Adverse inference avoided

If my personal injury case ends up going to trial, will the judge think I am hiding something if my family doctor doesn’t testify? What if throughout his/her clinical records it’s noted that I am there for ICBC follow-ups and MVA injuries?

In a decision released on September 20, 2016 (Chappell v. Loyie 2016 BCSC 1722), counsel for ICBC asked Madam Justice Fisher to draw an adverse inference because the plaintiff in that case did not have his family doctor testify at trial. An “adverse inference” is inferring that because someone didn’t testify, the plaintiff is hiding something.  Madame Justice Fisher noted importantly that the family doctor’s records were before the court as part of a document agreement, and that within those records the year after the crash contained entries related to the injuries alleged, and noted “ICBC follow-up”, or “follow-up re MVA injuries”. Making the following observations, she declined to make an adverse inference:

[76]         Clearly, Dr. Bacchus could have provided pertinent evidence related to Mr. Chappell’s pre-existing conditions and his immediate and ongoing symptoms following the accident. However, all of his clinical records are in evidence pursuant to a document agreement that provides as follows:

1. a)         The observations by the doctor … are facts and admissible as such without further proof thereof;
2. b)         The treatments prescribed by the doctor … are facts and admissible as such without further proof thereof;
3. c)         The statements made by the patient are admissible for the fact they were made but not for their truth;
4. d)         The diagnoses made by the doctor … are admissible for the fact they were made but not for their truth;
5. e)         The diagnoses made by the person to whom the doctor … has referred the patient are admissible for the fact that they were made but not for their truth;
6. f)          The Clinical Records are not admitted for the purpose of proving any opinions stated therein and no opinion contained therein may be relied upon as expert opinion evidence.

[77]         Dr. Bacchus’ clinical notes do contain a record of Mr. Chappell’s visits before and after the accident. Many pages were referred to Mr. Chappell and to other witnesses in cross-examination. His notes from August 31, 2011 through to August 2012 refer to symptoms in the neck, back, feet, left hand, left knee and right shoulder as “ICBC follow up” or “f/u re MVA injuries”, which implies that the nature of the evidence he could have provided may not have been adverse to Mr. Chappell.

[78]         Counsel for Mr. Chappell explained that there was no need to call Dr. Bacchus because the doctor’s records are before the court in accordance with the document agreement, there is a good record of Mr. Chappell’s pre-existing conditions, and his evidence is generally consistent with the records. He pointed out that it was open to the defendant to call the doctor as a witness and there is no evidence that any attempt was made to do so.

[79]         Counsel for the defendant submitted that it is not usually feasible for a defendant to obtain an opinion from a plaintiff’s treating family doctor due to a general unwillingness to undermine the trust involved in the doctor-patient relationship. I accept that this may be a real and practical consideration, but in this case Mr. Chappell had stopped seeing Dr. Bacchus on a regular basis after July 2013, so it was open to the defendant to at least approach the doctor and consider whether or not to call him as a witness.

[80]         I consider the circumstances here quite different from those in Mohamud v. Yu, 2016 BCSC 1138, a case relied on by the defendant. There, important parts of the plaintiff’s evidence were inconsistent with statements she made (or did not make) to her family doctor and the experts who testified on her behalf, and the extent of the inconsistencies was of particular concern because there was no objective confirmatory evidence from any treating physician. In that context, it was especially troubling that the plaintiff’s long-time and trusted family doctor, who saw her throughout all the relevant times, did not testify or provide an expert report. Here, as I review below, there are actually few real inconsistencies between Mr. Chappell’s evidence and the medical records, and there is also objective evidence from three physicians who treated him, the most significant being Dr. Arthur, who treated Mr. Chappell’s left knee problems both before and after the accident.

[81]         While it would have been helpful to have heard evidence from Dr. Bacchus, given the length of time since this accident, I would expect his testimony about his treatments and diagnoses to have relied mainly on his clinical records, all of which are in evidence for the purposes set out in the document agreement. Moreover, the records indicate that Dr. Bacchus did not see Mr. Chappell on all visits, most notably the first two after the accident in August 2011. In all of the circumstances here, I am not prepared to draw an adverse inference from the plaintiff’s failure to call Dr. Bacchus as a witness.