HOW TO WRITE A MEDICAL LEGAL REPORT AND PRESENT IN COURT

HOW TO WRITE A MEDICAL LEGAL REPORT AND PRESENT IN COURT William T. Morley 604 631 3127 bmorley@fasken.com

HOW TO WRITE A MEDICAL LEGAL REPORT AND PRESENT IN COURT Background In many, if not most, personal injury cases the outcome depends upon the opinion of an expert as opposed to a witness testifying to a fact. For instance, a witness who sees or feels muscles tightness can testify as a fact to what he saw or felt; to go further and say such muscle tightness is a spasm consistent with an injury caused by an accident is an opinion. In order to prove their case, a Plaintiff in a personal injury action is required to prove causation: that an accident caused a particular set of symptoms. Opinion evidence linking symptoms to an accident is crucial for proving a personal injury case. Such opinion evidence will not be admitted in court unless the provisions of Rule 40A of the Rules of Court which governs the admissibility of opinion evidence are met. Rule 40A Rule 40A states: Application (1) This rule does not apply to summary trials under Rule 18A, except as provided in that rule. Admissibility of written statements of expert opinion (2) A written statement setting out the opinion of an expert is admissible at trial, without proof of the expert's signature, if a copy of the statement is furnished to every party of record at least 60 days before the statement is tendered in evidence. Admissibility of oral testimony of expert opinion How to Write a Medical Legal Report and Present in Court Page 1 of 14

(3) An expert may give oral opinion evidence if a written statement of the opinion has been delivered to every party of record at least 60 days before the expert testifies. Idem (4) The statement also may be tendered in evidence. Form of statement (5) The statement shall set out or be accompanied by a supplementary statement setting out the following: (a) the qualifications of the expert; (b) the facts and assumptions on which the opinion is based; (c) the name of the person primarily responsible for the content of the statement. Proof of qualifications (6) The assertion of qualifications of an expert is prima facie proof of them. Admissibility of evidence (7) If a statement that does not conform to subrule (5) has been delivered (a) it is inadmissible under subrules (2) and (4), and (b) the testimony of the witness under subrule (3) is inadmissible unless the court otherwise orders. Notice of trial date to expert How to Write a Medical Legal Report and Present in Court Page 2 of 14

(8) A party who delivers a statement shall, on delivery or when a trial date has been obtained, whichever is later, inform the expert of the trial date and that the expert may be required to attend at trial for cross-examination. Demand to cross-examine (9) A party to whom a statement has been delivered under subrule (2) and who is adverse in interest to the party delivering the statement may, by demand to that party, require the attendance of the expert at trial for cross-examination. Idem (10) The expert need not attend at trial unless the demand is made within a reasonable time after delivery of the statement. Idem (11) The convenience and other commitments of the expert shall be taken into account in determining whether the demand has been made within a reasonable time. Costs of cross-examination (12) If an expert has been required to attend for cross-examination and the court is of the opinion that the cross examination was not of assistance, the court may order the party who required the attendance of the expert to pay, as costs, a sum the court considers appropriate. Notice of objection to expert evidence How to Write a Medical Legal Report and Present in Court Page 3 of 14

(13) A party who receives a written statement under subrule (2) or (3) shall notify the party delivering the statement of any objection to the admissibility of the evidence that the party receiving the statement intends to raise at trial. Idem (14) No objection under subrule (13) of which reasonable notice could have been given, but was not, shall be permitted at trial unless the court otherwise orders. Dispensing with statement (15) At trial, the court may dispense with the requirement of delivery of a statement. Idem (16) Without limiting the generality of subrule (15), the court may dispense with the requirement of delivery of a statement on one or more of the following grounds: (a) where facts have come to the knowledge of the party tendering the witness after the delivery of the statement of that witness's evidence, that could not, with due diligence, have been learned in time to be reduced to a further statement and delivered within the time required by this rule; (b) where the non-delivery is unlikely to cause prejudice (i) by reason of an inability to prepare for cross-examination, or (ii) by depriving the party against whom the evidence is tendered of a reasonable opportunity to present evidence in response; How to Write a Medical Legal Report and Present in Court Page 4 of 14

(c) where the interests of justice require it. Time (17) Before or at trial, the court may extend or abridge the time limits set out in this rule. The purpose of the Rule is to give the opposing party notice by providing them with a written version of the expert opinion and time to address it before the opinion is tendered in court. The Rule speaks in terms of a statement of an expert. For the purposes of this paper we will treat the statement as synonymous with a report prepared by an expert. The Rule attempts to correct a number of problems with expert reports which include: -late notice of expert evidence; -expert reports signed by one author but really a product of several peoples work and opinions; -authors who set out opinions without clarifying how those opinions connect to the case. A potential benefit of the Rule for a busy g.p. is that it creates an exception from the usual rules of evidence which require a witness to give evidence in person before the court. The witness evidence is usually lead by the lawyer for the party calling the witness, and the witness is cross examined by the lawyer for the opposing party. Rule 40A (9) allows a medical legal report which otherwise complies with the Rule to be admitted into evidence at trial without the witness attending court unless the opposing party demands the witness attend for cross-examination. How to Write a Medical Legal Report and Present in Court Page 5 of 14

