Tag: clinical records at trial

"En Masse" Document Book and Discovery Transcript Admission Leads to New Trial Following Jury Verdict

Reasons for judgement were released today by the BC Court of Appeal ordering a new trial after a document book was admitted ‘en masse’ along with a discovery transcript in a personal injury  jury trial.
In today’s case (Han v. Park) the Plaintiff was injured in a 1999 collision that the Defendant admitted fault for.  The litigation had a “somewhat tortured history” finally coming to trial in October 2013.  The Plaintiff was awarded only a fraction of the damages she sought.  The Court of Appeal ordered a new trial finding it was inappropriate to give the jury access to a defence document book without careful limitations as to the use of the various documents contained therein and also for having access to a discovery transcript.  In criticizing these steps the Court of Appeal provided the following reasons:

[31]         This Court has held that medical records should not be entered en masse: Samuel v. Chrysler Credit Canada Ltd., 2007 BCCA 431:

[39]      The preferable approach is obvious. Clinical records should not be admitted into evidence, by consent or otherwise, unless counsel identify the specific purpose for particular portions of the records. Furthermore, it would be preferable to introduce discrete portions of the records when they become relevant so that their admissibility can be ruled on at that time, when the jury will better appreciate the purpose of those portions in the context of the case and will have the assistance of a contemporaneous limiting instruction. In no event should a “book” of documents simply be handed up to the court and admitted as a whole.

[Emphasis added.]

[32]         I would not restrict this comment to medical records. Further, the fact that an appellant may have consented to the admission of the records is not always the determinative factor in deciding whether documents should have been entered into evidence, and will not preclude the ordering of a new trial with costs to the appellant after prejudicial clinical records were entered into evidence: Owimar v. Greater Vancouver Transit Authority, 2007 BCCA 630, citing Samuel.

[33]         In Owimar the court held that a new trial was required where the admission of certain psychiatric records without a proper limiting instruction resulted in an unfair trial:

[41]      In my opinion, the admission of the psychiatric records in this case rendered the trial unfair. The records were left with the jury at the second day of trial. The limiting instruction as to opinions expressed in the records was given shortly before the jury retired to consider its verdict. In the meantime, there were many statements contained in the records that portrayed the plaintiff as unstable and out of touch with reality. Those statements might easily have been accepted by the jury as further diminishing the plaintiff’s credibility. Although there is no doubt that the plaintiff’s credibility was a central issue in the case and he had much to do to convince the jury of his truthfulness, that issue deserved to be proved independent from psychiatric evidence that had no bearing on the physical injuries he claimed to have suffered. I would accordingly order a new trial.

[34]         I agree with the appellant that like Owimar, the inclusion of some of the clinical records and material contained in the Exhibit had the effect of portraying the appellant as a difficult, manipulating, and stubborn individual. As appellant’s counsel states, this portrayal shifted the focus of the jury to the appellant’s negative character traits, rather than to the main issues of the trial.

[35]         The respondents’ trial counsel assured the judge all the documents in the Exhibit would be referred to in the cross-examination of Ms. Han but they were not. Some of the documents were irrelevant, some were prejudicial, and some were inflammatory. The Exhibit was marked outside the presence of the jury – the trier of fact – which is an irregularity. There was no document agreement in place, so the basis for the appellant’s consent to the admission of the Exhibit is not clear. Even with consent, the trial judge is always the gatekeeper.

[36]         In my view, the Exhibit should not have been admitted en masse. Some of the documents and records should not have been admitted at all, as their admission was highly prejudicial and resulted in a substantial wrong or miscarriage of justice.

[37]         On this ground alone, it is in the interests of justice to order a new trial….

[39]         I agree with the appellant there was a significant risk that the jury would give greater weight to the transcribed portions than to the appellant’s testimony since there was no transcript of her answers given in evidence in response. The judge’s instruction to the jury that the transcript was an aide memoir did not overcome the resulting prejudice to the appellant resulting from the jury having only one side of the picture during their deliberations.

