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Medical advice and the mitigation of your personal injury claim

How important is it that I follow the advice of my medical team? Do I have to try everything to get better or will the court consider my personal beliefs on wellness?

In the November 12th, 2015 case Castro v Krause (2015 BCSC 2074), Mr. Justice Greyell held that individuals must take some responsibility for recovering their health following an automobile crash, even where they’re uncomfortable with the idea of treatment.  The plaintiff, Ms. Castro, experienced depression after suffering severe injuries that prevented her from working.  Ms. Castro refused her doctor’s advice to take anti-depressants or enroll in counselling, preferring to try to deal with her depression through socializing and time outdoors.  Mr. Justice Greyell found that Ms. Castro’s lack of action on her depression reduced her entitlement to non – pecuniary compensation by 20%:

[54]        Dr. Mathias testified that since March 2015 she had tried “to urge” Ms. Castro to treat her depression more aggressively and had been told by Ms. Castro she did not want to talk about it. That “she did not want others to know”. Dr. Mathias said she thought Ms. Castro had “limited insight” into her condition. Dr. Mathias also recommended counselling which Ms. Castro declined.

[55]        She also testified Ms. Castro was very influenced by her culture and was concerned about the “stigma” which attached to depression among her friends in the Filipino community and her co-workers. She described Ms. Castro as having her “own entrenched ideas” or personal beliefs around depression as a “stigma”. Hence she tried to carry on working and socializing with friends to the extent she could — hence ignoring or pretending she was not depressed.

[99]        … it seems to me Ms. Castro must bear some responsibility for addressing her own wellness. Even had Dr. Mathias been more direct in advising Ms. Castro to take the medication ultimately the choice was Ms. Castro’s. Based on the evidentiary record I am of the view Ms. Castro would not have followed any medical advice which might interfere with her ability to work. It would be unfair to the defendants to bear the full cost of a treatable medical condition which goes untreated, particularly after a specialist had become involved and made recommendations as Dr. Ganesan has. The evidence is quite clear that had Ms. Castro embarked on a prescribed course of anti-depressant medication along with counselling her prognosis for improvement was good. In my view Ms. Castro’s non-pecuniary damages should be reduced by 20%.

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