How much weight is given to what is reported in clinical records? What if I forget to mention an area of concern to my doctor?
In the recent case of Taynor v. Brard (2016 BCSC 1738) the then 27 year old plaintiff was injured in two crashes in August, 2011, resulting in injuries to his neck and back. The plaintiff had been diagnosed with scoliosis between the age of 12 and 14 and had been experiencing intermittent lower back pain beginning in his mid-teens. The month before the first crash the plaintiff attended his family doctor at which time he reported a painful back which was worse with driving. In the two years following the crashes the clinical records of family doctors had no mention of mid and lower back pain. However, expert reports from 2013 onward mention symptoms of lower back pain spreading to his stomach. Throughout trial and in expert evidence, low back pain was reported by the plaintiff but it was unclear when the pain started and if it was tied to the crash. The description of his symptoms also differed between specialists.
Mr. Justice Armstrong considered this lack of reporting of symptoms and considered what weight, if any, should be given to the expert reports based on the plaintiff’s reporting of symptoms:
[120] Each of the plaintiff’s and defendants’ experts obtained information from the plaintiff concerning his history and complaints. They relied on the plaintiff’s report in addition to the clinical records of his family doctor. In particular, Dr. Gouws reported that the plaintiff described symptoms including upper back pain, pain between his shoulders, lower back pain sometimes spreading into his stomach, neck pain with stiffness and sharp pains, and headaches. Dr. Jung said that he based his opinion on the history provided by the plaintiff and his physical examination. It appears that he did not tell any of his doctors when the lower back pain or mid back pain began. Although he described pain in the upper lumbar region to Dr. Craig, there is no indication as to when this symptom developed or in what way it is connected to the car accident.
[121] In the ensuing two years, there are no references in the treating physicians’ clinical notes to lower back pain complaints. I adopt N. H. Smith J.’s comments in Edmondson:
[39] Clinical records may provide the assumed facts on which an expert may offer an opinion, including diagnosis. For example, statements made by the plaintiff and recorded in clinical records at various times may be relied on by a defence expert in concluding that the plaintiff’s current symptoms are the result of a condition that pre-dated the accident. That does not mean that the court can itself use clinical records to arrive at a medical diagnosis in the absence of expert opinion.
[122] What use, if any, can be made of the treating doctor’s clinical records prior to his referrals to Dr. Craig and the others? The Court of Appeal in Mazur v. Lucas, 2010 BCCA 473, 325 D.L.R. (4th) 385 addressed this issue:
[35] Mr. Justice Sopinka concurred with Wilson J. in the result in Lavallee, but made some clarifying remarks which are relevant to the present appeal. In his view, the four propositions from Abbey concerning the admissibility and weight of expert opinion evidence may yield a result which is self-contradictory (at 898-899):
The combined effect of numbers 1, 3 and 4 is that an expert opinion relevant in the abstract to a material issue in a trial but based entirely on unproven hearsay (e.g., from the mouth of the accused, as in Abbey) is admissible but entitled to no weight whatsoever. The question that arises is how any evidence can be admissible and yet entitled to no weight. As one commentator has pointed out, an expert opinion based entirely on unproven hearsay must, if anything, be inadmissible by reason of irrelevance, since the facts underlying the expert opinion are the only connection between the opinion and the case: see Wardle, “R. v. Abbey and Psychiatric Opinion Evidence: Requiring the Accused to Testify” (1984), 17 Ottawa L. Rev. 116, at pp. 122-23.
[36] To resolve the contradiction, he drew a practical distinction between evidence that an expert obtains and acts upon within the scope of his or her expertise and evidence that an expert obtains from a party to litigation touching a matter directly in issue (at 899-900):
In the former instance, an expert arrives at an opinion on the basis of forms of enquiry and practice that are accepted means of decision within that expertise. A physician, for example, daily determines questions of immense importance on the basis of the observations of colleagues, often in the form of second- or third-hand hearsay. For a court to accord no weight to, or to exclude, this sort of professional judgment, arrived at in accordance with sound medical practices, would be to ignore the strong circumstantial guarantees of trustworthiness that surround it, and would be, in my view, contrary to the approach this Court has taken to the analysis of hearsay evidence in general, exemplified in Ares v. Venner, 1970 CanLII 5 (SCC), [1970] S.C.R. 608. In R. v. Jordan (1984), 1984 CanLII 635 (BC CA), 39 C.R. (3d) 50 (B.C.C.A.), a case concerning an expert’s evaluation of the chemical composition of an alleged heroin specimen, Anderson J.A. held, and I respectfully agree, that Abbey does not apply in such circumstances. (See also R. v. Zundel (1987), 1987 CanLII 121 (ON CA), 56 C.R. (3d) 1 (Ont. C.A.), at p. 52, where the court recognized an expert opinion based upon evidence “… of a general nature which is widely used and acknowledged as reliable by experts in that field.”)