Unfortunately for the busy g.p., in part because the Rule is an exception to a party attending in person to give evidence, the court takes its gate keeping role very seriously, and looks for the provisions of Rule 40A to be closely adhered to as stated by Mr. Justice Hood in Hayes v Brown 2001 BCSC 1046 at paragraph 26: The Court of Appeal has noted the importance of the requirements of Rule 40A(5)(b), describing it as one of the safeguards enacted in 1976 when written reports of experts were first permitted into evidence without the expert being examined and cross-examined in open court. See F.(K.E.). v Daoust (1995), 34 C.P.C. (3d) 393 at p. 396-397. In that case the Court found that the Trial Judge ought not to have admitted the delinquent report on the vital question before the Court, that of causation. And see also Goerzen v. Sjolie, [1997] B.C.J. No. 44, wherein the Court of Appeal observed that the provisions of Subrule (5) are mandatory, whether read alone or in conjunction with Subrule (7). It is certainly not simply a technical matter. The principle requirements imposed on the author of an expert report by Rule 40A are set out in Rule 40A(5) which states the report must contain or be accompanied by a supplementary statement containing: -the qualifications of an expert; -the facts and assumptions upon which the opinion is based; -the name of the person primarily responsible for the content of the report. Let us deal with qualifications and name of the person responsible first as these criteria are relatively uncontentious. How to Write a Medical Legal Report and Present in Court Page 6 of 14

Qualifications The listing of qualifications would seem simple, but compliance with the Rule can more complicated. The court has held where the only statement of qualification was on the letterhead that simply stating M.D., F.R.C.P. and neurologist was not enough. In Reid v. Belcaen 2003 BCSC 1450 para 11 the court said: The purpose of the rule, among other things, is to give the opposite side the information necessary to determine how to respond to the proposed evidence. In the case of Dr. Biro, it is obvious that he is a physician. It is not apparent what the nature of his experience is, nor is it apparent, for example, whether he is a specialist. The information provided in relation to his qualifications is at least arguably insufficient to comply with the requirements of Rule 40A(5). In the case of the reports of Dr. Falconer, more information as to his qualifications has been provided, but there was no information as to the nature of his practice, the length of his experience, or whether he has any particular expertise, such as an expertise in electrical diagnostic medicine, which is a recognized subspecialty of neurology and which is relevant to some of the opinions contained in his report. I will assume, for the purposes of what follows, that the information provided in these reports is insufficient to meet the requirements of the rule. A preamble or C.V. attached to your report should set out your education, training, and experience particularly in relation to the issues on which your opinion is offered. Sometimes the defence will object to a g.p. s expertise with respect to the diagnosis of particular injuries, for example, head injury, depression, post traumatic stress disorder. It is helpful in such cases to How to Write a Medical Legal Report and Present in Court Page 7 of 14

reference in a discussion of your qualifications training in the areas you will make a diagnosis or familiarity in these areas through experience in clinical practise. Name of the Person Responsible for the Report This requirement is not aimed particularly at g.p. s. Engineers in particular, and some accounting firms, were preparing reports signed by the senior engineer or accountant which were really a group effort with different parts of the report the product of various people. The court wants to know the expertise, and allow the opposing party to cross-examine, the individual responsible for each opinion in a report. Group reports are not allowed, and must be broken into components. In the medical field this criteria has been a problem when group reports are written by clinics, such as a pain clinic, or sometimes neuropsychology when reports are scored or interpreted by someone other than the author. This criteria can be met by prefacing your report with a statement confirming you are the author of the report and responsible for its contents. If someone else is responsible for a component of the report they should identify themselves, and prepare a supplementary report. Facts and Assumptions on which the Opinion is Based This requirement is without doubt the area most difficult to comply with and most subject to challenge. The court requires that the factors relating to your opinion be clearly set out in the report so it can assess whether those factors have been (a) proved and (b) carry weight in supporting your opinion. Statements in expert reports which state simply I have reviewed x records, are not sufficient to comply with the Rule: Reid v. Balcaen 2003 BCSC 1450, Narayan v Djurickovic 2003 BCSC 1113. How to Write a Medical Legal Report and Present in Court Page 8 of 14

