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Medical Malpractice

Paul McGivern speaks at the American Association for Justice 2018 Conference

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Paul McGivern was invited to speak to the Canadian Caucus of the American Association for Justice at their conference in Denver, Colorado on July 7, 2018.  Paul provided the group with his approach to the initial intake and investigation of birth injury cases. He described the need to manage the risks inherent in these complicated cases by using a systematic approach that front-loads the necessary investigation and analysis.

Paul’s comments covered a range of topics, including the initial collection and review of records, retaining and instructing experts, and anticipating and preparing for defences that may be advanced.  Paul’s experience and expertise ensured that his talk was full of practical advice to assist lawyers in their management of these complex cases, and his insight and guidance were well-received by the members of the Canadian Caucus.

 

Causation in Medical Malpractice Actions

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To win a medical malpractice law suit the plaintiff must prove two things:  that the health care providers did not meet the standard of care expected of them, and that the failure to meet the standard of care is what caused the plaintiff’s injuries.  This second element is called “causation.”  Causation is often the more difficult hurdle for the plaintiff to meet.  In the following article, Lindsay McGivern provides a description of how the courts view causation in complex medical malpractice claims.

The general principles of causation in medical malpractice claims have long been established. Medical malpractice actions are subject to the same requirements as other types of personal injury torts; the plaintiff must prove, on a balance of probabilities, that the defendant caused the injury. The generally applicable test is the “but for” test which requires the plaintiff to show that ‘“but for” the defendant’s negligent act, the injury would not have occurred.’1 The difficulty in medical malpractice claims arises from the complexity of proving cause and effect in a medical context. Proof of causation almost always requires expert evidence.

Compounding the difficulty of proving causation in medical malpractice claims is the difference between medical and legal causation. In the legal context, causation need only be established on a balance of probabilities. The ‘“but for” test is to be applied in a robust common-sense fashion.2 This robust and pragmatic approach to the causation analysis is applicable in cases where the defendant leads no evidence to the contrary and in cases involving conflicting evidence for the judge to weigh.3 Legal causation does not demand scientific precision or scientific evidence of the precise contribution the defendant’s negligence made to the injury.4 It is “essentially a practical question of fact which can best be answered by ordinary common sense”.5 Although the burden of proof remains with the plaintiff, in some circumstances a common sense inference of causation may be drawn from the evidence without positive scientific proof.6 In a medical context, causation is subject to stricter requirements. The conclusions that can be drawn from studies require a high level of precision to establish statistical significance. Cause and effect in medicine involves scientific proof. When medicine is an integral part of a legal claim, it is important to maintain a clear divide between these two understandings of causation. As was observed by Sopinka J. in Snell v Farrell:

“It is not therefore essential that medical experts provide a firm opinion supporting the [p]laintiff’s theory of causation. Medical experts ordinarily determine causation in terms of certainties whereas a lesser standard is demanded by the law.”7

Causation can Support a Legal Claim

In Goodman v Viljoen 8, this medical/ legal causation dynamic was central to the outcome of the case. It provides an excellent example of the different standards of proof in the medical and legal contexts. The case also illustrates how inferences of causation can support a legal claim despite a complex medical backdrop and medical uncertainty.

Mrs. Goodman was pregnant with twins when she developed a urinary infection for which she was prescribed antibiotics. The following week, Mrs. Goodman experienced a leakage of fluid and made a call to the office of her obstetrician, Dr. Viljoen. She never spoke directly with Dr. Viljoen but reported the fluid leakage to his secretary who subsequently called back to advise that this was related to her infection and that Mrs. Goodman should continue to take her antibiotics. Two days later, Mrs. Goodman went into premature labour. Upon attendance at hospital, her physician confirmed that her membranes had ruptured. Her twins were born at 29 weeks gestation via caesarean section. They subsequently developed cerebral palsy.

