Tag: Rule 11-2

BC Court of Appeal Criticizes Consultation Reports Being Shoehorned As Expert Reports

Reasons for judgment were released today by the BC Court of Appeal criticizing and restricting the practice of shoehorning physicians consultation reports into evidence as expert opinion.
In today’s case (Healey v. Chung) the Plaintiff was injured in a 2005 pedestrian/vehicle collision.  At trial he Plaintiff claimed it was a ‘catastrophic accident’ and sought damages between $485,000 and $1,037,000.  The trial judge rejected much of the Plaintiff’s evidence and awarded damages of just over $50,000.
In the course of the trial the Defendant introduced consultation reports of treating medical practitioners into evidence.  These did not meet the strict requirements of Rule 11-6.  The Plaintiff objected but the trial judge allowed the reports to be entered.  In finding this was improper and ordering a new trial the BC Court of Appeal provided the following reasons:

[19]         It is well established that clinical consulting reports, without more, may not be admitted for the validity of opinions expressed in them…

[21]         It is true, as the respondent contends, that Seaman and F.(K.E.) are cases in which the opinion sought to be adduced was found in clinical records that were voluminous, but I do not consider that circumstance detracts from the principle that a clinical record containing an opinion, such as these consulting reports, must substantially comply with the requirements of the Rules in order to attract the exception to the usual rule for examination of witnesses spoken of by Mr. Justice Hutcheon.

[22]         The respondent contends that she gave notice to Mr. Healey of her intention to use the letters, that Dr. Kuo knew of the qualifications of the two doctors, and that other deficiencies were “minor”. She says Mr. Healey was obliged to express his objections as required by R. 11-6(10) and (11).

[23]         Forthrightness between counsel is favoured and is to be expected in litigation. Yet I cannot say there was anything to which we have been referred that put the positive legal duty on Mr. Healey to object under those Rules for the reason that the consulting reports sent to Dr. Kuo and disclosed as part of her clinical records were simply not ‘expert reports’ as regulated by the Rules. While they may be professional opinions from one doctor to another in the course of treatment, the impugned documents do not comply with R. 11-2; I do not consider they carry the basic hallmark of an ‘expert report’, being an opinion intended by the author, at some point, to be presented for the assistance of the court. Significantly, they contain none of the information that is essential to qualification of the author as an expert, nor the information reviewed by the author by which the court may assess the cogency of the opinion.

[24]         As I do not consider that these clinical records can be considered to be ‘expert reports’ as that term is used in the Rules, entitled to the privileged treatment for receipt of hearsay evidence discussed by Mr. Justice Hutcheon, I conclude that R. 11-6(10) and (11) did not require a notice of objection.

[25]         In the alternative to the two documents coming within R. 11-6, Ms. Chung says the judge could have exercised his discretion and admitted the documents as opinions under R. 11-7. Rule 11-7 provides latitude to a judge to receive opinion evidence that is not included in an expert report:

(1)   Unless the court otherwise orders, opinion evidence of an expert, other than an expert appointed by the court under Rule 11-5, must not be tendered at trial unless

(a) that evidence is included in a report of that expert that has been prepared and served in accordance with Rule 11-6, and

(b) any supplementary reports required under Rule 11-5 (11) or 11-6 (5) or (6) have been prepared and served in accordance with Rule 11-6 (5) to (7).

(6)   At trial, the court may allow an expert to provide evidence, on terms and conditions, if any, even though one or more of the requirements of this Part have not been complied with, if

(a) facts have come to the knowledge of one or more of the parties and those facts could not, with due diligence, have been learned in time to be included in a report or supplementary report and served within the time required by this Part,

(b) the non-compliance is unlikely to cause prejudice

(i)    by reason of an inability to prepare for cross-examination, or

(ii)   by depriving the party against whom the evidence is tendered of a reasonable opportunity to tender evidence in response, or

(c) the interests of justice require it.

                                                                        [Emphasis added.]

[26]         Ms. Chung does not contend the judge exercised his discretion under R. 11-7(1). Her approach is consistent with the record that shows the judge was not asked to exercise his discretion, and it is consistent with Ms. Chung’s submission at trial which approached the question as one of compliance with R. 11-6. We are invited, however, to approach these documents as admissible in the exercise of discretion.

