Suit against neurologist to go forward
Freedman will face civil jury trial after being sued by surgeon over emails
OTTAWA CITIZEN A prominent Ottawa neurologist is facing a civil jury trial after Ontario’s Division Court declined to dismiss a defamation lawsuit brought against him by a vascular surgeon in Barrie, Ont.
Dr. Mark Freedman, director of the Multiple Sclerosis Research Clinic at The Ottawa Hospital, is being sued for $550,000 by Dr. Sandy McDonald, chief of surgery at Barrie’s Royal Victoria Hospital, over two emails Freedman wrote in 2010.
The two doctors are on opposite sides in the ongoing debate over the validity of Italian doctor Paolo Zamboni’s theory that multiple sclerosis is linked to chronic cerebrospinal venous insufficiency (CCSVI) — the compromised flow of blood through neck veins due to blockages.
Freedman, who is also a senior scientist with The Ottawa Hospital Research Institute and a professor at the University of Ottawa, is an outspoken critic of Zamboni’s theory.
By contrast, McDonald has trained in Italy under Zamboni’s guidance and has performed diagnostic tests on MS patients at his vascular imaging clinic in Barrie.
In October 2010, Freedman wrote an email to Ontario Health Minister Deb Matthews asking for an investigation of McDonald’s clinic.
The email, which was copied to Jack Mandel, the president of the College of Physicians and Surgeons of Ontario, urged the minister to “put a stop to unacceptable medical practices that make a mockery of our medical system and waste our hard-earned OHIP dollars.”
The email prompted an investigation by the College of Physicians and Surgeons that later absolved McDonald of any misconduct.
In November 2010, McDonald wrote to Freedman, alleging that his October email to Matthews was false and defamatory, and had harmed his professional reputation. He asked Freedman to make a retraction and apology.
In an email response the next day, Freedman declined. “I don’t apologize for standing up for my patients or my beliefs and doing what I feel is in their best interests and safety,” he wrote.
McDonald’s statement of claim cites 10 defamatory statements in Freedman’s October email and alleges the Ottawa doctor’s followup email in November compounded the harm by repeating and reinforcing the defamatory statements in his first email.
‘Dr. McDonald felt strongly that Dr. Freedman’s conduct was inappropriate and went well beyond the bounds of proper scientific and professional discourse.’
JONATHAN LISUS Lawyer for Dr. Sandy McDonald
He also pleaded that Freedman acted maliciously and sent the emails in order to embarrass him and undermine his professional and personal reputation.
In an interview this week with the National Post, McDonald’s lawyer, Jonathan Lisus, said his client believed Freedman had crossed a line.
“Dr. McDonald felt strongly that Dr. Freedman’s conduct was inappropriate and went well beyond the bounds of proper scientific and professional discourse,” Lisus said. “He accused Dr. McDonald of fraudulent, unethical, unprofessional conduct … to the highest health official in the province.”
Contacted by the Citizen Friday, Freedman’s lawyer, Kirk Boggs, said it would be inappropriate to comment as the case is still before the courts.
But in his 20-page statement of defence, Freedman alleged the statements in his emails were true and denied the defamatory meanings claimed by McDonald. Any expressions of opinion constituted fair comment on a matter of public interest, it asserted.
The statement of defence also said Freedman sent the October 2010 email to Matthews and Mandel because he had concluded that he was “under a duty to report” McDonald’s clinic.
It argued that the email was sent on an occasion of absolute privilege which, if accepted by the courts, would protect him from a finding of libel. It also asserts that Freedman sent the email “in good faith without malice” to inform Matthews and Mandel about “a matter of significant public interest.”
Freedman’s statement also alleged McDonald suffered no damage to his reputation as a result of his “private complaint” to Matthews and Mandel.
Freedman tried to have McDonald’s lawsuit dismissed last year. But in an October 2012 decision, Superior Court Judge Mark Edwards said Freedman’s defence of absolute privilege was a “novel question” that required the “full forensic machinery” of a jury trial to determine.
On the question of malice, Edwards also ruled it was “fundamental” that McDonald have the chance to argue the issue before a jury.
Freedman appealed, and earlier this month a three-member Divisional Court panel delivered its de- cision. It upheld Edwards’ decision, clearing the way for a full jury trial on McDonald’s lawsuit.
While the Divisional Court made no determination on the merits of the parties’ positions, it noted that the language of Freedman’s October email was, “in certain respects, inflammatory.”
Its decision said it was “arguable” that Freedman’s action in copying Matthews and Mandel on his email to McDonald “also evidences malice,” given that it was only addressed to McDonald.
Freedman’s lawyer said he and his client “respectfully disagree with the Divisional Court’s analysis and are considering what further steps we will be taking.”