[40]          This procedure was highly irregular and prejudicial to the appellant, resulting in a substantial wrong or miscarriage of justice.

[41]         I would also allow the appeal on this ground.

Lastly, the Court noted it is inappropriate to conduct a present value calculation when considering the costs consequences of a historic formal settlement offer.

Clinical Records Undermine Personal Injury Claim at Trial

I have previously discussed the use of clinical records in a personal injury trial and some limits of their use.  Despite these limits, clinical records can be used to undermine a personal injury claim in appropriate circumstances.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In this week’s case (Lees v. Compton) the Plaintiff was injured in a 2008 collision.  At trial the Court accepted she was injured however concluded that “the injuries…did not impact on er life to the extent that she has claimed“.  In reaching this conclusion the Court relied heavily on admissions made in various clinical records.  Mr. Justice Goepel provided the following reasons:
[68]         The more difficult question is the impact that these injuries have had on the plaintiff’s life.  The plaintiff suggests that the injuries have had a significant impact on her life.  She says she has been forced to give up sports and is no longer capable of holding down a part-time job.  The plaintiff does acknowledge that her long time goal of being a university professor remains intact but submits that her injuries will in the future likely impact on her ability to fulfill the functions of that employment.
[69]         The excerpts in the clinical records suggest that the plaintiff’s limitations are not as great as she claims.  The records clearly put in question certain of the plaintiff’s evidence and raise issues as to her credibility.  The records indicate that the plaintiff has misled the Court with respect to playing field hockey subsequent to the accident, running subsequent to the accident, and the impact of the accident on her study habits…
[73]         In the course of the trial the plaintiff admitted that the physiotherapy notes were business records and admissible pursuant to s. 42 of the Evidence Act.  By definition, that means the document was made in the usual and ordinary course of business and it was in the usual and ordinary course of the business to record in that document a statement of the fact at the time it occurred or within a reasonable time thereafter.  The notes record information that would be of importance to a physiotherapist in formulating an appropriate treatment plan. It is not the type of note which one would expect would be wrongfully recorded.
[74]         While I acknowledge the comments of N. Smith J. in Edmundson that clinical records must be viewed with caution, in this case there are eight separate notes that are in issue.  With regard to each note, the plaintiff claims the physiotherapist is wrong and she never gave the information in question because the information sets out activities in which she did not participate and indeed could not participate because of her injuries.
[75]         On the evidence before me I cannot disregard the physiotherapist’s notes.  While it is possible that a clinical note may be in error it is highly improbable that there would be eight such errors. There is also little evidence that contradicts the notes. As noted earlier, other than Ms. Welch, the plaintiff did not call any of her contemporaries as witnesses and Ms. Welsh’s evidence was limited to her experience on one field hockey team. 
[76]         I find that the plaintiff made the statements to the physiotherapist that are recorded in the clinical notes. Those statements raise significant questions concerning the plaintiff’s credibility.  Her evidence must be viewed with great caution…
[83]         I find the plaintiff was injured in the accident.  As a result of the accident, she suffered soft tissue injuries which continued to cause her some difficulties.  The injuries, however, did not impact on her life to the extent that she has claimed.

Clinical Records Admitted Without Authentication? – No Harm No Foul Says BC Court of Appeal