[27]         I do not consider that this is an appropriate case for us to engage for the first time in a full analysis of discretion, so as to draw our own conclusions. At trial the judge did not consider his R. 11-7 discretion and accordingly the possibility of exercising discretion is without his expansion. In XY, LLC v. Zhu, 2013 BCCA 352, 366 D.L.R. (4th) 443, Madam Justice Newbury for the Court adopted this description from Perry v. Vargas, 2012 BCSC 1537 at para. 22:

In my view the discretion provided for in R.11-7(6)(c) must be exercised sparingly, with appropriate caution, and in a disciplined way given the express requirements contained in Rules 11-6 and 11-7. That is, the “interests of justice” are not a reason to simply excuse or ignore the requirements of the other Rules. There must be some compelling analysis why the interests of justice require in a particular case the extraordinary step of abrogating the other requirements of the Supreme Court Civil Rules. None was provided.

[28]         Adopting that approach, in my view this is not a case for us to exercise the discretion that was available to the judge under R. 11-7.  There was ample medical evidence before the court, absent the opinions from these documents, to guide the trial judge in findings of fact. Further, it was open to the defendant to develop her own body of medical opinion and to advance it in proper form, including as to the required description of qualifications and experience and listing of opinion sought and matters considered. I see no compelling reason to derogate from the requirements of either R. 11-2 or R. 11-6 in this case. To do so, in my view, would admit into evidence opinions that were not crafted for that purpose and that are without the necessary information to permit consideration of their substance and effect in the context of the issues before the court.

[29]         Last, Ms. Chung contends that the two documents, in any event, were inconsequential in the judge’s reasons, and thus the admission of these documents had little impact on the outcome of the case.

[30]         One of the issues at trial was the assertion by Mr. Healey that he suffered from depression caused by the accident. This allegation bore upon the assessment of damages. To support this allegation was an expert report from Dr. O’Shaughnessy. Based upon the medical records and his interview with Mr. Healey, Dr. O’Shaughnessy diagnosed Mr. Healey as having an Adjustment Disorder with anxiety and an Adjustment Disorder with depressed mood. Yet the judge rejected all allegations of depression and instead relied upon the two consulting reports, saying:

[58]      Mr. Healey stated that he suffered from depression because of the accident. Depression was not reported in his post-accident symptomatology until 2008. Dr. Kuo’s records do show that in 2003 she concluded that Mr. Healey had symptoms consistent with depression. This reporting, however, preceded the accident, and according to the psychiatric specialists Dr. Kuo referred Mr. Healey to in 2009 and 2010, no evidence supported any Axis 1 diagnosis in the DSM-IV, and no symptoms met the criteria for post-traumatic stress disorder.

[31]         I would first observe that Dr. Truong’s report cryptically states “Axis 1: Adjustment d/o with depressive symptoms – in remission” and by so saying Dr. Truong’s report appears to be inconsistent with the judge’s statement: “according to the psychiatric specialists [Dr. To and Dr. Truong] no evidence supported any Axis 1 diagnosis”. Perhaps this exemplifies the effect of non-compliance with the requirements for expert reports, as the judge drew from the report a categorical absence of any Axis 1 diagnosis which appears to be inconsistent with Dr. Truong’s report. Setting that discrepancy between the judge’s assertion and the notation in Dr. Truong’s report aside, it is clear from the judge’s para. 58 that he put weight on the consulting reports and drew conclusions from them adverse to Mr. Healey. In other words, they were consequential in the judge’s reasoning; one cannot say the reports had little bearing on the outcome, in my view.

