Medical Legal Reports Made Easy & New Rules & Own Expert Reports ANNE SHEANE Sheane Flewelling Johnson St Victoria BC Phone:

Transcription

1 ANNE SHEANE Medical Legal Reports Made Easy & New Rules & Own Expert Reports ANNE SHEANE Sheane Flewelling Johnson St Victoria BC Phone: Presented by the Trial Lawyers Association of British Columbia

2 I. INTRODUCTION MEDICAL LEGAL REPORTS MADE EASY (OR AT LEAST EASIER) Anne Sheane & Barbara Flewelling April 2010 The testimony of experts is very common in today s courtrooms. As it relates to medical experts, lawyers and judges frequently require their assistance in determining the nature, extent, long term consequences and future medical treatment of an injury or medical condition sustained by a person in an accident or other mishap, whether the accident or mishap actually likely caused the injury complained of, and on issues involving the standard of care of medical professionals. That assistance, or expert medical opinion, is typically set out in what is commonly referred to as the medical-legal report. This paper is written for the medical expert. II. THE ROLE OF THE MEDICAL EXPERT IN LITIGATION An expert s function is precisely this: to provide the judge and jury with a ready-made inference which the judge and jury, due to the technical nature of the facts, are unable to formulate. An expert s opinion is admissible to furnish the Court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of the expert is unnecessary. 1 The general rule in litigation is that witnesses are not permitted to give opinions; they can only testify regarding facts things that were directly observed by the witness. This is because it is the role of the judge or the jury to hear all of the facts from the witnesses, decide which facts they find to be believable and true, and then derive a reasonable conclusion from those facts relevant to the matters in issue between the parties in dispute. In short, the role of the witnesses is to provide facts, not opinions. This works well except in situations where the nature of the matter in issue is beyond the ordinary knowledge and experience of the judge or jury, which poses a risk that such ordinary people are unlikely to form a correct conclusion about the matter in issue. In these situations, an exception is made to the general rule of excluding opinion evidence, and opinion from an expert witness may be admitted into evidence to assist the judge or jury in fact finding and drawing conclusions. The role of the medical expert in litigation is to provide an impartial opinion on matters requiring special medical knowledge and experience. The medical expert provides the judge or the jury with the necessary scientific or technical basis upon which to assess the evidence presented at trial and to understand the case where aspects of the case are beyond the capabilities of the ordinary person. 1 R. v. Abbey [1982] 2 SCR 24 at p. 42

3 - 2 - In considering the admissibility of opinion evidence, it is important to recognize that such evidence is, of course, normally not admissible. Witnesses are generally not permitted to testify to the opinions they hold. The principal exception to that rule is the opinion of an expert witness. Evidence of such witnesses is admissible to prove a relevant fact, or to prove relevant facts, where such cannot be satisfactorily proven in some other way. However, it is only where it is necessary that such facts be proven by opinion evidence that it is admitted; it is necessary only where the subject matter of the opinion is beyond the common understanding of the trier of fact where judge and jury cannot be expected to draw the correct inference from the underlying facts or come to a proper factual conclusion that is essential to the resolution of an issue based on those facts. 2 The role of the medical expert therefore, is to draw conclusions (inferences) based on relevant facts and assumptions and to state an opinion, not to make the ultimate finding of fact. Thus, the medical expert s opinion, even if it is not contradicted, is never determinative of an issue. 3 It is the judge or jury that decides the issue. In providing expert assistance to the litigation process, whether it is by way of a written report or testimony at trial, the medical professional must keep in mind: The physician expert should provide impartial assistance to the judge or jury and not assume the role of an advocate or adversary. Once an expert becomes an advocate or is adversarial, credibility is lost and little weight will be given to the opinion. The new Supreme Court Civil Rules 4 expressly provide that the expert, in providing an opinion to the court, has a duty to assist the court and is not to assume the role of an advocate for either party. It is not the role of the expert to try the case and provide his or her opinion on the ultimate issue. The physician expert should only provide opinion on matters within his or her level of expertise and make it clear when a particular question or issue falls outside of their expertise. If there is insufficient information available to answer the questions asked, the expert physician should say so with the indication the opinion is provisional. Academic material is admissible if the expert admits it is authoritative and adopts it as part of his or her own opinion. The physician expert should never comment on credibility of the plaintiff or on other expert witnesses. The physician expert should avoid or explain technical language and concepts in plain language. 2 R. v. Nahar (2004), 23 B.C.L.R. (4 th ) 269, 2004 B.C.C.A. 77 (Can LII) 3 R. v. Abbey, [1982] 2 S.C.R Supreme Court Civil Rules, B.C. Reg. 168/2009 in force July 1, 2010

