Defence Medical Doctor Given "Very Little Weight" For Failing to Examine Plaintiff

As previously discussed, the failure of a doctor to examine a Plaintiff is not, in and of itself, a barrier to the physician from providing opinion evidence to the BC Supreme Court, however, often little weight is attached to a doctor’s opinion in such circumstances. This was demonstrated in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.
In this week’s case (Rizzotti v. Doe) the Plaintiff suffered psychological injuries in a serious collision in which the offending motorist died. At trial the Plaintiff tendered expert evidence addressing the extent of her injuries. The Defendant tendered a report from a psychiatrist, Dr. Levin, who disagreed with the Plaintiff’s experts with respect to the extent of her accident realted psychological injuries.
Dr. Levin did not examine the Plaintiff prior to authoring his report and in the course of trial acknowledged that “that he could not do a proper assessment without interviewing the plaintiff“. The court accordingly provided little wieght on Dr. Levin’s opinion and provided the following reasons:
[27] Dr. Levin is a psychiatrist tendered by the defendants as rebuttal evidence to the opinion of Dr. Anderson. The plaintiff objected to the admissibility of Dr. Levin’s report during this trial. I declared a voir dire to allow the plaintiff to cross-examine Dr. Levin and make argument as to the admissibility of the report. I ultimately found that the report was admissible, however I initially told counsel that I would be putting very little weight on the report as Dr. Levin did not interview the plaintiff…

34] For the above noted reasons I ruled Dr. Levin’s report admissible and I ruled that his evidence on the voir dire would form evidence on the trial proper.

[35] I have already explained that I am putting little weight on Dr. Levin’s report because he did not interview the plaintiff. Dr. Levin himself testified that he could not do a proper assessment without interviewing the plaintiff.

Making the Doctor Come To You! Defence Medical Exams and Court Ordered Conditions

The BC Supreme Court has the discretion to impose appropriate terms and conditions when forcing a Plaintiff to undergo a Defence Medical Exam in the course of an injury lawsuit.  Unreported reasons for judgement were recently released and shared by Plaintiff lawyer Thomas Harding discussing this and imposing a variety of interesting conditions connected to such an order.
In the recent case (Carta v. Browne) the Plaintiff sued for damages as a result of as 2009 collision.  Prior to this the Plaintiff was injured in a 2002 collision which resulted in him being rendered paraplegic confining him to a wheelchair.
The claimed damages from the 2009 collision included psychiatric injuries.  The Defendant requested a Defence Medical Exam with a psychiatrist in Vancouver.  The Plaintiff objected both to the date proposed and to the location of the examination as the Plaintiff lived in Kelowna and travel was difficult due to his pre-existing disability.
Master Muir agreed that while a psychiatric assessment was appropriate and that the Defendant could choose their expert the Plaintiff was entitled to reasonable accommodation with respect to the timing of the appointment and further that given the Plaintiff’s travel difficulties he was entitled to having the appointment take place in Kelowna.  The Court went on to impose a variety of further conditions providing the following reasons:
[8] …I am satisfied that there are considerations that go beyond simple convenience that dictate that this examination should not be conducted in Vancouver but should be conducted in Kelowna and that it not be conducted on July 30th, which is a time that is more than inconvenient for the plaintiff; it interferes with a scheduled festival that he is planning to attend as a part of a developing business.  Therefore if the defendants are going to insist that the examination be conducted by Dr. Riar, it is my order that Dr. Riar attend in Kelowna at a time convenient to all parties, and I will order that certain conditions be complied with.
[9]  The first condition sought is that the defendants set out exactly what examinations DR. Riar wishes to conduct.  The defendants have indicated that this is a psychiatric examination, that the examination is not to be an invasive one but will consist of conversations between the plaintiff, and I trust that Dr. Riar, being a professional, will confine himself accordingly.  It is of course ordered that ICBC is to pay the reasonable costs of attendance of the plaintiff at the examination.
[10]  I do order that the plaintiff is at liberty to be accompanied by a person of his choice.  This person is to be merely an observer and not participate in or interfere with the exaninaiton in any manner whatsoever.  Dr. Riar will not attempt to get any information from the companion…
[12]  And I so order here that the examination is to be commenced within 30 minutees of the scheduled start time, after which, if the examination has not proceeded, the plaintiff is entitled to depart, and his attendance will be credited as having satisfied the order…
[15]  With respect to item (i) of the response of the plaintiff here, the plaintiff is seeking that there be no surveillance of him during any part of the defence medical examination or during his arrival or departure from there.  In my view this is in the nature of being required to attend court, and it is my view that any such surveillance would be unseemly, and I therefore grant the order.
To my knowledge these reasons for judgement are not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.

