Adding to this site’s expanding database for BC soft-tissue injury assessments, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing damages for chronic soft tissue injuries with a poor prognosis.
In last week’s case (Bissonnette v. Horn) the Plaintiff was involved in a 2007 collision. Fault was admitted focusing the trial on damages. The Court found that the Plaintiff suffered various soft tissue injuries involving her beck, back hip and leg. The injuries continued to cause difficulties to the time of trial and were expected to linger into the future. In assessing non-pecuniary damages at $50,000 Madam Justice Gray provided the following reasons:
I accept the evidence of Dr. Frankel that Ms. Horn continues to suffer with left hip, neck, left leg, and lower back pain, disturbed sleep patterns, headaches, anxiety, and weight gain as a result of her motor vehicle related injuries. I also accept his opinion that, as these symptoms have continued for over four years since the accident, her prognosis for full recovery is guarded. Dr. Chu testified that the prognosis was fairly good for Ms. Horn’s widespread myofascial pain syndrome and that it usually responds to active exercise and treating sleep or mood disturbances. I accept this evidence as well….
Ms. Horn’s continuing pain has diminished since the accident, but remains significant enough to affect her work, recreation, and sleep. She suffered other symptoms closer to the accident, including severe headaches, a broken tooth, and a finger injury.
Global damages of just over $100,000 were awarded demonstrating the soft cap in action set out for fast track trials in Rule 15. This is not the first time this has happened since the new rules came into force and also confirms the disjunctive nature of Rule 15 allowing for the prosecution of claims over the $100,000 damage cap.
Reasons for judgement were released today by the BC Supreme Court highlighting the valuable role treating physicians have in personal injury claims.
In today’s case (Deiter v. Briggs) the Plaintiff was injured in 2 BC car crashes. Liability was admitted for both crashes leaving the court to deal with the issue of quantum of damages (value of the Plaintiff’s injuries and losses).
The Plaintiff called 2 physicians in the course of her claim to assist the court with opinion evidence explaining the extent and nature of her injuries. These physicians were her family doctor (Dr. Cordoni) and a well respected rheumatologist, Dr. Shuckett. Dr. Shuckett gave the following diagnosis and prognosis for the Plaintiff’s injuries:
 Dr. Shuckett examined Ms. Deiter in December 2008. Based on the patient’s own description of her history and Dr. Shuckett’s physical examination of her, Dr. Shuckett arrived at the following diagnosis as set out in her report:
1. Cervicogenic headaches.
2. Mechanical neck pain, mainly due to musculo-ligamentous injury with bilateral neck pain and some modest decrease of neck mobility. She may very well have zygapophyseal joint capsular injury of the neck.
3a. Myofascial pain syndrome of the left neck and shoulder girdle region with palpable muscle spasm.
3b. Myofascial pain syndrome of right shoulder girdle region with palpable muscle spasm.
There is some myofascial pain syndrome with spasm of the muscle and rounding of the muscle adjacent to the right medial scapula.
3. Right shoulder impingement and rotator cuff tendonitis suspected (appears to be mild).
 Dr. Shuckett gave the opinion that the symptoms suffered by the plaintiff were related to the first accident and but for the accident, Ms. Deiter would not have these symptoms or diagnoses. As to the future prognosis, Dr. Shuckett reported that the prospect of further recovery is guarded now that two and a half years have passed since the accident. Dr. Shuckett gave the opinion that:
It is really not possible to measure degree of disability or impairment from work in an objective sense with chronic soft tissue pain. I cannot rule out that she may find herself unable to pursue fulltime work in the longer term future due to her injuries, but this is not something I can predict. However, based on her current status, it appears that she finds it difficult to contemplate increasing her work hours.
She may not improve from her current status as her pain is chronic by this time.
The Court largely accepted this evidence and awarded damages of just over $144,000 for the Plaintiff’s injuries and losses.
The Lawyer for the Defendants made critical comments about Dr. Shuckett’s expert opinion. In rejecting the defence lawyers submissions Madame Justice Griffin said the following with respect to the important role treating physicians play in BC Personal Injury Lawsuits:
 The defendants suggested in argument that Dr. Shuckett was an advocate but I do not accept that characterization. I found her to be very clear and objective in her evidence which she was well qualified to give. I pause here to note that the defendants appeared to me to show a lack of objectivity when assessing the role of physicians in litigation of this nature. The defendants stated in written and oral argument:
In contrast to Dr. Shuckett, Dr. Cordoni presented as a [sic] impartial and unbiased physician which is highly unusual for a general practitioner.
 This submission is what is known as a back?handed compliment. It is a gratuitous attack on Dr. Shuckett to suggest that she was not impartial, a proposition which is entirely unfair on the evidence. It is a suggestion that appears to praise Dr. Cordoni while it insults general physicians as a group, as if to say they are typically not able to provide independent medical evidence in soft tissue injury cases. This cynical submission is outrageous and unduly partisan.
 This court hears many cases involving plaintiffs with claims that someone else’s negligent action caused them personal injuries. These are persons who are entitled to damages under the common law of this country if their claims are proven. These are persons who may be suffering greatly from their injuries. This court could not perform its function of determining these important claims without the help of treating medical physicians including general practitioners.
 Thus, physicians who do testify despite the inconvenience are performing a very important professional and public duty. Coming to court to testify and to face cross?examination may be the last thing a busy physician wants to do, faced with the burdens of practice. Often a general physician is the one physician who knows the patient best and who will have the longest history of treating the plaintiff before and after the incident giving rise to the claim. This court is extremely appreciative of the role physicians play in giving evidence. I sincerely hope that counsel for the defendants in this case reflected only his views, and not a general culture amongst legal counsel who represent defendants or defendant’s insurers, when he decided to advance his submission which was so disrespectful of the important role of family doctors in personal injury cases. It is true that in some cases a medical practitioner may be impartial but it reflects poorly on the defendants to simply advance this as a general proposition.
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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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