Tag: Mr. Justice Parrett

Expert Who "Did Not Meet With, Examine Or Interview" Plaintiff Given Zero Weight

In the latest case  (Preston v. Kontzamanis) of courts having critical comments for medico-legal practices, reasons for judgement were released today by the BC Supreme Court, Quesnel Registry, rejecting the opinion of a defence retained doctor who “did not meet with, examine or interview” the Plaintiff but nonetheless authored a report opining on the Plaintiff’s injuries.
In criticizing this practice Mr. Justice Parrett provided the following comments:

[125]      The defendant provided and relied upon what purported to be an independent medical report (IME) by Dr. Boyle.

[126]     Dr. Boyle readily acknowledged that he was not asked to and did not meet with, examine or interview the plaintiff.

[127]     Dr. Boyle reviewed documents and information provided by counsel and wrote his report.

[128]     These documents and that information included clinical records of various medical professionals.

[129]     This is a process that is unlikely to assist the court in any material way.  The first concession is invariably, and was in this case, that interviewing, examining and getting a personal history is important to providing an accurate and complete assessment.

[130]     This is a trend that appears to have been of relatively recent origin.

[131]     It is also a trend which has drawn adverse comment from judges of this court.  Dhaliwal v. Bassi 2007 B.C.S.C. 549 (Burnyeat, J. at paras. 2-3); Ruscheinski v. Biln 2011 B.C.S.C. 1263 (Walker, J. at paras. 85-87);Rizotti v. Doe 2012 B.C.S.C. 1330 (Tindale, J. at para. 35).

[132]     To these I would add my own comments.  Where an expert chooses to prepare a report as he did here, expecting this court to accept and rely on it.  He is presenting a report in which he effectively asserts that he accepts as true and accurate the factual base on which his opinions are based.

[133]     Where he does so without seeing, examining or taking a personal history he chooses to offer his opinion on the basis of hearsay.  Worse still he chooses to offer it on the basis of his interpretation of hearsay recorded by others.

[134]     Another difficulty presents itself with respect to the report and evidence of Dr. Boyle and the report of Dr. Hawk.

[135]     The clinical records and other documents were admitted under the terms of a document agreement which was entered as Exhibit #1.

[136]     Under the terms of that agreement the use of documents in general, which includes clinical records, is limited.  Paragraph 2 and 5 of that document are particularly notable.

[137]     In my view, Dr. Boyle’s report should be afforded the weight it deserves and in this case where credibility and exaggeration are both asserted against the plaintiff by the defendant that is no weight at all.

[138]     It was not argued in this case that the report was inadmissible and Dr. Boyle’s qualifications to give an expert opinion on this case and in these circumstances was not addressed. I leave it then to another day and for full argument for this court to consider whether the requirements are met to allow the report to be received at all in these circumstances.

Credibility Concerns Lead to Outright Rejection of Personal Injury Claim

Reasons for judgement were released this week by the BC Supreme Court, Prince George Registry, outright rejecting a personal injury claim as a result of credibility concerns.
In today’s case (Fancy v. Gareau) the Plaintiff was involved in a 2008 rear end collision.  Fault was admitted.   At the time of the collision the Plaintiff was on a WCB claim.  She claimed the collision caused a neck injury and that this was not a pre-existing problem.  In the course of the trial this claim proved unreliable and the Court ultimately dismissed the claim.  In reaching this result Mr. Justice Parrett noted as follows:
[69]         Perhaps the most startling reversal in her evidence was the cross-examination of the plaintiff about a portion of Exhibit 8.
[70]         This document was a spreadsheet prepared by the plaintiff and her husband as a part of their submission to the Workers Compensation Board to help establish that she had suffered “an upper back injury”.  In item 11 on page 2 of the spreadsheet the plaintiff specifically refers to the August 5, 2008 Physiotherapy Initial Notification (Exhibit 10) referred to above.  The excerpt contained in item 11 specifically notes that the “Injury Recorded on Claim: Neck” and then records the following submission regarding the document:
Corroborating Documentation of stiff neck from workplace injury (July 8, 2008) – this injury is NOT from the MVA as suggested by CD in Item 32.
[71]         The last column of this spreadsheet is entitled “Proof of:” and is divided into two columns, the first of which is “Upper back/left arm injury”.
[72]         The plaintiff entered “Yes” in this column with respect to Item 11.
[73]         When confronted with this document the plaintiff conceded that when the Workers Compensation Board case manager said that the neck injury was not as a result of the workplace injury but from the motor vehicle accident she disagreed and said ‘no, I injured my neck in the workplace accident’.
[74]         When pressed on this point she advised the court that:
The upper back, to me, includes the neck.
[75]         This evidence was given without the faintest embarrassment or apparent realization that the previous day she had testified that:
When I say upper back I do not mean my neck.

[125]     This is a personal injury action in which the issue is causation.  Simply put the question amounts to this – Was the plaintiff injured or did she have existing injuries or conditions aggravated by the motor vehicle collision on September 30, 2008?
[126]     The evidence presented to the court by the plaintiff is devoid of medical evidence and opinion touching on the issue of causation.
[127]     The only expert opinion placed before the court is that of Dr. McKenzie who first saw the plaintiff some 28 months after the motor vehicle collision.  In providing Dr. McKenzie with the history he used as the foundation of his opinion the plaintiff misrepresented and altered the facts and withheld critical information about her physiotherapy treatments and pre-existing symptomology.
[128]     The effect of her actions destroyed any value of Dr. McKenzie’s opinion…
[139]     The plaintiff’s action is dismissed.
 

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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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