In order to succeed in the action, the plaintiffs had to prove that the twins’ cerebral palsy was caused by the defendant’s negligence. The defendant acknowledged that if Mrs. Goodman reported a leakage of fluid, the standard of care required him to see her or send her immediately to hospital. Whether this report was made was at issue at trial but on appeal the only issue was causation. The difficulty the plaintiffs faced was in proving that, had the defendant properly treated Mrs. Goodman, the twins would not have developed cerebral palsy despite their premature birth. The prematurity itself was unrelated to the defendant’s negligence. There was no suggestion that anything the defendant should have done would have allowed Mrs. Goodman to carry the twins to term. Consequently, the plaintiffs needed to establish that it was the inadequate treatment, and not the prematurity, that resulted in the twins developing cerebral palsy.

PVL caused Cerebral Palsy

There was no dispute amongst the experts that the twins’ cerebral palsy was caused by diffuse periventricular leukomalacia (PVL). PVL is a known risk of prematurity. The Ontario Court of Appeal described the process of injury in this way:

“PVL involves the inadequate blood supply to an area of the premature baby’s brain referred to as the watershed zone. Arterial blood supplies to the brain meet in the watershed zone. In premature infants, the arterial membranes may not develop fully. The brain cells affected by PVL are unstable and vulnerable. The expert evidence suggested that the damage to the affected areas of the brain caused by PVL occurs during delivery or in the first few days following birth.”

….

PVL is associated with the later onset of [cerebral palsy]. The descending nerve tracts to the legs and arms pass through the area of the brain adversely affected by PVL.

PVL may be caused by hypoxia, that is reduced oxygen in the blood flow circulating to the affected area of the brain, or ischemia, that is a deficiency in the blood supply to the affected area of the brain due to reduced blood pressure. Either hypoxia or ischemia results in the death of brain cells in the affected area of the brain. fte twins’ PVL was likely caused by ischemia.”9

Babies born earlier than 34 weeks gestation are more susceptible to PVL than term babies and PVL is the most common cause of brain injuries in premature infants.

It was undisputed at trial that if Mrs. Goodman had seen a doctor on the day she reported the fluid leakage, she would have received two doses of antenatal corticosteroids. Antenatal corticosteroids induce the production of enzymes throughout the fetus within 24-48 hours of administration that serves as a substitute for the surge of hormones that happens in full term babies immediately before birth. This hormone surge accelerates the maturation process and assists in the transition by the fetus to life outside the womb, but it does not occur in premature babies. Administration of antenatal corticosteroids is known to have short term and long term benefits in premature babies. Since Mrs. Goodman never saw a doctor the day she reported the fluid leakage, she was not given antenatal corticosteroids until the day of the twins’ birth, so close to the time of birth that it was probably ineffective, and there was only time for a single dose. The discrete causation issue became whether “but for” the failure to receive a full dose of antenatal corticosteroids, the twins would not have developed cerebral palsy, or the severity of their cerebral palsy would have been materially reduced. The defence position was that causation could not be proven in the absence of any direct scientific proof of a cause and effect relationship between the administration of antenatal corticosteroids and a reduction in a premature baby’s risk of developing PVL. The defence argued that since there were no clinical studies or any other form of direct scientific evidence showing such a correlation, the plaintiffs’ claim must fail. The plaintiffs argued that causation could be established on the balance of probabilities without the kind of evidence required for the scientific standard of proof. Two experts (a neonatologist/ pediatrician and an obstetrician/maternal fetal medicine specialist) opined that had Mrs. Goodman received a full dose of antenatal corticosteroids two days before her babies were born, the twins would not have developed cerebral palsy, or, alternatively, their disabilities from cerebral palsy would have been less severe.

Correlation between Administration of Corticosteroids and Fetal Brain Development

The plaintiffs structured their case around “biological plausibility.” There was evidence showing that antenatal corticosteroids had a maturation effect on tissues in various parts of the fetus, including  the  lungs  and  intestines.  This  maturation  process reduced the risk of other conditions known to cause cerebral palsy. The plaintiffs’ experts opined that one could infer that the maturation of membranes known to occur in other parts of the fetus would work in a similar way in the parts of the brain adversely affected by PVL (the arteries located in the watershed areas of the premature baby’s brain) and reduce the risk and the severity of PVL. While there were no studies showing a correlation between administration of corticosteroids and reduction in PVL, the plaintiffs’ experts pointed to other studies to support their opinion. Studies had shown that administration of antenatal corticosteroids had a positive effect on neonatal blood pressure and precipitous drops in blood pressure is a known cause of PVL. Administration of antenatal corticosteroids had a known correlation with reduction in a different type of leukomalacia than the twins had. An animal study showed a correlation between administration of corticosteroids and fetal brain development. Finally, an analytical review of 21 controlled studies reported a reduction in the risk of cerebral palsy through the administration of antenatal corticosteroids. However, this reduction was not statistically significant for scientific purposes, it did not distinguish between full term and preterm babies, and it did not differentiate between the causes of cerebral palsy. On the other hand, the review also did not consider those babies who developed cerebral palsy but suffered fewer disabilities as a result of antenatal corticosteroid administration.

