. Now, wou -- 21 it would appear from the evidence that you've been taken 22 to, and I acknowledge that some of it wasn't top of mind 23 until a few months ago for you, but that it was in the 24 period in the mid 19 -- mid to late 1990's, '96/'97, that 25 Dr. Smith seemed to have a cluster of problems.

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1 MR. PAUL THORNER: Yes. 2 MR. WILLIAM CARTER: That's fair? 3 MR. PAUL THORNER: I think that's fair. 4 MR. WILLIAM CARTER: And -- and would I 5 be right in -- in understanding that from your 6 perspective prior to then, it was your assessment of your 7 colleague, Dr. Smith, that he was a reasonably competent 8 surgical pathologist in addition to his demonstrated 9 interest in forensics? 10 MR. PAUL THORNER: Yes, I thought so. We 11 weren't getting complaints about him before that period. 12 MR. WILLIAM CARTER: Right. And would I 13 be right in understanding that after this period in 1997 14 or so, these complaints ceased; related to his surgical 15 pathology discrepancies? 16 MR. PAUL THORNER: Yes, I think that's 17 fair. The -- the complaints that persisted were related 18 to the reporting issues. 19 MR. WILLIAM CARTER: Right, right. Now, 20 we recognize from the evidence, and I think it's been a - 21 - consistent with the evidence we've heard from you that 22 Dr. Smith had a -- almost was in perpetual arrears when 23 it came to some of his documentation obligations? 24 DR. PAUL THORNER: Yeah, I think that's a 25 good term.

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1 MR. WILLIAM CARTER: However, would -- 2 would you agree with me that it's only for a short 3 period, around 1997 or so, that there was a demonstrated 4 concern about his clinical skills in the reading and 5 interpretation of slides? 6 DR. PAUL THORNER: Yes, that -- that I 7 was aware of. 8 MR. WILLIAM CARTER: Yeah, that you were 9 aware of? 10 DR. PAUL THORNER: Yeah, that's all... 11 MR. WILLIAM CARTER: Okay. And we -- we 12 know -- and -- and I -- you know something of this that - 13 - Well, I -- I take it that you know that Dr. Smith, in 14 1999, obtained his American Board Certification in 15 pediatric pathology? 16 DR. PAUL THORNER: Yes. 17 MR. WILLIAM CARTER: Okay. He had been 18 certified in anatomic pathology for some years, but he 19 got the pedia -- pediatric specifi -- certification in 20 1999? 21 DR. PAUL THORNER: I know he got the 22 pediatric one. I'm not sure about the anatomic one in -- 23 MR. WILLIAM CARTER: Okay. 24 DR. PAUL THORNER: You're referring to 25 the American --

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1 MR. WILLIAM CARTER: Yes, the American. 2 DR. PAUL THORNER: Yeah, I don't know 3 whether he had the American certification. 4 MR. WILLIAM CARTER: Okay. Okay. Well, 5 would you agree with me that the fact that he obtained 6 this certification in 1999 is some positive evidence that 7 his skills as a surgical pathologist were adequate? 8 DR. PAUL THORNER: I don't think -- if 9 you had inadequate skills, I don't think you could pass 10 the examination. 11 MR. WILLIAM CARTER: Okay. So if -- if 12 you were managing him, as Dr. Becker was, you would find 13 this a reassuring accomplishment? 14 DR. PAUL THORNER: Yes. 15 MR. WILLIAM CARTER: Okay. And we know 16 that Dr. Dimmick, a pathologist in British Columbia -- 17 are you familiar with Dr. Dimmick? 18 DR. PAUL THORNER: I know Dr. Dimmick. 19 MR. WILLIAM CARTER: Okay. What do you 20 know of his reputation as a -- an arbiter of -- of 21 pathology? 22 DR. PAUL THORNER: Oh, I mean in -- 23 MR. WILLIAM CARTER: His judg -- 24 DR. PAUL THORNER: Oh, I think he -- he 25 would be an extremely honest and fair person.