Reasons for judgement were released last week by the BC Court of Appeal addressing, among other topics, whether a new trial should be ordered after clinical records were introduced to a jury without proper authentication.
In last week’s case (Desharnais v. Parkhurst and Romanowski) the Plaintiff was injured in two motor vehicle collisions.  He sought substantial damages as a result but a jury rejected much of his claim awarding $31,000 in damages.  The Plaintiff appealed arguing multiple errors were made at the trial level with the most significant, presumably  being the introduction of various clinical records without proper authentication.  The BC Court of Appeal held that while this was a clear error no harm was done and dismissed the appeal.   The Court provided the following reasons:
[93]         Accordingly, the records could be admitted for the truth of the fact that the statements were made, if the records were kept as part of the counsellor’s ordinary course of business, and were recorded within a reasonable time of the conversation with the plaintiff.  Similar, though not identical, considerations would be made under Ares.
[94]         There was no clear evidence of these conditions having been met.  Normally, the preconditions would be dispensed with by using a document agreement or securing admissions through a Notice to Admit.  I have not been able to find anything in the record to suggest that formal proof was dispensed with.  Rather, in this case the plaintiff objected to their admission.
[95]         In those circumstances, it seems to me that counsel seeking to admit the records as business records under common law or statute would have to tender proof of the preconditions for admissibility:  Cunningham v. Slubowski, 2003 BCSC 1854.  This was not done here. 
[96]         Accordingly, I agree with the plaintiff that the trial judge erred in concluding that the records were admissible without first concluding that there was proof of the preconditions under common law or statute.  Plaintiff’s counsel disputed that the records qualified as business records.  Even if there were little or no substance to his position, the effect of his objection was to require the defence to lead the evidence to comply with the pre-conditions for admissibility.
[97]         Having reviewed the appeal record, however, I do not see this error as sufficient to warrant intervention from this Court.  Had the records not been admitted, the information contained in them would have nonetheless been placed before the jury, as the content of the records was summarized in the report of the plaintiff’s expert, Dr. Rami Nader.  Dr. Nader’s summary of the records included that the plaintiff complained about stress stemming from his relationship with two women and that he suffered a back injury following the accident in his driveway.  Plaintiff’s counsel had the report admitted and sought no limiting instruction on the use of the report.
[98]         Further, the trial judge’s instruction that the records were an example of a prior inconsistent statement was one of several prior inconsistent statements made by the plaintiff.  The trial judge also pointed out inconsistent statements made under oath.  The plaintiff’s own counsel referred to the plaintiff as “a poor historian” in his closing submissions.  On the whole, it seems unlikely that the assessment of the plaintiff’s credibility was significantly influenced by the statements in the records.
[99]         The jury was also unlikely, given the amount of medical evidence, to place much weight on the records suggestion that the plaintiff was symptomatic before the first and second accident.  Further, this information was before the jury by virtue of the plaintiff’s expert’s report.
[100]     Based on the above, I do not see this error as warranting intervention from this Court.

The Limits of Clinical Records in Injury Litigation


(Update March 8, 2012 – the below reasoning was upheld by the BC Court of Appelal in reasons for judgement released today.  You can find the BC Court of Appeal’s Reasons here)
When an injury claimant attends examination for discovery or trial they are usually subjected to an extensive cross-examination with respect to matters contained in clinical records.  These records contain a host of information including dates of doctors visits, complaints made, diagnoses given, treatments recommended and the course of recovery of injuries.
Despite this volume of information clinical records do have limitations with respect to their use at trial.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, discussing these.
In today’s case (Edmondson v. Payer) the Plaintiff was involved in a 2005 BC motor vehicle collision.  The Plaintiff sustained various soft tissue injuries involving her neck with associated headaches.  The Defendant argued that the injuries were minor and that the Plaintiff lacked credibility.  In support of their argument the Defendant relied heavily on various entries contained in the Plaintiff’s clinical records.
Mr. Justice Smith rejected the Defendant’s argument and awarded the Plaintiff $40,000 for non-pecuniary damages (money for pain and suffeirng and loss of enjoyment of life).  In doing so the Court provided the following useful reasons addressing the use of clinical records in injury litigation:
[23] Much of the defendant’s submission on the plaintiff’s credibility flows from what is, or is not, found in the clinical records of doctors the plaintiff has seen.  It is therefore important to review the limited purposes for which clinical records are admissible.  It is easy to lose sight of those limitations in cases of this kind, where the time spent parsing a single note made by a doctor often far exceeds the length of the medical appointment that the note records…

[34]         The difficulty with statements in clinical records is that, because they are only a brief summary or paraphrase, there is no record of anything else that may have been said and which might in some way explain, expand upon or qualify a particular doctor’s note.  The plaintiff will usually have no specific recollection of what was said and, when shown the record on cross-examination, can rarely do more than agree that he or she must have said what the doctor wrote.