Defence Expert Criticized; $60,000 Non-Pecuniary Assessment for Lingering STI's and PTSD

Unreported reasons for judgement were recently released by the BC Supreme Court, Nanaimo Registry, addressing damages for “chronic, but not disabling” soft tissue injuries and post-traumatic stress arising from a motor vehicle collision.
In the recent case (Pitts v. Martin) the Plaintiff was injured in a 2008 collision.  Fault was admitted by the Defendant.  The extent of the Plaintiff’s damages were at issue.  As is common in personal injury litigation, the Defendant produced an expert witness who provided evidence disagreeing with the Plaintiff’s physician as to the extent of the ongoing injuries and their connection to the collision.  Mr. Justice Dley was not receptive to this evidence preferring the Plaintiff’s treating physicians.  In rejecting the Defendant’s expert Mr. Justice Dley provided the following criticism:
[31]  Dr. Dommisse provided an opinion that confirms the soft tissue injury.  However, he opines that stress aggravates the physical injuries and that with proper counselling the stress would ease off; that would improve the physical injuries.  Dr. Dommisse agreed that the stress affectibng Ms. Pitts resulted from the collision.
[32]  His opinion ignores the fact that Ms. Pitts has had counselling and that she has been provided with coping techniques.  Dr. Dommisse was not critical of the counselling that had been provided and deferred that aspect of the injuries to the counsellors who had previously treated Ms. Pitts.
[33]   His opinion failed to consider that Ms. Pitts required some assistance at work.  He conceded that to be a significant factor.
[34]  Dr. Dommisse noted muscle spasm in the trapezius muscle.  However, in his opinion as to whether the collision caused Ms. Pitts’ disabilities, he did not include any reference to the spasms.  Instead, he referred to Ms. Pitts’ complaints as being subjective.  He did not provide a satisfactory answer as to why such an objective symptom would have been left out of his analysis.
[35]  Dr. Dommisse failed to consider the fact that Ms. Pitts suffers pain and discomfort from some of her work-related activities, particularly heavy lifting.  Those symptoms are brought on without any stress.  That significant omission from his report destroys any reliability that might be attached to his opinion that “it is unlikely that Ms. Pitts’ current disabilities were caused by the accident”.
[36]  Dr. Dommise commented that counselling from Ms. Pitts’ stress and anxiety will likely improve her symptoms.  His evidence did not provide any basis for that opinion to be reliable.  It ignores the reality that counselling has already been provided and there is no suggestion that the treatment was in any way lacking.  I am not satisfied that any further counselling is likely to resolve or further improve Ms. Pitts’ present condition.
In assessing non-pecuniary damages at $60,000 Mr. Justice Dley provided the following reasons:
[47]  It is now four years post-accident.  Ms. Pitts has been diligent in pursuing rehabilitation measures.  Ms. Pitts still has some lingering injuries – they are chronic, but not disabling.  Ms. Pitts can carry on with her everyday life and work, but she has limitations because she must be careful so as not to aggravate her injuries.  She continues to suffer from the post-traumatic stress of the collision.  She has learned coping techniques, but that has not eliminated the disorder.
[48]  Taking into account the injuries sustained and the impact they have had and will continue to have, I assess general damages at $60,000.
As noted this judgement is not reported therefore not publicly available.  As always, I’m happy to provide a copy to anyone who contacts me and requests one.

