ICBC Law

(Update March 8, 2012 - the below reasoning was upheld by the BC Court of Appelal in reasons for judgement released today.  You can find the BC Court of Appeal’s Reasons here)

When an injury claimant attends examination for discovery or trial they are usually subjected to an extensive cross-examination with respect to matters contained in clinical records.  These records contain a host of information including dates of doctors visits, complaints made, diagnoses given, treatments recommended and the course of recovery of injuries.

Despite this volume of information clinical records do have limitations with respect to their use at trial.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, discussing these.

In today’s case (Edmondson v. Payer) the Plaintiff was involved in a 2005 BC motor vehicle collision.  The Plaintiff sustained various soft tissue injuries involving her neck with associated headaches.  The Defendant argued that the injuries were minor and that the Plaintiff lacked credibility.  In support of their argument the Defendant relied heavily on various entries contained in the Plaintiff’s clinical records.

Mr. Justice Smith rejected the Defendant’s argument and awarded the Plaintiff $40,000 for non-pecuniary damages (money for pain and suffeirng and loss of enjoyment of life).  In doing so the Court provided the following useful reasons addressing the use of clinical records in injury litigation:

[23] Much of the defendant’s submission on the plaintiff’s credibility flows from what is, or is not, found in the clinical records of doctors the plaintiff has seen.  It is therefore important to review the limited purposes for which clinical records are admissible.  It is easy to lose sight of those limitations in cases of this kind, where the time spent parsing a single note made by a doctor often far exceeds the length of the medical appointment that the note records…

[34]         The difficulty with statements in clinical records is that, because they are only a brief summary or paraphrase, there is no record of anything else that may have been said and which might in some way explain, expand upon or qualify a particular doctor’s note.  The plaintiff will usually have no specific recollection of what was said and, when shown the record on cross-examination, can rarely do more than agree that he or she must have said what the doctor wrote.

[35]         Further difficulties arise when a number of clinical records made over a lengthy period are being considered.  Inconsistencies are almost inevitable because few people, when asked to describe their condition on numerous occasions, will use exactly the same words or emphasis each time.  As Parrett J. said in Burke-Pietramala v. Samad, 2004 BCSC 470, at paragraph 104:

…the reports are those of a layperson going through a traumatic and difficult time and one for which she is seeing little, if any, hope for improvement. Secondly, the histories are those recorded by different doctors who may well have had different perspectives and different perceptions of what is important. … I find little surprising in the variations of the plaintiff’s history in this case, particularly given the human tendency to reconsider, review and summarize history in light of new information.

[36]         While the content of a clinical record may be evidence for some purposes, the absence of a record is not, in itself, evidence of anything.  For example, the absence of reference to a symptom in a doctor’s notes of a particular visit cannot be the sole basis for any inference about the existence or non-existence of that symptom.  At most, it indicates only that it was not the focus of discussion on that occasion.

[37]         The same applies to a complete absence of a clinical record.  Except in severe or catastrophic cases, the injury at issue is not the only thing of consequence in the plaintiff’s life.  There certainly may be cases where a plaintiff’s description of his or her symptoms is clearly inconsistent with a failure to seek medical attention, permitting the court to draw adverse conclusions about the plaintiff’s credibility.  But a plaintiff whose condition neither deteriorates nor improves is not obliged to constantly bother busy doctors with reports that nothing has changed, particularly if the plaintiff has no reason to expect the doctors will be able to offer any new or different treatment.  Similarly, a plaintiff who seeks medical attention for unrelated conditions is not obliged to recount the history of the accident and resulting injury to a doctor who is not being asked to treat that injury and has no reason to be interested in it.

[38]         The introduction of clinical records cannot be used to circumvent the requirements governing expert opinion evidence set out in Rule 11-6 of the Supreme Court Civil Rules, B.C. Reg. 168/ 2009 [Rules].  A medical diagnosis−and the reasoning that led to the diagnosis−is a matter of expert opinion. Clinical records are admissible for the fact that a diagnosis was made, but the court cannot accept the diagnosis as correct in the absence of proper opinion evidence to that effect.  Depending on the facts and issues in a particular case, the mere fact that a diagnosis was made may or may not be relevant.

[39]         Clinical records may provide the assumed facts on which an expert may offer an opinion, including diagnosis.  For example, statements made by the plaintiff and recorded in clinical records at various times may be relied on by a defence expert in concluding that the plaintiff’s current symptoms are the result of a condition that pre-dated the accident.  That does not mean that the court can itself use clinical records to arrive at a medical diagnosis in the absence of expert opinion.