[35]         Further difficulties arise when a number of clinical records made over a lengthy period are being considered.  Inconsistencies are almost inevitable because few people, when asked to describe their condition on numerous occasions, will use exactly the same words or emphasis each time.  As Parrett J. said in Burke-Pietramala v. Samad, 2004 BCSC 470, at paragraph 104:

…the reports are those of a layperson going through a traumatic and difficult time and one for which she is seeing little, if any, hope for improvement. Secondly, the histories are those recorded by different doctors who may well have had different perspectives and different perceptions of what is important. … I find little surprising in the variations of the plaintiff’s history in this case, particularly given the human tendency to reconsider, review and summarize history in light of new information.

[36]         While the content of a clinical record may be evidence for some purposes, the absence of a record is not, in itself, evidence of anything.  For example, the absence of reference to a symptom in a doctor’s notes of a particular visit cannot be the sole basis for any inference about the existence or non-existence of that symptom.  At most, it indicates only that it was not the focus of discussion on that occasion.

[37]         The same applies to a complete absence of a clinical record.  Except in severe or catastrophic cases, the injury at issue is not the only thing of consequence in the plaintiff’s life.  There certainly may be cases where a plaintiff’s description of his or her symptoms is clearly inconsistent with a failure to seek medical attention, permitting the court to draw adverse conclusions about the plaintiff’s credibility.  But a plaintiff whose condition neither deteriorates nor improves is not obliged to constantly bother busy doctors with reports that nothing has changed, particularly if the plaintiff has no reason to expect the doctors will be able to offer any new or different treatment.  Similarly, a plaintiff who seeks medical attention for unrelated conditions is not obliged to recount the history of the accident and resulting injury to a doctor who is not being asked to treat that injury and has no reason to be interested in it.

[38]         The introduction of clinical records cannot be used to circumvent the requirements governing expert opinion evidence set out in Rule 11-6 of the Supreme Court Civil Rules, B.C. Reg. 168/ 2009 [Rules].  A medical diagnosis?and the reasoning that led to the diagnosis?is a matter of expert opinion. Clinical records are admissible for the fact that a diagnosis was made, but the court cannot accept the diagnosis as correct in the absence of proper opinion evidence to that effect.  Depending on the facts and issues in a particular case, the mere fact that a diagnosis was made may or may not be relevant.

[39]         Clinical records may provide the assumed facts on which an expert may offer an opinion, including diagnosis.  For example, statements made by the plaintiff and recorded in clinical records at various times may be relied on by a defence expert in concluding that the plaintiff’s current symptoms are the result of a condition that pre-dated the accident.  That does not mean that the court can itself use clinical records to arrive at a medical diagnosis in the absence of expert opinion.

[40]         Some of the defendant’s submissions must now be considered in light of these principles.

The Use of Clinical Records in ICBC Injury Trials

ICBC Injury Claims can be record intensive.  Every time you see your doctor, chiropractor, massage therapist, or other medical specialist they keep clinical records.  These records often take down your subjective complaints, the physician’s objective observations, the physician’s assessment of the problem and the plan or treatment prescribed.   These records, if addressing accident related injuries, are relevant and usually are produced to the Plaintiff and Defence lawyer in the course of litigation.
So what use can be made of these records at trial?  Can a Plaintiff corroborate in court testimony with these previously recorded out of court statements?  Reasons for judgement were released today thoroughly canvassing this area of the law.
In today’s case (Smith v. Wirachowsky) the Plaintiff was involved in a 2007 car crash in Nanaimo, BC.  It was a rear-end crash and the Plaintiff suffered various “mild to moderate” soft tissue injuries which were largely but not entirely resolved by the time of trial.  It was expected that the injuries would eventually resolve and damages of $35,978.66 were awarded which included an award of $30,000 for non-pecuniary loss (pain and suffering).
During the course of the trial the Plaintiff attempted to introduce clinical records from the Plaintiff’s physiotherapist which recorded the Plaintiff’s complaints of pain.  Mr. Justice Halfyard ruled that the records were not admissible for that purpose and summarized the law relating to the use of clinical records at trial as follows:
[14] It was common ground that the clinical records qualified as “business records” within s. 42 of the Evidence Act.  It was also agreed that the plaintiff’s statements in the clinical records, if admitted, could not be used to prove the truth of their contents or to bolster the credibility of the plaintiff’s trial testimony. …