Plaintiff Entitled to Reasonable Accomodation When Scheduling Defence Medical Exams

While the BC Supreme Court Rules give defendants in personal injury lawsuits the power to, in appropriate circumstances, force a plaintiff to attend an ‘independent’ medical exam, a plaintiff is entitled to reasonable accommodation with respect to the scheduling of these.  Reasons for judgement were recently released by the BC Supreme Court, New Westminster Registry, demonstrating this point.
In the recent case (Welder v. Johnston) the plaintiff sustained injuries in a motor vehicle collision.  In the course of the lawsuit the Defendant sought to have the plaintiff examined by a vocational specialist to address the wage loss aspects of the plaintiff’s claim. The plaintiff agreed to be assessed by the Defendant’s expert but the date selected conflicted with a family reunion the plaintiff planned on attending.  The defendant brought an application to force the date but this was dismissed with the court finding a plaintiff is entitled to reasonable accommodation.  In dismissing the application the Court provided the following comments to defence counsel:

I’m not prepared to order the plaintiff to attend on a date when a family celebration and family reunion has been scheduled since January. I don’t think that being a plaintiff in an action you give up all rights to manage your own schedule, and I think it’s unfortunate that there was an error in your office and the information about his unavailability didn’t come to your attention sooner, but the reality is that based on the affidavit from Mr. Welder, he has a commitment that he’s made since January to be out and unavailable during the period in which this has been scheduled, and I am not prepared to make an order for him to attend in the middle of that period of the family reunion.
The reasons for judgement are not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.

Expert Report Excluded for Tardiness and Credibility Comments

A short but useful analysis was set out in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry, addressing the admissibility of a tardy expert report.
In the recent case (Stanikzai v. Bola) the Plaintiff was injured in a 2007 collision.  In the course of the claim the Defendant served a medical report but did so out of the time required by Rule 11-6(3).  Mr. Justice Smith declined to exercise his discretion to admit the report under Rule 11-7(6) finding that the report “would not be of assistance in any event” noting the expert’s opinion improperly delves into credibility.  Mr. Justice Smith provided the following reasons:

[28] The opinions of Dr. Caillier and Dr. Yu are not contradicted by any other medical opinion. At trial, the defendant sought to enter a medical report from an orthopedic surgeon, Dr. Ponsford, that had not been served within the 84 day notice period required by Rule 11-6(3). I declined to exercise my discretion to shorten the required notice period and admit the report, largely because I found it would not be of assistance in any event.

[29] The essence of Dr. Ponsford’s opinion was that he was unable to provide a firm medical opinion because of what he regarded as inconsistencies and contradictions within the plaintiff’s history. Credibility is, of course, a matter for the court, not the expert witness.

Defence Expert Opinion Rejected for "Compromised Objectivity"

As previously discussed, the law in BC provides expert witnesses with immunity when they provide negligent opinions in the medico-legal context.  This gap in the law is unfortunate and has been done away with in the UK.  Unless BC follows suit, the only meaningful avenue in discouraging “advocate” expert evidence is judicial rebuke.
To this end I have been highlighting judicial criticism when it arises with respect to expert opinion evidence.  Adding to this collection are reasons for judgement released this week by the BC Supreme Court, Vancouver Registry, dismissing an expert’s opinion concluding it would be “unsafe for the Court to put any stock in his opinion“.
In this week’s case (Sooch v. Snell) the Plaintiff was involved in a 2006 collision in Kelowna, BC.   He sustained soft tissue injuries to his neck and shoulder and was awarded $45,000 for his non-pecuniary damages.  In the course of the lawsuit the Defendant had the Plaintiff examined by a retired orthopaedic surgeon.  This doctor testified at trial and provided an opinion that it was “unlikely that there was any direct injury to the cervical spine or shoulder at the time of the injury“.
After cross examination the Court was unimpressed with this experts opinion.  In rejecting this expert’s evidence Madam Justice Ballance provided the following criticism:

54] Dr. Christian retired from his practice as an orthopaedic surgeon in 2005.  Since then, he has focussed his practice on disability evaluation.

