Do No Harm (To Your Case): The Role of the Lawyer in Instructing the Medical Expert

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1 ANATOMY OF A MEDICAL EXPERT PAPER 3.1 Do No Harm (To Your Case): The Role of the Lawyer in Instructing the Medical Expert These materials were prepared by Albert Roos, QC, and Jessie Meikle-Kähs, both of Sugden, McFee & Roos LLP, Vancouver, BC, for the Continuing Legal Education Society of British Columbia, May Albert Roos, Q.C. and Jessie Meikle-Kähs

2 3.1.1 DO NO HARM (TO YOUR CASE): THE ROLE OF THE LAWYER IN INSTRUCTING THE MEDICAL EXPERT I. Counsel s Role in Instructing an Expert Concerning Elements of an Admissible Report... 1 II. III. What Advice Should We Give the Expert Regarding Maintaining a Complete File?... 3 Providing Your Expert with Complete Examination for Discovery Transcripts versus Providing Assumed Facts Drawn from Those Transcripts What is the Best Practice? Pros and Cons... 5 IV. Draft Report Do s and Don ts... 6 I. Counsel s Role in Instructing an Expert Concerning Elements of an Admissible Report It is counsel s role to instruct the expert what is required in terms of elements of a report, which are set out in Rule 11-6(1) of the Supreme Court Civil Rules ( SCCR ) and the expert s duty, which is set out in Rule The expert s duty is of utmost importance in ensuring that the report is admissible and for that reason, it will be discussed first. Rule 11-2(1) provides that the expert has a duty to assist the court and is not to be an advocate for any party. It is counsel s duty to make the expert aware of Rule 11-2(1) pursuant to Rule 11-2(2), which requires an expert to certify that he or she is aware of the duty, has made the report in conformity with that duty, and will give testimony in conformity with the duty. It is prudent to inform the expert of the duty and to highlight that the report should be written from a neutral perspective. It is counsel s job to use the report to make an argument, it is not the expert s role to argue or advocate within the report. Madam Justice Gropper s discussion of the expert report in Warkentin v. Riggs, 2010 BCSC 1706 provides a good overview of the risk that could materialize if the expert becomes an advocate (paras ). Gropper J. held that the report in that case was inadmissible because the expert was not neutral and impartial, but rather he acted as an advocate for the plaintiff. His opinion was biased and argumentative. Gropper J. held that the fact that the expert described himself as an Expert Medical Legal Consultant providing opinions on behalf of patients with chronic pain who are seeking legal remedies with respect to their condition meant that he did not consider himself to be an objective advisor to the court (para. 82). Likewise, Brown v. Raffan, 2013 BCSC 114 is another recent case where the court held that the expert had become an advocate for the plaintiff and therefore the court could not rely upon his report. In that case, the expert was the plaintiff s treating physician. He mentioned several times throughout the report that he thought the plaintiff was a blameless victim and that she had received no support from ICBC. Mr. Justice Verhoeven held that these types of comments had no proper place in an expert s report and conflicted with the expert s duty in Rule To illustrate his point, Verhoeven J. set out portions of the expert s report and underlined sentences that he described as the offending material (paras. 71 to 72).