[22] In my opinion, the authorities and the rules of evidence establish that the fact that a plaintiff made a particular statement to a doctor or therapist can be relevant to the following issues (where such issues exist):

a) In cross examination of the plaintiff, to prove that the plaintiff made a previous statement (which is alleged to constitute a previous inconsistent statement or a damaging admission);

b) In re-examination of the plaintiff, to rebut the suggestion (by defence counsel) of recent fabrication or failure to complain;

c) In cross examination of a doctor who examined or treated the plaintiff, to prove that the plaintiff made a previous statement (which is alleged to constitute a previous inconsistent statement or damaging admission), where the plaintiff denied or did not admit making the statement;

d) Where a doctor’s or therapist’s particular recommendation for the plaintiff’s treatment is challenged, and the plaintiff’s statement is relevant to explain why that treatment was prescribed or administered; and

e) In cross examination of a medical expert witness called by either party, where it is alleged that the expert relied on a particular statement made by the plaintiff to him or her; or where it is alleged that the expert disregarded or failed to consider a particular statement made by the plaintiff.

[23] It should be noted that there are at least two ways in which a plaintiff’s statements recorded in clinical records may become admissible as proof of their truth.  The first way is where the plaintiff admits making a particular statement to a doctor or therapist which appears to be inconsistent with the plaintiff’s trial testimony, but then adopts the previous statement as being true (and rejects the conflicting trial testimony).  In that situation, the previous statement can be used as proof of its truth, if the trier of fact accepts the plaintiff’s testimony on this point.  More frequently, the plaintiff will reject the previous statement as being false and give an explanation for making it (such as mistake).  In that case, as is well known, the previous statement, if inconsistent, can only be used to assess the credibility of the plaintiff’s trial testimony.

[24] The second way is where the plaintiff admits making (or is shown to have made) a previous statement recorded in the clinical records which if true, would constitute an admission against interest.  In that situation, the plaintiff’s previous statement can be used by the trier of fact as proof of its truth (even if the plaintiff denies that his or her previous admission was true).

[25] Conclusion

[26] In the present case, the statements of the plaintiff to her physicians and therapists were not relevant to any issue in the trial that could have made them admissible at the instance of the plaintiff.  A potential exception could occur in a case where a plaintiff had told her doctor that she had recovered from an injury, but on a subsequent date or dates attended a doctor again and complained that an injury continued to generate symptoms of pain and disability.  In that situation, the plaintiff’s subsequent complaints to her doctor would be admissible in re-examination, to rebut the suggestion that the plaintiff had made no further complaints of pain after a certain point in time.  But of course the complaints made subsequently by the plaintiff could not be admitted to prove their truth.  It was not shown that this situation occurred here.

BC Court of Appeal Orders New Trial After Jury Dismisses ICBC Injury Claim

The BC Court of Appeal released reasons for judgement today ordering a new trial after a Jury dismissed a claim for damages as a result of a 2002 BC car accident. In doing so the BC Court of Appeal has made some helpful comments on the law relating to “adverse inference”.
When an ICBC claim is brought to trial various witnesses are called in support of the claim. Most importantly, expert witnesses (doctors and other specialists) are often called to give evidence with respect to the extent of the injuries caused by the car accident and their prognosis. If a Plaintiff fails to call one or more of his treating doctors, the ICBC lawyers can ask the judge (or jury) to draw an ‘adverse inference’. Basically, this means that the ICBC lawyer can ask the judge to draw a negative inference from the failure to call a witness who one would expect to have something relevant to say.
Typically, people injured in BC car accidents involved in ICBC claims see several different doctors. Most people have a GP, when the GP is not available they go to walk-in-clinics. Sometimes they are treated by emergency physicians and also referred to specialists by either their GP or such appointments can be arranged privately for litigation purposes.
It could be prohibitively expensive to bring an ICBC case to trial if one was required to bring every single doctor who assessed a plaintiff after a car accident to testify. Not only would this extend the length of the trial it would also add significantly to the expense as doctors are permitted to charge fees for their legal consultation services.
In this case the Plaintiff’s were a husband and wife. Their vehicle was rear-ended by a vehicle driven by the Defendant. Fault for the accident was admitted leaving the issue of damages.
At trial evidence was presented alleging that the Plaintiff’s suffered injuries to their neck, back, knees, shoulder, with headaches and other problems.
The jury outright dismissed the lawsuits, basically finding that neither of the Plaintiff’s suffered any compensable injuries in the BC car crash.
The Plaintiff’s appealed alleging that the trial judge made 4 errors in the course of the trial, namely that:

