Clinical Records Undermine Personal Injury Claim at Trial

I have previously discussed the use of clinical records in a personal injury trial and some limits of their use.  Despite these limits, clinical records can be used to undermine a personal injury claim in appropriate circumstances.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In this week’s case (Lees v. Compton) the Plaintiff was injured in a 2008 collision.  At trial the Court accepted she was injured however concluded that “the injuries…did not impact on er life to the extent that she has claimed“.  In reaching this conclusion the Court relied heavily on admissions made in various clinical records.  Mr. Justice Goepel provided the following reasons:
[68]         The more difficult question is the impact that these injuries have had on the plaintiff’s life.  The plaintiff suggests that the injuries have had a significant impact on her life.  She says she has been forced to give up sports and is no longer capable of holding down a part-time job.  The plaintiff does acknowledge that her long time goal of being a university professor remains intact but submits that her injuries will in the future likely impact on her ability to fulfill the functions of that employment.
[69]         The excerpts in the clinical records suggest that the plaintiff’s limitations are not as great as she claims.  The records clearly put in question certain of the plaintiff’s evidence and raise issues as to her credibility.  The records indicate that the plaintiff has misled the Court with respect to playing field hockey subsequent to the accident, running subsequent to the accident, and the impact of the accident on her study habits…
[73]         In the course of the trial the plaintiff admitted that the physiotherapy notes were business records and admissible pursuant to s. 42 of the Evidence Act.  By definition, that means the document was made in the usual and ordinary course of business and it was in the usual and ordinary course of the business to record in that document a statement of the fact at the time it occurred or within a reasonable time thereafter.  The notes record information that would be of importance to a physiotherapist in formulating an appropriate treatment plan. It is not the type of note which one would expect would be wrongfully recorded.
[74]         While I acknowledge the comments of N. Smith J. in Edmundson that clinical records must be viewed with caution, in this case there are eight separate notes that are in issue.  With regard to each note, the plaintiff claims the physiotherapist is wrong and she never gave the information in question because the information sets out activities in which she did not participate and indeed could not participate because of her injuries.
[75]         On the evidence before me I cannot disregard the physiotherapist’s notes.  While it is possible that a clinical note may be in error it is highly improbable that there would be eight such errors. There is also little evidence that contradicts the notes. As noted earlier, other than Ms. Welch, the plaintiff did not call any of her contemporaries as witnesses and Ms. Welsh’s evidence was limited to her experience on one field hockey team. 
[76]         I find that the plaintiff made the statements to the physiotherapist that are recorded in the clinical notes. Those statements raise significant questions concerning the plaintiff’s credibility.  Her evidence must be viewed with great caution…
[83]         I find the plaintiff was injured in the accident.  As a result of the accident, she suffered soft tissue injuries which continued to cause her some difficulties.  The injuries, however, did not impact on her life to the extent that she has claimed.

bc injury law, clinical records at trial, Lees v. Compton, Mr. Justice Goepel

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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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