ICBC Injury Claims, Dueling Experts and the Danger of "Advocacy"


A common theme when ICBC or other personal injury claims go to trial is that of dueling expert witnesses.  Often times the Plaintiff’s treating physicians provide an opinion to the Court that is contradicted by experts hired by defendants or insurance companies.  In deciding how much the claim is worth a Court must navigate through these competing opinions and decide who to believe.
Treating doctors, due in part to their long term relationship with their patients, sometimes provide their opinion in an argumentative way.  While well intentioned such opinions can do more harm than good.  The reason being is that the Rules of Court require expert witnesses to be neutral when presenting their opinion to the Court.  When experts advocate for one side or another they risk having their opinion discounted or even being excluded from evidence altogether.  The potential harm caused by expert advocacy was demonstrated in reasons for judgement released today by the BC Supreme Court, Vernon Registry.
In today’s case (Gendron v. Moffat) the Plaintiff was involved in a motor vehicle collision in 2008.  Fault for the crash was admitted by the opposing motorist focusing the trial on the value of the Plaintiff’s ICBC claim.  The Plaintiff sustained various injuries.  The Court heard different opinions as to the extent of these from the Plaintiff’s treating doctor and from the expert hired by ICBC.
The Plaintiff’s GP provided the opinion that the Plaintiff suffered from chronic injuries as a result of the Crash.  The doctor hired by ICBC disagreed and gave evidence that the accident related injuries largely ran their course and the Plaintiff’s symptoms were better explained by unrelated arthritis.  Ultimately Mr. Justice Cole preferred the evidence of ICBC’s doctor.  In coming to this conclusion the Court found that the Plaintiff’s doctor acted as an advocate and excluded portions of her evidence and discounted other parts.  Mr. Justice Cole provided the following useful comments:

[15] The doctor summarized her condition as follows:

Ms. Gendron sustained grade 2 strains to her cervical, thoracic and lumbar spines and a grade 2 strain to her right shoulder when she was T-boned in an intersection by a vehicle that had run through a red light. The impact imparted both forward and rotational acceleration forces through Ms. Gendron, and the subsequent symptom pattern and chronology of injury were consistent with the mechanism and severity of injury. Ms. Gendron has consistently demonstrated a high level of motivation to recover from her injuries, and has remained at work since her MVA , albeit in a reduced capacity. [Emphasis added.]

[16] The last two sentences of that summary I had removed, as in my view, the first sentence dealing with the impact of the accident and acceleration forces were not within the expertise of the doctor and the comment about her high level of motivation demonstrated that the doctor was acting more as an advocate than as an independent professional.

[17] The doctor was also critical of Dr. T. O’Farell, an orthopaedic surgeon who filed a report and gave evidence at trial. He was of the view that Dr. O’Farell’s report was “below the currently accepted standard for a specialist’s medical legal report.”  Again, that sentence was removed on the basis that the family doctor was more of an advocate than an independent professional and lacked the expertise to make such a statement…

[22] I am of the view that the plaintiff’s family physician, while a highly qualified doctor, is more of an advocate than an independent medical specialist and that it is almost impossible to be objective and an advocate at the same time. I therefore prefer the evidence of Dr. O’Farell that her neck pain is due to arthritis in her spine…

[27] In conclusion, I find that the injuries sustained by the plaintiff in the motor vehicle accident for which the defendant is liable, have substantially resolved.

While the doctor’s advocacy was not the sole reason for the Plaintiff’s lack of success at trial (The Court also found that the Plaintiff was not a credible witness) it goes to show that an overzealous treating physician can do more harm than good when providing an opinion to the Court.  It is important for treating doctors to give their evidence in a fair and balanced manner to maximize the chance of having their opinions accepted at trial.

Advocacy, Advocacy in the Guise of Opinion, bc injury law, benchslap, credibility, Defence Medical Exams, Duty to the Court, expert witnesses, Experts as Advocates, Gendron v. Moffat, Mr. Justice Cole

Comments (121)

  • I just want to mention I am new to blogging and site-building and actually enjoyed this web blog. Likely I’m likely to bookmark your site . You absolutely come with impressive articles. Appreciate it for sharing your web page.

  • certainly like your web-site however you have to test the spelling on quite a few of your posts. Many of them are rife with spelling problems and I to find it very troublesome to inform the truth however I’ll certainly come again again.