1) the trial judge erred in allowing the respondent to seek an adverse inference for failure of the appellants to call evidence from all their doctors;

2) the trial judge erred in not allowing the clinical records to go before the jury;

3) the trial judge erred in allowing the respondent to cross-examine extensively on collateral issues in regards to Mr. Buksh; and

4) the jury verdict is perverse in finding no injury to either appellant in the face of uncontradicted evidence to the contrary.
In respect of the adverse inference, here the ICBC defence lawyer argued that the jury should draw such an inference because the Plaintiff’s did not call all of the doctors who saw them after the crash. This included walk in clinic doctors and other physicians who had limited involvement in the treatment of the Plaintiff’s. The judge instructed the Jury that such an inference ‘may’ be drawn.
Our Court of Appeal ordered a new trial. In reaching this conclusion the Court of Appeal made some helpful comments about the law of adverse inference in ICBC claims in the last 10 paragraphs of the judgement which I reproduce below:

[32] It seems to me that the tactic of asking for an adverse inference is much over-used in today’s legal environment, and requires, at the least, a threshold examination by the trial judge before such an instruction is given to the jury.

[33] A judge trying a case with a jury is bound to instruct the jury as to the applicable law, and thereby to assist the jury in its consideration of the evidence and determination of the facts. Whether an adverse inference is drawn from failure to call a witness is a question for the trier of fact. In this case, I cannot say the trial judge erred in the content of the instruction she gave the jury on the matter of adverse inferences. However, it bears reminding that the delivery of medical care is not now as it was in 1964 when Mr. Justice Davey made his comments in Barker. There is, today, a proliferation of “walk-in” medical clinics where the role of the “walk-in” clinic physician may be more limited than was the role of a family physician in 1964. Further, even people who have a family doctor may attend one or more such clinics as a matter of convenience, but still rely upon their family physician for core medical advice and treatment. The proposition stated by Mr. Justice Davey does not anticipate this present model of medical care. Likewise, the discovery process available to both sides of a lawsuit is not now as it was in 1964 when, in explaining his view on the need to call all treating physicians, Mr. Justice Davey referred to the professional confidence between a doctor and the patient. Today, the free exchange of information and provision of clinical records through document discovery raises the possibility that an adverse inference may be sought in circumstances where it is known to counsel asking for the inference that the opinion of the doctor in question was not adverse to the opposite party.

[34] Taking the admonition of Mr. Justice Davey to the extreme in today’s patchwork of medical services raises the likelihood of increased litigation costs attendant upon more medical reports from physicians or additional attendances of physicians at court, with little added to the trial process but time and expense, and nothing added to the knowledge of counsel. Perhaps the idea that an adverse inference may be sought, on the authority of Barker, for the reason that every walk-in clinic physician was not called fits within the description of “punctilio” that is no longer to bind us, referred to by Mr. Justice Dickson in R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, in a different context.