4 - 3 - Procedural and substantive safeguards have been developed to prevent expert opinion from replacing the role of the judge or jury, or inadvertently misleading the judge or jury with regard to the difference between the physician s opinion and factual findings, which will be discussed below. III. TO BE USEFUL, YOUR MEDICAL-LEGAL REPORT MUST BE ADMISSIBLE A. FORMAL ADMISSIBILITY ( Stick to the Rule ) **IMPORTANT: SEE ADDENDUM NEW BC SUPREME COURT CIVIL RULES AND EXPERT REPORTS FOR CHANGES IN FORMAL ADMISSIBILITY FOR MEDICAL REPORTS SERVED AFTER JULY 1, For your written report to be admissible (admitted into evidence) at trial, it must meet the requirements of the rule of court that governs the evidence of experts Rule 40A of the current British Columbia Supreme Court Rules of Court and Rule 11-6 of the new Supreme Court Civil Rules. The fundamental purpose underlying Rule 40A/Rule 11-6 is to require timely and meaningful notice of expert evidence to ensure a fair and level playing field for all parties. These rules require that medical reports or statements of opinion must be served on the opposing party in advance of trial (Rule 40A - at least 60 days prior to trial; Rule 11-6 at least 84 days prior to trial) and if it is not, it may well be ruled inadmissible. The intent of these notice provisions is to avoid trial by ambush and trial delays. Rule 40A also requires that the report of an expert shall set out or be accompanied by a supplementary statement setting out the following: (a) The qualifications of the expert; (b) The facts and assumptions on which the opinion is based; and (c) The name of the person primarily responsible for the content of the statement 5. The new Rule 11-6 sets out further mandatory requirements for the expert report (see Addendum: New B.C. Supreme Court Civil Rules and Expert Reports ). If the report does not meet these requirements, the report and testimony of the expert is inadmissible unless the court orders otherwise 6. Accordingly, it is important that you set out at the beginning of your report the following: A description of your professional qualifications in your area of expertise (education, training, employment, experience, professional affiliations). A statement that verifies that you are the person primarily responsible for the content of the report. 5 Rules of Court, Rule 40A (5); new Rule Rules of Court, Rule 40A (7); new Rule 11-6

5 - 4 - A statement which sets out the basis of your opinion; in other words, the facts and assumptions on which your opinion is based (for example, My opinion is based upon assumed facts 1, 2, 3, 4, etc. Set out as assumed facts only those portions of the history, examination and diagnostic tests that are important to your opinion.) It is very important that you clearly set out any assumptions or facts that you rely on in coming to your opinion as this is essential to avoid challenges to the admissibility of your opinion. If you rely upon a fact, observation or opinion in documents authored by other persons (for example, consultation reports, hospital and clinical records, etc.), you must identify that specific fact, observation or opinion clearly, and indicate that you rely on it in forming your opinion. Do not state My opinion is based on the history obtained from the patient, my examination and my review of the documents listed in (or appended to) my report as if you do, your opinion may be inadmissible unless each and every fact recorded on each and every document listed is proven at trial. All further requirements as set out in the new Rules, to include the Certification Provision, the instructions provided by the instructing lawyer, the nature of the opinion sought, a description of any specific research relied upon in forming the opinion, a list of every document relied upon in forming the opinion; See Addendum: New B.C. Supreme Court Civil Rules and Expert Reports. (a) Are You Properly Qualified To Give the Opinion In order to be admissible, expert opinion can only be given by a properly qualified expert. The expert witness must have acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify. 7 Before a court will receive the testimony/evidence of an expert witness, it must be demonstrated to the judge that the expert witness has special knowledge and expertise relevant to the issues in dispute in the case. If opposing counsel wishes to challenge the admission of the expert s opinion on the basis of qualification, this will occur right after the expert has taken the stand and stated his or her qualifications and before giving evidence on the matters in issue. The judge will decide whether the expert has the requisite qualifications to testify on the particular subject matter covered in his or her opinion. At the outset of your medical report, set out any special education, expertise, experience or other qualification that is relevant to the issue at hand and the opinion you have been asked to give. It is certainly helpful at this point to emphasize any background you have that is particularly germane to the particular facts of the case. Additionally, attach your full curriculum vitae to the report to provide further background. An expert witness s effectiveness may be circumscribed by the limits of his or her training, knowledge and experience, thus the qualifications of a physician may affect the 7 Supra, note 3

