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

Court dismisses defence application for Independent Medical Examination with Psychiatrist

In reasons released earlier today the court in Tournier v. Ruckle, 2017 BCSC 308 dismissed the defendant’s application to compel the plaintiff to attend an independent medical examination with a Psychiatrist.  In Tournier, the defence applied for the IME for the purpose of responding to an expert report of the plaintiff’s psychiatrist.  The application was made after the 84-day service deadline.  The defence claimed they were taken by surprise when the plaintiff served a report shortly before the deadline which diagnosed the plaintiff with PTSD.  In finding that the defence should have been aware that a PTSD diagnosis was a live possibility, and thereby dismissing the application, Master Muir said as follows:

[1]            THE COURT:  This is an application by the defendant for an independent medical examination of the plaintiff by Dr. Ursula Gutteridge, a psychiatrist, for the purpose of responding to the expert’s reports of the plaintiff’s psychiatrist, Dr. Christopher Babbage.

...

[20]        The plaintiff submits that this is just another classic example of the defendant failing to obtain any evidence on psychiatric issues when those were clearly apparent and trying to shoehorn in an opinion after the 84‑day deadline is passed.

[21]        I just pause to reflect on the number of these types of applications. They are frequent. The court in Timar, in particular, held that rebuttal reports should be rare and rebuttal reports needing an independent medical examination should be rarer still. What seems to be an issue, and I am not saying it necessarily is the case here, is that defendants seem to want to have the plaintiff’s primary expert’s reports in their hands in order to know exactly what they need to address before they decide whether to obtain an expert’s opinion, but that is not the rule.

[22]        As noted in Timar, both parties have an obligation to turn their mind to the conditions of the plaintiff that may require expert evidence prior to the 84‑day deadline. There is prejudice to the plaintiff in delay in producing reports. The plaintiff submits that the report of Dr. Gutteridge will, of necessity and obviously, be essentially the same as a primary expert’s report, to which they will have no opportunity to respond.

[25]        Counsel for the plaintiff was operating on the exact same playing field as was counsel for the defendant. As was submitted by counsel for the plaintiff, where the defendant is alerted that the plaintiff has significant mental‑health concerns that impact on the issues in the litigation, as in this case, and the defendant decides that an independent primary expert’s report is not necessary, that should not be laid at the feet of the plaintiff unless there is significant surprise.

[26]        In my view, the diagnosis of PTSD here is not sufficiently out of the realm of the symptoms and diagnoses that had been previously revealed to the defendant that this is such a case.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/03/2017BCSC0308.htm

Court criticizes defence Orthopedic Surgeon as being "either deliberately misleading or grossly careless"

In reasons for judgment released December 22, 2016, the court in Kim v. Lin, 2016 BCSC 2405 criticized the evidence of the defence Orthopedic Surgeon Dr. Grypma, calling his testimony “disingenuous” and describing his report as “either deliberately misleading or grossly careless”.  Mr. Justice Sewell wrote:

[11]        With the exception of Dr. Grypma, I found all of the witnesses who testified or provided reports to be credible and reliable witnesses. Unless I specifically indicate otherwise, I accept their evidence.

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[117]     There is a fundamental disagreement between Dr. Krassioukov and Dr. Grypma over the cause of Ms. Kim’s complaints. Dr. Krassioukov’s opinion is that the SI joint deterioration noted on the CT scan and MRI is the result of trauma suffered in the Accident. Dr. Grypma is of the opinion that the SI deterioration is minor and is the result of a pre-existing condition unrelated to the Accident.

[118]     I prefer Dr. Krassioukov’s opinion on this issue to that of Dr. Grypma. I appreciate that Dr. Grypma is an orthopedic surgeon, and as such his opinion would ordinarily be accorded considerable weight. However, after reviewing his opinions in the context of the whole of the evidence and observing him under cross-examination, I have concluded that he failed to present balanced and impartial evidence in this case.

[123]     ... I find that Dr. Grypma was being disingenuous when he suggested that Dr. Budzianowska-Kwiatkowski’s report was ambiguous and that he was being either deliberately misleading or grossly careless in his reports when he used this passage to suggest that Ms. Kim had recovered from her injuries by October 2008.

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[127]     For all of the foregoing reasons, I can give no weight to Dr. Grypma’s opinions.

The full text of the decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/16/24/2016BCSC2405.htm

 

Court Criticizes ICBC For Use of Orthopaedic Surgeon in Soft Tissue Case

In the recent decision of Khudabux v. McClary, 2016 BCSC 1886, the court criticized ICBC’s reliance on the opinion of an Orthopaedic Surgeon in a Soft Tissue Case, preferring the evidence of a Physiatrist.  Using somewhat colourful language, the court said:

[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.

The full text of the decision can be found here: http://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc1886/2016bcsc1886.html

Court finds that $22,000 Cost for Expert Report was "Reasonable"

In the recent decision of Bokova v. Gertsoyg & Company, 2016 BCSC 2297, the court found that the $21,984.48 cost for an expert report of a Physiatrist was a “reasonably necessary and proper” disbursement.  The court said:

[5]             On this review, the client challenges both the fees charged and the disbursements claimed. The client is particularly distressed by the costs of a physiatrist’s report by Dr. Michael Vondette, which totalled $21,984.48, and with the contents of that report. The contingency agreement itself is not challenged.

[37]         The client had the option of having the cost of Dr. Vondette’s report assessed before a registrar pursuant to Supreme Court Civil Rule 14-1(5), but chose to accept the defendant’s partial offer towards the disbursements incurred. That was her choice. However, it does not bind the lawyer. Within this proceeding, the appropriateness of the cost of Dr. Vondette’s report must be reviewed pursuant to the provisions of the LPA. I find the lawyer’s disbursements, including the report of Dr. Vondette, to have been authorized, reasonably necessary and proper to the conduct of the proceeding to which they relate in accordance with s. 71(2) (a) and (b) of the LPA. Accordingly, the lawyer’s disbursements, including the report of Dr. Vondette, are allowed in full.

The full text of the decision can be found here: http://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc2297/2016bcsc2297.html?resultIndex=1