Where, however, the information upon which an expert forms his or her opinion comes from the mouth of a party to the litigation, or from any other source that is inherently suspect, a court ought to require independent proof of that information. The lack of such proof will, consistent with Abbey, have a direct effect on the weight to be given to the opinion, perhaps to the vanishing point. But it must be recognized that it will only be very rarely that an expert’s opinion is entirely based upon such information, with no independent proof of any of it. Where an expert’s opinion is based in part upon suspect information and in part upon either admitted facts or facts sought to be proved, the matter is purely one of weight.
[37] As the last few sentences of Sopinka J.’s reasons indicate, he was in substantial agreement with Wilson J. that hearsay referred to by an expert will be admissible, but only for the limited purpose of evaluating the opinion, not as proof of its facts. Sopinka J.’s distinction between evidence that an expert obtains and acts upon within the scope of his or her expertise, and evidence that an expert obtains from a party to the litigation touching a matter directly in issue was later adopted by the Supreme Court of Canada in R. v. S.A.B., 2003 SCC (CanLII), [2003] 2 S.C.R. 678 at paras. 62-63.
[38] In Cunningham v. Slubowski, 2003 BCSC 1854 (CanLII), Madam Justice MacKenzie (now A.C.J.), described the proper use of clinical records, not otherwise in evidence, in the context of a ruling on the admissibility of those records. Although her ruling pertained to the admissibility of clinical records, part of her ruling is nevertheless apt to this case. She said at para. 13:
[13] Even had the plaintiff complied with s. 42 of the Evidence Act to make the clinical records admissible as business records, the consulting letters to Dr. Abelman of the three specialists to whom he referred the plaintiff amount to expert opinions which are inadmissible because of failure to comply with Rule 40A: F.(K.E.) v. Daoust (1995), 1995 CanLII 1201 (BC CA), 3 B.C.L.R. (3d) 128 (C.A.); McTavish v. MacGillivray. The proper use of the clinical records is thus very limited in this case: they can be used by the defendants on cross-examination of the plaintiff, by Dr. Abelman himself as notes to refresh his memory while giving evidence at trial, or in cross-examination of Dr. Abelman on his expert report with respect to the foundation for his opinion. The latter use would include reference to the plaintiff’s statements and the opinion of other specialists, but not for proof of the content of those statements and opinions.
[Emphasis added]
[123] In Mazur the court continued its discussion:
[40] From these authorities, I would summarize the law on this question as to the admissibility of expert reports containing hearsay evidence as follows:
- An expert witness may rely on a variety of sources and resources in opining on the question posed to him. These may include his own intellectual resources, observations or tests, as well as his review of other experts’ observations and opinions, research and treatises, information from others – this list is not exhaustive. (See Bryant, The Law of Evidence in Canada, at 834-835)
- An expert may rely on hearsay. One common example in a personal injury context would be the observations of a radiologist contained in an x-ray report. Another physician may consider it unnecessary to view the actual x-ray himself, preferring to rely on the radiologist’s report.
- The weight the trier of fact ultimately places on the opinion of the expert may depend on the degree to which the underlying assumptions have been proven by other admissible evidence. The weight of the expert opinion may also depend on the reliability of the hearsay, where that hearsay is not proven by other admissible evidence. Where the hearsay evidence (such as the opinion of other physicians) is an accepted means of decision making within that expert’s expertise, the hearsay may have greater reliability.
- The correct judicial response to the question of the admissibility of hearsay evidence in an expert opinion is not to withdraw the evidence from the trier of fact unless, of course, there are some other factors at play such that it will be prejudicial to one party, but rather to address the weight of the opinion and the reliability of the hearsay in an appropriate self-instruction or instruction to a jury.
[124] In my view, the expert opinions tendered by both parties carry much less weight than ordinarily might be attached to them because the underlying facts have not all been proven. As an example, Dr. Gouws referred to clinical records in his report and noted there was no reference to lower back pain. He agreed that without mention of lower back pain in the post-accident records, and juxtaposed with the plaintiff’s complaints of pre-accident lower back pain, the weight that can be attached to his report is undermined.
[125] Thus, when Dr. Gouws described the plaintiff’s complaints of lower back pain starting in his stomach after the accident, his information was inconsistent with information recorded by Dr. Craig, who said the current symptoms were: “He has pain between his shoulder blades and in the upper lumbar region”. Similarly, Dr. Jung described the plaintiff as suffering neck pain, mid back pain, lower back pain and headaches.
[126] The plaintiff’s testimony and experts’ commentary have, in my view, been somewhat unhelpful in informing the Court about the effects of the collisions on the plaintiff.
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