“No Weight” Placed on Opinion of ICBC Medical Expert in Injury Case

In the latest example of a pattern that is all too common in injury litigation, reasons for judgment were published this week by the BC Supreme Court, Vancouver Registry, rejecting and placing “no weight” on the medical evidence of an expert retained by a Defendant’s insurer.

In today’s case (Sharma v. Chui) the Plaintiff was involved in a 2012 crash that the Defendant accepted liability for.  The Plaintiff suffered chronic soft tissue injuries as a consequence of the crash which were partially impairing in her functioning.  In the course of the lawsuit ICBC, the defendant’s insurer, retained an orthopaedic surgeon who provided an opinion minimizing the Plaintiff’s injuries and the likelihood of the injuries persisting into the future.  In rejecting this opinion and placing ‘no weight‘ on it Madam Justice Sharma provided the following critical comments:

[46]         I place no weight on Dr. Boyle’s report for a number of reasons.

[47]         The plaintiff submits she suffered soft-tissue injuries resulting in chronic pain. Dr. Boyle has no expertise with regard to pain conditions. His expertise is orthopedic surgery, which was not at issue in this case.

[48]         Even if his area of expertise was relevant, his experience is dated. He ceased being a clinical instructor 30 years ago, he has not been an active clinician for at least 10 years and none of the publications listed in his CV were peer-reviewed, or addressed issues of pain.

[49]         In his report, his opinions are stated as conclusions with virtually no explanation for how he arrived at those conclusions.

[50]         Furthermore, the plaintiff’s cross-examination of Dr. Boyle was successful in adducing Dr. Boyle’s agreement with propositions directly at odds with the conclusions in his written report. He opined in his report that it is more likely than not that the plaintiff would “undergo complete resolution of the symptoms attributable to a soft tissue injury.” Further, he opined that even if pain persisted, there was less than a 50% chance it would be intrusive.

[51]         Yet, he agreed with a number of propositions (some of which came from his own evidence in other cases) that were directly at odds with those conclusions, including:

  1. Most patients who are symptomatic after three months remain so indefinitely;
  2. Pain perception and perpetuation is a complex process involving multiple areas of the brain and spinal cord;
  3. People can experience pain in the absence of fractured bones, torn ligaments or crushed joint capsules;
  4. Minor injuries can give rise to significant or sever chronic pain that may be resistant to recovery; and,
  5. Pain that becomes chronic is maladaptive and can detrimentally affect a person’s functionality.

[52]         Despite all of these factors he refused to resile or qualify his prognosis of the plaintiff. One of the hallmarks of an expert’s independence and impartiality is the ability to agree with reasonable propositions, sometimes hypothetical, that would alter their opinion, perhaps with qualifications.

[53]         Instead, Dr. Boyle simply could not reconcile his conclusionary opinions about the plaintiff’s prognosis with medical principles put to him, with which he agreed. For all the preceding reasons, I place no weight on Dr. Boyle’s report, or opinions expressed therein.

Advocacy in the Guise of Opinion, bc injury law, Madam Justice Sharma, Sharma v. Chui

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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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