Both the doctor and the police officer were wrong

Cardiologist, Dr. Michael Kutryk was stopped in January 2010 for speeding on his way to a hospital in Toronto, Ontario to perform what he called an emergency angioplasty procedure on a waiting patient. While he was speeding to the hospital while on Bayview Avenue, he was caught in a well-known speed trap on that street going 75 kilometres an hour in a 40 km/h zone. Instead of giving the surgeon an escort to the hospital, the officer wrote out a speeding ticket. The procedure of checking out the doctor to see if there were any outstanding warrants for him and writing the ticket took ten minutes. After receiving the ticket, the doctor was permitted to go on his way at the proper speed to the hospital.

Alan Shanoff, a writer for the Toronto Sun, a newspaper in Toronto, thinks that the doctor will win his case when he appears in Toronto traffic court to answer the charge of speeding. He thinks it is tailor-made for the legal defence of acting out of necessity. I disagree. Let me explain why.

In Toronto, there are four hospitals that perform open heart surgeries. They are; Sunnybrook, St. Michaels, Toronto General and the Sick Children’s. Since the doctor was driving on Bayview Avenue, I presume that it was the Sunnybrook Hospital he was going to since that hospital is on the east side of Bayview Avenue in the northeastern part of Toronto

There are two kinds of open heart surgeries. They are; ‘bypass surgery’ which is performed to improve blood flow problems to the heart muscle caused by the buildup of plaque (atherosclerosis) in the coronary arteries. The surgery involves using a piece of blood vessel (artery or vein) taken from elsewhere in the patient’s body to create a detour or bypass around the blocked portion of the coronary artery. The second kind of surgery is an alternative to bypass surgery. It is called ‘percutaneous cardiac intervention’ (also known as ‘angioplasty’), a non-surgical technique that uses catheters and small structures called stents to keep the arteries open. If there are many blockages or if the blockages are positioned in places that are difficult for a catheter to reach (for example, at a bend in a blood vessel), a doctor may recommend bypass surgery as the best alternative.

The doctor I am writing about told the police officer that he had a patient waiting in the hospital for a heart operation which the doctor was to perform. The operation he was going to perform was an angioplasty. Considering the fact that if his patient’s other heart arteries were not seriously blocked and the doctor chose to go the angioplasty route instead of the bypass surgery route, then for that reason alone, his patient wasn’t in a near-death situation while the doctor was speeding on Bayview Avenue.

This is a subject that I am a bit of an authority on. In the summer of 1999, I woke up one morning suffering from a heart attack, I knew that if I drove myself to the hospital, I would arrive sooner than if I waited for an ambulance to come and pick me up since my home was only about five minutes from the hospital. When I arrived at the hospital, they began putting an anti-clogging fluid into me and also hooked me up to oxygen then put me in the intensive ‘cardiac care unit’ of the hospital. I was in the hospital for at least six weeks before I had an open-heart operation performed on me.

During that period of time I was waiting for my operation, I was given very extensive tests. They included; electrocardiogram (ECG), nuclear scan (MIBI), and a stress test. The results of these tests show that of the four major arteries feeding my heart, all four of them were blocked. The first one was blocked 40%, the second one was blocked 90%, the third one was blocked 90% and the fourth one was blocked, 99%. Now I know why every time I rolled over in bed, I suffered excruciating pain in my chest.

I was in a situation where if I didn’t have a bypass operation, my life would come to an end unless I remained in a hospital for the rest of my life under a very strict regime of what I ate and at the same time, hooked up to blood thinner drip and oxygen. I was in extremely dangerous condition but not so dangerous that an immediate open heart operation was absolutely necessary. As I said earlier, I was in the hospital for six weeks before I had my open heart surgery performed on me.

The patient of the speeding doctor was in no absolute need for his angioplasty being performed on him. The speeding doctor would have known this since before he was to perform the procedure, he had to be well aware of his patient’s heart condition.
Let me explain the two kinds of operations involved that are required to correct the patient’s heart problem. First I will deal with the open heart surgery.

The day before I was to be operated on at the Toronto General Hospital personally by the president of the Canadian Medical Association, a renown heart surgeon, I was taken by ambulance from the hospital near my home to downtown Toronto where the other hospital is located. I was then wheeled into a room which I shared with another heart patient who was also waiting for his operation. That night, I showered using a special anti-bacterial soap to disinfect my skin since the surgeon didn’t want any bacteria on the surface of my skin getting inside my body during my operation. My wife helped me bathe since my request for that pretty young nurse caring for me, turned down my (what I thought was reasonable at the time) request. I was also forbidden to eat or drink water after midnight so that I wouldn’t accidentally vomit during the surgery.