 

Treating Physician Opinion Discounted for Advocacy

In a demonstration that  judicial criticism of expert witness ‘advocacy’ is not reserved for so-called “independent” experts, reasons for judgement were released this week addressing the evidence of a treating physician who crossed the line into patient advocacy.
In this week’s case (Brown v. Raffan) the Plaintiff was injured in a motor vehicle collision and sought damages of over $200,000.  The Plaintiff provided evidence and also relied on the medical opinion of her physician.  The Court rejected much of the claimed damages finding that the Plaintiff was “not reliable” as a witness.  The Court went further and criticized her treating doctor finding that the opinions shared with the Court crossed the line into advocacy.  In rejecting much of the presented medical evidence Mr. Justice Verhoevan provided the following comments:
[66]         The plaintiff has continued to be treated by Dr. Campbell, who has seen her more than 70 times since the accident. Unfortunately, in general, I do not consider the evidence of Dr. Campbell to be reliable. There are several reasons for this.
[67]         Firstly, in my view, Dr. Campbell’s sympathy for his patient and her claims has resulted in him becoming an advocate for the plaintiff.
[68]         On reading his report and hearing his evidence, the theme that emerges is one of solidarity by Dr. Campbell with Ms. Brown’s complaints about lack of support from ICBC, and her plight as a blameless victim.
[69]         At numerous instances in the report, Dr. Campbell relates Ms. Brown’s complaints that ICBC failed to refuse to provide for interim wage loss payments, or cost of treatment such as physiotherapy, psychological counselling, or reimbursement for her broken dental plate. Although reciting the plaintiff’s complaints in relation to ICBC might conceivably be relevant background information, it is clear on the report and on Dr. Campbell’s testimony as a whole that he shares his patient’s views that she is a blameless victim of injustice who has been badly treated by ICBC, and, further, that she deserves compensation.
[70]         In the summary and opinion portions of his report, Dr. Campbell mentions several times that Ms. Brown was “blameless” or “blameless victim” in the motor vehicle accident. Such comments have no proper place in an expert’s report, and indicate a conflict with the duty of an expert to assist the court and refrain from being an advocate for a party as set out in Rule 11-2 of the Supreme Court Civil Rules.
[71]         Dr. Campbell also mentions several times that the plaintiff has been given no support or treatment by ICBC. These inappropriate comments are thoroughly enmeshed in his report. I think it best to simply set out some extracts of the report in this respect, in which I have emphasized the offending material….
[86]         In summary I conclude that, in general, I cannot rely upon the medical report and opinion of Dr. Campbell.

It Is Not Appropriate to Order a Medical Exam By An Expert Who previously "Bordered on Advocacy"

In my continued efforts to track judicial comments addressing expert witness advocacy, reasons for judgement were released last week by the BC Supreme Court, Cranbrook Registry, dismissing an application for a defence medical exam where the proposed examiner wrote a previous report that, in the Court’s view, “border(ed) on advocacy“.
In last week’s case (Moll v. Parmar) the Defendant sought to have the Plaintiff examined by a neuropsychologist.  Prior to the proposed exam the doctor wrote a “very vigorous critique” relating to the Plaintiff’s expert’s conclusions.  The Court held that, in such circumstances, it is “not appropriate for the court to order a medical examination…by an expert who has previously taken such a strong stance“.
In dismissing this application Mr. Justice Meiklem provided the following reasons:
[13]         Turning first to the Master’s errors alleged by the appellant, I initially gave rather short shrift to Mr. Harris’ submission that Drs. Craig and Williams had been recruited as advocates for the defence by virtue of the nature of the defence requests to them and the nature and content of their reports, that they should be viewed as lacking the necessary objectivity to warrant being appointed by the court to conduct IMEs of the plaintiff. After considering the retainer letters and the reports of Drs. Williams and Craig, I see considerable merit in the appellant’s argument with respect to Dr. Williams’ compromised objectivity. The circumstances in respect of Dr. Craig’s report are somewhat different.
[14]         The appellant’s concern was not only the advocacy bias apprehended by the plaintiff, but also the bias concerning the plaintiff’s condition that was already demonstrated by the roles these experts were retained for and the reports they had already delivered. He considered it highly improbable and purely theoretical that either of these specialists would be able to change any previously expressed views after their examinations of the plaintiff.
[15]         Dr. Williams’ report emanated from a retainer letter wherein the pertinent paragraph stated simply that Mr. Moll was advancing a claim for a head injury in a highway collision and then stated: “I ask that you please kindly review the enclosed report of Dr. Jeffrey Martzke dated May 1, 2012, together with the enclosed documentation set out in the attached schedule “A”, with a view to discussing Mr. Moll’s claim with me.” The letter promised to forward Dr. Martzke’s raw test data, which was forwarded in due course and reviewed by Dr. Williams.
[16]         Dr. Williams described the purpose of his report as responding to the reports of Dr. Martzke and Dr. Wallace (the plaintiff’s vocational consultant) and he said he limited his comments to aspects pertaining to the methods, procedures and process of the reports, as well as the sufficiency of the conclusions recommendations or diagnoses of Drs. Martzke and Wallace.
[17]         Dr. Williams’ report is, however, a very rigorous critique of Dr. Martzke’s methods and testing, as well as his conclusions, and in my view does at least border on advocacy, as argued by Mr. Harris. Dr. Williams’ criticisms of Dr. Martzke’s report and findings may well be found to be completely correct, and my comments will not fetter the trial judge’s rulings if the report is tendered, but I do not think it is appropriate for the court to order a medical examination of a plaintiff by an expert who has previously taken such a strong stance in accepting the role as a reviewer of a previous examiner’s report, particularly in view of the specific provisions of Rule 11-2(1) of the Civil Rules.

