Medico-Legal Expert Criticized for Destroying Digital Recording of IME Before Trial

Reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, criticizing an expert for destroying digitally recorded observations made during an independent medical assessment.
In today’s case (Birkich v. Canatio) the Plaintiff, involved in a  personal injury prosecution, was examined by a physiatrist who authored a report for trial.  Prior to testifying the physician destroyed digitally recorded observations of the examination.  The Defense objected to the report from being admitted but the Court reluctantly allowed the report into evidence based on the fact that the physician explained the report accurately transcribed what was digitally recorded.  In criticizing this practice Mr. Justice Betton provided the following reasons:

[10]         Given the evidence that I do have on this voir dire, specifically from Dr. Apel, that this is a verbatim transcription (with only the editing that I have described) of what was on the now destroyed digital recording, I am not inclined to grant the defence application to not allow the report. Whether, and to what extent, the examination of Dr. Apel will affect my ultimate conclusion about the weight of her opinions is yet to be determined, but I do not want there to be any illusion that this in any way endorses the practice that Dr. Apel undertook in this case or, from her evidence, what has gone on for some 20 years. It is wrong, it is not in compliance with theRules, it is not to be endorsed, and this decision should not in any way be seen as endorsing that.

[11]         I am going to direct as part of my order here that, at the plaintiff’s expense, a transcript of my decision on this voir dire be prepared and a copy of it be provided to Dr. Apel. To the extent issues of this nature might arise in the future, in respect of Dr. Apel at least, this decision may be brought to the attention of a court dealing with issues on those occasions such that it would be considered in any decision that might be made about future reports. If there is, not that I think that there should be, but if there is any misapprehension or confusion among the bar about the nature of instruction letters and what experts should be informed of, I would hope that this decision might, in some measure, resolve that because it is simply unacceptable. It is an easy process in this digital age for that information to be retained, it is abundantly clear from the Rules what the intention is, and to be faced with these sort of issues, in my view, is something that simply should not be occurring.

Birkich v. Canatio, Mr. Justice Betton, Spoliation

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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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