3 3.1.2 Rule 11-6(1) provides the components that are required in an expert s report. These are: the expert s signature; the 11-2(2) certification; the expert s name, address and area of expertise; the instructions provided to the expert; the nature of the opinion being sought and the issues it relates to; the expert s opinion respecting the issues; the expert s reasons for his or her opinion including: (i) a description of factual assumptions; (ii) a description of any research conducted by the expert in respect to the opinion; and (iii) a list of every document relied on by the expert in forming the opinion. The court has held that compliance with the requirements for an expert report is not a matter of form: Jones v. Ma, 2010 BCSC 867. Indeed, where the expert has not provided the certificate of objectivity, the court may not consider the report: Warke v. Wildeman, 2012 BCSC 872 at para. 41. The Court of Appeal in Mazur v. Lucas, 2010 BCCA 473 discussed the purpose of Rule 11-6 stating: [42] New Rule 11-6 expands on what an expert was required to state under old Rule 40A, but does not alter the general principle that it is essential for the trier of fact to know the basis of an expert opinion so that the opinion can be evaluated. The Rule has a dual purpose. The second purpose is to allow the opposing party to know the basis of the expert s opinion so that they or their counsel can properly prepare for, and conduct, cross-examination of the expert, and if appropriate, secure a responsive expert opinion. The requirement that the expert must include a description of the factual assumptions on which the opinion is based (Rule 11-6(1)(f)(i)) codifies earlier case law such as Mr. Justice Lowry s decision in the case of Rowe v. Bobell Express Ltd., 2003 BCSC 472 where he said as follows: Rule 40A (now Rule 11-6) of the Rules of Court permits the opinion of an expert witness to be proven by tendering a statement of the opinion without the necessity of the witness being called. The statement must, however, contain the facts and assumptions on which the opinion is based. As I have said before, it is my view that the statement should set out all of the facts necessary to the opinion, but only those facts. The facts, known or assumed, should be immediately apparent. The reader should not have to cull them out of pages recording what was said in the course of interviews or observed during examinations or revealed by tests administered. Counsel must also ensure that the expert has all of the relevant documents necessary to complete the report and that the expert is aware that he or she must list and describe every document (in sufficient detail) that is relied on in forming the opinion pursuant to Rule 11-6(1)(f)(iii). In Turpin v. Manufacturers Life Insurance Company, 2011 BCSC 1159, Mr. Justice Wilson noted that the expert s list of documents that she had relied on was wholly inadequate. There, the expert had stated that she reviewed clinical manifestations of appendicitis and reviewed the literature for the delayed diagnosis of appendicitis. Wilson J. held that the expert had not identified what was reviewed to obtain the clinical manifestations referred to nor had she identified what literature she had relied upon (paras ).

4 3.1.3 Another word of caution from Turpin is in respect to the manner that the expert describes his or qualifications (Rule 11-6(1)(a) and (b)). The expert had indicated that she completed a residency in internal medicine and she was currently doing internal medicine. Wilson J. found that as a lay person the term internal medicine did not assist him in determining whether the expert was qualified (para. 14). II. What Advice Should We Give the Expert Regarding Maintaining a Complete File? The regime for disclosure of the expert s file is quite different under the SCCR then it was under the former Rules of Court. This section will consider the evolution of the jurisprudence in respect to this disclosure from the seminal case of Vancouver Community College v. Phillips Barratt, 1987 CanLII 2532 (B.C.S.C.) up to and including new Rule 11-6(8). Under the former Rules of Court, the expert s file was protected by lawyer s brief privilege until the expert was tendered as a witness at trial or his or her written report was tendered. When that occurred, there was an implied intention to waive the lawyer s brief privilege. If the expert was then cross-examined on the report, there was an obligation to produce relevant documents in the expert s possession which were or could be relevant to matters of substance in the expert s evidence or to the expert s credibility: Vancouver Community, supra, at para. 34. Another key case in the evolution of disclosure of the expert s file is Delgamuukw v. British Columbia, 1988 CanLII 3194 (B.C.S.C.). In that case, the issue was disclosure of the expert s file after the expert report was tendered, but before the expert was called at trial. The expert report had been tendered pursuant to s. 11 of the Evidence Act, R.S.B.C. 1979, c. 116, which provided that an expert opinion and the facts on which the opinion is formed had to be disclosed at least 30 days before the expert testified. The defendants sought an order for disclosure of the facts on which the expert had based his opinion which was said to be original anthropological research. McEachern C.J., as he then was, ordered that the original research had to be disclosed in order to assist counsel to properly assess the expert report: [16] In my view, s. 11(1) must be given a reasonable meaning which best carries out its clear purpose, which is to assist opposing counsel, before an expert witness is called, to assess whether his opinion is supported by the facts upon which it is based. It is my conclusion, for the reasons just stated, that the defendants are entitled to examine the original data, notes and writings of the anthropologist upon which his report is based. In a subsequent decision in the same case (reported at 1988 CanLII 3195), McEachern C.J. considered the proper procedure when counsel made a claim to privilege over the contents of the expert s file. Specifically, if counsel wanted to maintain a claim to solicitor s privilege in respect to portions of an expert s file, then counsel had to make an oral or written claim for privilege: [21] If counsel wishes to maintain a claim to solicitor s privilege, I think it must be done by furnishing a reasonable description of the document or an edited copy and by making a specific oral or written claim to privilege which in rare cases might have to be supported by affidavit, but I would expect most such questions can be decided on the statements of counsel. If cross-examining counsel did not accept counsel s claim for privilege, then the judge could examine the document and make a determination as to privilege pursuant to former Rule 26(12) (Delgamuukw at para. 22).