6 - 5 - degree of weight that the medical opinion and report is accorded. However, expert opinion from a primary care physician who has seen the patient over an extended period of time may well carry equal or more weight as compared to a specialist who has examined the person on only one occasion at the behest of one of the parties to the dispute. If an expert renders opinion beyond his or her expertise, that opinion will be inadmissible. For example, in Makara v. Weihamm, 8 the issue was whether the plaintiff s ongoing pain from soft tissue injuries had its basis in non-organic factors. A psychologist s medical legal report included opinion that the cause of the plaintiff s ongoing pain was likely due to injuries from the accident. The opinion included this statement: On a basis of history given and the file review, in my opinion, the present pain condition is significantly and materially-related to the MVA under claim In other words, in my opinion, the ongoing pain condition is more likely than not as a result of the injuries sustained in the MVA. This opinion was found to be inadmissible because it was beyond the expertise of a psychologist to give an opinion regarding the cause of the plaintiff s pain condition. The psychologist was, however, permitted to give opinion evidence regarding the absence of psychological factors in perpetuating the pain. (b) What Are the Facts and Assumptions That Form the Basis For the Opinion Rule 40A and the new Rule 11-6(1) requires that the facts and assumptions upon which the physician s opinion is based are set out in the report. This can take two forms, a statement of opinion based on hypothetical facts or a statement of opinion concerning the case which have been communicated to him. In either case, [the expert] is bound to communicate to the defendants the sources of those facts or assumed facts. They need not be (indeed in my view are not required to be) part of the opinion itself. What he cannot do is make findings of fact himself. That is the exclusive role of the trial judge. 9 The purpose of this requirement is to allow the judge and jury to understand the foundation of the opinion. Failure to set out those facts and assumption will result in the report being inadmissible at trial. The lawyer requesting the report (the instructing lawyer ) should summarize clearly what facts you may assume. If there are facts that are important to your opinion which are not mentioned by the instructing lawyer and cannot be obtained from the records, contact the lawyer and request this information. In complex cases, you will likely be required to work with the lawyer on a statement of assumed facts. Do not ignore or omit consideration of material facts which may weaken your opinion as this will undermine your opinion and your credibility as an expert witness BCSC 1667 (CanLII) 9 Surrey Credit Union v. Wilson (1990) 45 BCLR (2d) 310 (SC) at 313

7 - 6 - The factual assumptions upon which the physician s opinion is based must generally be subsequently proven at trial. 10 It is the role of counsel to prove those facts or assumptions. Obviously, the most solid opinion will be based on uncontroversial facts. It is neither necessary, nor good practice, to summarize all the records and opinions you have reviewed. The required approach, now codified under the new Rules, is to extract from the records only those relevant facts that are required to provide your opinion and which form the basis of your opinion, and to state those facts under the heading Assumed Facts at the outset of your report. In the case of Rowe v. Bobell Express Ltd. 11, the medical expert made vague references to a variety of clinical records, reports and interviews he had reviewed which drew the following comments (and useful instruction) from the trial judge: The medical-legal reports tendered as statements of expert opinion in this case are not unlike the kind of medical or psychological evidence that is customarily adduced in cases of this kind. They reference clinical notes and hospital records that are not in evidence, and it is not clear to what if any extent reliance is placed on the contents. The reports contain chronologies of Mr. Rowe s attendances for treatment, describe what he and others said in the course of interviews, and detail testing to which he was subjected. To some extent, they reference information obtained in the course of consultation between practitioners. In my view, what is lacking, particularly in respect of the part of Dr. Lysak s opinion relied on to prove that Mr. Rowe suffered a brain injury, is any clear statement of the specific proven facts derived from the assessment made upon which that opinion can be said to be based. The statement must, however, contain the facts and assumptions on which the opinion is based. As I have said before, it is my view that the statement should set out all of the facts necessary to the opinion, but only those facts. The facts, known or assumed, should be immediately apparent. The reader should not have to cull them out of pages recording what was said in the course of interviews or observed during examinations or revealed by tests administered. What is necessary for purposes of the rule is that the facts upon which the opinion is based be clearly set out, not that the evidentiary basis whereby those facts that are to be proven be described. It matters not that the witness was told, or observed, or determined some fact. All that should be stated is the fact itself. Further, the statement of the opinion of an expert witness for which the rule provides proves no more than the fact that the opinion is adduced to prove. It 10 Sebastian v. Neufeld [1995] BCJ No (SC) where Preston J. observed, at para. 12, that: The basic rule, to which there are exceptions, is that the facts upon which an expert opinion is based must be proved in evidence at trial. For various reasons that is not always possible or practicable. Often, it is easy to conclude that facts which have not been proven would not materially alter the conclusion of the expert. There is a certain latitude to be given in matters of hearsay: R. v. Lavallee [1990] 1 SCR BCSC 472, per Lowry, J.