[40]         Some of the defendant’s submissions must now be considered in light of these principles.

ICBC Injury Claims can be record intensive.  Every time you see your doctor, chiropractor, massage therapist, or other medical specialist they keep clinical records.  These records often take down your subjective complaints, the physician’s objective observations, the physician’s assessment of the problem and the plan or treatment prescribed.   These records, if addressing accident related injuries, are relevant and usually are produced to the Plaintiff and Defence lawyer in the course of litigation.

So what use can be made of these records at trial?  Can a Plaintiff corroborate in court testimony with these previously recorded out of court statements?  Reasons for judgement were released today thoroughly canvassing this area of the law.

In today’s case (Smith v. Wirachowsky) the Plaintiff was involved in a 2007 car crash in Nanaimo, BC.  It was a rear-end crash and the Plaintiff suffered various “mild to moderate” soft tissue injuries which were largely but not entirely resolved by the time of trial.  It was expected that the injuries would eventually resolve and damages of $35,978.66 were awarded which included an award of $30,000 for non-pecuniary loss (pain and suffering).

During the course of the trial the Plaintiff attempted to introduce clinical records from the Plaintiff’s physiotherapist which recorded the Plaintiff’s complaints of pain.  Mr. Justice Halfyard ruled that the records were not admissible for that purpose and summarized the law relating to the use of clinical records at trial as follows:

[14] It was common ground that the clinical records qualified as “business records” within s. 42 of the Evidence Act.  It was also agreed that the plaintiff’s statements in the clinical records, if admitted, could not be used to prove the truth of their contents or to bolster the credibility of the plaintiff’s trial testimony. …

[22] In my opinion, the authorities and the rules of evidence establish that the fact that a plaintiff made a particular statement to a doctor or therapist can be relevant to the following issues (where such issues exist):

a) In cross examination of the plaintiff, to prove that the plaintiff made a previous statement (which is alleged to constitute a previous inconsistent statement or a damaging admission);

b) In re-examination of the plaintiff, to rebut the suggestion (by defence counsel) of recent fabrication or failure to complain;

c) In cross examination of a doctor who examined or treated the plaintiff, to prove that the plaintiff made a previous statement (which is alleged to constitute a previous inconsistent statement or damaging admission), where the plaintiff denied or did not admit making the statement;

d) Where a doctor’s or therapist’s particular recommendation for the plaintiff’s treatment is challenged, and the plaintiff’s statement is relevant to explain why that treatment was prescribed or administered; and

e) In cross examination of a medical expert witness called by either party, where it is alleged that the expert relied on a particular statement made by the plaintiff to him or her; or where it is alleged that the expert disregarded or failed to consider a particular statement made by the plaintiff.

[23] It should be noted that there are at least two ways in which a plaintiff’s statements recorded in clinical records may become admissible as proof of their truth.  The first way is where the plaintiff admits making a particular statement to a doctor or therapist which appears to be inconsistent with the plaintiff’s trial testimony, but then adopts the previous statement as being true (and rejects the conflicting trial testimony).  In that situation, the previous statement can be used as proof of its truth, if the trier of fact accepts the plaintiff’s testimony on this point.  More frequently, the plaintiff will reject the previous statement as being false and give an explanation for making it (such as mistake).  In that case, as is well known, the previous statement, if inconsistent, can only be used to assess the credibility of the plaintiff’s trial testimony.

[24] The second way is where the plaintiff admits making (or is shown to have made) a previous statement recorded in the clinical records which if true, would constitute an admission against interest.  In that situation, the plaintiff’s previous statement can be used by the trier of fact as proof of its truth (even if the plaintiff denies that his or her previous admission was true).

[25] Conclusion

[26] In the present case, the statements of the plaintiff to her physicians and therapists were not relevant to any issue in the trial that could have made them admissible at the instance of the plaintiff.  A potential exception could occur in a case where a plaintiff had told her doctor that she had recovered from an injury, but on a subsequent date or dates attended a doctor again and complained that an injury continued to generate symptoms of pain and disability.  In that situation, the plaintiff’s subsequent complaints to her doctor would be admissible in re-examination, to rebut the suggestion that the plaintiff had made no further complaints of pain after a certain point in time.  But of course the complaints made subsequently by the plaintiff could not be admitted to prove their truth.  It was not shown that this situation occurred here.