5 3.1.4 The judicial evolution towards granting early disclosure of experts files can be seen in Lanthier v. Volk, 2006 BCSC 2092, where Mr. Justice Johnston discussed the rationale for such disclosure. Lanthier was a pre-trial chambers application brought by the plaintiff for production of a surveillance videotape that the defendant s solicitor had provided to two defence experts. Both experts referred to the surveillance video in their respective reports. The defendant argued that even though notice of the expert report had been given, the contents of the videotape remained privileged until the report was tendered at trial or the experts testified (paras. 8 and 15). In holding that the defendant had to disclose the videotape, Johnston J. noted that the trend in the jurisprudence over the preceding several years was away from trial by ambush towards pre-trial disclosure, either voluntary or otherwise (para. 16). He reasoned that pre-trial disclosure was necessary to prevent impediments to settlement and the possibility that late disclosure might lead to an adjournment of the trial. This was of particular concern in a jury trial where the risk of adjournment might arise in the middle of the trial when counsel decided to call the expert or tender the expert report (para. 16). Johnston J. held that privilege over the video had been waived by delivery of the expert reports and it was not possible for the opposing party to properly prepare without the videotape. Moreover, he noted that trial fairness and the promotion of efficiency in the trial process dictated that the videotape be disclosed (para. 17). Madam Justice Southin, writing for the Court of Appeal in Traynor v. Degroot, 2001 BCCA 556, provided judicial direction to the drafters of the SCCR in respect to the issue of expert disclosure before trial. The issue in Traynor was whether raw data in the hands of the expert neuropsychologist had to be disclosed. The master ordered disclosure of the raw data on the basis that the raw data and test results were the factual basis that underpinned the expert report. An appeal of the master s decision was dismissed at the Supreme Court. Further appeal to the Court of Appeal was also dismissed. Southin J.A., however, made it clear that disclosure of an expert s documents ought to be addressed in the Rules: [28] Those with authority over the Supreme Court Rules might wish to consider putting into Rule 40A a clear provision stating what class or classes of the documents of an expert, notice of a report of whom has been given to the other side, must be produced before trial. It seems that the drafters of the SCCR were cognizant of Southin J.A. s concerns in Traynor, as Rule 11-6(8) now deals specifically with disclosure of an expert s file upon demand. Specifically, pursuant to Rule 11-6(8), a party of record may request to review and copy the expert s file relating to the preparation of the opinion. If the request is made within 14 days before the scheduled trial date, the expert must comply with the request promptly. If the request is made at any other time, the expert must comply with the request at least 14 days before the scheduled trial date. Mr. Justice Myers recently discussed the meaning of relating to the preparation of the opinion in Rule 11-6(8) in First Majestic Silver Corp. v. Davila, 2012 BCSC Myers J. held that notes made by the expert during trial did not need to be disclosed because the notes were made after the opinion was prepared (paras. 9-11). The time records that related to the expert s time spent in preparing the report had to be disclosed (paras ). Given the obligation to disclose the entirety of the expert s file upon demand, it is prudent to educate experts that everything that is written down may be producible to opposing counsel upon demand. Therefore, it is best that written correspondence between counsel and the expert is kept to a minimum. The intention is not to have the expert cheat, but just to make sure that the expert is aware of the Rules and the fact that the lawyer s brief privilege over the expert s file is not indefinite. The ultimate goal in obtaining an expert report would be to have one final report and no drafts.

