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ICBC’s Choice of Orthopedic Expert Criticized by Court

Why does defence counsel so often hire orthopedic surgeons to comment on soft tissue injuries?  How does the court view the opinions of orthopedic surgeons as compared to the opinions of physiatrists or family doctors?

The 2016 case Khudabux v McClary (2016 BCSC 1886) has been summarized here before, but as with so many cases, Khudabux has more than one useful lesson for those of us interested in the world of personal injury.  As you may recall from my previous summary, the plaintiff was a woman whose medical history was rife with injuries and psychological stressors.  Her complex history and soft tissue injuries created a more challenging terrain for the medical experts than, say, an orthopedic injury like a broken leg (which quite handily shows up in medical imaging and is usually more or less unimpeachable).

The plaintiffs introduced evidence from a psychiatrist and the plaintiff’s family doctor.  The defendants relied on the opinion of an orthopedic surgeon (a common choice of expert for the defendants in ICBC cases).    Before addressing any of the medical evidence, Justice Saunders offered the following comment regarding the perhaps unwise tendency of defence counsel to hire orthopedic surgeons to provide expert opinion in soft tissue cases:

[91]         The expert medical evidence presented at this trial brought into focus a difficulty that not infrequently arises when a defendant pursues the strategy of tendering the opinion of an orthopaedic surgeon to rebut allegations of soft tissue injury. Of course, there may be situations in which such a specialist feels able to offer opinion evidence that sheds light on the nature and scope of such complaints. But it is also the case that a clash between experts pitting an orthopaedic surgeon against a physiatrist, specializing in rehabilitation medicine – or even, as in the present case, against a family physician – can possibly leave counsel in the position of the hoodlum in the film The Untouchables, at the point when he realizes too late that he has brought a knife to a gunfight.

[92]         There is a tendency common to many orthopaedic surgeons who provide expert opinion reports in soft tissue injury cases before this court to express their opinions without qualification – specifically, without acknowledging the extent to which their opinions are shaped by or restricted to the narrow field of their own expertise. In the result, many such reports come before this court that, in substance, say “I have examined this patient, and nothing is wrong with them,” when what is really meant is, “I have examined this patient, and I am unable to diagnose any orthopaedic injury”. Expert witnesses who provide opinions in such stark terms without explicitly stating the limitations of their opinion may, if their opinions contrast with complaints of pain and suffering that are found to be genuine, and are at odds with contrary opinion evidence from another medical expert, risk creating confusion. They may also leave themselves vulnerable to a finding of bias if the unstated limitations of their opinions are not drawn out at trial.

[93]         These risks should be avoided through counsel having, in the first instance, selected an expert witness qualified to give opinion evidence in a field relevant to the issues at stake. Counsel should be familiar with the commonly understood scope of expertise held by specialists in that field, and should endeavour to determine whether the expert they have retained shares that understanding. Once the expert’s report has been prepared, counsel should always explore with their expert witness the extent to which their opinion has been shaped, in terms of what is said and what is not said, by any limitations in the witness’ expertise. Lastly, counsel should ensure that any limitations or qualifications in the expert’s opinion are frankly acknowledged in the substance of the report.

While ICBC is perhaps hoping for or relying on that “no injury” opinion from their orthopods, it’s clear from Justice Saunders’ comments that the court will not be misled by the knives of orthopods when the guns of physiatrists and family doctors are blazing.

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