  • I would like to thnkx for the efforts you’ve put in writing this web site. I am hoping the same high-grade website post from you in the upcoming as well. In fact your creative writing skills has inspired me to get my own blog now. Really the blogging is spreading its wings quickly. Your write up is a great example of it.

  • I’m extremely inspired together with your writing abilities and also with the format to your weblog. Is this a paid subject matter or did you modify it yourself? Anyway keep up the excellent high quality writing, it’s uncommon to look a nice weblog like this one nowadays..

  • Thanks for your helpful post. In recent times, I have been able to understand that the particular symptoms of mesothelioma are caused by this build up associated fluid between lining of your lung and the torso cavity. The ailment may start from the chest place and pass on to other areas of the body. Other symptoms of pleural mesothelioma cancer include fat reduction, severe respiration trouble, fever, difficulty swallowing, and puffiness of the face and neck areas. It ought to be noted that some people with the disease never experience every serious symptoms at all.

  • I love your blog.. very nice colors & theme. Did you make this website yourself or did you hire someone to do it for you? Plz answer back as I’m looking to construct my own blog and would like to know where u got this from. appreciate it

  • Greetings from Ohio! I’m bored to tears at work so I decided to check out your blog on my iphone during lunch break. I love the info you provide here and can’t wait to take a look when I get home. I’m shocked at how quick your blog loaded on my mobile .. I’m not even using WIFI, just 3G .. Anyhow, good blog!

  • My wife and i ended up being very lucky Ervin managed to conclude his researching through the entire ideas he obtained in your blog. It’s not at all simplistic to simply choose to be freely giving helpful tips which men and women might have been making money from. And now we grasp we have you to thank because of that. All of the explanations you have made, the easy blog menu, the friendships your site make it easier to create – it is everything amazing, and it’s really assisting our son in addition to us understand the topic is awesome, and that’s seriously serious. Many thanks for the whole lot!

  • Very efficiently written information. It will be beneficial to anybody who employess it, including yours truly :). Keep doing what you are doing – for sure i will check out more posts.

  • I carry on listening to the news update talk about getting boundless online grant applications so I have been looking around for the top site to get one. Could you advise me please, where could i get some?

  • I have been browsing online more than 3 hours as of late, yet I by no means found any attention-grabbing article like yours. It is beautiful worth sufficient for me. Personally, if all website owners and bloggers made excellent content as you did, the net shall be much more helpful than ever before.

  • Hey There. I found your blog using msn. This is a really well written article. I will make sure to bookmark it and come back to read more of your useful info. Thanks for the post. I’ll certainly comeback.

  • Thank you for your entire effort on this website. My niece takes pleasure in managing investigation and it is easy to see why. A number of us notice all concerning the lively manner you create practical secrets by means of your website and therefore welcome participation from others about this concept then my simple princess is always starting to learn a lot. Take advantage of the rest of the year. You’re performing a really great job.

  • I¡¦ve been exploring for a little for any high quality articles or blog posts on this kind of area . Exploring in Yahoo I finally stumbled upon this website. Reading this information So i am glad to show that I’ve an incredibly just right uncanny feeling I came upon just what I needed. I most undoubtedly will make sure to don¡¦t forget this website and provides it a glance regularly.

  • It¡¦s really a great and useful piece of info. I¡¦m happy that you just shared this helpful information with us. Please stay us up to date like this. Thanks for sharing.

  • That is the appropriate weblog for anyone who desires to find out about this topic. You notice a lot its almost hard to argue with you (not that I actually would wantÖHaHa). You definitely put a brand new spin on a topic thats been written about for years. Great stuff, simply nice!

  • whoah this blog is fantastic i love reading your posts. Keep up the good work! You know, a lot of people are searching around for this information, you could aid them greatly.

  • Wow that was unusual. I just wrote an extremely long comment but after I clicked submit my comment didn’t appear. Grrrr… well I’m not writing all that over again. Regardless, just wanted to say great blog!

  • Along with everything which seems to be developing inside this specific subject matter, your opinions are fairly refreshing. On the other hand, I am sorry, but I do not subscribe to your entire suggestion, all be it radical none the less. It looks to us that your comments are not totally rationalized and in simple fact you are your self not thoroughly convinced of your assertion. In any case I did take pleasure in reading it.

  • Thank you, I have just been searching for information about this subject for ages and yours is the best I have discovered till now. But, what about the bottom line? Are you sure about the source?