The trial judge accepted the biological plausibility theory. She found:

“On the totality of the evidence before me, it is reasonable to infer that since PVL results from the immaturity of the pre-term infant’s brain and vascular system, and [antenatal corticosteroids] have a maturational effect beyond lung function to mature these systems, that it is more likely than not that the administration of [antenatal corticosteroids] would reduce the risk of PVL. ftus, but for the defendant’s negligence, the twins would not have suffered from PVL, and consequently would not have suffered from [cerebral palsy].

Even if I am incorrect in my conclusion that the PVL (and therefore the [cerebral palsy]) would not have occurred but for the failure to receive a full course of [antenatal corticosteroids], this is not fatal to the plaintiffs’ claim. I am satisfied that the evidence be- fore me establishes on a balance of probabilities that [antenatal corticosteroids] reduce the risk and severity of [cerebral palsy] in general, that is, no matter what the cause of the [cerebral palsy].”10

Causation not Proven

Despite the fact that the most applicable scientific analysis did not reach a level of statistical significance, and the fact that none of the literature specifically found a connection between the use of antenatal corticosteroids and PVL, the trial judge was able to draw logical inferences from the recognized effects of antenatal corticosteroids in humans and in animals.

The trial judge’s findings were upheld on appeal. The dissenting judge ultimately concluded that causation was not proven in this case but did not dissent on the legal question of whether the evidence had to reach a level of statistical significance before it could prove causation on a balance of probabilities:

“Scientific evidence revealing a trend suggestive of a causal connection between fact A and fact B is not discarded at trial because it does not reach the level of scientific proof. Instead, that evidence is considered along with any other evidence that is relevant to the question of causation.”11

Where the dissenting judge differed from the majority was on the matter of quantification of the risk. The majority judgment held that it was not necessary for the court to have experimental evidence that quantified the reduction in the risk of PVL to prove causation on a balance of probabilities. The experts were able to use their clinical experience to fill in the gaps in the scientific evidence. The Ontario Court of Appeal in this case specifically recognized the complexities of proving causation in this and other medical malpractice cases where, not uncommonly, there are no specific scientific studies that are determinative of the issues before the court. The courts analyzed the evidence, which did not reach a level of scientific certainty, considered the opinions of experts able to supplement the studies with their clinical experience and used logical inferences to find proof of causation. Goodman v Viljoen provides a helpful and important illustration of the legal principles of causation. It highlights the differences between medical and legal proof and offers an example of how common sense can be used to infer causation in the appropriate circumstances.

This piece was originally posted on the Verdict. You can read the read the PDF  on our Publications page.

  1. Clements v Clements, 2012 SCC 32, [2012] 2 SCR 181 at para 8 [Clements]
  2. Clements, supra note 1 at para 9
  3. Snell v Farrell, 1990 CanLII 70 (SCC), [1990] 2 SCR 311 at para 33 [Snell ]
  4. Clements, supra note 1 at para 9
  5. Athey v Leonati, 1996 CanLII 183 (SCC), (1996), 140 DLR (4th) 235 at para 16
  6. Athey, supra note 5 at para 16; Clements, supra note 1 at paras 10, 11
  7. Snell, supra note 3 at para 34
  8. 2012 ONCA 896, [2012] OJ No 6332
  9. Goodman, supra note 8 at paras 17, 19, 20
  10. Goodman, supra note 8 at paras 51, 53
  11. Goodman, supra note 8 at para 85

Electronic Medical Records – Behind the Screen

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In medical malpractice we rely on the integrity of medical records as the foundation for understanding our client’s case. As more clinicians and hospitals move toward electronic medical records, lawyers must know what kind of information is available from those records and how to access it.