[35] In this environment, and bearing in mind the position of a lawyer bound to be truthful to the court, it seems to me there is a threshold question that must be addressed before the instruction on adverse inferences is given to the jury: whether, given the evidence before the court, given the explanations proffered for not calling the witness, given the nature of the evidence that could be provided by the witness, given the extent of disclosure of that physician’s clinical notes, and given the circumstances of the trial (e.g., an initial agreement to introduce clinical records that work contrary to the inference, or incorporation of that witness’s views or observations in the report of a witness called by the other side) a juror could reasonably draw the inference that the witness not called would have given evidence detrimental to the party’s case. Where, as here, the trial started on the basis that all records should be before the jury, and ended with a request for an instruction on adverse inferences, and when both counsel have explained the failure to call the witness or witnesses by referring to their own assessment of the utility or need for the evidence, the answer to the threshold question I have stated is not self-evidently affirmative. In this case, in my view, the judge herself should have heard the explanations, considered the degree of disclosure of that witness’s files and the extent of contact between the party and the physician, received submissions and determined whether a reasonable juror could draw the inference sought before giving the instruction to the jury for its consideration in its fact finding role. If not, the instruction had no place in her charge to the jury.

$70,000 Pain and Suffering for Neck Injury and Debilitating Headaches

In reasons for judgement released today, Mr. Justice Bernard of the BC Supreme Court awarded a Plaintiff just over $200,000 in compensation for losses as a result of a 2005 BC car accident.
The accident involved a left-hand turning defendant who failed to see the Plaintiff’s vehicle. The result was a significant, near head on collision. Fault was admitted leaving only the issue of quantum of damages to be decided at trial.
The court’s key findings of fact were made at paragraphs 34-35 of the judgement where it was held that the Plaintiff suffered from debilitating headaches as a result of the BC car crash, that the headaches continue to plague him and that the source of these headaches is the neck injury the Plaintiff suffered in the crash. The court also found that these injuries where likely to plague the Plaintiff for 3-5 years following the trial.
The Plaintiff was a young man starting out in a career in the entertainment industry. The court accepted that the injuries took away his ability to take full advantage of various opportunities that were open to him in his career and this ‘loss of oportunity’ will continue into the future as a result of the on-going injuries.
In the end the court assessed damages as follows:

Non-pecuniary $70,000

Special $5,642

Loss of Opportunity $125,000

Future Care $14,520

This case is interesting for the court’s comments on the use of the various doctor’s clinical records at trial. As any ICBC claims lawyer knows, Plaintiff’s in personal injury claims are often exposed to hard cross-examinations based on previously recorded statements contained in medical records.
When you go to the doctor he/she usually notes your complaints. These ‘clinical notes’ are often put to use by ICBC lawyers to cross examine a Plaintiff’s testimony discussing the extent of injuries and symptoms. Here, the court found that the Plaintiff held up to cross examination very well and made some very practical comments about the reliability of clinical records, namely:

[35] I accept (the Plaintiff’s) evidence in regard to the onset of the headaches, and their intensity, frequency, and endurance. Efforts to discredit him with alleged inconsistencies in doctors’ clinical notes were, in my view, not successful. It must be borne in mind that the primary objective of physicians’ clinical notes is to refresh their own memories as to what transpired during a clinical examination, for the purposes of medical treatment. These notes are not made for investigative and litigation purposes. If this were the purpose then it would, in my opinion, be important for physicians to ensure that they have accurately recorded full and detailed accounts of what a patient said during a clinical visit and then have the patient verify the accuracy of the notes.

[36] Physicians are not investigators. They are neither trained to accurately record what a person says nor to draw out a fulsome account for litigation purposes. The use of clinicians’ notes, made hastily during a clinical visit and never reviewed for accuracy by the patient, may operate unfairly to the patient as plaintiff or witness. It should also be borne in mind that when a patient sees his or her physician with a complaint of significant pain, the circumstances are far less from ideal for obtaining full and accurate information.

[37] I do not suggest by any of the foregoing that it is impermissible to use clinical notes to challenge a plaintiff’s credibility, but the frailties inherent in such recordings should be recognized. In the instant case, I find that the clinician’s notes do not have sufficient accuracy and reliability to undermine the plaintiff’s evidence where the notes allegedly differ from the plaintiff’s testimony at trial.

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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.

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