Defence Doctor Opinion Rejected Where Plaintiff Not Examined and Diagnosis “Inferred”

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for collision related injuries and rejecting defence expert medical evidence.

In today’s case (Mladjo v. Etheridge) the Plaintiff was involved in a 2016 collision.  Fault was admitted by the Defendant.  The crash cause chronic soft tissue injuries and damages were assessed on this basis.

In the course of trial the Defendant introduced evidence from a doctor they hired that “did not examine” the Plaintiff.  This doctor provided an opinion that the Plaintiff “ has fully recovered from the soft tissue injuries she suffered in the Accident and that any ongoing pain she has relates to her degenerative conditions and is not Accident related.”  The doctor “inferred” that the Plaintiff had degenerative changes.  In rejecting this opinion Madam Justice Francis provided the following reasons:

[53]        Dr. Tansey is an orthopedic surgeon who was qualified at trial as an expert in orthopedics. His practice consists of evaluating patients with muscular skeletal injuries. He has a specialization in lower limb injuries, specifically knees, feet and ankles.

[54]        Dr. Tansey did not examine Ms. Mladjo personally and his report and testimony were based on a review of the expert reports of Dr. Hou, Dr. Jung and a third medical report by a Dr. Hirsch that was not put into evidence by either party.

[55]        Dr. Tansey opined that Ms. Mladjo sustained soft tissue injuries consistent with myofascial strain in her neck, her back, her knees, her right ankle and her right hand but that she had made a full recovery from the injuries to her right hand, right ankle and left knee. He opined that Ms. Mladjo has degenerative disease in her right knee and her spine which pre-existed the Accident and to which Ms. Mladjo’s ongoing pain can be attributed. On the whole, his opinion was that Ms. Mladjo has fully recovered from the soft tissue injuries she suffered in the Accident and that any ongoing pain she has relates to her degenerative conditions and is not Accident related.

[56]        Dr. Tansey’s opinions, and particularly his critique of Dr. Jung’s conclusions, were grounded in what he called an absence of objective evidence for the primary conclusion reached by Dr. Jung, namely that Ms. Mladjo continued to suffer from Accident related impairments for which she requires treatment. Specifically, he noted that there were no scans or other physical tests to support Dr. Jung’s conclusions about injury to the facet joints, the costovertebral joints or the sacroiliac joints. In the absence of such objective evidence, Dr. Tansey questions whether Ms. Mladjo continues to have any ongoing injury related to the Accident.

[57]        Dr. Tansey’s explanation for Ms. Mladjo’s ongoing neck pain is his hypothesis that she suffers from degenerative disease of the spine. While his conclusion that Ms. Mladjo suffers from degenerative knee pain was grounded in the fact that pre-Accident x-ray reports show degenerative osteoarthritis in her knee, no such scans were reviewed by Dr. Tansey with respect to the neck. On cross-examination, Dr. Tansey stated that he inferred that Ms. Mladjo had degenerative disease of the spine causing her neck pain based on his experience dealing with patients of her age, and that degeneration of the spine is a normal part of aging. It gives me pause with respect to the reliability of Dr. Tansey’s opinion that, on the one hand, he disputes those diagnoses posited by Dr. Hou and Dr. Jung that are based on Ms. Mladjo’s self reporting and their physical examination of her because they lack the necessary objective evidence, and on the other hand he is prepared to make a diagnosis of degenerative disease in Ms. Mladjo’s neck based only on a general view of what is common in patients her age.

[58]        I find that Dr. Tansey’s focus on objective evidence fails to recognize the reality of the ongoing pain suffered by Ms. Mladjo. In fairness to Dr. Tansey, this is not his area of expertise. On cross-examination he was asked whether he thought Ms. Mladjo was lying or exaggerating about her symptoms. He denied this and said that his job was limited to looking for objective evidence of an ongoing problem related to an injury. He stated that “the whole field of pain is a separate minefield.” His response was candid and suggests the limits of what he was able to opine on as an orthopedic specialist with no special training in chronic pain.

Advocacy in the Guise of Opinion, bc injury law, Madam Justice Francis, Mladjo v. Etheridge

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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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