6 3.1.5 Realistically, however, this goal is rarely achieved. Therefore, counsel should educate experts that the expert s file will undoubtedly be carefully scrutinized after the report is tendered. This will be discussed in further detail under heading IV draft reports dos and don ts. III. Providing Your Expert with Complete Examination for Discovery Transcripts versus Providing Assumed Facts Drawn from Those Transcripts What is the Best Practice? Pros and Cons The issue of providing an expert with complete examination for discovery transcripts versus providing him or her with assumed facts has been somewhat of a contentious issue in the jurisprudence. The general opinion used to be that counsel should not provide the expert with the complete examination for discovery transcripts because the expert would be left to draw his or her own factual conclusions from the evidence: Johnson v. Goldsmid, [1987] B.C.J. No (S.C.). In Croutch (Guardian ad litem of) v. B.C. Women s Hospital & Health Centre, 2001 BCSC 995, affirmed 2003 BCCA 472, Mr. Justice Lowry held that as a general rule experts should not be given access to discovery transcripts. Rather, counsel should provide the expert with facts that counsel was satisfied could be proven at trial. Lowry J., as he then was, was concerned that the expert would usurp the function of the trier of fact in weighing evidence: 17 In my view, expert witnesses should not base their opinions on discovery evidence which may or may not be read in at trial. Indeed, as a general rule, I do not consider they should be given access to discovery transcripts. The assessment of evidence is not their function, and there is no place for the delivery of an expert s opinion when it is based on facts drawn by the expert from what was said on discovery. The facts underlying an opinion are within the purview of counsel. It is counsel who must be satisfied they are facts that can be proven, and it is for counsel to settle with an expert witness the facts that are to be assumed for the purpose of the opinion. It is those facts that must then be set out clearly in the statement that is to be delivered in compliance with the Rules. [emphasis added] More recently, in Gish v. Hooper Insurance and Financial Services Inc., 2011 BCCA 232, Mr. Justice Lowry, writing for the majority of the Court of Appeal, referred to his earlier decision in Croutch on the issue of providing discovery transcripts to experts. Again, he emphasized his view that experts should not be left to make their own assessment of the evidence on the basis of discovery transcripts (para. 28). There is, however, authority holding that in some instances it is appropriate to provide the expert with discovery transcripts. For example, in Keefer Laundry Ltd. v. Pellerin Milnor Corp., 2007 BCSC 899, Mr. Justice N. Smith reasoned that in most cases the approach in Croutch ought to be followed. However, in some cases where the expert is asked to comment directly on the conduct of a party, for example, in professional negligence cases, it may be more convenient for counsel to provide portions of the discovery transcript to the expert and instruct the expert to assume the facts in the discovery testimony, but not to weigh the evidence against other evidence. Counsel should also instruct the expert to clearly set out the facts and assumptions drawn from the discovery transcript (para. 46). It should be noted that there is case law that holds that it may be particularly important for a plaintiff s expert to review the entirety of the defendant s examination for discovery transcript in medical negligence cases. The rationale for this position is that the plaintiff s expert ought to be aware of what considerations the defendant made in the course of treating the patient because this will go to whether the physician s clinical judgment met the applicable standard of care: Miller v. Budzinski et al., 2004 BCSC 1730 at paras. 442 and 443.

