ICBC Expert Witness Rejected for “Tailoring His Evidence” For the Insurer

Reasons for judgment were published today by the BC Supreme Court, New Westminster Registry, rejecting and outright criticizing the opinion of an expert physician who routinely is hired by ICBC for defence medical exams.

In today’s case (Moges v. Sanderson) the Plaintiff suffered injuries in three collisions.  The defendants accepted fault for the crashes.  The Plaintiff suffered a variety of physical and psychological injuries as a result.  In the course of the lawsuit ICBC obtained a medico-legal report from a psychiatrist they routinely hire who provided opinion evidence minimizing the connection between any psychological consequences and the collisions.  In rejecting this opinion evidence as being tailored to the defence and evidencing bias Madam Justice Shergill provided the following criticism:

[85]         Dr. Solomons is a psychiatrist retained by the defence. He was qualified as an expert in psychiatry. Dr. Solomons provided a report dated July 30, 2019, based on his assessment of the plaintiff on June 26, 2019. He was the only expert retained by the defendants to provide an expert opinion in this trial. His opinion is directly at odds with that of the plaintiff’s experts and was proffered to refute the plaintiff’s contention that he is suffering from psychiatric injuries.  

[86]         Dr. Solomons’ opinion is summarized as follows:

a)    Mr. Moges did not sustain a head injury or MTBI as a result of any of the accidents.

b)    Mr. Moges did not suffer from Adjustment Disorder (AD), Major Depressive Disorder (MDD), or posttraumatic stress disorder, or any other psychiatric disorders, as a result of any of the MVCs.  

c)     There is no psychiatric explanation for Mr. Moges’ physical pain.

d)    Pain is a subjective symptom and there is no documentation of physical or investigational findings that correspond with Mr. Moges’ reports of pain.

[87]         Dr. Solomons concludes that Mr. Moges does not require any psychiatric treatment, and that “his current psychiatric treatment is clinically inappropriate, unnecessary and is a potential cause of iatrogenic harm by means of causing possible side effects without any expectation of benefit”.

[88]         Dr. Solomons opines that the major stressor in the plaintiff’s life is his limited finances, the solution for which is an immediate return to the work force. According to Dr. Solomons, Mr. Moges could have returned to work “soon after the first accident”, and that the “most helpful intervention for him would have been encouragement to return to work”.

[89]         In support of his conclusions, Dr. Solomons refers to his in person assessment of Mr. Moges, the history provided by the plaintiff during the assessment, and his review of the available clinical information.

[90]         Dr. Solomons notes in his MLR that during his mental status examination, Mr. Moges was: stylishly groomed; alert and engaged; fully focussed and attentive; had a particularly pleasant and engaging interpersonal manner; displayed an appropriately reactive mood; and sat comfortably through the interview with no signs of discomfort, pain or pain behaviours. Dr. Solomons opined that Mr. Moges’ thought faculties were intact, and he did not display any sign of memory, speech or communication difficulties.

[91]         Regarding the clinical information on file, Dr. Solomons acknowledged that a number of treating psychiatrists had diagnosed and treated Mr. Moges for adjustment disorder; MDD; and PTSD. However, he criticized their opinions as lacking in sound methodology or proper factual foundation.

[92]         It is difficult to reconcile Dr. Solomons’ conclusion that the plaintiff is not suffering from any psychiatric disorder, with his acknowledgement in his MLR and at trial that Mr. Moges may well have been suffering from MDD in December 2016, when he was reassessed by Dr. Chan. Dr. Solomons was not able to satisfactorily explain his failure to account for this discrepancy. When pressed in cross-examination, he finally conceded that his opinion as articulated in paragraph 35 of his MLR, should be modified to read as follows: “…it is my opinion that the September 2014 accident and subsequent accidents did not result in any psychiatric disorder, impairment or disability but for the time when Dr. Chan diagnosed Mr. Moges with MDD” [italicized portion added].

[93]         I can find no reasonable explanation for Dr. Solomons’ failure to fairly set out his opinion at the outset, except to conclude that he was tailoring his evidence to meet the position of his client on who he relies for the bulk of his work. In January 2018, Dr. Solomons closed his clinical practice for new referrals. Save for a handful of patients, his practice is almost exclusively restricted to preparing medical legal reports for the defence.

[94]         Dr. Solomons’ conclusion that there is no documentation of objective findings to substantiate Mr. Moges’ physical and psychological complaints also goes contrary to the evidence in this trial. As noted elsewhere, there are a number of entries in the medical records noting objective findings for both the physical and psychological injuries.

[95]         I note also Dr. Solomons’ dismissal of the importance of the Patient Health Questionnaire 9 (PHQ-9). Dr. Anderson explained that the PHQ-9 is an important screening tool for depression, and is the most commonly used rating scale for monitoring MDD symptoms. It is a self-administered questionnaire which scores each of the nine DSM-V criteria used to assess depression. Dr. Solomons criticized reliance on the plaintiff’s PHQ-9 scores by the plaintiff’s experts and health care providers, testifying that diagnosing a depressive disorder required more than “just ticking the boxes” or adding up scores on a questionnaire. I note first that there is no evidence to suggest that the plaintiff’s experts have approached the diagnosis of MDD in this manner. Second, I find Dr. Solomons’ criticism of the PHQ-9 odd, in light of his concession under cross-examination that there are questions from the PHQ-9 that would be useful to help determine whether the plaintiff had MDD.

[96]         Having regard to all of the evidence in this case, I reject Dr. Solomons’ opinion regarding Mr. Moges’ psychiatric condition as it relates to the MVCs, and have placed no weight on his conclusions. In my view, his psychiatric opinion is not well founded in fact or methodology, contrary to the evidence at trial, and evidenced bias.

Advocacy in the Guise of Opinion, bc injury law, Madam Justice Shergill, Moges v. Sanderson

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ERIK
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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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