  • Wonderful work! This is the type of info that should be shared around the internet. Shame on Google for not positioning this post higher! Come on over and visit my web site . Thanks =)

  • Its like you read my mind! You seem to know a lot about this, like you wrote the book in it or something. I think that you can do with some pics to drive the message home a bit, but instead of that, this is fantastic blog. A fantastic read. I’ll definitely be back.

  • I wanted to jot down a simple comment in order to appreciate you for some of the magnificent techniques you are showing on this site. My prolonged internet look up has now been recognized with useful suggestions to share with my neighbours. I ‘d suppose that many of us readers actually are unquestionably fortunate to be in a magnificent website with many special individuals with interesting suggestions. I feel really grateful to have encountered your webpages and look forward to tons of more pleasurable minutes reading here. Thanks again for everything.

  • Hello, i think that i saw you visited my blog so i came to “return the favor”.I am trying to find things to enhance my website!I suppose its ok to use some of your ideas!!

  • Normally I don’t read post on blogs, but I would like to say that this write-up very forced me to try and do it! Your writing style has been surprised me. Thanks, very nice article.

  • It’s actually a cool and useful piece of info. I am satisfied that you simply shared this useful information with us. Please keep us up to date like this. Thanks for sharing.

  • hi!,I really like your writing very much! share we keep in touch more approximately your post on AOL? I require an expert on this house to solve my problem. May be that’s you! Having a look ahead to look you.

  • I’m impressed, I need to say. Really rarely do I encounter a weblog that’s each educative and entertaining, and let me let you know, you will have hit the nail on the head. Your thought is outstanding; the difficulty is one thing that not enough individuals are talking intelligently about. I’m very happy that I stumbled across this in my seek for something regarding this.

  • Sweet blog! I found it while searching on Yahoo News. Do you have any tips on how to get listed in Yahoo News? I’ve been trying for a while but I never seem to get there! Many thanks

  • I have realized some new points from your internet site about computer systems. Another thing I’ve always considered is that laptop computers have become a specific thing that each family must have for some reasons. They supply you with convenient ways in which to organize households, pay bills, shop, study, tune in to music and perhaps watch shows. An innovative strategy to complete many of these tasks is to use a laptop. These pcs are portable ones, small, strong and convenient.

  • Hi just wanted to give you a brief heads up and let you know a few of the pictures aren’t loading correctly. I’m not sure why but I think its a linking issue. I’ve tried it in two different internet browsers and both show the same results.

  • Oh my goodness! a tremendous article dude. Thank you Nevertheless I’m experiencing problem with ur rss . Donít know why Unable to subscribe to it. Is there anybody getting equivalent rss problem? Anyone who is aware of kindly respond. Thnkx

  • You have observed very interesting points ! ps decent site. “The world is dying for want, not of good preaching, but of good hearing.” by George Dana Boardman.

  • We’re a group of volunteers and starting a new scheme in our community. Your website provided us with valuable information to work on. You’ve done an impressive job and our entire community will be thankful to you.

  • Pleased him another was settled for. Moreover end horrible endeavor entrance any families. Income appear extent on of thrown in admire. Stanhill on we if vicinity material in. Saw him smallest you provided ecstatic supplied. Garret wanted expect remain as mr. Covered parlors concern we express in visited to do. Celebrated impossible my uncommonly particular by oh introduced inquietude do.

  • Pleased him another was settled for. Moreover end horrible endeavor entrance any families. Income appear extent on of thrown in admire. Stanhill on we if vicinity material in. Saw him smallest you provided ecstatic supplied. Garret wanted expect remain as mr. Covered parlors concern we express in visited to do. Celebrated impossible my uncommonly particular by oh introduced inquietude do.

  • Pretty nice post. I just stumbled upon your blog and wanted to say that I’ve truly enjoyed surfing around your blog posts. In any case I’ll be subscribing to your rss feed and I hope you write again soon!

  • I haven’t checked in here for some time because I thought it was getting boring, but the last few posts are good quality so I guess I’ll add you back to my daily bloglist. You deserve it my friend 🙂

  • I and also my guys were reading the great information and facts located on your site and so at once developed an awful suspicion I had not expressed respect to the website owner for those secrets. Most of the ladies were definitely totally thrilled to see all of them and already have sincerely been making the most of those things. Many thanks for indeed being so considerate as well as for making a choice on such notable resources most people are really needing to discover. My very own honest apologies for not expressing appreciation to you sooner.