8 - 7 - is not evidence of, and does not prove, the facts upon which the opinion is based. They must be proven some other way. If they are not controversial, which is often the case, they can and should be proven with a notice to admit facts. If they are challenged, they must be proven by adducing viva voce evidence or properly tendered documentation. Rule 40A is only a rule of procedure promulgated to ensure that notice of opinion evidence is given in advance of trial and to facilitate the tendering of opinion in evidence at trial. It is not a substantive rule of evidence that obviates the need to prove the facts upon which an opinion is based. They must be proven if they are to be admitted. (Emphasis added) The points made in Rowe regarding expert reports are that they should contain a concise statement of the facts, as opposed to the evidence, upon which the expert relied to reach his or her conclusion. Simply reciting, uncritically, all or most of what the expert may have read in the course of preparing the report is entirely unhelpful and does not comply with the pith and substance of Rule 40A, nor the new Rule 11-6(1). Additionally, Rule 40A and Rule 11-6 do not change the evidentiary requirements regarding admissibility of opinion evidence that otherwise apply. The facts upon which an expert s report relies must be proven in evidence by counsel. It is reasonable (and preferable) for the physician expert to expect the instructing lawyer to provide the factual assumptions on which the physician is to rely and not simply supply documents and materials for the experts review and require the expert to make his or her own factual findings. The instructing lawyer must review the records and provide assumed narratives, but only where the evidence will support those assumptions. For example, in Roe v. Dabbs et al. 12, the expert physician retained by the defence relied on the following factual assumptions provided by the defence lawyer and reproduced them in the body of his report without indicating he had done so or listing them as such under the heading Factual Assumptions :. Dr. Dabbs [the defendant in the medical negligence action] then opened up the conversation to allow Ms. Roe to ask questions and address emotional issues she may have had with respect to the abortion. Once he was satisfied that Ms. Roe had an opportunity to ask questions and address with him any issues she had about the abortion, Dr. Dabbs took over the conversation and gave her an overview of how he would be proceeding during the Procedure. This overview included a brief description of actual details of the surgery, such a dilation of the cervix and the use of suction or vacuum apparatus to empty the uterus. Dr. Dabbs then explained to Ms. Roe and the nature of the risks associated with the abortion. He explained to Ms. Roe that it is a day care surgical procedure, that she would be having a general anaesthetic and that she could expect to be in and out of the hospital in approximately four hours. He review with Ms. Roe the most common risks of the abortion, which are post-operative BCSC 957

9 - 8 - infection, perforation of the uterus and retained products of conception requiring a subsequent procedure. He probably would not have discussed the possibility of a failed procedure given that the risk is remote. Dr. Dabbs may have told Ms. Roe about one of his patients who had had a failed abortion performed by him but he does not recall whether he did or not.. To ensure that the procedure was successful, Dr. Dabbs examined the tissue that had been removed by the vaccum [sic] aspirator. Based on his examination of the tissue, he had determined that there was enough removed tissue present to indicate that the pregnancy had been successfully terminated. The judge found the factual assumptions relied on by the physician expert to be a remarkable first hand account written, apparently, by someone sitting over the defendant doctors shoulder during the interview and the procedure, which the defence expert clearly had not done. The judge found the factual assumptions relied on by the expert even more remarkable when considering the actual testimony of the defendant Dabbs which was that this patient s case had blurred with so many others he relied on his usual procedure and he had no independent recollection of the interview in question. The trial judge found the report purported to provide and thus clothe the expert opinion with an apparent detailed account of actual events which was not present in the evidence itself, it provided purported reasons and motivations for various steps in the defendant s conduct and actions which portrayed the defendant in a particular way with respect to the plaintiff when the defendant himself testified almost exclusively about his usual procedure and without specific recollection of the events themselves and, in the guise of providing factual assumptions, it filled out and expanded upon the actual records and materials provided for the expert s review and potentially influenced and colored that review. The trial judge went on to say that, apart from simply stating the issues that needed to be addressed and setting out a statement of assumed facts that the defence was confident they could prove at trial, counsel for the defendant sought to present argument in the guise of factual assumptions which was clearly impermissible. When a judge cannot tell to what extent the expert relied on facts which are not in evidence, the report may likely be found to be inadmissible. An instructive case in this regard is the case of Ramchariter v. Gill 13, where the plaintiff alleged he had sustained a traumatic brain injury in a traffic collision which led to a number of disorders including depression and psychosis. The defence alleged that the psychosis may be the result of anabolic steroid use, or withdrawal from such use, and sought to rely on a medical report from an endocrinologist. The endocrinologist had been asked to determine the probability of the use of steroids by the plaintiff between 1992 and 2002, the probability that the plaintiff continued to use steroids (prescribed or non-prescribed) from 2002 to the present, and to identify which steroids the plaintiff was administering BCSC 401