[55] Dr. Christian conducted an independent medical examination of Mr. Sooch on March 18, 2010.  He spent between 45 and 55 minutes assessing Mr. Sooch.  He did not keep detailed notes, preferring instead to occasionally jot down a point or two and then dictate his findings and opinion immediately after the examination…

[60] It is obvious on the face of Dr. Christian’s report that in reaching his conclusion on causation, he relied heavily on this misconception as to the timing of Mr. Sooch’s medical appointment on the day of the Accident.  Yet, after he became aware that Mr. Sooch had actually gone to the medical clinic some hours before the Accident had taken place, he denied placing any importance on his mistaken belief.  He insisted that it was not in his “consciousness”, and was of marginal importance, if any, and maintained that knowledge of the true state of affairs would not have changed his opinion one way or another.

[61] The unfolding of Dr. Christian’s cross-examination on that and related matters was uncomfortable to observe.  At times, his demeanour was combative and the entire exchange on the issue of causation called his impartiality into question.  Dr. Christian’s responses to other lines of questioning were also sometimes argumentative and displayed a compromised objectivity.

[62] I am not able to credit Dr. Christian’s assertion that his mistaken impression about the timing of Mr. Sooch’s appointment on the day of the Accident did not impact his opinion on causation.  It plainly did…

[73] Based on the criticisms I have already expressed about the lack of balance in Dr. Christian’s assessment of Mr. Sooch’s pre-Accident soft tissue complaints, and his refusal to concede that his opinion on causation was partially fastened to his misunderstanding about the timing of Mr. Sooch’s medical appointment on the day of the Accident and other troubling aspects of his testimony, I consider it unsafe for the Court to put any stock in his opinion…

Treating Experts, Formal Requirements and a Sensible Use of Discretion

I’ve previously shared my views about the technical requirements of the BC Supreme Court Rules as they relate to expert opinion reports and the fact that Courts should be flexible with these requirements as they relate to treating physicians.  Useful reasons for judgement were released last week dealing with a non-compliant report but ultimately allowing the report to be entered into evidence noting the shortcomings were better addressed by weight, not admissibility.
In last week’s case (Currie v. McKinnon) the Plaintiff was injured in a 2006 rear-end collision.  In the course of trial the Plaintiff introduced a report that failed to comply with the Rules of Court.  In exercising discretion under Rule 11-7(6) to allow the report in despite its non-compliance Madam Justice Adair provided the following short but useful comments:

[39] Dr. Rawson’s report is dated August 1, 2008.  No real attempt had been made to comply with Rule 11-6(1) of the Supreme Court Civil Rules (or even Rule 40A of the former Rules) in relation to the form and content of her report.  The report failed to set out the factual assumptions on which Dr. Rawson’s opinion was based, failed to set out the documents on which she relied in forming her opinion and, generally, failed to set out the reasons for her opinion.

[40] Accordingly, Mr. McKechnie (on behalf of the defendants) objected to the admissibility of Dr. Rawson’s report.  In the result, I ruled that the report would be admitted, and the defects in the report would go to weight.

