oo ‘Amended this day of , 2004 by consent dated this 23 day of_Qusy , 2004 ‘Action No: 0201-14409 IN THE COURT OF QUEEN'S BENCH OF ALBERTA JUDICIAL DISTRICT OF CALGARY BETWEEN: DR. CIARAN J. MCNAMEE and QARAN J. MCNAMEE PROFESSIONAL CORPORATION Plaintiffs =and= \LBERTA HOSPITAL, CAPITAL HEALTH AUTHORITY, . ROBERT BEAR and DR. TIM WINTON Defendants os AMENDED STATE! OF CLAIM Ae The Plaintiff Dr. Ciaran J. McNamee (“Dr. McNamee”) is an individual who at all material times hereto resided in Edmonton, Alberta. 2. The Plaintiff Ciaran J. McNamee Professional Corporation (the “Professional Corporation”) is a professional corporation duly incorporated pursuant to the Business Corporations Act of Alberta. 3. The Defendant University of Alberta Hospital (the “Hospital”) is a large, urban, tertiary care hospital located in Edmonton, Alberta. The Hospital is the teaching hospital associated with the faculty of medicine at the University of Alberta. EKerriMeNamee Pleadings mended Statement of4 The Defendant, Capital Health Authority was at all material times @ responsible for the operation of the Hospital, or alternatively, became responsible for the liabilities and obligations of the Hospital and the physicians with hospital admitting privileges pursuant to the Regional Health Authorities Act and the bylaws and regulations thereunder. 5. The Defendant Dr. Robert Bear (“Dr. Bear”) is an individual resident in Edmonton, Alberta. At all material times Dr. Bear was the Executive Vice-President, Chief Clinical Officer of the Capital Health Authority and was the Associate Dean, Clinical Affairs for the Faculties of Medicine and Dentistry at the University of Alberta. 6. The Defendant Dr. Tim Winton ("Dr. Winton’) is an individual resident in Edmonton, Alberta. At all material times Dr. Winton was a thoracic surgeon at the Hospital a In May 1994 Dr. McNamee was offered a position as Assistant Clinical Professor, Division of Cardiothoracic Surgery, Department of Surgery, at the Hospital. Dr. McNamee accepted the appointment which was effective June 25, 1994. 8. Dr. McNamee moved from Sudbury, Ontario to take the position of Assistant Clinical Professor at the Hospital 9 The position of Assistant Clinical Professor was a full time staff position at the Hospital. Pursuant o the terms of his engagement at the Hospital, Dr. McNamee was to devote 80% of his time to clinical practice, 10% of his time to research and 10% of his time to teaching, 10. Dr. MeNamee's offer of employment provided for a guaranteed gross income of $150,000 per year for the first two years of the appointment. " Dr. McNamee commenced employment with the Hospital on June 25, 1994 ENaresiMeNameePleadings\Amended Statement of lain 212. In February, 1996, Dr. McNamee was appointed Section Leader for the Thoracic Surgery Division. As Section Leader Dr. McNamee was to provide regional leadership in thoracic surgery. 13. The Capital Health Authority paid Dr. McNamee a stipend of $8,000 per year to compensate him in his role as Section Leader of Thoracic Surgery. 14, Dr. McNamee generated the bulk of his income through billings to Alberta Health Care. His staff appointment at the Hospital enabled Dr. McNamee to see patients, perform surgery and generally engage in the practice of medicine which resulted in billings to Alberta Health Care. All billings to Alberta Health Care were done through the Professional Corporation, 15. The Professional Corporation billed the following amounts to Alberta Health Care between 1997 and 2000: 1997: $445,015.00 1998: $440,245.00 1999: $452,846.00 2000: $627,440.00 2001: $193,428.00 16. On September 11, 1998 Dr. McNamee received a letter of commendation from Dr. Stewart Hamilton, Chief of Surgery at the Hospital, expressing his gratitude for Dr. McNamee’s commitment to a heavy clinical load while balancing a major commitment to the Royal College and other surgical societies and still finding time to publish. 17. Through late 1998 and early 1999 Dr. McNamee began having concerns over wait times for thoracic surgery at Edmonton Hospitals. 