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Court Critical of Doctor’s “Self Diagnosed” Personal Injury Claim

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, making critical findings in a personal injury claim.

In today’s case (Nagaria v. Dhaliwal) the Plaintiff, a physician, was injured in a 2014 rear end collision.  The Defendant admitted fault.  The Plaintiff received little medical care following the crash instead relying largely on self diagnosis and self treatment.  The Court rejected the severity of the Plaintiff’s advanced claim finding “the plaintiff is not a reliable witness nor a competent historian. There is considerable exaggeration in his evidence.”

The Court criticized the Plaintiff’s self-treatment and credibility with the following comments:

[42]         The plaintiff repeatedly testified that he chose not to follow the course of medical treatment against the advice of Dr. Strovski because he said that it would leave his patients wanting for his medical care. Leaving aside prescribed medication entirely, I find this explanation to be inconsistent with the policy of the College of Physicians on “Treating Self” and contrary to the simple skills of organization that following the prescribed treatment regime would have required.

[43]         The “Treating Self” policy is clear that self-treatment may affect the objectivity of the medical treatment which a doctor provides. Exceptions, according to the policy, may be made when “the medical condition is minor or emergent; and no other physician is readily available.” Curiously, when this passage was read to the plaintiff during cross-examination, he ignored the above quoted lines and spoke only about self-prescribing narcotic medications which had nothing to do with the case at bar. The plaintiff was evasive in failing to respond to the fact he had self-diagnosed a soft tissue injury and self-prescribed a course of treatment. The circumstances did not involve an emergent situation. The alleged medical condition was not minor; as had it been a minor condition, this action would not have been commenced in this Court. I do not accept the explanation that following the advice of Dr. Strovski would have left the plaintiff unable to practice medicine or otherwise provide services to his patients.

[46]         In this case, the plaintiff did not follow the policy of his profession as he failed to record any of his own symptoms, their occurrence, development, or resolution. Further, he refused a prescribed treatment regime in favour of self-treatment. As noted above, the explanation for self-treatment by the plaintiff lacks objectivity, the very flaw recognized by the College of Physicians and Surgeons.

Mr. Justice Ball found the Plaintiff suffered only minor soft tissue injury and assessed damages at $19,000.  In reaching this assessment the Court provided the following reasons:

[81]         The plaintiff was not a reliable nor a credible witness for the reasons which I have outlined above. The prognosis of Dr. Rickards — if the prescribed treatment plan were followed — expected the reduction or resolution of the symptoms of the plaintiff within a two to four month period. On the evidence before this Court, I am satisfied that the injury caused by the accident, which has been proven on a balance of probabilities, was a minor soft tissue injury. Had the prescribed treatment regime — initially prescribed by Dr. Strovski in 2011 — been followed by the plaintiff, the injury and its symptoms would have resolved in the two to four month period suggested by Dr. Rickards. The failure of the plaintiff to follow the prescribed treatment regime was unreasonable as found above, and constitutes a failure to mitigate.

[82]         The soft tissue injury did not interfere with the ability of the plaintiff to continue his medical practice six days a week or otherwise interfere with his chosen medical speciality. The activities of the plaintiff outside of his practice — sporting activities in particular — have been reduced to some degree, but it is not possible to speculate how those activities have been affected by the soft tissue injury given the lack of evidence on this topic. Further, without completion of the prescribed treatment regime by the plaintiff, the extent and duration of the reduction of activities cannot be predicted and has not been proven.

[83]          In these circumstance, and after a review of the authorities cited above and by counsel, the award of non-pecuniary damages in this case is $19,000. The failure of the plaintiff to mitigate his loss will result in a reduction of that award by ten per cent (10%). The total award for non-pecuniary damages is therefore $17,100. Based on my findings above, the claim for special damages has not been made out and there will accordingly be no award of special damages in this case.

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