10 - 9 - In preparing her report, the endocrinologist reviewed three binders of material provided by defence counsel and conducted an extensive literature search to substantiate my comments and the assumptions on which my opinion was based. In her report, the expert listed 52 articles and abstracts, but did not state whether these were peer reviewed or otherwise authoritative, nor did she reference a specific work in her opinion or quote from one. Further, the expert did not set out the content of the binders provided to her but did refer throughout the report to various clinical or hospital records concerning the plaintiff both before and after the collision. With little exception, the records she referred to in her report were not put into evidence at trial. The expert also provided a list of 23 entries found in the clinical records of the patient s family physician between 1992 and 2002 and another 25 between 2003 and 2007, many of which consisted of a single word or short phrase such as acne, hostility, balding, superb musculature, mood swings, without any information as to when the entries were made. None of the family physician s records were in evidence at trial, even though he testified at trial and was cross-examined. After reviewing a further ten references indicating probable steroid use in reviewing lab work done from 2002 to present, details of which were missing from her report, the expert opined that the probability of steroid use between 2002 to the present is extremely high. The expert next proffered an answer to the factual question Are you able to identify from the clinical chart what steroids the plaintiff was administering, whether prescribed or otherwise? The judge found the doctor s expertise was not required to answer this question as such a finding of fact was unnecessary to assist the jury (it should be apparent from the records themselves), and in any event necessitated a review of charts which were not in evidence at trial. While the judge found some portions of the expert s report otherwise admissible (for example, what the side effects of anabolic steroid use were and the extent that psychosis is a side effect), this content was so inextricably interwoven with the doctor s improper findings of fact that it was impossible to separate one from the other and the report as a whole appeared contrived to ensure that the reader would confuse fact with opinion and accordingly defer to the expert; confusing the jury as opposed to assisting it. Further, there was no admissible evidence of the plaintiff continuing to use non-prescription anabolic steroids after the collision through to trial which increased the danger that the jury would accord undue deference to the opinion of the doctor who conducted a lengthy out-of-court investigation. As well, by failing to provide meaningful information about the facts and assumptions on which the opinion was based, the report provided no meaningful (Rule 40A) notice at all. The form of the report tipped the field dangerously in favour of the defendant and no one could effectively assess, let alone critique, the expert s conclusions without first reviewing all the same materials including the unidentified binders and the extensive articles and abstracts, even though much of their content may have had very little to do with the end result. The report in its totality was ruled inadmissible. (Emphasis added) A medical-legal report that does little more than recite other expert opinion and provide opinion as to which is to be preferred, will also be inadmissible:

11 In my view, for a report to be admissible under Rule 40A, it must embody the opinion of an expert which is based, at least partly, on his own inquiries or examinations. The report must add value in some fashion to the other evidence in the action. A report which does no more than marshal and summarize the expert opinions of other experts giving evidence in the case is not admissible. That is the job of counsel. A report which, having marshaled and summarized those opinions, does no more than express the opinion of the author that the views of one group of experts are to be preferred over those of another group is also inadmissible. That is an impermissible trespass upon the province of the trial judge. 14 Furthermore, there is a real risk that such a report will be inadmissible on the basis that it is not necessary to assist the judge or jury (see the discussion in this paper at p. 15 on Is the Medical Opinion Necessary). In the course of rendering judgment in Croutch (Guardian ad litem of) v. B.C. Women s Hospital et al. 15 Mr. Justice Lowry (as he then was) took the opportunity to reiterate and clarify what is required to ensure that an expert report will satisfy the requirements of Rule 40A: Unfortunately, much of the opinion proffered in support of the plaintiff s case has not been presented as well as it might have been. The requirements of the governing rules (Rule 40A) were not met and the value of the evidence has accordingly been undermined. The opinions of expert witnesses are of course common in cases of this kind. They are, however, admissible only because, and to the extent that, the subject about which an opinion is given is beyond common understanding and the court can be said to require assistance as to what inferences or conclusions are to be drawn from facts the expert is asked to assume. The rules governing the presentation of evidence of this kind are now so well established it is difficult to understand why they are not always closely followed. They require that a statement be delivered to an opposing party 60 days in advance setting out the opinion, the facts on which it is based, and the qualifications of the person who has given the opinion. The purpose of the requirement is to ensure that the party against whom the opinion is to be tendered has ample opportunity to address the opinion when it is adduced at trial. I consider it preferable that a statement of expert evidence (most often referred to as an expert s report) begin with a clear statement, or perhaps reference to an annexed letter of request, sufficiently specifying the nature of the opinion sought so as to make it immediately evident why the opinion is required and what it is that must be proven with this kind of evidence. The facts upon which the opinion is to be based and only those facts should then be set out in as complete and concise a statement as the circumstances will allow. The opinion, including the reasoning applied, should be expressed in the simplest terms bearing in mind that the challenge an expert witness faces is to 14 Lindholm v. Odhowa, 1998 BCSC 4149 (CanLII) BCSC 995 (CanLII)