7 3.1.6 Recently Madam Justice Ker, in Friebel v. Omelchenko, 2013 BCSC 948, reviewed the jurisprudence regarding whether an expert should be provided with discovery transcripts or not. In Friebel, plaintiff s counsel objected to the admissibility of two defence expert reports on the basis that the expert had been provided with entire copies of the examination for discovery. Relying on the Croutch line of authority, plaintiff s counsel argued that it was improper to provide the transcripts and then leave the expert to draw his or her own conclusions as to which facts should be used to support the opinion. Kerr J. distinguished the situation whereby an expert is provided with transcripts and he or she weighs the evidence and provides a report without outlining or providing a statement of assumed facts. The problem with that scenario is that it is impossible for the trier of fact to determine what facts the expert has assumed or relied on and whether or not those facts have been proven in evidence (paras & 18). Conversely, in Ker J. s opinion, it is not a problem when an expert is provided with the examination for discovery transcripts and then he or she lists all of the material reviewed and outlines the factual assumptions upon which the opinion is based. This second scenario is not problematic because the trier of fact is able to properly assess the basis for the opinion and determine whether the factual assumptions that the expert relied upon have been proven in evidence (para. 25). Based on this jurisprudence, a good practice is to read through the examination for discovery transcript and provide the expert with an assumed statement of facts along with the discovery transcript and medical records. That way, it is not the expert s prerogative to come up with the assumed facts his or herself. This also helps to focus the expert s analysis. Support for this practice is found in Roe v. Dabbs et al., 2004 BCSC 957 at para. 54. In providing a statement of assumed facts, counsel should be extremely careful to ensure that the factual assumptions provided to the expert are founded in the evidence. This may involve a close reading of the medical records, discovery transcript, and any other relevant documents. Regardless of whether the expert is provided with transcripts, excerpts of transcripts, or a statement of assumed facts, when there are multiple defendants the expert must be warned that there will invariably be some conflicts in the defendants evidence. It is not the expert s job to weigh this evidence and determine which version he or she prefers. Rather, counsel should instruct the expert that he or she must simply accept that the transcripts accurately set out the various witnesses evidence. This may mean that in some cases, the expert has to voice an opinion based on alternative facts. IV. Draft Report Do s and Don ts When should we ask for a first draft and what if any discussion should take place between a lawyer and expert before and after the first draft and subsequent drafts are prepared? A good practice is for counsel to ask the expert to call him or her before the expert puts pen to paper (or fingers to keys as it were). This practice avoids any misunderstandings and counsel is able to ensure that the expert has understood the question at issue and the burden of proof. For example, physicians are used to dealing in medical certainties; therefore, it is important to ensure at the outset that the expert understands the civil burden of proof. The expert only has to provide an opinion that the injury at issue was more likely than not caused by the defendant (or whatever the specific issue happens to be). There is little utility in an expert report that is based on the standard of medical certainty particularly for a plaintiff.

8 3.1.7 The recent Ontario Superior Court of Justice decision in Moore v. Getahun, 2014 ONSC 237, suggests that counsel should not review draft reports nor should counsel have discussions with experts to review and shape a draft report. The court held that if after submitting the final expert report counsel requires clarification, then he or she should request clarification in writing and disclose the request to opposing counsel (paras ). It is important to note that Moore is based on the court s interpretation of Rule of the Rules of Civil Procedure, R.R.O. 1990, Reg Unlike the SCCR, Rule does not provide for disclosure of the entirety of the expert s file upon request. For this reason, Moore would likely not be followed in BC where the Rules already provide a certain level of transparency. At the time of writing, Moore had been appealed to the Ontario Court of Appeal, but the appeal has not yet been set down for hearing. Moore was recently referred to in Thermapan Structural Insulated Panels Inc. v. Ottawa (City), 2014 ONSC 2365 as an illustration of the evolution of the expert in litigation in Ontario (para. 6). However, the court did not expressly accept or reject the Moore approach. Moore has not yet been judicially considered in BC; therefore, time will tell whether this strict approach is adopted. Counsel should attempt to keep the number of drafts to a minimum. That said, there is no problem with having two or three drafts of an expert report. However, permissible changes in the evolution of the report from the first draft to the final report should be in the nature of clarification and not go to the substance of the report. For example, it is crucial to review the draft report and ensure that it has the requisite level of precision necessary to assist the case. Counsel should take the opportunity to speak to the expert and provide feedback on how the expert can clarify the opinion by using plain language and avoiding medical jargon. There may be an occasion where a draft report changes significantly when the expert becomes aware of all the facts. This is situation that counsel should seek to avoid by ensuring that the expert has everything that he or she needs at the outset. In discussing draft reports with an expert, counsel should always keep in mind Finch J. s, as he then was, strong words of rebuke for counsel in Vancouver Community College v. Phillips Barratt, 1988 CanLII 2827, [1988] B.C.J. No. 710 (S.C.). There, Finch J. held that counsel had participated far too much and inappropriately in the preparation of the expert s report. Finch J. had earlier ordered the disclosure of the expert s file in an chambers decision discussed above under heading II: 1987 CanLII 2532, [1987] B.C.J. No The issue in Vancouver Community College ( VCC ) was whether the architects and engineers who were involved in a substantial renovation and construction project on VCC s downtown campus were liable for cost overruns, a shortfall in VCC s space requirements, and other deficiencies in the project. VCC claimed damages exceeding $9 million. VCC adduced four expert reports and called each witness to testify. The evidence of Robert Atkins, a quantity surveyor, was key to VCC s case. In particular, VCC s other experts, two architects and engineer premised their reports on Mr. Atkins conclusions or assumptions. Finch J. s preliminary view of Mr. Atkins was that he was partisan, argumentative and not objective. Finch J. took particular issue with the manner in which Mr. Atkins report was prepared. Specifically, Mr. Atkins expert report was substantially revised about 10 times after round table discussions with counsel. Finch J. emphasized that he had no issue with counsel consulting with experts while the report was being prepared. However, in so doing, counsel must ensure that the expert s independence is not compromised:

