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Someone Call a Doctor, This Plaintiff is Facing an Adverse Inference

If I’ve had a number of family doctors, do I need to call all of them at trial? What if I had a falling out with some of them?

In today’s case, Justice Armstrong was faced with the difficult task of sorting out damages owing to a woman whose claim was riddled with complicating factors, including liability questions, a serious credibility issue, and tidal waves of intermixed symptoms arising in the years before and after the subject collision (Chavez-Salinas v Tower 2017 BCSC 2068).   A further issue arose from the plaintiff’s attendance at a significant number of general practitioners and specialists, and her subsequent failure to call all of those physicians at trial.

In general, one can expect that someone engaged in litigation would want to call as a witness everyone who would have knowledge of the facts and would be willing to assist the party.  It makes sense – if I say that my evil stepmother dropped my priceless diamond necklace down the sewer drain and my sister saw her do it, I’d be expected to call my sister at the trial to talk about what she saw.  When a party doesn’t call that witness and doesn’t provide any explanation, the other party can ask for something called an adverse inference.  In my case against my evil stepmother, the adverse inference would be the court’s assumption that my sister would actually not give the helpful evidence you’d otherwise expect (ie. that she maybe didn’t see that priceless necklace slip out of our stepmother’s talons and through the sewer grates).  An adverse inference is an implied admission by the party that the witness would give contrary or unsupportive evidence.

In the case at bar, the plaintiff had had fallings out with a few of her physicians and hadn’t explained away her failure to call them at trial (nor had she produced any opinion evidence from the physicians at all).  Justice Armstrong reviewed the basic tenets of adverse inference in this context before deciding that he would, indeed, draw an adverse inference given a number of factors – but particularly that the plaintiff (who had a poor memory herself) hadn’t called any physicians who had treated her in the first 18 months after her collision:

[202]     In Buksh v. Miles, 2008 BCCA 318, at para. 34 [Buksh] the Court of Appeal revisited the question of when adverse inferences will be appropriate. The Court said:

[34]      Taking the admonition of Mr. Justice Davey to the extreme in today’s patchwork of medical services raises the likelihood of increased litigation costs attendant upon more medical reports from physicians or additional attendances of physicians at court, with little added to the trial process but time and expense, and nothing added to the knowledge of counsel. Perhaps the idea that an adverse inference may be sought, on the authority of Barker, for the reason that every walk-in clinic physician was not called fits within the description of “punctilio” that is no longer to bind us, referred to by Mr. Justice Dickson in R. v. Sault Ste. Marie, , [1978] 2 S.C.R. 1299, 3 C.R. (3d) 30, in a different context.

[203]     In Buksh, the court also outlined some of the features to be considered on an application for an adverse inference concerning treating doctors as follows:

[35]        In this environment, and bearing in mind the position of a lawyer bound to be truthful to the court, it seems to me there is a threshold question that must be addressed before the instruction on adverse inferences is given to the jury:  whether, given the evidence before the court, given the explanations proffered for not calling the witness, given the nature of the evidence that could be provided by the witness, given the extent of disclosure of that physician’s clinical notes, and given the circumstances of the trial (e.g., an initial agreement to introduce clinical records that work contrary to the inference, or incorporation of that witness’s views or observations in the report of a witness called by the other side) a juror could reasonably draw the inference that the witness not called would have given evidence detrimental to the party’s case.