12 make the evidence easily understood. Uncommon technical terms should be avoided or at very least well explained. Finally, there should be a complete statement of the expert s qualifications, including any particular training or experience beyond what might be found in a curriculum vitae, that are germane to the opinion. Here some of the statements of the opinions adduced in support of the plaintiff s case are in large measure deficient because they do not state clearly the facts upon which the opinions were based. The plaintiff s experts were given all of the transcripts of discovery conducted on both sides and the clinical documentation. They apparently based their opinions on their own interpretation of the evidence. One expert who had read the discoveries but whose statement disclosed absolutely none of the facts assumed was actually asked during the trial to prepare a statement of the facts on which he based his opinion. No objection to the admissibility of any of the plaintiff s expert evidence was taken, but much of the cross-examination had to be directed to ascertaining the factual basis assumed. In my view, expert witnesses should not base their opinions on discovery evidence which may or may not be read in at trial. Indeed, as a general rule, I do not consider they should be given access to discovery transcripts. The assessment of evidence is not their function, and there is no place for the delivery of an expert s opinion when it is based on facts drawn by the expert from what was said on discovery. The facts underlying an opinion are within the purview of counsel. It is counsel who must be satisfied they are facts that can be proven, and it is for counsel to settle with an expert witness the facts that are to be assumed for the purpose of the opinion. It is those facts that must then be set out clearly in the statement that is to be delivered in compliance with the Rules. (Emphasis added) If you are provided with volumes of material (and you may be if the instructing lawyer is unsure of which documents or facts will be relevant to your opinion), the expert and lawyer should work together to narrow the information to the relevant documents and identify a set of assumed facts. The Hypothetical Opinion If an expert lacks personal knowledge of the matters in issue in the case and is required to give an opinion based on certain highly disputed facts, (evidence of which has been or will be called at trial), the opinion should only be given by way of the hypothetical question. This is because it would be improper for the expert to resolve the conflict in the evidence in accordance with his or her own view of the credibility of the witnesses; conclusions about the credibility of witnesses are for the judge or jury, not the expert. Additionally, there is a hazard that the jury s view of the evidence may be affected by the expert s acceptance of a particular version of disputed facts. In hypothetical fact opinions, if the judge or jury rejects the facts on which the hypothetical opinion was based, the expert s opinion must be rejected as well. Thus, where controversial facts are unavoidable, but an expert opinion is necessary to assist the

13 judge or jury, the instructing lawyer should provide the medical expert with alternative hypothetical fact patterns. For example: What is your opinion on [X] a. assuming the plaintiff had [a pre-existing thin skull]; b. assuming the plaintiff had [a pre-existing crumbling skull]. If you do not take this approach where there is a high uncertainty on a critical fact, there is a very high risk that the entire opinion will be without any foundation. Using the hypothetical question provides an alternative opinion which can be used by the judge or jury depending on their finding of fact. An alternate opinion is better than no opinion at all. Where the factual basis of the expert s opinion is not in dispute, the hypothetical question need not be used. c. Authorship The medical expert who provides the medical-legal report must be able to properly support all opinions given, thus must be the sole author of the report or, if the expert relies on someone else, that person must be clearly identified and may possibly have to provide his or her own report and testify at trial. In Heiderbrecht v. Fraser-Burrard Hospital Society 16, an expert report prepared by a clinical management team was found to be inadmissible on the basis that the rules of court make no provision for the entry in evidence of joint or corporate opinions and an opinion cannot be simply a reporting of the opinions of others. Jointly authored reports also create problems in cross examination since it creates uncertainty as to which author was responsible for which opinion and could have the effect of one author leading the direct evidence of another. B. SUBSTANTIVE ADMISSIBILITY (Don t Forget the Law) The trial judge performs the gatekeeper role in relation to expert opinion, maintaining the sole discretion to decide whether the medical report and opinion will or will not be admitted into evidence at trial. The rationale for this was stated by the Supreme Court of Canada in R. v Mohan 17 : There is a danger that expert evidence will be misused and will distort the fact-finding process. Dressed up in scientific language which the jury does not easily understand and submitted through a witness of impressive antecedents, this evidence is apt to be accepted by the jury as being virtually infallible and as having more weight than it deserves. 16 [1995] BCJ No (SC) 17 R. v. Mohan, [1994] 2 S.C.R. 9

14 Accordingly, the trial judge will decide whether the medical legal report satisfies the substantive criteria established by a long history of judicial decisions (common law precedents). The judge s considerations regarding admissibility are conditioned by recognition of the following factors: The need to preserve and protect the role of the judge or jury as the trier of fact; Any suggestion that our jury system is inadequate to accomplish its task without expert evidence; The tendency of expert opinion to appear virtually infallible to a jury; The necessity for precautions to exclude junk science ; The risk that of trials could become contests of experts with the judge or jury becoming the referees; and The need to draw and maintain a line between the role of the judge or jury and the role of the expert. To be substantively admissible, the medical opinion must be: (a) Relevant; (b) Necessary to assist the judge or jury; (c) Not barred by any exclusionary rule; and (d) Given by a properly qualified expert. 18 (a) Is the Medical Opinion Relevant Any opinions in a medical legal report must be logically relevant to the issues in the case. The issues in the case are generally defined by the pleadings; the Statement of Claim and the Statement of Defence (soon to be referred to as the Notice of Civil Claim and Response to Civil Claim under the new Rules). An opinion is relevant if it is so related to a fact in issue, it may tend to establish the fact in issue. To be relevant, an opinion must not be too general and must be specific to the issues in the case, must not deal with matters that are properly the purview of the judge or jury, and must have a sufficient degree of reliability. In Narayan v, Djurickovic 19, the trial judge was asked to rule on the admissibility of a physician s opinion regarding the degree of functional impairment caused by the amputation of a young person s fingers. In his medical legal report, the physician referred to the A.M.A. Guide to the Evaluation of Functional Impairment and, after summarizing the pertinent excerpts in the literature, provided his opinion that the injury to the plaintiff resulted in a 14% impairment of the upper limb and an 8% permanent whole person impairment. 18 R. v. Mohan, ibid BCSC 1144 (CanLII)

