Should the Rules of Court Be Flexible for Treating Physicians?
(The Below article was first published yesterday at Slaw)
There are two types of expert medical witnesses in personal injury cases; treating physicians and ‘professional‘ witnesses. I don’t note this with any criticism of the latter category but simply point out that often doctors are brought to Court (by both Plaintiffs and Defendants) to act as independent medical experts to provide opinion evidence. These professional witnesses often have no role in treating an injured plaintiff.
The BC Supreme Court Rules have strict requirements for expert opinion evidence. These Rules are applied with equal rigour to both categories of experts. ‘Professional‘ witnesses often have little difficulty producing reports which comply with the strict requirements of Rule 11-6. Treating physicians, on the other hand, often have crucial evidence to share and their opinions are highly valued but they sometimes struggle with the technical requirements of the rules of court.
Treating physicians often want little to do with the Court and have little experience with the nuances of writing reports that meet the rules of evidence. When asked to author medico-legal reports many are reluctant to do so in the first place and when they do the reports are not slick, polished or necessarily compliant with all of Rule 11’s requirements.
This lack of compliance can risk treating experts’ reports being excluded from evidence. While the Rules of Court provide judges with discretion to allow expert evidence to be admitted even if technically non-compliant with the Rules of Court “if the interests of justice require it“, this threshold often will not be met by explanation of witness inexperience with the Rules of Court.
New York personal injury lawyer Eric Turkewitz raised the following concern in response to judicial scrutiny of treating doctor reports in his jurisdiction:
New York’s No-Fault law is out of control. It seems to have reached the point where judges are almost demanding one of two things from injured patients: That their doctors get legal tutoring on how to write reports that will satisfy the judiciary, or alternatively, that injured patients seek treatment from only those doctors that already know how to write medical-legal reports.
As was illustrated in the recent BC decision of Milliken v. Rowe, a treating expert is perhaps the most desirable witness for a trier of fact to hear from when it comes to addressing a Plaintiff’s injuries. Appreciating this, can a balance be struck holding these experts to a more flexible standard when providing a Court with opinion evidence? Should the Rules be amended to create different standards for treating doctors versus professional witnesses? Thoughts and feedback are appreciated.