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1 MR. WILLIAM CARTER: Okay. And you 2 appreciate that a number of Dr. Smith's cases were 3 selected -- I think sixty (60) -- and sent to him for 4 analysis and evaluation? 5 DR. PAUL THORNER: I believe he actually 6 came to the hospital to read them. 7 MR. WILLIAM CARTER: Okay. But the -- 8 the cases were selected for him? 9 DR. PAUL THORNER: Yes. 10 MR. WILLIAM CARTER: And are you familiar 11 with the report that he prepared? 12 DR. PAUL THORNER: As it's in this letter 13 here. 14 MR. WILLIAM CARTER: You've read it. 15 Okay. Well, would you agree with me that the judgment of 16 Dr. Dimmick represents his -- a conclusion that Dr. 17 Smith, at the time he reviewed these cases, which were 18 current surgical pathology cases, was that he was 19 performing at or above an acceptable standard for a 20 hospital like the Hospital for Sick Children? 21 DR. PAUL THORNER: Yes, I think so. 22 MR. WILLIAM CARTER: Yeah. And the 23 problems that Dr. Becker was handling with Dr. Smith were 24 in the nature of management problems, were they not, for 25 him as the -- a Head of this Division and Department?

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1 DR. PAUL THORNER: I -- I think that's 2 the category they would fall into. 3 MR. WILLIAM CARTER: And if -- if I 4 understand the situation, and I'm going to ask you to 5 agree where you can with my characterization of things, 6 it appears that in the period of 1997 or so, Dr. Smith 7 was not only performing a full workload in the surgical 8 area, but he was also doing a lot of medicolegal work. 9 And he may have been somewhat overwhelmed 10 by the totality of his responsibilities, is that fair? 11 DR. PAUL THORNER: I think by virtue of 12 the fact that he was so chronically behind on everything, 13 it indicates he must have been overwhelmed by that 14 workload. 15 MR. WILLIAM CARTER: Right. But we -- we 16 know that he was having some difficult -- difficulties on 17 the surgical side in terms of some of his interpretations 18 that we hadn't heard about before, so I -- as a 19 hypothesis, I'm suggesting to you that some of that -- 20 the quality of that work may have been affected by the 21 amount of his workload? 22 DR. PAUL THORNER: Yes, I think that's -- 23 that's fair. 24 If you don't -- surgical pathology 25 requires dedicated time and concentration, and it can't

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1 be rushed through or that's going to lead to problems. 2 MR. WILLIAM CARTER: So if you were a 3 manager, such as Dr. Becker was, one (1) of the things 4 you might want to do is relieve your colleague of some of 5 the circumstances which would enable him to address the 6 situation and get caught up? 7 DR. PAUL THORNER: Yes. 8 MR. WILLIAM CARTER: And one (1) of the 9 things you might want to do is diminish his exposure to 10 the surgical workload for a period of time. 11 DR. PAUL THORNER: That would be 12 reasonable. 13 MR. WILLIAM CARTER: And, so you might 14 take him off the surgical rotation, recognizing that he 15 would still be doing some surgical work by virtue of 16 being on weekends, and indeed, if he was on call for the 17 medicolegals, he might get the odd surgical piece at 18 night, as indicated by Ms. Baron or your evidence to Ms. 19 Baron? 20 DR. PAUL THORNER: Yes. 21 MR. WILLIAM CARTER: Is that fair? 22 DR. PAUL THORNER: I think that's fair. 23 MR. WILLIAM CARTER: And, so in the 24 context of Dr. Becker's management of Dr. Smith's work 25 difficulties, the decision to adjust his exposure to the

