Expert Evidence and Defence Medical Exams – The Challenges of Scientific Evidence

by John McKiggan

Expert evidence forms the core of any personal injury claim. In almost every personal injury case the plaintiff must provide scientific evidence, usually if the form of testimony from teatingg doctors and other health care providers about issues surrounding causation of the plaintiff’s injuries.

Personal injury claims often boil don to a so-called “battle of the experts” and the judge or jury is forced to decide which evidence they feel is more reliable or reasonable.

Interpreting Scientific Evidence Challenging

Recently Justice Thomas Cromwell of the Supreme Court of Canada delivered the Macfadyen Lecture on “The Challenges of Scientific Evidence“.

One of the topics Justice Cromwell discussed was the role of the trial judge as a “gate keeper” to ensure the accuracy of the expert evidence presented to the court.

Justice Cromwell specifically expressed concern about the lack of expert impartiality.

“One area of concern has been the lack of objectivity and independence of experts. For example, the Goudge Report noted that Dr. Smith failed to understand his duty of impartiality. He testified that he has received no training or instruction in this regard. Indeed he thought his role was to advocate for the Crown and to “make a case look good”.”

Defence Medical Exams: Hired Guns?

Justice Cromwell’s concerns are well founded. Our court rules allows for so-called “Independent Medical Examinations”. Any time a plaintiff puts his or her physical well being at issue, the defendant is entitled to require the plaintiff to be examined by a medical expert (or experts) of the defendant’s choice.

I prefer to call these exams Defence Medical Examinations. While these defence experts are supposed to be impartial, it is clear that some defence experts see it as their job to minimize a plaintiff’s claim.

Case in point is the recent decision of Leslie v. S & B Apartment Holding Limited.

In that case, the plaintiffs suffered serious burns after a fire in their apartment building. They claimed the landlord was negligent in not having appropriate smoke detection and alarm systems in place in the building. The plaintiffs claimed to have suffered from post traumatic stress as a result of their injuries.

The defendant hired a psychiatrist by the name of Dr. Ruben who disputed that the plaintiffs suffered from post traumatic stress disorder as a result of the fire.

The plaintiffs’ treating psychiatrist used criteria established by the American Psychiatric Association documented in the Diagnostic and Statistical Manual of Mental Disorders (DSM).

Defence Expert Makes Up His Own Tests

On the other hand, the defendant’s expert, Dr. Ruben, testified that he did not use the DSM criteria. He testified that he made up his own tests to determine Global Assessment of Functioning when diagnosing patients.

Justice Scaravelli pointed out his concerns with the defence expert’s approach when he stated at paragraph 91 of his decision:

“I find that Ms. Leslie’s preexisting psychological condition was exacerbated by the accident and that she subsequently developed PTSD. As treating psychiatrist, I accept Dr. Fraser’s evidence that Ms. Leslie’s condition was improving prior to the fire. This was the result of prescribed medications and lifestyle changes on her part. In diagnosing PTSD, Dr. Fraser’s GAF score was based on DSM criteria adopted by the American Psychiatric Association. In doing so Dr. Fraser identified symptoms that arose post fire. On the other hand there is no evidence that Dr. Ruben’s own method of determining GAF has been tested or accepted in the field of psychiatry.”

It is reassuring to see the court protecting the interest of plaintiffs and rejecting the evidence of defence experts who simply make up their own tests in order to justify an opinion that is clearly not impartial.

Free Report

I have prepared a report that I provide to all my clients who have to undergo a Defence medical Exam to help them prepare. It’s called “Ten Tips to Surviving Your Defence Medical Exam”. If you would like a copy, contact me and I will email it to you free of charge.

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