18. In January 1999, Dr. Bear sent a fetter to Dr. McNamee complimenting Dr. McNamee on his leadership in the thoracic surgery department. -EAKaren\McNamee\Pleadings\Amended Statement of Clan 319, On February 11, 1999 Dr. McNamee made a presentation to the Provincial Government Caucus, including Minister Iris Evans, regarding his concem over inadequate resources being allocated to thoracic surgery patients in Alberta. Following the meeting Iris Evans followed up in a discussion with Dr. McNamee in relation to the concems he expressed. 20, On May 7, 1999 Dr. McNamee met with Mr. Ford, the Deputy Health Minister, to discuss problems in the Capital Health Region including allocation of resources. During the meeting Dr. McNamee made recommendations to Mr. Ford for the improvement of thoracic surgery service delivery in the Capital Health Region. 2 On May 9, 1999 Dr. McNamee received a letter from Dr. Bear expressing concern about his meetings with government officials or other officials regarding advocating for thoracic surgery resources. Dr. Bear stated in his letter to Dr. McNamee that Dr. McNamee's advocacy would no longer be tolerated and that the Capital Health Authority was dealing with the issues on its own time line. 22. In his letter of May 9, 1999, Dr. Bear confirmed that Dr. McNamee, in his medical leadership role, was an employee of the Capital Health Region. 23. On the same day he received Dr. Bear's letter of May 9, 1999, Dr. McNamee wrote a letter to Dr. Bear explaining how he was advocating for additional resources to help patients with thoracic oncology problems and how he did not intend to cause any inconvenience through his actions. 24. In the Spring of 2000 Dr. McNamee received a letter of commendation from Dr. Nadia Mikhael for his services as a member of the Examination Board in Thoracic Surgery. 25. On July 27, 2000 it was announced that Dr. Tim Winton was appointed as the Capital Health Region's new Section Head for Thoracic Surgery, a post which had _BKarerietamoe\pleadings\Amensed Statement of Claim 4previously been held by Dr. McNamee. No reason was provided for the removal of Dr. McNamee as Section Head of Thoracic Surgery. 26. In August 2000 Dr. McNamee was appointed medical staff of the Caritas Health Group, giving him privileges at the Grey Nuns Community Hospital and Health Centre. Atapproximately the same time, Dr. McNamee's privileges with the Capital Health Region were renewed. 27. Early in September of 2000 Dr. Bear and Dr. Winton, or either of them, falsely and maliciously represented to Dr. McNamee's colleagueg at the Hospital and to members of the Capital Health Authority and Hospital administration that Dr. McNamee was unfit to practice as a thoracic surgeon and that he should be suspended from practice. The particulars of the false and malicious statements include: (a) __ statements or words to the effect that Dr. McNamee did not have the mental or emotional capacity to practice medicine; (b) statements or words to the effect that Dr. McNamee’s clinical skills were deficient; (©) _ statements or words to the effect that Dr. McNamee performed inadequate or incomplete pre-operative staging investigations; (4) _ statements or words to the effect that Dr. McNamee pursued an overly aggressive approach to surgery in that he performed surgery on a high number of stage 3 and stage 4 lung cancer patients; he had a high incidence of unplanned pneumonectomies; and he had a high incidence of ‘open and close" thoracotomies4_ (e) statements or words to the effect that Dr. McNamee had questionable clinical skill and judgment resulting in overly long operating times; EnKareniMeNameeteadings Amensed Statement of Claim 5() statements or words to the effect that Dr. McNamee had questionable clinical skills and judgment resulting in excessive peri-operative morbidity and mortality; (g)__ statements or words to the effect that Dr. McNamee had questionable clinical skills and judgment resulting in poor yield from mediastincoscopies; (h) allegations made to Dr. McNamee’s wife and former secretary that Dr. McNamee was in need of emergency psychiatric care; (i) statements or words to the effect that Dr. McNamee poorly managed his waiting list by failing to prioritize patients on the waiting list and including patients on the waiting list who were not surgical candidates or could have been treated non-surgically; and @ such further and other false and malicious statements as will be proved at the Trial of the Action. 