“Hurried” Opinion That Chronic Pain Will “Inevitably Resolve” Rejected By Court

Adding to this site’s archives of judgements criticizing or rejecting expert opinion evidence reasons were published today by the BC Supreme Court dismissing the opinion of a defence retained orthopaedic surgeon commenting on chronic pain.

In today’s case (Adams v. Rhys-Williams) the Plaintiff was injured in a 2014 collision.  The Defendants admitted liability.  The crash resulted in injuries to the plaintiff which developed into myofascial pain and a chronic pain disorder.

In the course of the lawsuit the defendants retained a partially retired orthopaedic surgeon from Ontario who conducted an independent medical exam.  That surgeon opined that the Plaintiff’s injuries were not disabling and ought to “inevitably resolve“.  The Court rejected this opinion as being “hurried and more of an attempt to summarily dismiss the injuries claimed“.  In rejecting the evidence Mr. Justice Jenkins provided the following reasons:

[77]       Under cross-examination, Dr. Robert testified that in the case of soft tissue injuries, pain will inevitably resolve.

[78]       Ms. Adams testified that the independent medical exam lasted less than 30 minutes and other than two or three questions, Dr. Robert took no other history from her and a minimal physical exam, including poking her back and checking her knee reflex…

[81]       I agree with the opinions expressed by Saunders J. As judges of this court, we regularly deal with motor vehicle actions in which the plaintiff claims to have suffered soft tissue injuries, which have caused the plaintiff considerable pain for periods of between three to six months and, as a result, that the pain is deemed by experts, usually physiatrists, to result in chronic pain. Chronic pain by definition does not pass after a number of months, it lingers, sometimes intensifies and sometimes recedes over many months and years, possibly for life. For Dr. Robert to opine that the soft tissue injuries will “inevitably resolve” with the process of healing, flies in the face of hundreds of decisions of this court to the contrary.

[82]       Considering Dr. Robert’s specialty as an orthopaedic surgeon, his opinions should not be preferred over that of a physiatrist such as Dr. Finlayson, who specifically and regularly deals with the management of chronic pain.

[83]       I have considered the report and testimony of Dr. Robert carefully. I conclude, based upon his very cursory report in which he fails to explain how he has come to the conclusion that Ms. Adams has no ongoing disability and his limited assessment of Ms. Adams, that his opinions appear to have been hurried and more of an attempt to summarily dismiss the injuries claimed by Ms. Adams. As well, Dr. Robert’s opinions are contradictory to those of the other defence expert, Ms. Thompson, whose evidence I summarize below. These findings add weight to the conclusions of Dr. Finlayson in particular.

Adams v. Rhys-Williams, Advocacy in the Guise of Opinion, bc injury law, Mr. Justice Jenkins

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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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