The next morning after my wife bid me good luck with my operation, I was wheeled into a waiting room where there were other heart patients on gurneys waiting for their operations. From what I remembered, there are four operating theaters in that hospital that conduct heart surgeries at the same time. My anesthetist visited me while I was in that waiting room and injected me with a drug that made me sleepy but didn’t actually knock me out. I remember when it was my time to have my operation, I was watching the lights in the ceiling passing by me overhead while being wheeled into the operating room and I remember being wheeled into the operation room and seeing several doctors and nurses in the room. It was then everything went dark. I was now ready for my heart surgery.

My bypass surgery was done under a general anesthetic, so naturally I was fully asleep throughout the procedure and for some time afterwards. I was worried prior the operation that I had heard of cases where the patients woke up in the middle of their operations but my anesthetist assured me that I wouldn’t be awake during the operation. He was right. I didn’t wake up during the operation and for some time afterward.

Since I was undergoing invasive surgery, my heart had to be stopped so the surgeons could work on it. To ensure that my body continued to receive a flow of oxygen-rich blood, I was hooked up to a heart-lung machine. This machine took over the pumping action of my heart and the work of my lungs.

The surgery took anywhere from three to six hours, depending upon the number of bypasses that had to be undertaken in my case. Actually there were three operations going on at the same time. They were my open heart operation and two operations on my legs where the doctors had to excise my major veins from each leg which were to replace three of my clogged arteries. The vein in my left leg was the longest excision since it would replace two of my arteries. The excision went from my ankle all the way to the bottom of my knee. The excision on my right leg went from my ankle to only half way to my knee.

There is always a risk when those two major veins are removed from your legs. It doesn’t happen to everybody who have them excised but it happened to me. I became disabled. Not totally but sufficiently enough that I was classed by the provincial government as being a disabled person and given a disabled permit to place on my car.
When your oxygenated blood goes down your leg, it gives your legs strength to function but the then once the oxygen in your blood is used, the un-oxygenated blood heads back to your lungs for more oxygen.

Unfortunately for me (and others who suffer from this problem) the blood didn’t head up to my lungs at a normal speed, It is not unlike a caravan of trucks bringing food and water to a small stricken village but are jammed up outside the village because the trucks that have previously delivered the food and water are having difficulty leaving the village because the main highway no longer exists and they must find an alterative way of heading towards their destination by using smaller roads leading out of the village.

There is good news and bad news involved when a person is disabled. The good news is that such a person can park in handicapped parking spots and when traveling anywhere by air, he and his spouse are taken to the boarding areas by a vehicle not unlike a golf cart. The same thing occurs when you both arrive at your destination’s airport. The bad news is that when I want to lie on the sand of a beach and pretty young women run towards me because they want access to my body, I can’t get up on my own and run away. My wife’s reaction to that statement is, “Give me a break, Dahn!” It's the pretty girls wanting my body aspect of the story she had difficulty in accepting.

I am glad that I didn’t come awake during the operation, especially when they were cutting into my chest not only with a knife but also with an electric circular saw and when they were spreading my ribs apart with a rib separator.

When I woke up hours later, I was in the recovery room with my heart surgeon and my wife standing beside my bed. Much to my surprise I didn’t feel any pain in my chest, then or even later. I was in the hospital for at least five days before they considered me well enough to go home. For about two weeks after that, a young nurse visited me every day for about fifteen minutes to check up on me and take my blood pressure. Three weeks later, I was in court representing clients.

Placing a stent in a patient’s defective artery is a much simpler procedure. A stent is a wire metal mesh tube used to prop open an artery during angioplasty. The stent is collapsed to a small diameter and put over a balloon catheter. It's then moved into the area of the blockage. When the balloon is inflated, the stent expands, locks in place and forms a scaffold in the artery. This holds the artery open. The stent stays in the artery permanently and by holding it open, it improves blood flow to the heart muscle and relieves symptoms that is usually chest pain. Within a few weeks of the time the stent was placed, the inside lining of the artery (the endothelium) grows over the metal surface of the stent.

According to what I read in the newspapers about this particular doctor’s charge of speeding, he told the police officer that he was going to do a stent operation on a patient. That being as it is, his patient wasn’t in any position of dying while waiting for his doctor to arrive at the hospital. Further, his patient wouldn’t even be in the operating room but rather he would be in the waiting room next to the operating room, waiting for his turn to be taken into the operating room after his doctor arrived. Even if his doctor didn’t arrive that day, his patient could be operated by another cardiac surgeon or alternatively, be taken back to his room until his own heart surgeon arrived. He was in no danger of dying from his heart disease considering the fact that he would again be hooked up to the blood thinner and oxygen if oxygen was required.

As far as I am concerned, this doctor used his status as a medical doctor to flout the law as a motorist on our streets. He had no right to speed 35 kilometres over the speed limit just to conduct a minor operation which was not an urgent and immediate life-saving procedure.