28 On or about September 24, 2000, the Capital Health Authority and the Hospital forced Dr. McNamee to withdraw from his clinical practice at the Hospital and to withdraw from his teaching and administrative duties in the Captial Health Region until such time as the Capital Health Authority was satisfied that Dr. McNamee was able to retum to practice. By forcing Dr. McNamee to withdraw from his practice and his duties, the Capital Health Authority and the Hospital were in breach of their contract with Dr. McNamee. 29. It was a term of Dr. McNamee’s employment contract, express or implied, that Dr. McNamee would be permitted to practice as a thoracic surgeon at the Hospital so long as he remained in good standing with the College of Physicians and Surgeons and that he would not be prevented from practising as a physician and surgeon unless and until proper practice review had taken place wherein the allegations against Dr. McNamee were made known to him and he had an opportunity to respond to those allegations. EKaren'MeNarnee\Pteadings\ Amended Statement of Claim 630. The Capital Health Authority and the Hospital forced Dr. McNamee to withdraw from his practice, thereby preventing Dr. McNamee from practising medicine and thereby breaching their contract with Dr. McNamee either in whole or in part as a result of the false and malicious statements made by Dr. Bear and Dr. Winton, or either of them, 31. The false and malicious statements made_by Dr_Bear_and Dr Winton concerning Dr. McNamee were calculated to adversely affect Dr. McNamee's ability to practise medicine and to cause pecuniary damage to Dr. McNamee. 32. By reason of the false and malicious statements that were made about Dr. McNamee, Dr. McNamee was unable to continue practising medicine and his Professional Corporation was no longer able to bill Alberta Health Care, The Professional Corporation and Dr. McNamee suffered @ financial losses as a direct result of the false and malicious statements made by Dr. Bear and Dr. Winton, or either of them. 33. Atall material times the Hospital and the Capital Health Authority negligently or intentionally refused to disclose to Dr. McNamee the nature of allegations against him and they negligently or intentionally refused to permit Dr. McNamee to respond to the allegations against him. 34. Itwas a term, express or implied, of Dr. McNamee’s contract of employment with the Capital Health Authority and the Hospital that any practice reviews would be conducted with the full participation of Dr. McNamee and that any assessments would be based on a complete and comprehensive review of all relevant materials. The Hospital and the Capital Health Authority breached the contract by conducting a haphazard and incomplete review of the relevant materials leading them to make erroneous conclusions regarding Dr. McNamee's practice. 35. ‘The Hospital and th ital Heal thority negligently or intentionalh greated an intolerable working environment for Dr McNamee, and subsequently failed or fefused to respond to his complaints regarding his intolerable working environment, EAreriMfeNamesleaingsUAmenfed Statement of Chi 7Further, the Hospital and the Capital Health Authority negligently relied on accusations and allegations made by Dr. Winton and Dr. Bear, or either of them, without investigating or attempting to substantiate the allegations and accusations, The Hospital and the Capital Health Authority were further negligent in failing to disclose the accusations and allegations to Dr. McNamee to permit him to respond before he was forced to give up his clinical practice. The Hospital and the Capital Health Authority were further negligent in failing to recognize that Dr. Winton stood to gain financially from Dr. McNamee's removal and that his allegations and accusations were therefore suspect. The Hospital and the Capital Health Authority were further negligent in dismissing Dr. McNamee from his staff position and refusing to permit Dr. McNamee to practice medicine at the Hospital based on allegations and accusations from those who stood to benefit from Dr. McNamee’s removal. 