Court documents from the case of an eastern Ontario doctor recently acquitted of murder in the deaths of four elderly patients with COVID-19 reveal what led to the surprising and rapid end of his trial, and provide fresh insight into a case that Crown prosecutors are still hoping to pursue.
The provincial Crown filed their appeal last week in the hopes of another chance at prosecuting Dr. Brian Nadler.
Nadler was acquitted of all charges against him last month, including four counts of first-degree murder and four counts of criminal negligence causing death.
The physician was accused of intentionally overmedicating four elderly patients with COVID-19 while working at Hawkesbury and District General Hospital in March 2021.
Nadler and his defence team maintained his innocence following his arrest, saying his patients, 89-year-old Albert Poidinger, 80-year-old Claire Briere, 79-year-old Lorraine Lalande and 93-year-old Judith Lungulescu, died because of COVID-19 and other health complications.
Nadler’s acquittal occurred on the first day of a scheduled five-week trial.
Crown prosecutors explained the pre-trial judge ruled certain evidence was inadmissible. That evidence was important enough that the Crown felt it no longer had a reasonable chance of success.
Following Nadler’s acquittal, defence lawyer Brian Greenspan told reporters the evidence in question was the expert testimony of a hematologist, Dr. Mark Crowther of McMaster University in Hamilton, Ont.
The hematologist’s 135-page expert analysis, no longer subject to a publication ban following Nadler’s acquittal, concluded that none of the four patients under the doctor’s care was “suffering from ‘end stage’ COVID-19,” and all had “received doses of opioids and other sedatives that were significantly larger than those medically indicated.”
“In my opinion, the opioids hastened their death,” wrote Crowther.
But during pre-trial hearings, defence experts, including forensic pathologists, a professor of palliative care, a professor of toxicology and an ICU physician vehemently disputed Crowther’s findings, with some questioning his experience in treating COVID patients.
They concluded Nadler had in fact acted appropriately and COVID-19 was the ultimate cause of death.
In a written decision, Superior Court Justice Kevin Phillips said he recognized Crowther to be “an accomplished hematologist” but had no expertise in pathology “and has never conducted an autopsy,” nor certification in palliative care.
“It is not that Dr. Crowther does not have expertise,” Phillips wrote. “It is that his expertise does not fit this case.”
In their appeal, the provincial Crown’s office alleged Phillips was mistaken when he decided to exclude all the evidence from Crowther, limit what another Crown expert could say, and admit evidence of unspecified experts for the defence.
Greenspan said the defence team believes “there is no merit to the appeal, and we look forward to responding in full before the Ontario Court of Appeal.”
‘We cannot be sure, either way’: Forensic pathologists
Dr. Michael Pollanen and Dr. Chris Milroy of the Ontario Forensic Pathology Service also conducted an independent review of findings previously made by coroners and other forensic pathologists in the deaths, which was submitted by the Crown into evidence during pre-trial hearings in June.
“We are unable to support or entirely refute the Crown’s position that the medications administered in the last 24 hour [sic] of life hastened death,” their report reads, “[because of the] inherent unpredictability of physiology at the end of life.”
“We cannot be sure, either way.”
They said they couldn’t give opinions about whether Nadler may have over-prescribed his patients; about his communications, behaviour and actions with staff, patients and their families; or his decisions to end medical care such as supplemental oxygen.
Nadler changes approach
Other evidence, ruled admissible by Justice Phillips and that would presumably have been presented had the trial gone ahead, suggests Nadler was eager to administer medical assistance in dying (MAID) or palliative care to two other patients under his care.
CBC has removed specific names to protect patients’ identities and privacy.
In his decision, Phillips describes how the daughter of one patient “became quite concerned about Dr. Nadler and his approach.”
The daughter believed Nadler was “bullying her into accepting that her mother’s life was at its end and that changes to [her] level of care should accordingly be made.”
The patient’s daughter called the hospital’s chief of staff, saying she believed “Dr. Nadler was going to kill her mother,” reads Phillips’ decision.
The patient went on to live another three years, dying this spring.
In the second case, Dr. Nadler was alleged to have pressured a patient to set a date for MAID, despite her wanting to wait for a family member to be with her and to have her usual physician perform the procedure.
The patient told police that Dr. Nadler didn’t want her to wait and told her “if she did not choose a date, he would choose one for her,” reads the decision.
Phillips wrote, summarizing the situation, that the patient felt “resistance was futile since he could override her decision and decide when her life would end, regardless of her position.”
While the defence argued this body of evidence would be prejudicial, Phillips ruled it admissible because “it purports to show Dr. Nadler’s approach and mindset in respect of the very sort of patient he is alleged to have murdered.”
Civil cases still ongoing
When the Crown abandoned its case, a mountain of evidence against Nadler never faced the scrutiny of a criminal trial. The pre-trial judge had yet to issue a ruling of admissibility on much of the evidence in the case because the trial was discontinued, leaving it untested.
They include notes and summaries from the police investigation following the doctor’s arrest, as well as emails and hundreds of texts presumably sent by Nadler, all submitted as exhibits during pre-trial hearings in May this year.
The Crown prosecutor declined to comment for this story or confirm what evidence, if any, might be used in a future trial should a judge rule in favour of an appeal.
Separate from the criminal matter, Nadler filed a civil suit last year against Hawkesbury Hospital and staff for $20 million, for what he claimed was a conspiracy to have him removed from the hospital and wrongfully charged for murder.
He’s simultaneously being sued with them in another civil case by the family of Poidinger, one of the alleged victims who died in hospital under Nadler’s care. The family alleges the doctor and other hospital staff were negligent in caring for their loved one.
The defendants in each of these cases have denied the allegations made against them.