Years ago, I was approaching an intersection when an ambulance behind me turned on its overhead red lights. I moved out of the way of the ambulance and it proceeded through a red light and then turned left. When the light turned green, I proceeded through the intersection and turned left and saw the ambulance pulling into one of the ambulance services’ depots. I went inside and chastised the supervisor for having such an employee. I then contacted the head office the next day and complained as to what I saw. Two days later, I got a visit from the deputy administrator of the ambulance service who apologized to me for the action of the driver of the ambulance. He admitted to me that ambulance drivers who flash their red lights when they are not proceeding to emergencies should be severely disciplined. He told me that the driver was no longer a driver of any of their ambulances and was now an assistant who accompanies drivers in their ambulances on emergency trips.

I have seen police officers speed on roads with their red emergency lights flashing on their way to their police stations also. This kind of abuse by people who are in a position to help people in emergencies is disgusting and I should add dangerous to boot because speeding is a dangerous means of traveling on our roads no matter who is doing it.

When speeding is necessary is when there is a situation of immediate peril or danger. Second, there must be no reasonable legal alternative. Third, any harm caused must be proportionate to the harm avoided.

If a patient is waiting on an operating table for an emergency procedure, then there is imminent peril. However, I don’t think that time was of the essence with the doctor’s patient requiring emergency angioplasty, since the patient wouldn’t be on the operating table while the doctor was speeding towards the hospital and while the patient was in the waiting room next to the operating room, he could be stabilized with blood thinner and oxygen. That was the reasonable alternative. The risk of the doctor smashing into another vehicle at 70 kilometres an hour on a busy street would be high and the harm caused by that collision could do incredible harm to anyone in the other vehicle, even kill them, not to mention what would happen to the doctor who was speeding.

The police officer was equally at fault. I doubt that he fully understood what was involved in angioplasty. It seems to me that when a medical doctor tells a police officer that he is on the way to a hospital to perform an operation on one of his patients, he should take down the information of the doctor, such as his name, address licence and place numbers and then send him on his way. He can prepared the ticket and have it served on the doctor at his home or office later.

Alternatively, he can escort the officer by driving ahead of him with his red emergency lights flashing and then follow the doctor towards the operating room to make sure that the doctor was telling him the truth. If he is satisfied that he was telling him the truth, then he could forget about charging the doctor with speeding. If the doctor was lying, he could then charge the doctor with both speeding and obstructing him, the latter being a criminal offence.

Despite all of what I have said, it is possible that the doctor may beat the charge of speeding. The ‘necessity defence’ has been successful in other driving cases. In a 2008 case, a Sudbury truck driver was acquitted of dangerous driving charges even though he had been engaged in a high-speed chase. The driver had been forced off the road and thought his life was in danger thereby excusing ‘perilous maneuvers’. The defence was also successful in a 2000 impaired driving case where the driver was driving to a hospital to obtain emergency health treatment. The same would apply if a man was speeding towards a hospital while his pregnant wife was about to have her baby in their car.

Several years ago while I was representing a motorist in traffic court charged with driving 90 kilometres an hour in a 40 km/h zone during rush hour, I raised the defence of necessity. My client was being tailgated by the driver of a large van. The van was so close to him, he couldn’t see the van’s front plate. My client increased his speed to get away from him. The driver of the van caught up to him again and continued to tailgate him. My client couldn’t move into the lane on his right because he couldn’t see what was along side of the van. For all he knew, it could have been a police vehicle trying to apprehend the driver of the van. Both my client’s car and the van were subsequently pulled over by the police further on and both men were charged with speeding. The van driver at court testified that he was merely trying to see how fast his van would go. My client on the other hand said that he was escaping what he believed was a criminal and for this reason, he had the right to take whatever steps he could to escape the criminal who was hell bent on following him so dangerously close to him.

In my argument before the justice of the peace, I told him that driving a van at 90 kilometres an hour in a 40 km/h zone during rush hour is dangerous driving and anyone who drives dangerously on any road or street in Canada is committing the act of ‘dangerous driving’ which is an offence under the Canadian Criminal Code and as such, the driver of the van was a criminal and such persons on the road should be avoided at all costs. The JP agreed with me and dismissed the charge against my client.
Clearly we must avoid expanding the use of the ‘necessity defence’. Courts have refused to allow the defence as an excuse for killing an abortion doctor or to excuse civil disobedience. It can’t be used to excuse theft or shoplifting. But it can be used to justify trespass or even break and enter when necessary to save a life or prevent imminent injury.

However in my respectful opinion, Dr. Michael Kutryk shouldn’t be available to excuse his speeding to the hospital as a necessary act. I will keep an eye on his pending trial and report to you the decision of the justice of the peace when he gives it. It surely will be an interesting case.