15 Counsel for the defendant argued that the opinion was not relevant on the basis that it was too general and therefore inadmissible to prove the degree of impairment. The trial judge stated: The question is whether Dr. Rocheleau's opinion is relevant or necessary. It is apparent from Dr. Rocheleau s report that medical science has endeavored to accumulate a body of knowledge to enable it to quantify the measurement of departure from a one hundred percent operational human organism. Doubtless, this information serves medical science. Legal science does not have quantification tools. The law's objects are different. The law must treat the untreatable residual. To this end, the law provides each trier of fact with their own crystal ball. The trier of fact must have some information in mind when peering into that crystal ball. I think the measurement by medical science of functional impairment, resulting from a particular injury is relevant to the assessment of the untreatable residual. Dr. Rocheleau's information is admittedly "general". That in and of itself is not fatal. The trial ultimately admitted the opinion, referring to an earlier decision which held that in circumstances where opinion evidence of a general nature was the best or only evidence available to assist the judge or jury, the trial judge has discretion to admit it. 20 A Brief Word About Novel Science Novel scientific theory or techniques will be subject to special scrutiny to assess the reliability and necessity of the evidence. If the evidence sought to be introduced does not meet the standard required for its admission, it will be considered unreliable, and therefore, not relevant. Reliability of novel scientific theory will not be measured to the standard required or advanced by the scientific community. 21 However, a balance must be struck between the ability of a litigant to rely on all evidence to fully advance their case and the concern that expert scientific evidence may distort the fact finding process by appearing infallible to a jury and result in a war of experts. 22 Factors in evaluating the reliability of novel scientific theory or technique are: Whether the theory or technique can be and has been tested; Whether the theory has been subjected to peer review and publication; The known or potential rate of error for the existence of standards; and Whether the theory or technique has been generally accepted Earnshaw v. Despins, [1990] B.C.J. No. 944 (B.C.C.A.) 21 R. v. Terceira, 1998 CanLII 2174 (Ont. C.A.), aff d 1999 CanLII 645 (S.C.C.) 22 R. v. J.-L.J., 2000 SCC 51 (CanLII), [2000] S.C.R Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), appl d in R. v. J.-L.J. ibid

16 (b) Is the Medical Opinion Necessary To Assist The Judge Or Jury A medical opinion is only admissible if it is necessary to provide the judge or jury with information that is outside their knowledge and experience. Necessary means more that just helpful. Necessary means the judge or jury requires assistance from an expert witness to fully and properly appreciate the issues. If the judge or jury could reach a conclusion on the facts without expert assistance, the opinion is not necessary and will not be admissible. Generally, a medical opinion is necessary to assist the judge or jury in appreciating technical facts or special knowledge in order to make a correct judgment in a situation involving medical issues or the medical profession. This could include understanding how an injury could have occurred in the facts of the case (mechanism of injury), understanding anatomical concepts relevant to determining the issues in the case, determining the nature and/or extent of the injury, determining the prognosis of the injury and complications which may arise from the injury in the short and long-term, or what the standard of care is in a particular branch of medicine and whether not providing that standard of care resulted in the injuries or harm alleged. Medical opinion is not required to review the evidence critically, draw inferences of fact and make conclusions of law on matters in dispute between the parties (for example, the physician s opinion is not required to make the final determination whether the patient s injury was caused by a motor vehicle collision or was the result of a pre-existing disorder, or whether Dr. X. was negligent when he did Y). For a report to be considered necessary by the trial judge, it must contain the opinion of the physician which is based, at least partly, on his or her own enquiries or examinations; specifically, the report must add some value to the other evidence in the case. A report which does nothing more than marshal and summarize the opinions of other medical experts giving evidence in the case is not admissible. That is the job of counsel. Further, a report which does no more than review all of the other expert reports in the case and express an opinion that the views of one group of experts are to be preferred over those of another group is also inadmissible as it intrudes on the role of the judge or jury. 24 An expert may, however, set out in his or her report statements saying why his or her opinion should be accepted in preference to the others, but this should be restricted to the technical reasons why the expert says his or her opinion is preferable. (c) Is There Any Other Rule That Would Exclude the Opinion In addition to logical relevance and the necessity of the medical report and opinion, the trial judge must undertake a cost/benefit analysis as to the admissibility of the expert report. A report may be rejected if the admission of that evidence would take up an inordinate amount of time which would be disproportionate to its value, if its probative value would be outweighed by its prejudicial effect, if it would be misleading in the sense that its effect on the jury would be out of proportion to its reliability, if it would distort 24 Lindholm v. VanKouehnett [1998] BCJ No (SC)