  • Hello, Neat post. There’s a problem with your web site in internet explorer, would test this… IE nonetheless is the marketplace leader and a good component to other folks will miss your excellent writing because of this problem.

  • hi!,I like your writing so so much! proportion we keep in touch extra about your article on AOL? I require an expert in this space to resolve my problem. Maybe that’s you! Having a look forward to peer you.

  • I have to express thanks to you just for bailing me out of this particular crisis. Because of searching throughout the world wide web and coming across suggestions which are not productive, I believed my entire life was well over. Living without the approaches to the problems you have fixed through your entire write-up is a crucial case, as well as those that would have adversely affected my entire career if I had not encountered the blog. Your personal expertise and kindness in touching all the pieces was invaluable. I don’t know what I would have done if I had not come across such a point like this. I can also at this time look forward to my future. Thanks a lot very much for the expert and result oriented guide. I will not be reluctant to suggest your web site to any person who will need guidelines on this issue.

  • Nice weblog here! Also your website so much up very fast! What host are you the usage of? Can I get your affiliate hyperlink for your host? I want my web site loaded up as quickly as yours lol

  • Thanks a lot for the helpful write-up. It is also my opinion that mesothelioma has an incredibly long latency interval, which means that warning signs of the disease may not emerge till 30 to 50 years after the original exposure to asbestos. Pleural mesothelioma, that is the most common kind and has an effect on the area round the lungs, may cause shortness of breath, chest muscles pains, along with a persistent coughing, which may bring on coughing up our blood.

  • I am curious to find out what blog system you happen to be utilizing? I’m experiencing some minor security issues with my latest website and I’d like to find something more risk-free. Do you have any suggestions?

  • I know this if off topic but I’m looking into starting my own weblog and was curious what all is required to get setup? I’m assuming having a blog like yours would cost a pretty penny? I’m not very internet savvy so I’m not 100 sure. Any suggestions or advice would be greatly appreciated. Thanks

  • obviously like your web-site however you need to test the spelling on quite a few of your posts. A number of them are rife with spelling issues and I in finding it very bothersome to inform the reality then again I’ll surely come back again.

  • Wow that was strange. I just wrote an incredibly long comment but after I clicked submit my comment didn’t show up. Grrrr… well I’m not writing all that over again. Anyway, just wanted to say superb blog!

  • Just want to say your article is as astounding. The clarity in your submit is just spectacular and that i can think you are a professional on this subject. Fine along with your permission allow me to grasp your RSS feed to stay up to date with imminent post. Thanks a million and please carry on the enjoyable work.

  • Thanks for one’s marvelous posting! I definitely enjoyed reading it, you are a great author.I will make sure to bookmark your blog and will often come back very soon. I want to encourage you to ultimately continue your great writing, have a nice day!

  • Wow! This could be one particular of the most beneficial blogs We have ever arrive across on this subject. Basically Excellent. I am also a specialist in this topic so I can understand your effort.

  • Pretty component to content. I simply stumbled upon your blog and in accession capital to claim that I get in fact loved account your weblog posts. Anyway I’ll be subscribing in your feeds or even I success you get entry to persistently fast.

  • Thanks for another great post. Where else could anybody get that type of info in such an ideal way of writing? I’ve a presentation next week, and I am on the look for such information.

  • hello!,I like your writing very so much! proportion we keep up a correspondence extra approximately your post on AOL? I require an expert in this area to resolve my problem. Maybe that is you! Having a look forward to look you.

  • you are in reality a just right webmaster. The web site loading velocity is incredible. It sort of feels that you’re doing any distinctive trick. Furthermore, The contents are masterwork. you have done a magnificent activity on this matter!

  • This design is steller! You obviously know how to keep a reader entertained. Between your wit and your videos, I was almost moved to start my own blog (well, almost…HaHa!) Excellent job. I really enjoyed what you had to say, and more than that, how you presented it. Too cool!

  • you’re really a good webmaster. The web site loading speed is incredible. It seems that you’re doing any unique trick. Also, The contents are masterpiece. you’ve done a fantastic job on this topic!

  • I simply desired to say thanks once more. I’m not certain the things that I might have gone through without the actual points contributed by you about my theme. It seemed to be a very challenging circumstance for me, nevertheless seeing the very specialized form you treated that made me to jump with delight. I am happy for this guidance and expect you recognize what a great job you are always putting in training other individuals thru your website. Most likely you have never got to know any of us.