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1 surgical pathology case load would be seen as a 2 reasonable one (1), would it not? 3 DR. PAUL THORNER: Yes, I think so. 4 MR. WILLIAM CARTER: And we know that 5 following this period, the number of complaints about his 6 surgical pathology diminished. At least, as far as we're 7 aware, there were none following 1998. 8 DR. PAUL THORNER: Right. 9 MR. WILLIAM CARTER: Okay. So it would 10 appear that it may have been an effective strategy. Is 11 that fair? 12 DR. PAUL THORNER: That seems fair. 13 MR. WILLIAM CARTER: And would you agree 14 with me that this method of managing medical staff is, in 15 your experience, a re -- reasonable one (1) and not 16 uncommon; adjusting the workload of those who seem to be 17 getting above their heads? 18 DR. PAUL THORNER: Yes. 19 MR. WILLIAM CARTER: Okay. And now, it's 20 been suggested that this situation, where Dr. Smith's 21 surgical pathology workload being adjusted by Dr. Becker 22 in response to these -- to these problems that we've 23 heard about, is something which ought to have been 24 communicated to the Deputy Chief Coroner, Dr. Cairns, who 25 was ultimately responsible for the forensic pathology

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1 that Dr. Smith was performing for the coroner's office. 2 As a -- a member of the Division of 3 Pathology, and -- and if you can, putting yourself in the 4 shoes of Dr. Becker, who was managing the situation, 5 would -- would you have felt it necessary to report these 6 concerns to an external agency, such as the coroner's 7 office? 8 DR. PAUL THORNER: I -- I think Dr. 9 Becker's view on that was that the forensic work and the 10 hospital work were separate jobs, essentially, for -- for 11 Dr. Smith. 12 And that Dr. Becker's responsibility was 13 for the hospital. And his role was to maintain the high 14 standards, and -- for the hospital, and issues that were 15 related to maintaining excellence in patient care. 16 And he viewed the coroner's work as a 17 separate job. And he had no responsibility over that, 18 and he would be overseeing Charles' work and evaluating 19 that, but he would not be evaluating the coroner's work. 20 He probably assumed that was being 21 evaluated in the coroner's office, and certainly, the 22 impression that such a good job was being done implied 23 that the problem that Dr. Becker had with Charles, within 24 the hospital, was probably hospital-limited. 25 And it -- after -- I believe after he

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1 looked at Charles -- these problems and the reports, and 2 taking Charles off to give him some extra time to sign 3 out things, that he believed these were reporting issues. 4 To -- to a large extent that was the basis for the 5 problems, and the poor work habits and disorganization. 6 And I would think Dr. Becker would feel 7 that's not something that's worth reporting to the 8 coroner; that a particular employee is disorganized, and 9 late in reporting, and the coroner may well have known 10 that all ready so there was no new information. 11 MR. WILLIAM CARTER: Well, they'd 12 certainly know his -- his late reporting habits in 13 respect of his medicolegal autopsy. 14 DR. PAUL THORNER: Right. I mean they -- 15 they were late too, so I -- I don't think there was any 16 new information to share. 17 MR. WILLIAM CARTER: Okay. 18 19 (BRIEF PAUSE) 20 21 MR. WILLIAM CARTER: Okay, thank you very 22 much, Doctor. Thank you, Commissioner. 23 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 24 Carter. 25 Ms. McAleer...?

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1 MS. JENNIFER MCALEER: No re-examination. 2 COMMISSIONER STEPHEN GOUDGE: Well, then 3 thanks, Dr. Thorner, we're very grateful for the 4 participation of all those who come and give evidence. 5 We know how busy you all are in your professional lives, 6 so we're grateful for the thought and the time you put 7 into it and -- 8 DR. PAUL THORNER: Oh, you're most 9 welcome, Your Honour. 10 11 (WITNESS STANDS DOWN) 12 13 COMMISSIONER STEPHEN GOUDGE: We'll rise 14 then until 9:30 on Monday. 15 16 --- Upon adjourning at 12:25 p.m. 17 18 19 Certified Correct, 20 21 22 23 ___________________ 24 Rolanda Lokey, Ms. 25