Show Your Work! – Medical Opinion Rejected For Failing to Outline Supporting Reasons


Remember grade school math problems?  You needed to not just give your teacher the answer but also show your work.  The conclusion without the supporting paper-trail wouldn’t pass muster in Grade 5.   The same is true with medical opinions in BC injury trials.  It is not enough for a doctor to relate injuries to a collision, the physician must explain the factual basis underlying their opinion.  Failure to do so can result in a Court placing little weight on a physicians opinions.  This was demonstrated in reasons for judgement released recently by the BC Supreme Court.
In the recent case (Perry v. Vargas) the Plaintiff was involved in a 2006 collision.  She sued for damages claiming long-standing injuries with disabling consequences.  The Court accepted the Plaintiff was indeed injured but disagreed with the Plaintiff’s assertion of long-standing disability being related to the crash.
In the course of the trial the Plaintiff introduced evidence from her treating physician supporting her position.  The Court struggled in giving “much weight” to the physician’s opinion, however, noting that the physician provided “no insight into the reasons for (her) conclusion“.  In addressing the lack of reasoning underlying the opinion Mr. Justice Savage provided the following criticism:
[56]         I find it difficult to give much weight to Dr. Tesiorowski’s opinion with respect to causation. Most of the report appears to simply reiterate what she has been told by others. She was not in fact treating Ms. Perry for the complaints until the passing of Dr. Condon. She only did one physical examination. In the report she does not address any of the intervening events.
[57]         In my opinion there is another more fundamental problem with Dr. Tesiorowski’s report. There is no reasoning linking the current complaints with the December 4, 2006 Accident. That is, she states a conclusion as quoted above but provides no insight into the reasons for that conclusion. I examine this matter in greater detail below…
[122]     The report of Dr. Tesiorowski has another important failing. It refers to a history gained from Ms. Perry and others and then simply states a conclusion. To be useful an opinion must be more than a conclusory assertion on causation. In Montreal Light, Heat & Power Co. v. Quebec (Attorney-General) (1908), 41 S.C.R. 116 at 132, Idington J. said “I refuse to accept unless absolutely necessary the mere ipse dixit of any expert when presented for my acceptance merely as an act of faith, and without the aid of such reasons as his reasoning power, or means of, and result of the use of means of, observations may have developed”.
[123]     The same kind of concern is noted by Binnie J., speaking for the court in R. v. J.-L.J., 2000 SCC 51 at para. 56, [2000] 2 S.C.R. 600. The opinion must assist the trier of fact to form an independent conclusion by “an act of informed judgment, not an act of faith”:
56          In Mohan , Sopinka J. held that the expert evidence in question had to be more than merely helpful. He required that the expert opinion be necessary “in the sense that it provide information, which is likely to be outside the experience and knowledge of a judge or jury, … the evidence must be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature” (p. 23). In Béland , supra , McIntyre J., speaking about the inadmissibility of a polygraph test, cited at p. 415 Davie v. Edinburgh Magistrates, [1953] S.C. 34 (Scotland Ct. Sess.) , at p. 40, on the role of expert witnesses where Lord Cooper said:
Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. [Emphasis added.]
The purpose of expert evidence is thus to assist the trier of fact by providing special knowledge that the ordinary person would not know. Its purpose is not to substitute the expert for the trier of fact. What is asked of the trier of fact is an act of informed judgment, not an act of faith.
[124]     As there is no reasoning linking the facts referenced in the medical report with the conclusory assertion on causation, I am unable to form an independent conclusion from this opinion. To accept the opinion would simply be a leap of faith, applying the logical fallacy of ipse dixit, in this context, “because she said it”.
[125]     For all of these reasons Dr. Tesiorowski’s opinion is of little assistance to the court.

bc injury law, Mr. Justice Savage, opinion evidence, Perry v. Vargas, Rule 11, Rule 11-6, Rule 11-6(1), Rule 11-6(1)(f)

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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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