Tag: Dr. Solomons

ICBC Psychiatrist Criticized for Not Being "An Impartial Expert"

In my continued efforts to archive judicial critisism of expert witnesses who cross the line into ‘advocacy’, reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, finding a psychiatrist retained by ICBC failed to provided evidence with “the sufficient degree of objectivity“.
In this week’s case (Drodge v. Kozek) the Plaintiff was involved in 2006 collision.  He suffered chronic pain and cognitive dysfunction following the crash.   ICBC retained a psychiatrist who authored a report and provided opinion evidence to the court which, in contrast to the Plaintiff’s treating doctor, placed less emphasis on role of the collision with respect to the Plaintiff’s complaints.
The Court found that this psychiatrist was not sufficiently objective and placed ‘little weight‘ in his opinion.  Madam Justice Dardi provided the following criticism:

[49] Dr. Solomons is a qualified psychiatrist who at the request of ICBC examined Mr. Drodge on July 9, 2009, and prepared a report dated August 2, 2009. At trial I ordered that certain contents of his report be expurgated, on the basis that the statements were not properly admissible opinion evidence.

[50] Dr. Solomons opined that Mr. Drodge did not sustain any functional brain injury as a result of the accident; nor did he develop any psychiatric condition or disorder as a result of the accident. It is Dr. Solomans’ view that the pre-conditions for the diagnosis of post-traumatic stress disorder were not met in this case. Rather, in his opinion Mr. Drodge presented with non-specific stress symptoms that potentially related to a number of causes, including physical pain, unemployment, financial constraints, and boredom. Other than some stress associated with his financial difficulties, he opined that Mr. Drodge’s present psychological status is “essentially normal”. Insofar as a prognosis, Dr. Solomans opined that there are no cognitive or psychiatric concerns, and that Mr. Drodge has no psychiatric or neuro-cognitive impediments for any vocational activities.

[51] In cross-examination Dr. Solomans admitted that a person could suffer from cognitive symptoms as a consequence of severe headaches. He agreed that headaches of this nature could affect someone’s mood and their ability to work, and that the headaches could therefore be disabling.

[52] Although Dr. Solomons maintained that Mr. Drodge did not exhibit any cognitive difficulties during his interview, the evidence supports a finding to the contrary. In cross-examination he acknowledged that his notes from the interview indicate as follows:

Not had cognitive tests. Then he says did. Query name. Not remember when. About 18 months to two years ago. Not remember the feedback about the test results.

Not recall anything about it at all, not even why he was treated.

Moreover, Mr. Drodge had mistakenly told him he had sustained his back injury in 1986; his back injury occurred in 1996.

[53] In my view, Dr. Solomons was not an impartial expert providing a balanced discussion on Mr. Drodge’s condition. Overall, I found his evidence lacking the sufficient degree of objectivity to be of any real assistance. In the result I have accorded his opinion little weight.

$90,000 Non-Pecuniary Damages For Aggravation of Psychiatric Illness


Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff just over $240,000 in total damages as a result of injuries and loss sustained in a BC motor vehicle collision.
In last week’s case the Plaintiff was involved in a 2006 collision.  She was not at fault for the crash.  She sustained physical injuries which included a disk protrusion in her neck.  She also suffered from a pre-existing psychiatric illness (bipolar disorder) which was significantly aggravated as a result of her crash.  The Court assessed the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $90,000.  In doing so Mr. Justice Willcock provided the following reasons:

[126] I accept the evidence of  (the Plaintiff’s) treating physicians that she sustained injury to the musculoligamentous structures of her right neck and shoulder area and that she now suffers from a disk protrusion at the C5-C6 level that may become increasingly symptomatic. Dr. Sahjpaul, the witness most qualified to address the cause and effect of the disc protrusion believes the MRI suggests some cord compression but is not convinced that the plaintiff’s symptoms are entirely, or even significantly a result of that cord compression. I accept his conclusion that the plaintiff has neck pain and right shoulder and arm pain and weakness which is a combination of a soft tissue injury and some irritation of the nerve root at the C5-6 level. I further accept his conclusion that the motor vehicle accident was causative of the plaintiff’s symptoms.

[127] I find that since the accident she has suffered mechanical neck, shoulder, mid-back, and low back pain, weakness, and tenderness. Despite that pain and weakness, she has demonstrated on examination by her physicians that she has relatively normal range of motion. Only minimal back muscle wasting has been noted.

[128] (the Plaintiff) perceives that her persistent back pain limits her ability to engage in tasks that require prolonged static or awkward positioning, including twisting, reaching, or stooping. It is noted, however, that (the Plaintiff) has difficulty with self-assessment and is prone to overestimate the extent of her disability.

[129] I accept the opinion of Dr. Adrian that (the Plaintiff) will probably continue to experience difficulty performing activities that place physical forces on the structures involving her neck and back, but find that (the Plaintiff) is limited as much by psychological as by physical symptoms. While her pain has been chronic there is some indication that with therapy the psychological component of her symptoms is at least temporarily improving.

[130] I accept the evidence of Dr. Adrian and Dr. Sahjpaul that there is a risk that the C5-6 disc will cause increasing pain over time. (The Plaintiff) may require surgical intervention as a result of the obvious and problematic C5-6 herniation seen on the MRI…

[145] The accident in this case has had a significant effect on (the Plaintiff’s) life. I am satisfied on the evidence that she suffered from a significant bipolar affective disorder that required monitoring and medication prior to the motor vehicle accident but that that disorder was significantly exacerbated to the point that she became significantly disabled by her illness from 2006 to 2009. While she is under reasonable control at the moment, her significant depressive and manic episodes have made her more prone to relapse. In addition, she has a physical injury that continues to trouble her and a disk protrusion that may become more symptomatic in the future. Taking into account the likelihood that she would to some extent have suffered from increasing symptoms of bipolar disorder, I am of the view that non-pecuniary damages should be set at $90,000.

In addition to the above, the decision is worth reviewing in full for the Court’s comments about the expert psychiatrist retained by the Defendant.  The Defendants argued that any worsening of the Plaintiff’s bipolar disorder was not a result of the collision, rather it could be better explained by “chronic family stresses, non-compliance with treatment, and pregnancy“.   In support of this argument the Defendant’s relied on Dr. Solomons, a psychiatrist retained by the Defence.  Mr. Justice Willcock rejected this argument and in doing so provided the following criticism of Dr. Solomons opinions:

Further, there is no reason, in my view, to regard stressors other than the car accident as more compelling or predominant. Dr. Solomons, in reaching that conclusion, ignored clear evidence of the significance of the accident. He erroneously concluded that (the Plaintiff) had not described the traumatic effect of the accident and its emotional consequences to her physicians, or sought psychiatric help. In cross-examination Dr. Solomons acknowledged deficiencies in his review of the records and misunderstanding of (the Plaintiff’s) history and treatment. While he expressly describes pregnancy as a factor contributing to the increase in symptoms of bipolar illness he does not consider the fact that (the Plaintiff’s) one specific worry during the pregnancy was the possibility of a miscarriage or birth defect due to the motor vehicle accident… I reject most of Dr. Solomons’ opinion

Just last month the BC Supreme court criticized another psychiatrist retained by defence counsel in injury litigation.  Since medico-legal experts generally enjoy immunity from lawsuits if they are careless in expressing their opinions, judicial criticism is a welcome development which can help keep privately retained expert witnesses in-line.

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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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