Adverse Inference Drawn For "Absence of Evidence From Any Treating Doctor"

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, drawing an adverse inference for a Plaintiff in a personal injury lawsuit who failed to lead evidence from any treating physician.
In this week’s case (Mohamud v. Yu) the Plaintiff was involved in two collisions and sued for damages.  The Defendants admitted fault for both crashes.  At trial the Plaintiff sought over $260,000 in damages.
The Plaintiff led expert evidence in support of her case but none of these witnesses were treating physicians.  Madam Justice Fisher rejected much of the Plaintiff’s claim awarding of $61,532.  Influential in this decisions was the absence of expert evidence from treating physicians.  In drawing an adverse inference Madam Justice Fisher reasoned as follows:

[33]        The plaintiff was a poor historian. Important parts of her evidence were inconsistent with statements she made (or did not make) to others, such as her family doctor and the experts who testified on her behalf. Some of these inconsistencies may be quite normal, but the extent of the inconsistencies here are of concern, particularly in the absence of any objective confirmatory evidence from a treating doctor or other medical professional. Most notably, the plaintiff’s family doctor, who saw her throughout these years, did not testify or provide an expert report. It is especially troubling that this is a doctor whom the plaintiff said was her long-time, trusted family physician.

[34]        In these circumstances, the defendants urge me to draw an adverse inference from the plaintiff’s failure to call evidence from her family doctor…

[39] The plaintiff’s explanation for her failure to call her family doctor was that she called the witnesses she considered the most necessary, she did not have the means to obtain “every possible medical report”, the family doctor is not always the best able to give an opinion “given the era of walk-in clinics and five minute appointments” and it was open to the defendant to call the doctor, especially since the clinical notes indicate that the doctor prepared a CL19 report. On this last matter, counsel for the defendants advised the court that he not aware of such a report and had never received a copy.
[40] I certainly accept that a plaintiff is entitled to call the witnesses she considers necessary but I do not agree that the family doctor in the circumstances here would not be the best able to give an opinion. While it does appear in the clinical records that the plaintiff saw other physicians from time to time, her primary care physician is the only person who could have given the court an opinion about the plaintiff’s condition, informed by a long standing relationship and observations throughout the relevant periods of time (following not only the two accidents but also the Skytrain fall). This takes on more importance in light of the plaintiff’s evidence that she would have described all of her symptoms and complaints to her doctor and that whatever was recorded in the clinical notes reflected what she told the doctor at the time. I do not consider the fact that the defendant could have called the doctor as a witness to adequately explain this plaintiff’s failure to do so.
[41] The circumstances here are very different from those in Buksh, where the absent witnesses were not long-standing family doctors and the issue arose in the context of a trial where all clinical records had been admitted into evidence and had been before the jury. They are, however, quite similar to the circumstances in Andrews v. Mainster, 2014 BCSC 541, where the plaintiff failed to call any health care professionals who treated her before or after the accident. In that case, the court drew an adverse inference.
[42] Accordingly, I consider it appropriate in these circumstances to draw an adverse inference from the plaintiff’s failure to call her family doctor to give evidence, at least as a treating physician if not also as an expert witness.