Multi-Disciplinary Medical Assessment Denied In ICBC UMP Claim

Reasons for judgement were released last week in an ICBC UMP claim dealing with multiple defence medical exams in the context of a serious injury claim.
In last week’s case (G v. ICBC) the Claimant suffered a “severe traumatic brain injury” in a 2008 collision.  The at fault motorist was underinsured and the Claimant applied for payment of damages under his own UMP coverage with ICBC.
In the course of arbitration the Plaintiff agreed to be assessed by five different physicians of ICBC’s choosing.  These included two neuropsychologists, a neurologist, a psychiatrist and a physiatrist.  ICBC then requested a further assessment, specifically a Multi-Disciplinary Fetal Alcohol Syndrome Disorder Assessment over the course of two days.  The Claimant refused resulting in an ICBC application to compel attendance.
The parties agreed to apply the BC Supreme Court Rules in the course of the arbitration (click here to read an article discussing the lack of jurisdiction for an UMP Arbitrator to compel an independent medical exam when the BC Supreme Court Rules are not used).  In dismissing the application Arbitrator Yule canvassed some of the well known authorities considering BC Supreme Court Rule 7-6(1) and (2).  Arbitrator Yule provided the following summary of the applicable legal principles:
49…
1.  An order for a subsequent medical exam is discretionary but the discretion must be excercised judicially;
2.  Independent medical exams are granted to ensure “a reasonable equality between the parties in the preparation of a case for trial”; reasonable equality does not mean that a defendant should be able to match expert for expert or report for report;
3.  A second exam will not be allowed for the purpose of attempting to bolster an earlier opinion of another expert; there must be some question or matter that could not have been dealt with at the earlier examination; and
4.  There is a higher standard required where the Defendant seeks subsequent medical exams.
Arbitrator Yule went on to rule that the playing field was reasonably equal after five ICBC directed medical exams such that a further exam was not warranted.  He specifically pointed out that ICBC’s experts already opined on the issue of pre-existing fetal alcohol disorder without reservation and a further report would simply seek to bolster these opinions.
As of today’s date this judgement is not yet publicly available.  As always, I’m happy to provide a copy to anyone who contacts me and requests one.


The "Shoehorn" Prohibition To Responsive Defence Medical Exam Requests

(Image via wikipedia)
One rule that has perhaps received more attention than other in recent years is Rule 11-6(4) in the context of Responsive Medical Exams.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, further addressing this topic and coining the “shoehorn” prohibition to responsive independent medical exams.
In this weeks’ case (Turnbull v. Tarnohammadi) the Plaintiff was injured in a motor vehicle collision.  In the course of the lawsuit the Plaintiff was assessed by Dr. Salvian who expressed concern that the Plaintiff suffered from Thoracic Outlet Syndrome.  His records were exchanged in the litigation process.  As the expert evidence deadline neared the Plaintiff served a proper expert report setting out Dr. Salvian’s findings.
The Defendant then brought an application for the Plaintiff to attend a physician to obtain a ‘responsive‘ report.  Master Baker dismissed the application noting it should have been brought sooner and parties are not allowed to “shoehorn” a late request for a medical exam into the responsive evidence rule.  In dismissing the application Master Baker provided the following reasons:

[13] Dr. Salvian was consulted and gave a report which became part of the clinical records of the family doctor, Dr. Murphy.  The clinical records, including that report, were made known to the defence long ago.  In fact, Dr. Salvian’s, I will call it report number one, which was dated 2010, was listed in the plaintiff’s list of documents in April of 2011.

[14] In that report it is clear that Dr. Salvian, if he did not very specifically diagnose carpal tunnel syndrome or thoracic outlet syndrome — and I do not decide at this point whether he did or he did not — made it absolutely clear, at least to me, that that was a significant factor in his mind.

[15] On the last page of his report, page 20, he says:

In any event, it is my opinion that the carpal tunnel syndrome and the post-traumatic thoracic outlet syndrome and the soft tissue injury of the neck are directly caused by the flexion extension injury, …

He then talks a little more about spontaneous carpal tunnel syndrome.

[16] I also agree with Mr. Parsons that his latter report does not add significantly to that, not in such a fresh way that would justify surprise on the part of the defence.