36. Upon forcing Dr. McNamee to withdraw 4 from practising at the Hospital, in in agreement dal tember 22, 2000 (‘the September Agreement’) the Capital Health Authority promised, amongst other things, to pay Dr. McNamee for all professional fees lost during the six month period following Dr. McNamee’s withdrawal from practice in an amount equal to Dr. McNamee’s average monthly billings to Alberta Health and Wellness over the twelve months ending July 31, 2000 less related expenses. Additionally, the ital Health Auth romised, upon Dr McNamee meeting certain conditions, which included attending atan assessment centre to have his ability to practice determined, that itwould reintegrate Dr_McNamee into the Capital Health Authority thoracic surgery program. 37. The Capital Health Authority has breached # the September Agreement 4 by “ failing or # refusing to make such payments, and by refusimg to reintegrate Dr, McNamee into the Capital Authority's thoracic surgery program. 38. In breaching its employment contract, the September Agreement and the duty of care owed to Dr. McNamee, the Hospital and the Capital Health Authority acted in a high handed, vexatious and oppressive manner. EAKresitMeNamedieaings Amended Satement of Cin 839. in February of 2001, Dr. McNamee underwent an independent practice review conducted by Dr. Ginsberg of the Toronto General Hospital. Dr. Ginsberg had the following comments: a. Dr. McNamee had virtually 100% compliance with respect to CT scans and pulmonary function studies; b. There was no evidence of gross malpractice or marked deviation from accepted practice to account for the sudden dismissal from the medical staff at the Hospital or to suggest that his practice conduct warranted loss of licensure; ©. There was room for improvement in the area of sampling of lymph nods within the mediastinum at mediastinoscopy and in reducing the operating time to complete esophagectomies. 40. Dr. Ginsberg concluded his review by stating: “Other than the above mentioned deviations from excellence, | found no real problem of serious import in reviewing the binders submitted with regard to reasonable medical practice.” a In addition to the practice review conducted by Dr. Ginsberg, Dr. McNamee underwent an assessment at the Rush Behavioural Health Centre in Illinois in October of 2000. The opinion provided by the Rush Behavioural Health Centre states in part: “As a result of completing our clinical evaluation, reviewing all available data, and conferring with collateral sources, we are of the opinion, to a reasonable degree of medical and psychiatric certainty, Dr. McNamee does not currently suffer from a major psychiatric illness. At the present time, there is no evidence he suffers from a major disorder of mood, thought, cognition, anxiety, impulse-control or substance abuse-dependence. Dr. McNameeis not believed impaired, and at the present time, considered appropriate to practice medicine with requisite competency, safety and skill” The Rush Behavioural Centre stated there was no basis for the action the Hospital had taken EkereshMeNametPeadngs Amended Statement of Claas 942. Dr. McNamee commenced employmentwith the Defendants on an indefinite basis. An implied term of the employment contract was that he would not be dismissed without cause, without being provided with reasonable notice or pay in lieu of such notice The Capital Health Authority and the Hospital breached that implied term of the contract by forbidding Dr. McNamee to practice medicine at the Hospital and in effect constructively dismissing Dr. McNamee. from his position on staff at the Hospital without notice and without cause. 43. Atall material times, Dr. McNamee carried out his duties as a physician and surgeon at the Hospital faithfully and diligently and he routinely exceeded his job sequirements, 44. As a result of the breaches of contract and negligent acts of the Hospital and the Capital Health Authority, Dr. McNamee was not able to return to practice at the Hospital and as a result he has suffered and continues to suffer a loss of income. 45. As a result of the false and malicious statements made by Dr. Bear and Dr. Winton, or either of them, Dr. McNamee has suffered pecuniary losses as a result of being dismissed from his practice at the Hospital. 