New Medical Test Disallowed as it Does Not Pass Test of Novel Science - Meade v. Hussein, 2021 ONSC 7850 (CanLII)

January 12, 2022, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

SUPERIOR COURT OF JUSTICE

Date of Decision: November 29, 2021

Heard Before: Justice S.T. Bale

TEST FOR NOVEL SCIENCE: Does the applicant's use of SPECT to diagnose TBI consist of novel science does the test meet the ‘reliable foundation test’; it does not and is excluded from evidence

The applicant Ms. Meade claims damages for personal injuries that resulted from a car accident. The defendant moved for an order at the beginning of the trial to exclude all evidence referring to a brain SPECT test administered to Ms. Meade to detect brain injury. She objected to the motion and a voir dire was held.

Ms. Meade sustained a TBI along with emotional and psychological trauma as a result of the car accident. She underwent the SPECT brain scan supervised by a specialist in diagnostic radiology and nuclear medicine. The doctor concluded that the test revealed previous traumatic brain injury. SPECT scans are considered controversial at this time with no consensus in the medical or scientific community as to the accuracy or reliability.

Justice Bale reviewed the evidence and the issue of ‘novel science’ and concluded that although SPECT analysis has been used for 30 years it’s use in diagnosing TBI in a patient is novel for the purpose.  

Justice Bale considered the facts in light of R. v. Trochym, [2007] 1 S.C.R. 239 noting that the four factors in the decision provide the framework for analysis:

1. Is the theory or technique tested?
   The physician conceded that the methodology has not been tested, but that it is by nature not susceptible to testing.
   
    
2. Has the theory of technique been subject to peer review and publication?
   The testing done has not been published nor has it been peer-reviewed. No peer-reviewed articles that support the SPECT brain scan theory for use in the diagnosis of TBI from depression or anxiety currently exist on a granular level.
    
3. Is there a known or potential rate of error, or do standards exist to test the theory or technique?
   Although standards for testing of the theory and technique exist it has not been tested.
   
    
4. Is the theory or technique generally accepted by the relevant scientific community?
   The use of SPECT analysis to diagnose TBI is not currently supported by the academic community that supports the GTA hospitals.

The Court went on to consider Canadian medical journals and medical publications and found no evidence that SPECT analysis is accepted as a primary diagnostic tool capable of diagnosing and quantifying TBI in patients. A statement by the Radiological Society of North America indicates that there is insufficient evidence for the routine clinical use of SPECT for TBI diagnosis on individual patients.

Justice Bale also noted that while the doctor’s evidence was compelling his credentials were not sufficient to overcome the lack of peer review of the use of SPECT.

On this basis, the Court held that brain SPECT evidence was not admissible as it failed to satisfy the reliable foundations' test for novel scientific evidence set out in R v. J.-L.J . On this basis, the evidence was excluded from the trial in voir dire.

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