The BC Court of Appeal released reasons for judgement today ordering a new trial after a Jury dismissed a claim for damages as a result of a 2002 BC car accident. In doing so the BC Court of Appeal has made some helpful comments on the law relating to “adverse inference”.

When an ICBC claim is brought to trial various witnesses are called in support of the claim. Most importantly, expert witnesses (doctors and other specialists) are often called to give evidence with respect to the extent of the injuries caused by the car accident and their prognosis. If a Plaintiff fails to call one or more of his treating doctors, the ICBC lawyers can ask the judge (or jury) to draw an ‘adverse inference’. Basically, this means that the ICBC lawyer can ask the judge to draw a negative inference from the failure to call a witness who one would expect to have something relevant to say.

Typically, people injured in BC car accidents involved in ICBC claims see several different doctors. Most people have a GP, when the GP is not available they go to walk-in-clinics. Sometimes they are treated by emergency physicians and also referred to specialists by either their GP or such appointments can be arranged privately for litigation purposes.

It could be prohibitively expensive to bring an ICBC case to trial if one was required to bring every single doctor who assessed a plaintiff after a car accident to testify. Not only would this extend the length of the trial it would also add significantly to the expense as doctors are permitted to charge fees for their legal consultation services.

In this case the Plaintiff’s were a husband and wife. Their vehicle was rear-ended by a vehicle driven by the Defendant. Fault for the accident was admitted leaving the issue of damages.

At trial evidence was presented alleging that the Plaintiff’s suffered injuries to their neck, back, knees, shoulder, with headaches and other problems.

The jury outright dismissed the lawsuits, basically finding that neither of the Plaintiff’s suffered any compensable injuries in the BC car crash.

The Plaintiff’s appealed alleging that the trial judge made 4 errors in the course of the trial, namely that:

1) the trial judge erred in allowing the respondent to seek an adverse inference for failure of the appellants to call evidence from all their doctors;

2) the trial judge erred in not allowing the clinical records to go before the jury;

3) the trial judge erred in allowing the respondent to cross-examine extensively on collateral issues in regards to Mr. Buksh; and

4) the jury verdict is perverse in finding no injury to either appellant in the face of uncontradicted evidence to the contrary.

In respect of the adverse inference, here the ICBC defence lawyer argued that the jury should draw such an inference because the Plaintiff’s did not call all of the doctors who saw them after the crash. This included walk in clinic doctors and other physicians who had limited involvement in the treatment of the Plaintiff’s. The judge instructed the Jury that such an inference ‘may’ be drawn.

Our Court of Appeal ordered a new trial. In reaching this conclusion the Court of Appeal made some helpful comments about the law of adverse inference in ICBC claims in the last 10 paragraphs of the judgement which I reproduce below:

[32] It seems to me that the tactic of asking for an adverse inference is much over-used in today’s legal environment, and requires, at the least, a threshold examination by the trial judge before such an instruction is given to the jury.

[33] A judge trying a case with a jury is bound to instruct the jury as to the applicable law, and thereby to assist the jury in its consideration of the evidence and determination of the facts. Whether an adverse inference is drawn from failure to call a witness is a question for the trier of fact. In this case, I cannot say the trial judge erred in the content of the instruction she gave the jury on the matter of adverse inferences. However, it bears reminding that the delivery of medical care is not now as it was in 1964 when Mr. Justice Davey made his comments in Barker. There is, today, a proliferation of “walk-in” medical clinics where the role of the “walk-in” clinic physician may be more limited than was the role of a family physician in 1964. Further, even people who have a family doctor may attend one or more such clinics as a matter of convenience, but still rely upon their family physician for core medical advice and treatment. The proposition stated by Mr. Justice Davey does not anticipate this present model of medical care. Likewise, the discovery process available to both sides of a lawsuit is not now as it was in 1964 when, in explaining his view on the need to call all treating physicians, Mr. Justice Davey referred to the professional confidence between a doctor and the patient. Today, the free exchange of information and provision of clinical records through document discovery raises the possibility that an adverse inference may be sought in circumstances where it is known to counsel asking for the inference that the opinion of the doctor in question was not adverse to the opposite party.

[34] Taking the admonition of Mr. Justice Davey to the extreme in today’s patchwork of medical services raises the likelihood of increased litigation costs attendant upon more medical reports from physicians or additional attendances of physicians at court, with little added to the trial process but time and expense, and nothing added to the knowledge of counsel. Perhaps the idea that an adverse inference may be sought, on the authority of Barker, for the reason that every walk-in clinic physician was not called fits within the description of “punctilio” that is no longer to bind us, referred to by Mr. Justice Dickson in R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, in a different context.