Expert Report Excluded For "Advocacy" and Other Short-Comings

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, excluding an expert report from evidence for multiple short-comings.  The Court’s criticism included the fact that the report failed to properly set out the expert’s qualifications, offended the ‘ultimate issue‘ rule, failed to list documents relied on in forming the expert’s opinion and lastly for being ‘advocacy‘ in the guise of opinion.
In this week’s case (Turpin v. Manufacturers Life Insurance Company) the Plaintiff purchased travel insurance with the Defendant.  While on a trip to California she fell ill and required medical treatment.  Her expenses quickly grew and exceeded $27,000.  The Defendant refused to pay relying on a pre-existing condition exclusion in the policy.  The Plaintiff sued and succeeded.
In the course of the trial the Defendant tried to introduced a report from a doctor of internal medicine to “provide an opinion as to whether (the Plaintiff’s) medical treatment between October 5, 2007 and October 9, 2007 was the result of a pre-existing condition as defined in the Travel Insurance Policy“.
Mr. Justice Wilson ruled that the report was inadmissible for multiple reasons.  The case is worth reviewing for the Court’s full discussion of the shortcomings of the report.  In my continued effort to highlight expert reports being rejected for ‘advocacy’ I reproduce Mr. Justice Wilson’s comments on the frowned upon practice of experts using bold font to highlight portions of their opinion:

[29] Finally, the plaintiffs object that the report is advocacy on behalf of the defendants.

[30] This objection is based, in part, upon the author’s use of bold font and italicized portions of the report.

[31] In Warkentin v. Riggs, this court was faced with an expert’s report which adopted “… a particular format”:

He uses bold font to highlight words and phrases which benefit the plaintiff’s claim and support his diagnosis. This is apparent in his review of Ms. Warkentin’s history and medical reports. That which is contrary to the plaintiff’s claim or does not support his diagnosis is either omitted or presented in non-bolded font. This emphasis in support of the plaintiff’s claim and the exclusion of contrary matters is advocacy.

I adopt those comments as applicable in this case.

[32] This use of emphasis is not a practise to be encouraged. In this case, it may have been introduced by counsel’s letter of instructions, which suggested that the author may “indicate the relative degree of importance of any particular fact or assumption”.

[33] If the author of the report regards a factor as a major premise leading to the conclusion, then it should be so stated. Not left to unexplained emphasis in the body of the report.

[34] It was for those foregoing reasons that I ruled the report inadmissible.

Defence Expert's Evidence Rejected in Fibromyalgia Trial Based on "Advocacy"

