Treating Physician Opinion Discounted for Advocacy
In a demonstration that¬†¬†judicial criticism of expert witness ‘advocacy’¬†is not reserved for so-called “independent” experts, reasons for judgement were released this week addressing the evidence of a treating physician who crossed the line into patient advocacy.
In this week’s case (Brown v. Raffan) the Plaintiff was injured in a motor¬†vehicle¬†collision and sought damages of over $200,000. ¬†The Plaintiff provided evidence and¬†also¬†relied on the medical opinion of her physician. ¬†The Court rejected much of the claimed damages finding that the Plaintiff was “not reliable” as a witness. ¬†The Court went further and criticized her¬†treating¬†doctor finding that the opinions shared with the Court crossed the line into advocacy. ¬†In rejecting much of the presented medical evidence Mr. Justice Verhoevan provided the following comments:
¬†¬†¬†¬†¬†¬†¬†¬†¬†The plaintiff has continued to be treated by Dr.¬†Campbell, who has seen her more than 70 times since the accident. Unfortunately, in general, I do not consider the evidence of Dr.¬†Campbell to be reliable. There are several reasons for this.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Firstly, in my view, Dr.¬†Campbell‚Äôs sympathy for his patient and her claims has resulted in him becoming an advocate for the plaintiff.
¬†¬†¬†¬†¬†¬†¬†¬†¬†On reading his report and hearing his evidence, the theme that emerges is one of solidarity by Dr.¬†Campbell with Ms.¬†Brown‚Äôs complaints about lack of support from ICBC, and her plight as a blameless victim.
¬†¬†¬†¬†¬†¬†¬†¬†¬†At numerous instances in the report, Dr.¬†Campbell relates Ms.¬†Brown‚Äôs complaints that ICBC failed to refuse to provide for interim wage loss payments, or cost of treatment such as physiotherapy, psychological counselling, or reimbursement for her broken dental plate. Although reciting the plaintiff‚Äôs complaints in relation to ICBC might conceivably be relevant background information, it is clear on the report and on Dr.¬†Campbell‚Äôs testimony as a whole that he shares his patient‚Äôs views that she is a blameless victim of injustice who has been badly treated by ICBC, and, further, that she deserves compensation.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In the summary and opinion portions of his report, Dr.¬†Campbell mentions several times that Ms.¬†Brown was ‚Äúblameless‚ÄĚ or ‚Äúblameless victim‚ÄĚ in the motor vehicle accident. Such comments have no proper place in an expert‚Äôs report, and indicate a conflict with the duty of an expert to assist the court and refrain from being an advocate for a party as set out in Rule 11-2 of the¬†Supreme Court Civil Rules.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Dr.¬†Campbell also mentions several times that the plaintiff has been given no support or treatment by ICBC. These inappropriate comments are thoroughly enmeshed in his report. I think it best to simply set out some extracts of the report in this respect, in which I have emphasized the offending material….
¬†¬†¬†¬†¬†¬†¬†¬†¬†In summary I conclude that, in general, I cannot rely upon the medical report and opinion of Dr.¬†Campbell.