Court finds defence Orthopedic Surgeon Report “of little assistance” as expert did not actually examine plaintiff, but only reviewed clinical records

In reasons for judgment released last week, the court in Petrovic v. Stetsko, 2017 BCSC 741, criticized the medical-legal report of the defence Orthopedic Surgeon in circumstances where the expert did not actually examine the plaintiff.  Madam Justice J. A. Power wrote:

[34]         The defence called Dr. Paul Marks, an orthopedic surgeon from Toronto, Ontario.  Dr. Marks’ report was a response report and is entitled “Medical File Review”.  As the title suggests, Dr. Marks did not medically examine Mr. Petrovic.  Instead he simply reviewed the medical file and then provided an opinion.

[35]         Dr. Marks is of the opinion that Mr. Petrovic suffered simply soft tissue strains as a result of the accident which should have resolved within 6-12 weeks under normal biological healing parameters.  Dr. Marks agrees with Dr. Reynolds that it is highly unlikely that the plaintiff’s symptom would be permanent.

...

[39]         I have further determined that Dr. Marks’ evidence is entitled to little weight for the reasons outlined by Parrett J. in Preston v. Kontzamanis, 2015 BCSC 2219 at paras. 127 to 138.

[40]         As noted in the plaintiff’s argument, the defence did not at any point seek an Independent Medical Assessment pursuant to the Rules or request the plaintiff to submit to one voluntarily.  I am of the view that Dr. Marks’ evidence is of little assistance to the court.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/07/2017BCSC0741.htm