9 3.1.8 I in no way wish to condemn the practice of an expert s editing or rewriting his own reports prepared for submission in evidence, or for that matter, prepared solely for the advice of counsel or litigants. Nor do I wish to condemn the practice of counsel consulting with his experts in the pre-trial process while reports are in the course of preparation. It is, however, of the utmost importance in both the re-writing and consultation processes referred to that the expert s independence, objectivity and integrity not be compromised. I have no doubt that in many cases these ends are achieved, and counsel and experts alike respect the essential boundaries concerning the extent to which a lawyer may properly discuss the expert s work product as it develops towards its final form. In VCC, Finch J. held that counsel had not observed the boundaries and had participated far too much, and inappropriately, in the preparation of the report. Some of the aspects of the report that Finch J. took issue with included: Counsel suggesting additions and deletions that went to the substance of the opinion and the way it was expressed, rather than to permissible issues such as factual hypotheses or definitions of issues. All of the suggested changes were one way in that they supported VCC s case. All criticisms of VCC, the Ministry of Education ( MOE ) or their respective staff were deleted. References to VCC or MOE being responsible for difficulties or problems in the construction project were deleted. Mr. Atkins opinion that it was inadvisable for a designer to also be responsible for cost planning was deleted from the first draft, although he still held that opinion at trial. Mr. Atkins deleted his statement that the defendants believed at the design stage that they had the entire budget to spend on the project. He also deleted his statement that the defendants did have such authority. Mr. Atkins used Statistics Canada data to calculate the cost index of the project, instead of his own authored Construction Data Systems index, which increased VCC s claim by $800,000. Mr. Atkins initial opinion was that the project was short 18,000 square feet. In subsequent drafts, he revised this to be 21,000 square feet and then 30,000 square feet to support VCC s claim. Criticisms of or complaints against the defendants were elaborated and multiplied. References to documents that Mr. Atkins had reviewed were deleted. Reference to counsel s instruction letter was changed and Mr. Atkins terms of reference were varied. Finch J. held that Mr. Atkins regarded himself as part of the VCC team as a result of his meetings and discussions with counsel. He even met with VCC s other experts and assisted them in revising their reports. Finch J. concluded that he could not rely on anything that Mr. Atkins had said or written: In the end, I find Atkins evidence both written and oral to be of no value whatever. It is so warped by the process of its creation, so one-sided and partisan, as to be completely devoid of any credibility. I have no confidence in anything that Atkins told me, either in writing or orally. Even if his evidence were not

10 3.1.9 contradicted by other credible evidence, I would feel bound to reject it entirely and to decide the case without reference to it. VCC is an important reminder to counsel that if we receive an expert report that analyzes the appropriate facts and comes to a conclusion that we simply cannot live with, our only recourse is to seek another opinion. Counsel should not and cannot suggest that an expert change his or her mind.

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