[35] In this environment, and bearing in mind the position of a lawyer bound to be truthful to the court, it seems to me there is a threshold question that must be addressed before the instruction on adverse inferences is given to the jury: whether, given the evidence before the court, given the explanations proffered for not calling the witness, given the nature of the evidence that could be provided by the witness, given the extent of disclosure of that physician’s clinical notes, and given the circumstances of the trial (e.g., an initial agreement to introduce clinical records that work contrary to the inference, or incorporation of that witness’s views or observations in the report of a witness called by the other side) a juror could reasonably draw the inference that the witness not called would have given evidence detrimental to the party’s case. Where, as here, the trial started on the basis that all records should be before the jury, and ended with a request for an instruction on adverse inferences, and when both counsel have explained the failure to call the witness or witnesses by referring to their own assessment of the utility or need for the evidence, the answer to the threshold question I have stated is not self-evidently affirmative. In this case, in my view, the judge herself should have heard the explanations, considered the degree of disclosure of that witness’s files and the extent of contact between the party and the physician, received submissions and determined whether a reasonable juror could draw the inference sought before giving the instruction to the jury for its consideration in its fact finding role. If not, the instruction had no place in her charge to the jury.

In reasons for judgement released today, Mr. Justice Bernard of the BC Supreme Court awarded a Plaintiff just over $200,000 in compensation for losses as a result of a 2005 BC car accident.

The accident involved a left-hand turning defendant who failed to see the Plaintiff’s vehicle. The result was a significant, near head on collision. Fault was admitted leaving only the issue of quantum of damages to be decided at trial.

The court’s key findings of fact were made at paragraphs 34-35 of the judgement where it was held that the Plaintiff suffered from debilitating headaches as a result of the BC car crash, that the headaches continue to plague him and that the source of these headaches is the neck injury the Plaintiff suffered in the crash. The court also found that these injuries where likely to plague the Plaintiff for 3-5 years following the trial.

The Plaintiff was a young man starting out in a career in the entertainment industry. The court accepted that the injuries took away his ability to take full advantage of various opportunities that were open to him in his career and this ‘loss of oportunity’ will continue into the future as a result of the on-going injuries.

In the end the court assessed damages as follows:

Non-pecuniary $70,000

Special $5,642

Loss of Opportunity $125,000

Future Care $14,520

This case is interesting for the court’s comments on the use of the various doctor’s clinical records at trial. As any ICBC claims lawyer knows, Plaintiff’s in personal injury claims are often exposed to hard cross-examinations based on previously recorded statements contained in medical records.

When you go to the doctor he/she usually notes your complaints. These ‘clinical notes’ are often put to use by ICBC lawyers to cross examine a Plaintiff’s testimony discussing the extent of injuries and symptoms. Here, the court found that the Plaintiff held up to cross examination very well and made some very practical comments about the reliability of clinical records, namely:

[35] I accept (the Plaintiff’s) evidence in regard to the onset of the headaches, and their intensity, frequency, and endurance. Efforts to discredit him with alleged inconsistencies in doctors’ clinical notes were, in my view, not successful. It must be borne in mind that the primary objective of physicians’ clinical notes is to refresh their own memories as to what transpired during a clinical examination, for the purposes of medical treatment. These notes are not made for investigative and litigation purposes. If this were the purpose then it would, in my opinion, be important for physicians to ensure that they have accurately recorded full and detailed accounts of what a patient said during a clinical visit and then have the patient verify the accuracy of the notes.

[36] Physicians are not investigators. They are neither trained to accurately record what a person says nor to draw out a fulsome account for litigation purposes. The use of clinicians’ notes, made hastily during a clinical visit and never reviewed for accuracy by the patient, may operate unfairly to the patient as plaintiff or witness. It should also be borne in mind that when a patient sees his or her physician with a complaint of significant pain, the circumstances are far less from ideal for obtaining full and accurate information.

[37] I do not suggest by any of the foregoing that it is impermissible to use clinical notes to challenge a plaintiff’s credibility, but the frailties inherent in such recordings should be recognized. In the instant case, I find that the clinician’s notes do not have sufficient accuracy and reliability to undermine the plaintiff’s evidence where the notes allegedly differ from the plaintiff’s testimony at trial.