[17] That being the case, I take Mr. Parsons at his word, and I agree it would have been perfectly appropriate had at some point before the 84-day deadline the defence requested an IME to deal with Dr. Salvian’s perspectives;  that would have been appropriate.

[18] To wait after that point is to — as I think one authority, perhaps Mr. Justice Macaulay used the phrase — “shoehorn” the opinion into a compacted, truncated chronology, i.e., the 42-day limit for a responsive report, when, in fact, it should have been anticipated well in advance of that and it should have been subject to the same 84-day rule.

[19] Again, nothing in this precludes the defence from delivering a responsive medical report.  It is just as in the Gregorich case, I do not see that it is necessary to do that to direct the independent medical examination.

Clinical Experience and the "Novel Science" Objection to Expert Evidence


One of the recognized objections to the introduction of expert opinion evidence in a personal injury trial relates to the opinion relying on novel or untested scientific theory.  Reasons for judgement were released last week by the BC Court of Appeal addressing this objection and taking a practical view of the benefits of experts providing opinions based on their years of experience in a clinical setting.
In last week’s case (Cassells v. Ladolcetta) the Plaintiff was injured in a 2005 collision.  He suffered from a pre-existing condition, namely psoriatic arthritis.  The Plaintiff presented evidence that this condition was aggravated due to the trauma of the collision.  This evidence was accepted at trial and damages were assessed accordingly.
The Defendant appealed arguing the medical opinion was based on novel science.  The BC Court of Appeal disagreed finding the foundation for an expert opinion can be laid based on clinical experience.  In dismissing the Appeal the Court provide the following reasons:

[13] The defendants challenged reliance on Dr. Gladman’s evidence on essentially the same basis at trial as they do now.  Their contention was and remains that her opinion was based on what they say is novel science: no scientific data established, beyond mere speculation, that her “theory” was valid.  They say that at most the theory is an unproven hypothesis.  They cite the criteria for evaluating the soundness of novel science found in R. v. Mohan, [1994] 2 S.C.R. 9, 89 C.C.C. (3d) 402, as drawn from Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993), and discussed in Taylor v. Liong, 2007 BCSC 231, [2007] 7 W.W.R. 50.

[14] The judge said the criteria pertain to the admissibility of expert evidence.  Admissibility requires the weighing of threshold reliability.  No issue had been taken with the admissibility of Dr. Gladman’s opinion which it was evident is consistent with a widely held belief in the scientific community.  Quoting from R. v. Terceira (1998), 38 O.R. (3d) 175, 123 C.C.C. (3d) 1 (C.A.), aff’d [1999] 3 S.C.R. 866, to the effect the threshold test of reliability must adapt to changing circumstances, the judge said that, in the face of studies that did reflect a wide provisional acceptance of Dr. Gladman’s hypothesis, the lack of a conclusive study should not be fatal to either the admissibility or the weight of her opinion.

[15] Unlike instances where, as in Taylor, the opinion of an expert which is shown to be no more than uncertain theory has been ruled inadmissible, here, as the judge said, Dr. Gladman expressed her opinion on the basis of what she said she had seen in response to trauma among her patients with psoriatic arthritis.  What is said to be the inconclusive literature she referenced was, as the judge said, not the only foundation for the opinion she held.  It was an opinion based on thirty years of her experience.

[16] The judge reached the ultimate conclusion he did concerning the aggravation of the respondent’s psoriasis and psoriatic arthritis relying on the evidence of the various physicians whose opinions he had to consider.  Dr. Gladman’s opinion on the effect of trauma on psoriatic arthritis is consistent with the other opinion evidence which the judge found acceptable, as well as with the evidence of the respondent’s medical condition and, for that matter, the deterioration in his life after the accident.  I do not consider there to be any sound basis on which it can now be said the judge made an overriding and palpable error in concluding the respondent’s psoriasis and psoriatic arthritis were aggravated by trauma and stress attributable to the accident by relying on Dr. Gladman’s opinion.

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If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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