BC Court of Appeal Discusses Dual Role of Treating Physician as Expert and Lay Witness

Informative reasons for judgement were published last week by the BC Court of Appeal discussing the scope of what is permissible when a treating physician is called both as an expert witness and a lay witness (witness of fact).

In the recent case (Ford v. Lin) the Plaintiff was injured in a vehicle collision and sued for damages.  Following trial the Plaintiff appealed arguing treating physicians were unduly restricted by the trial judge when testifying.  The BC Court of Appeal found that no error occurred.  In doing so the Court provided helpful discussion on two points.  First the scope of permissible examination in chief from a party’s own expert under the current BC Supreme Court Rules.  Second the scope of permissible lay evidence that can be called from the same expert.

On the first point the Court noted as follows:

[78]         I begin by noting that, unlike Rule 40A, Rule 11-7(5) circumscribes the ability of a party to directly examine its own expert.  If a demand for cross-examination has not been made, then by virtue of Rule 11-7(5)(a)(ii), unless a judge orders otherwise, the opinion evidence must be tendered by means of the report with any direct examination of the expert being limited to what is necessary to clarify terminology in the report or to make the report more understandable.  This limitation is a codification of a principle first articulated in Pedersen.

[79]         However, when a demand for cross-examination has been made, a party wishing to tender opinion evidence can elect to proceed in one of two ways prior to its expert being cross-examined.  The first, as provided for by the combined effect of Rules 11-7(2) and 11-7(5)(a)(ii), is to tender the report and, if necessary, conduct a limited Pedersen-type direct examination.  The second, as provided for by Rule 11-7(5)(a)(i), is to call the expert as a witness and, after qualifying them, tender their opinion, including the facts and assumptions they relied on, through viva voce testimony.  In the latter case, the report will not be marked as an exhibit although a trial judge may agree to have a copy marked for identification only, as an aide memoire, to assist them in following the expert’s testimony.  A report that has not been marked as an exhibit has no evidentiary value and, of course, will not be provided to a jury.

[80]         I am unable to read Rule 11-7(5)(a) as giving a party the right to tender an expert’s report and then conduct a direct examination of the expert, not for clarification, but to repeat, expand upon, or amplify the contents of the report.  This applies with respect to all experts, even those that are treating clinicians.  In this respect, the treatment of expert reports under our Supreme Court Civil Rules is similar to that in Ontario, although in that province the ability to tender evidence by means of a report is limited to reports prepared by medical practitioners.

…

[86]         With that context in mind, I return to my interpretation of the current law in British Columbia.  That an expert is able to give “fact” evidence does not automatically open the door to a party both filing a report and calling the expert.  When the “facts” sought to be elicited in the witness box relate to the basis for the opinion, a party must choose how they wish to present both those facts and the opinion.  If a party chooses to tender a report, then they cannot call the expert as a “fact” witness” unless the “fact” evidence to be elicited is relevant to some matter other than the opinion in the report or falls within Rule 11-7(5)(a)(ii).  Put otherwise, a party is not entitled to “double up” on presenting an opinion or the foundation on which it is based.

Regarding when an expert witness can also testify as to lay evidence the Court commented as follows:

[61]         As indicated above, the trial judge permitted Ms. Ford to call Dr. Comeau and Dr. Raabe as both expert witnesses and fact witnesses.  With respect to the latter role, she precluded Ms. Ford from leading evidence of any statements (complaints) Ms. Ford made to them after the date of their respective reports.  In seeking to uphold this restriction, Mr. Lin advances an argument he did not raise at trial, namely, that having chosen to rely on Dr. Comeau and Dr. Raabe for expert opinion evidence, it was not open to Ms. Ford to also call them as fact witnesses.  In colloquial terms, Mr. Lin says a witness cannot wear two hats and that a party calling someone who can give both expert opinion and fact evidence must elect which hat that witness is to wear.  This submission is without merit…

[90]         When a party calls a doctor as a fact witness, the doctor’s testimony is subject to the rules that apply to any other fact witness.  What this means is that a party is not entitled, as a matter of course on direct examination, to tender their own out-of-court statements.  Absent an exception to this general exclusionary rule, a plaintiff can no more call a doctor to testify they said their back was sore on a particular day than they can their next-door neighbour…

[94]         With respect to the second point, Ms. Ford has again not referred to any authority that permits a plaintiff, in direct examination and as a matter of course, to adduce their own statements to a treating clinician in anticipation that party-admissions might be elicited during cross-examination.  At the direct examination stage, such evidence is inadmissible hearsay.  It serves no purpose.  In this regard, I note that at the hearing of this appeal, Ms. Ford argued that a plaintiff has the right to ask questions of a treating clinician with respect to their records even if it may have no purpose or be oath-helping, because it is part of the narrative.  As is apparent, I do not accept this as a correct statement of the law.

[95]         It is important to keep in mind that the judge’s ruling applied only to Dr. Comeau’s direct examination.  In the event that what could be taken to be a party-admission was elicited during cross-examination Ms. Ford was entitled, in re-examination, to elicit other statements she made to Dr. Comeau, not for their truth, but to provide the judge with context in considering the weight to be given to any potential party-admissions: see Johnny v. I.C.B.C., 2007 BCCA 43 at paras. 15–20, 64 B.C.L.R. (4th) 337; Smith v. Wirachowsky, 2009 BCSC 1434 at para. 22(b), 2 B.C.L.R. (5th) 347.  Mr. Lin accepts that it would be unfair to permit a defendant cross-examining a plaintiff’s treating clinician to, in effect, “cherry pick” statements the plaintiff made to a treating clinician without giving the plaintiff an opportunity to provide a fuller picture of what transpired over the course of treatment.  Indeed, in this case, during re-examination, Ms. Ford did elicit statements she had made to Dr. Comeau.