17 the fact finding process, if it would be likely to confuse and confound the jury, and whether the jury would likely be overwhelmed by the mystic infallibility of the report (versus being able to keep an open mind and objectively assess the worth of the evidence). The trial judge will also exclude medical opinion regarding the credibility or trustworthiness of the injured person. The ultimate conclusion as to the truthfulness of a particular witness is for the judge or jury and is not within the proper scope of an expert witness. Lay people are capable of determining truthfulness based on logic, experience, intuition and common sense. Accordingly, comments and opinion regarding a party s honesty, credibility and whether they may or may not be malingering are inadmissible as they are not relevant or necessary to assist the court. However, it may be acceptable to assess the reliability of tests given to a plaintiff which formed the basis of the opinion. 25 In giving such opinion, the expert must be careful because if it is expressed in such a way that it is solely an assessment of the plaintiff s credibility, the opinion will be excluded. 26 Indirect opinion about credibility, such as explicitly setting out a variety of non-organic factors that purportedly cause ongoing pain and disability and which could easily lead a jury to conclude that the plaintiff is malingering, will not be admitted. 27 In Kuhne 28, ruling on the admissibility of a psychologist s opinion which included, among other things, an opinion based upon results from the Fake Bad Scale for Personal Injury Claimants, the trial judge stated: Throughout this report Dr. Hayes either states or strongly suggests that the test results show that social reinforcement or secondary gain factors, including the expectation of financial gain, are important factors in the plaintiff s reporting of pain and inability to work. She makes no comment about the extent to which those factors are at play, and I am not suggesting that she should. However, her final opinion or conclusion is simply a statement that there are secondary factors to the plaintiff s complaints of disability. That is neither a fact nor a conclusion that requires expert evidence. It is not something that is outside the realm of ordinary human experience. It is an inference that can be drawn by the trier of fact and the evidence of the plaintiff. Accordingly, I conclude that the report of Dr. Hayes. is inadmissible. While a medical expert may include the DSM-IV definition of malingering in his or her report, if appropriate, the expert may not give a diagnosis of malingering because this 25 Makara v. Weihmann, 2005 BCSC 1667 (CanLII) 26 Lawson v. McGill, 2003 BCSC 883 (CanLII) 27 Lawrence v. Lawrence, [1997] B.C.J. No Kuhne v. Minifie et al; Kuhne v. I.C.B.C., 2000 BCSC 1778 (CanLII)

18 amounts to an opinion by the physician as to the plaintiff s credibility or reliability as a witness. 29 Additionally, the medical expert may give opinion regarding the validity of the MMPI or other test batteries, but cannot opine on the credibility of the plaintiff. 30 Medical expert opinion evidence will, however, be admissible to explain behaviour. In R. v. Lavallee, 31 the accused led evidence from a psychiatrist with expertise in battered woman syndrome. The trial judge allowed the evidence and the woman was acquitted. The acquittal was overturned at the Court of Appeal, and the Supreme Court of Canada was asked to rule on whether this evidence ought to have been admitted. They concluded that the expert opinion was relevant and necessary and therefore, admissible: Where expert evidence is tendered in such fields as engineering or pathology, the paucity of the lay person's knowledge is uncontentious. The long-standing recognition that psychiatric or psychological testimony also falls within the realm of expert evidence is predicated on the realization that in some circumstances the average person may not have sufficient knowledge of or experience with human behaviour to draw an appropriate inference from the facts before him or her. An example may be found in R. v. Lyons, [1987] 2 S.C.R. 309, in which this Court approved the use of psychiatric testimony in dangerous offender applications. At p. 366, La Forest J. remarks that "psychiatric evidence is clearly relevant to the issue whether a person is likely to behave in a certain way and, indeed, is probably relatively superior in this regard to the evidence of other clinicians and lay persons". IV. CONCLUSION The process of producing a medical-legal report is an evolutionary process. It requires a cooperative effort between the instructing lawyer and the medical expert; the instructing lawyer will need to provide guidance and education to the physician to ensure the report meets the rules of evidence, and the physician will need to provide guidance and education to the lawyer to ensure the physician is provided with the relevant information necessary to provide a sound opinion. In more complex cases, it is best to have an initial discussion with the instructing lawyer. It is vitally important that you clearly understand the precise subject matter on which you are being asked to render an opinion. Ask for specific questions rather than vague statements. Don t accept volumes and volumes of medical records unless you are prepared to work with the instructing lawyer to determine what facts may be assumed to be true for the purposes of your report. Keep in mind, anything that is written in your file in respect of providing an expert opinion is produceable; including draft reports. Draft reports are understandable where editing/suggested changes are merely to ensure the opinion fits within the rules of evidence and procedure, the report is unambiguous, concise and addresses relevant matters in issue. However, if revisions infringe on the 29 Brough v. Richmond, 2003 BCSC 512 (CanLII) 30 Sovani v, Jin, [2005] B.C.J. No (Q.L.) 31 R. v. Lavallee, [1990] 1 S.C.R. 852, 1990 CanLII 95 (S.C.C.)