Nor is it permissible to simply dictate the findings of other consultants, for instance the court in Lindholm v Vankouehnett [1998] B.C.J. No. 3092 at para. 17 stated: A report which does no more than marshal and summarize the expert opinion of other experts giving evidence in the case is not admissible. That is the job of counsel. A report which having marshalled and summarized those opinions, does no more than express the opinion of the author that the views of one group of experts are to be preferred over those of another group is also inadmissible. That is an impermissible trespass upon the province of the trial judge. Normally a g.p. s report will be a mixture of true fact, hearsay (the patient told me x and y hurt), and history with reference to the advice of others (an x-rayed dated showed degeneration or a disc protrusion). Some reports particularly a medical legal consultant retained by counsel often set out facts and assumptions under a separate heading, and then set out their opinion under a heading such as analysis or opinion. This format meshes with Rule 40A nicely, but is more difficult for a g.p. in that the g.p. s report will normally proceed chronologically from the patient s first attendance after an accident, discuss the patient s verbal complaints (hearsay); physical findings of the physician (fact or a mixture of fact and hearsay); and the diagnosis will follow perhaps evolving over time depending upon how the symptoms progress. It seems artificial to set out the patient s history and your physical findings, and then restate those findings as you discuss diagnosis under a separate heading. The body of your report should in a chronological fashion set out: -what you have been told or learn through various sources; How to Write a Medical Legal Report and Present in Court Page 9 of 14

-your findings on examination (muscles spasm, tingling on certain tests, limited range of motion); -clearly link how the above information leads to your diagnosis. Normal Content in a Medical Legal Report In addition to the mandatory content required to comply with Rule 40A a medical legal report would normally include: -diagnosis; -discussion of treatment, medication, therapy, and patient s progress; -prognosis; -opinion as to causation (did the accident cause the symptoms); -discussion of the extent of the injury and degree of impairment; Other areas which are often commented upon include: -effect on a person s ability to work; -effect on their recreational and social life; -effect on their ability to work around the home and care for children; -care requirements they might have; -risk of re-injury or susceptibility to degeneration. As a rule of thumb probably ninety percent of cases settle. A well laid out, thoughtful medical legal report certainly assists the settlement process thus making trial less likely. How to Write a Medical Legal Report and Present in Court Page 10 of 14

How to Present in Court Sometimes, however, even with thorough medical legal reports settlement is not possible. It may be that fault for the accident is in issue. It may be that the parties disagree about any one of a number of damages issues, (cause of an injury, magnitude of an injury, effect of pre-existing injuries). If you have to attend court for cross examination on your report, bear in mind that the court appreciates your effort as stated in Dieter v Briggs 2009 BCSC 914 at para 28-31: [28] The defendants suggested in argument that Dr. Shuckett was an advocate but I do not accept that characterization. I found her to be very clear and objective in her evidence which she was well qualified to give. I pause here to note that the defendants appeared to me to show a lack of objectivity when assessing the role of physicians in litigation of this nature. The defendants stated in written and oral argument: In contrast to Dr. Shuckett, Dr. Cordoni presented as a [sic] impartial and unbiased physician which is highly unusual for a general practitioner. [29] This submission is what is known as a back-handed compliment. It is a gratuitous attack on Dr. Shuckett to suggest that she was not impartial, a proposition which is entirely unfair on the evidence. It is a suggestion that appears to praise Dr. Cordoni while it insults general physicians as a group, as if to say they are typically not able to provide independent medical evidence in soft tissue injury cases. This cynical submission is outrageous and unduly partisan. [30] This court hears many cases involving plaintiffs with claims that someone else s negligent action caused them personal injuries. These are persons who are entitled to damages under the common law of this country if their claims are proven. These are persons who may be suffering greatly from their injuries. This How to Write a Medical Legal Report and Present in Court Page 11 of 14

court could not perform its function of determining these important claims without the help of treating medical physicians including general practitioners. [31] Thus, physicians who do testify despite the inconvenience are performing a very important professional and public duty. Coming to court to testify and to face cross-examination may be the last thing a busy physician wants to do, faced with the burdens of practice. Often a general physician is the one physician who knows the patient best and who will have the longest history of treating the plaintiff before and after the incident giving rise to the claim. This court is extremely appreciative of the role physicians play in giving evidence. I sincerely hope that counsel for the defendants in this case reflected only his views, and not a general culture amongst legal counsel who represent defendants or defendant s insurers, when he decided to advance his submission which was so disrespectful of the important role of family doctors in personal injury cases. It is true that in some cases a medical practitioner may be impartial [sic] but it reflects poorly on the defendants to simply advance this as a general proposition. As this passage makes clear, the court is looking for an expert to give unbiased thoughtful opinion evidence, and values such advice. You should: -be prepared: review your report and records; -if you have questions or concerns speak to the lawyer who is calling you as a witness; -translate medical terms so a layman will understand; -answer truthfully; -avoid being an advocate arguing for one side; -not go outside your area of expertise; How to Write a Medical Legal Report and Present in Court Page 12 of 14

-take your time in responding to questions. Most lawyers calling you as a witness will be prepared to: -discuss the timing of your evidence -discuss your fee for preparation and attending trial -review your report, questions they will have for you, and likely questions to be posed by the defence Conclusion In preparing a good quality medical legal report, you are performing a valuable service for your patient and the court. It is worthwhile taking the time to do it well. Doing so makes it less likely you will end up in court, and if you do end up in court make the process a better one for you. How to Write a Medical Legal Report and Present in Court Page 13 of 14