As previously discussedexpert witnesses have a duty to be objective when giving their evidence and opinions in a BC Supreme Court trial.  Rule 11-2 specifically sets out that “In giving an opinion to the court, an expert appointed under this Part by one or more parties or by the court has a duty to assist the court and is not to be an advocate for any party.”
If experts fail to abide by this requirement they risk having their opinions rejected and further being criticized by the Court.  Reasons for judgement were released last week by the BC Supreme Court, Vernon Registry, highlighting such a result.
In last week’s case (Marchand v. Pederson) the Plaintiff was involved in a 2007 motor vehicle collision.  It was a rear-end collision and fault was admitted.  The trial focused on the value of the Plaintiff’s claim.
The Court heard competing expert witnesses with the Plaintiff’s physiatrist (Dr. Apel) providing evidence that the collision caused various injuries including fibromyalgia.
This opinion was contradicted by a physiatrist retained by the Defendant (Dr. Nowak) who provided an opinion that the collision played a lesser role in the Plaintiff’s symptoms.
Dr. Nowak’s opinion was largely rejected with the court placing little weight on it.  Non-pecuniary damages of $65,000 were awarded with the Court providing the following reasons in assessing damages and criticizing the defence expert:
[44] I find Dr. Nowak’s evidence to be problematic. He initially refuses to answer a question based on assumptions. It is clear that he is wrong in his reading of the intake report of Dr. Kinakin where he assumed that the pain was remaining constant. He is not accurate in the date of the last chiropractic treatment. I am of the view that Dr. Nowak is more of an advocate than an expert and I give very little weight to his evidence. I prefer the evidence of Dr. Apel when it comes to the diagnosis of fibromyalgia and the other conclusions reached by Dr. Apel. I am satisfied that the plaintiff may have improved somewhat from her last visit with Dr. Apel but I am satisfied that she continues to suffer a long term disability in respect to the fibromyalgia in the lower and upper back. I accept Ms. Phillips’ functional capacity evaluation and the limitations that the plaintiff has in respect to job opportunities because of her physical restrictions. I am also satisfied that the report of Dr. Wallace is fair and balanced and should be given a great deal of weight. I accept the plaintiff’s evidence that she stopped seeing her chiropractor, Dr. Kinakin, because she no longer had pain, but the chiropractor asked her to continue to see him because he was of the view that she had subluxation, which is poor posture so he was giving her treatment for that. She confirmed that she did not have any pain when she stopped seeing Dr. Kinakin. I accept her evidence….
[46] The function of non-pecuniary damages is to compensate the plaintiff for pain, suffering and loss of enjoyment of life and loss of amenities. Taking into account the relatively young age of the plaintiff (she is now 24 years old), the chronic nature of her injuries, the severity and duration of her pain, her disabilities, her emotional suffering and loss of her social and marital life, I am of the view that a proper award would be in the amount of $65,000.

The New Rules of Court and the Prohibition of Expert Advocacy


While expert ‘advocacy‘ has always been prohibited, Rule 11-2 of the BC Supreme Court Civil Rules expressly imposes a duty on expert witnesses “to assist the court” and “not to be an advocate for any party“.  Experts need to specifically acknowledge that they are aware of this duty, author reports in compliance with this duty and testify in conformance with this duty.
Despite this expert advocacy still exists as was demonstrated in reasons for judgement released this week in the BC Supreme Court.
In this week’s case (Jampolsky v. Shattler) the Plaintiff was involved in 4 seperate collisions.  He sued for damages with his most serious allegation being a Traumatic Brain Injury (TBI).  Ultimately the TBI claim was dismissed with Mr. Justice Harvey finding that the Plaintiff’s chronic complaints were more plausibly explained by factors other than brain trauma.  Prior to doing so, however, the Court made the following critical findings of the expert retained by ICBC in the course of defending the claims:

[251] Dr. Rees is a neurologist. Since approximately 2004 his practice has been largely comprised of examining persons with suspected brain injuries on behalf of defendants, principally ICBC.

[252] In that period Dr. Rees had not examined a litigant whom he found to have suffered an MTBI where the symptoms lasted beyond two years. He opined that the plaintiff had not sustained an MTBI in the first accident or any of those which followed in August 1999…

[257] Dr. Rees initially testified that a Tesla 1.5 MRI could provide imaging of an area as small as 100 neurons in the human brain. I am satisfied that Dr. Rees was in error in this regard. Although counsel suggested, and Dr. Rees ultimately adopted, 126,000,000 as being the smallest grouping of neurons visible on the Tesla 1.5, counsel subsequently advised the Court of his own mathematical error resulting in agreement that the actual number was 126,000. While the difference between these numbers is significant, it still appears that Dr. Rees was outside his area of expertise and was “guessing at the degree of resolution.