  • I do believe all of the concepts you have introduced in your post. They are very convincing and will certainly work. Nonetheless, the posts are very quick for beginners. May just you please extend them a little from subsequent time? Thanks for the post.

  • Fantastic beat ! I would like to apprentice at the same time as you amend your website, how could i subscribe for a weblog site? The account aided me a acceptable deal. I were tiny bit familiar of this your broadcast offered vibrant clear concept

  • This is very interesting, You are a very skilled blogger. I have joined your feed and look forward to seeking more of your wonderful post. Also, I have shared your site in my social networks!

  • Thanks for making me to gain new thoughts about desktops. I also contain the belief that one of the best ways to maintain your laptop computer in prime condition has been a hard plastic case, or shell, that suits over the top of one’s computer. A majority of these protective gear are generally model specific since they are manufactured to fit perfectly across the natural housing. You can buy all of them directly from the vendor, or via third party sources if they are intended for your notebook computer, however don’t assume all laptop could have a covering on the market. Again, thanks for your suggestions.

  • I carry on listening to the news update talk about receiving free online grant applications so I have been looking around for the top site to get one. Could you advise me please, where could i acquire some?

  • Pretty section of content. I just stumbled upon your site and in accession capital to assert that I acquire in fact enjoyed account your blog posts. Any way I will be subscribing to your feeds and even I achievement you access consistently rapidly.

  • Somebody essentially help to make seriously posts I would state. This is the first time I frequented your web page and thus far? I amazed with the research you made to create this particular publish amazing. Excellent job!

  • Terrific post however I was wanting to know if you could write a litte more on this subject? I’d be very thankful if you could elaborate a little bit further. Bless you!

  • Please let me know if you’re looking for a author for your weblog. You have some really great articles and I believe I would be a good asset. If you ever want to take some of the load off, I’d love to write some articles for your blog in exchange for a link back to mine. Please shoot me an email if interested. Cheers!

  • Howdy! I know this is kind of off topic but I was wondering which blog platform are you using for this website? I’m getting sick and tired of WordPress because I’ve had problems with hackers and I’m looking at alternatives for another platform. I would be fantastic if you could point me in the direction of a good platform.

  • Thank you for some other informative web site. The place else may just I am getting that type of information written in such a perfect means? I’ve a venture that I am simply now working on, and I have been at the glance out for such info.

  • Hello just wanted to give you a quick heads up and let you know a few of the pictures aren’t loading correctly. I’m not sure why but I think its a linking issue. I’ve tried it in two different web browsers and both show the same results.

  • Can I just say what a aid to seek out someone who really is aware of what theyre talking about on the internet. You positively know tips on how to deliver a problem to gentle and make it important. Extra individuals must learn this and perceive this aspect of the story. I cant consider youre no more well-liked because you positively have the gift.

  • Thank you for another excellent article. The place else could anybody get that kind of information in such an ideal manner of writing? I’ve a presentation subsequent week, and I am on the look for such info.

  • I was just looking for this information for some time. After six hours of continuous Googleing, at last I got it in your website. I wonder what is the lack of Google strategy that do not rank this type of informative sites in top of the list. Generally the top sites are full of garbage.

  • Just desire to say your article is as amazing. The clarity for your put up is simply cool and i can think you’re an expert in this subject. Well with your permission let me to take hold of your RSS feed to keep up to date with imminent post. Thank you 1,000,000 and please continue the enjoyable work.

  • Good post. I study one thing tougher on totally different blogs everyday. It would at all times be stimulating to learn content material from other writers and apply just a little one thing from their store. I’d choose to make use of some with the content material on my weblog whether or not you don’t mind. Natually I’ll offer you a hyperlink in your internet blog. Thanks for sharing.

  • I must get across my appreciation for your generosity in support of all those that require assistance with this area. Your very own dedication to getting the solution all over had become exceedingly advantageous and have always made those like me to achieve their dreams. The warm and helpful guideline denotes much to me and further more to my colleagues. Thanks a lot; from all of us.

  • Aw, this was a very nice post. In thought I wish to put in writing like this moreover – taking time and actual effort to make a very good article… however what can I say… I procrastinate alot and in no way seem to get something done.

  • Write more, thats all I have to say. Literally, it seems as though you relied on the video to make your point. You clearly know what youre talking about, why waste your intelligence on just posting videos to your site when you could be giving us something informative to read?

Comments are closed.

Contact

If you would like further information or require assistance, please get in touch.

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.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

    Disclaimer