46. Dr. McNamee has further suffered from emotional and psychological anguish as a result of the false and malicious accusations and allegations made. 47. Dr. McNamee has further suffered from a loss of reputation as a result of the false and malicious statements made by Dr. Bear and Dr. Winton, or either of them. 48. The Plaintiffs propose that the trial of this action take place at the Court House in Calgary, Alberta and anticipate that the trial will take less than 25 days. WHEREFORE THE PLAINTIFFS CLAIM AGAINST THE DEFENDANTS CAPITAL HEALTH AUTHORITY AND UNIVERSITY OF ALBERTA HOSPITAL, jointly and severally, as follows: .dtarentdeNameePleadingAmended Staten of Claim 10(a) (©) (d) (e) @ (9) Pecuniary damages # in an amount representing past and future loss of income in an amount to be quantified at trial: Aggravated or punitive damages in the amount of $100,000.00 for the high handed, malicious and oppressive conduct of the Defendants; Special damages for the costs of finding alternate employment and the costs of moving in an amount to be quantified at trial; Damages for mental anguish and suffering in the amount of $50,000.00; Interest on the above claimed awards pursuant to the Judgment Interest Act, S.A. 1984, c. J-0.5, as amended; Costs of this Action; and, ‘Such further and other relief as this Honourable Court may deem just and appropriate having regard to all of the circumstances. WHEREFORE THE PLAINTIFFS CLAIMAGAINST THE DEFENDANTS DR. ROBERT BEAR and DR. TIM WINTON, jointly and severally, as follows: (a) (b) (o) (a) Pecuniary damages for false and malicious statements in an amount representing past and future loss of income resulting from the false and malicious statements in an amount to be quantified at trial; Damages for mental anguish and suffering in the amount of $50,000.00; Damages for loss of reputation in the amount of $250,000.00; Interest on the above claimed awards pursuant to the Judgment Interest Act, S.A. 1984, c. J-0.5, as amended; ‘EAKareriMoNamestPlesdings\Amended Statement of Claim i(e) Costs of this Action; and, () Such further and other relief as this Honourable Court may deem just and appropriate having regard to all of the circumstances, DATED at the City of Calgary, in the Province of Alberta, this 27" day of - August, 2002, AND DELIVERED BY May Jensen Shawa Solomon LLP, Barristers, Counsel for the Plaintiff herein whose address for service is in care of the said Barristers, 600, 606 - 4" Street SW, Calgary, Alberta, T2P 171 ISSUED out of the office of the Clerk of this Honourable Court this €7_day of August, 2002. ae JIM MoLAUGHLUIN Gr) SEAL Clerk of the Court Amendment consented to pursuantto Rule 136 of the Alberta Rules of Court, this L5"day of 2004 FIELD LLP ~~! Per: ~— y ie Counsel for the Defendants EcareteNamee Pleading Amended Statement of Cain 12NOTICE TO University of Alberta Hospital Capital Health Authority Dr. Robert Bear Dr. Tim Winton You have been sued, You are the Defendants. You have only 15 days to file and serve a Statement of Defence or Demand of Notice. You or your lawyer must file your Statement of Defense or Demand of Notice in the office of the Clerk of the Court of Queen's Bench in Calgary, Alberta. You or your lawyer must also leave a copy of your Statement of Defence or Demand of Notice at the address for service for the Plaintiff named in this Statement of Claim. WARNING: If you do not do both things within 15 days, you may automatically lose the lawsuit. The Plaintiff may get a Court Judgment against you if you do net file, or do not give a copy to the Plaintiff, or do either thing late. This Statement of Claim is issued by MAY JENSEN SHAWA SOLOMON LLP Sabri M. Shawa Telephone No. 571-1520 Fax No. 571-1528 Solicitors for the Plaintiff whose address for service is in care of the said solicitors. The individual Defendants (so far as known to the Plaintiff) reside in Edmonton, Alberta EKaresiMeNamce Pleading Amended Sistoment of Claim ACTION NO. 0201-14409 IN THE COURT OF QUEEN'S BENCH OF ALBERTA JUDICIAL DISTRICT OF CALGARY BETWEEN: DR. CIARAN J. MCNAMEE and CIARAN J. MCNAMEE PROFESSIONAL CORPORATION Plaintiffs: -and- UNIVERSITY OF ALBERTA HOSPITAL, CAPITAL HEALTH AUTHORITY, DR. ROBERT BEAR and DR. TIM WINTON Defendants AMENDED STATEMENT OF CLAIM MAY JENSEN SHAWA SOLOMON LLP Barristers 600, 606 - 4" Street S.W. Calgary, Alberta T2P 171 Attention: Sabri M. Shawa Phone: 71-1527 Fax: 571-1528 File No. 9501 001