[258] Dr. Rees was also reluctant to acknowledge that brain trauma could occur without contact between the head and some other source. Although he acknowledged that an acceleration/deceleration injury could result in brain trauma, he confined such instances to situations where there as a concussive blast, such as that which was experienced by troops in Afghanistan when an I.E.D. exploded. He was resistant to the notion that an acceleration/deceleration injury of the type commonly seen in motor vehicles accidents could cause an MTBI

[259] A major difference in the opinion of Dr. Rees and Dr. Ancill is whether or not the plaintiff experienced a “credible event” which would account for brain trauma. During vigorous cross examination Dr. Rees acknowledged that he could not offer an opinion on the tensile strength of brain matter, and that an acceleration/deceleration impact could damage muscle tissue which he acknowledged is denser than brain matter.

[260] Dr. Janke, the other defence expert, and Dr. Ancill were both of the opinion that a force far less than that described by Dr. Rees could result in an MTBI.

[261] Dr. Rees accepted, without question, the veracity of the plaintiff when it came to maters related by the plaintiff which tended to negate or be neutral as to the existence of a brain injury, but questioned, without proper foundation, the plaintiff’s truthfulness if his answer to a particular question came into conflict with Dr. Rees’ rigidly held views as to the length of time the sequalae from MTBI could persist and the extent to which an MTBI could interfere with what he called core skills. He referred to the plaintiff’s response to queries regarding whether he had undergone any sleep studies for his reported apnea as “disingenuous.”…

[316] I place little or no reliance on the opinion of Dr. Rees. He assumed, for much of his testimony, the role of advocate as opposed to that of a disinterested and detached expert.

As recently discussed, the UK Supreme Court stripped expert witnesses of immunity exposing them to the threat of lawsuits for negligent services.  The law in BC currently does not permit this making judicial criticism the strongest remedy for experts who ignore the duties set out in the Rules of Court,

Expert Witness Criticized by BC Supreme Court for "Advocacy"


Further to my previous posts on this topic, expert witnesses have a duty to be objective when giving their evidence and opinions in a BC Supreme Court trial.  Rule 11-2 specifically sets out that “In giving an opinion to the court, an expert appointed under this Part by one or more parties or by the court has a duty to assist the court and is not to be an advocate for any party.”
In addition to the above, the BC College of Physicians and Surgeons (the governing body for BC doctors) has provided the following feedback to its members:  “ Additionally, whether physicians are acting as experts in the capacity of treating physicians or independent medical experts, they still must provide balanced and objective reports.   The College does recommend that, when asked to provide an expert opinion, treating physicians discuss with their patients the physician’s duty to assist the court and not be an advocate for any party.”
If experts fail to give objective evidence their opinions can be excluded from trial and they open themselves to criticism from the trial judge.  Reasons for judgement were released today by the BC Supreme Court demonstrating this.
In today’s case (Warkentin v. Riggs) the Plaintiff was involved in a 2005 motor vehicle collision.  The Defendant admitted fault for the crash.  The Plaintiff sustained various injuries including an alleged post traumatic Fibromyalgia Syndrome.  In support of her case the Plaintiff filed several medical reports.  The Defendant objected to one of these being introduced on the basis that the expert ignored his duty to the Court and presented his evidence not as a neutral expert but rather as an ‘advocate‘.  Madam Justice Gropper agreed and excluded the expert’s evidence.  In doing so the Court provided the following harsh criticism:
[58] Dr. Hunt’s report adopts a particular format. He uses bold font to highlight words and phrases which benefit the plaintiff’s claim and support his diagnosis. This is apparent in his review of Ms. Warkentin’s history and medical reports. That which is contrary to the plaintiff’s claim or does not support his diagnosis is either omitted or presented in non-bolded font. This emphasis in support of the plaintiff’s claim and the exclusion of contrary matters is advocacy…

[81]        I find that Dr. Hunt is not a neutral and impartial expert providing assistance to the court, but rather an advocate on behalf of the plaintiff. The report is argument, not opinion. He did not provide a balanced discussion of fibromyalgia and its possible application to the plaintiff’s case. His discussion of the medical principles and their application to the plaintiff’s case is biased, argumentative and contrary to the requirements for the admissibility of an expert report.

[82]        Dr. Hunt’s own description of his role as an “Expert Medical Legal Consultant providing opinions on behalf of patients with chronic pain who are seeking legal remedies with respect to their condition” indicates that he does not consider his role as an expert to be that of an objective advisor to the court.

[83]        Dr. Hunt’s perceived role is amply demonstrated in his report. The format he uses is designed to emphasize matters which support the plaintiff’s claim and his diagnosis.

[84]        Dr. Hunt presents the medical literature in a manner that suggests that there is consensus about the causal connection between motor vehicle accidents and the onset of fibromyalgia. He attempted to mislead the court regarding the medical literature upon which he relies by referring only to portions which support his diagnosis and prognosis and omitting portions which do not. He does not refer to the cautions and qualifications in the medical literature. He is not current with the medical literature, notably the 2006 prospective longitudinal study by Tischler, which was conducted specifically in order to test the conclusions of the Buskila study.

[85]        Dr. Hunt’s testimony, particularly in cross-examination, supports my conclusions about his report; he acted as the plaintiff’s advocate rather than as an independent expert.

[86]        Dr. Hunt’s report of March 27, 2009 is likely to distort the fact-finding function of the trier of fact, and therefore its prejudicial effect far outweighs its probative value. I find that it is inadmissible. Because the rebuttal report is a reiteration, it is also inadmissible. I specifically reject Dr. Hunt’s diagnoses as expressed in the report and his medical opinion that they were caused by the accident. I reject Dr. Hunt’s diagnosis and prognosis of fibromyalgia and his opinions about the plaintiff’s functional limitations associated with fibromyalgia.

Ultimately the Court accepted that the Plaintiff did suffer from fibromyalgia but that this was not related to the motor vehicle collision.  Madam Justice Gropper found that the Plaintiff did sustain soft tissue injuries to her neck and shoulder along with headaches as  a result of the crash.  $50,000 was awarded for the Plaintiff’s non-pecuniary damages.

In addition to the discussion of ‘advocacy‘ this decision is worth reviewing in full for the Court’s discussion of the relationship between fibromyalgia and trauma.

Conflicting Duties? Treating Doctors Duties to Their Patients and to the Court


As previously discussed, one of the biggest changes in the New BC Supreme Court Civil Rules is an overhaul to the requirements for admissibility of expert opinions.  These changes have created some tension in personal injury claims.
In no area of law are expert opinions used more frequently than in personal injury lawsuits.   The opinions of treating physicians are often crucial in the success of a personal injury claim.  In fact, if a plaintiff fails to call their own doctor in support of their case the Court could draw an ‘adverse inference‘ and assume the doctor will say something negative.
One of the changes imposed by the New Rules is a requirement that experts certify that their duty is to “assist the court and not to be an advocate for any party“.  In reality, this requirement always existed although it was not specifically spelled out in the former rules.   Despite this, some treating physicians have been concerned with this new explicit requirement and refuse to provide expert opinions on the basis that they feel they are ethically required to be advocates for their patients.
Fortunately, the BC College of Physicians and Surgeons has squarely addressed this concern and informed their members that the New Rules of Court are not inconsistent with doctors duties to their patients.  Specifically, in the September 2010 issue of the College’s quarterly publication physicians were advised as follows:
The College does not view the New BC Supreme Court Civil Rules to be in conflict with the Canadian Medical Association Code of Ethics, including the fundamental responsibility to consider first the well being of the patient.  With respect to the duty imposed under Rule 11-2 the College has always expected physicians providing expert reports to be fair, objective, and provide opinions that are supported by available information.
This expectation applies equally to physicians whether they are appointed by the plaintiff, defence, jointly or by the Court.  Additionally, whether physicians are acting as experts in the capacity of treating physicians or independent medical experts, they still must provide balanced and objective reports.   The College does recommend that, when asked to provide an expert opinion, treating physicians discuss with their patients the physician’s duty to assist the court and not be an advocate for any party.
The truth of the matter is that treating doctors should be advocates for their patients health.  They should not be advocates for their patients personal injury claims or other legal matters.  The above clarification will hopefully assist physicians who have felt conflicted from providing opinions under the New Rules of Court.

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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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