In the world of paper medical charts there is nothing wrong with a clinician making a late entry in a chart, as long as it is clearly marked as a late entry; but, it is an offence for a clinician to go back and alter medical records. Although it is possible in some cases to identify alterations to a medical record made after the fact, there is a chance that an alteration could go unnoticed. In the world of electronic medical records however, there is an audit trail that tracks all changes made to a medical record. There will also be an access log that identifies who has viewed a patient’s records, and which part of the record they looked at. Audit trails and access logs can provide a detailed timeline that for the most part cannot be altered and in some cases, that audit trail will be critical to understanding the nature of the wrongdoing.

Robert Kucheran

The question is no longer “How can I figure out who saw these records or if somebody changed these records after the fact.” Now the question is “How do I get a copy of the access log or audit trail, and how do I figure out what it means?”

Patient Privacy and Security

Most of the legislation that applies to medical records is aimed at ensuring the privacy and security of patient health care information. Although there is less regulatory content aimed at ensuring that these records are not altered after the fact, the health regulatory colleges are beginning to address this issue. For example, the Bylaws of the College of Physicians and Surgeons mandates that a physician’s medical record system must, among other things, contain the patient’s demographic information, the patient’s presenting complaint, the results of the medical history and physical examination, what investigations were ordered, the provisional diagnosis or diagnosis, treatment recommendations, medications prescribed and the follow-up plan. This information must be capable of being reproduced promptly in a hardcopy and the system must audit or record any subsequent changes made.

An example of a long established electronic health record system is British Columbia PharmaNet that in 1995 was the first such system implemented in Canada. Since its inception, PharmaNet not only has been capable of logging every prescription dispensed in all community pharmacies British Columbia in a common database, it also has ensured the availability of access logs and the maintenance of audit trails. Consequently, any patient can request a print-out of their own PharmaNet profile, as can a third party authorized by the patient. That profile contains a record of all prescriptions dispensed for the person, back to the inception of PharmaNet. From a legal point of view, perhaps more importantly, the PharmaNet record also includes an ac-cess log – a record of the names of anyone who has accessed that patient’s PharmaNet profile other than at the time of dispensing a prescription and the date of access. For instance, every time you request a copy of your client’s PharmaNet profile, there will be an access log recorded of the date that the system administrator accessed your client’s PharmaNet profile to prepare the report you requested. There may also be other accesses recorded – if a patient attends at a physician’s office or an emergency room their profile may be accessed to assist in patient care.

But there is much more information available about each pre-scription than you see on the PharmaNet record. The computer system of the pharmacy where the prescription was dispensed will include every detail of the prescription, including the specific directions that were on the patient’s medication label, the initials of the pharmacist and the technician involved in dispensing the prescription, and the price charged to the patient. There also is an audit trail of every change that has been made to a prescription showing the original version of the label and if any changes have been made to that label. The system records what change was made, who made the change, and the date and time the change was made.

There is electronic medical record information everywhere technology is used in health care. Some departments in a hospital, for example, diagnostic imaging, may have electronic records that must be requested separately. Similarly, community health workers and outreach therapists may have their own versions of electronic records that are not integrated into a larger comprehensive health care record for a patient. Even medical equipment such as infusion pumps may record information about when an infusion was started, what the volume of the syringe was, and at what rate the infusion was running, although this information will not be found in the patient’s chart. Vital signs monitors used in hospitals and medical clinics often include a log of the results for a patient, although those results may be handwritten into a patient’s chart if a paper-based system is in use. Even the now common home blood glucose moni-tor or blood pressure cuff likely retains a log of the data.

How do you Access Data?

But, if you need this data to effectively represent your client, how do you access it? How can you recover audit trails of the electronic records? Firstly, to avoid missing crucial information, you need to make your request as specific as possible. For example, you may want to ask for all entries made, changed and deleted over a particular period of time in a particular system. You may also want to ask for screenshots of the electronic medical record if you need to know, for example, what information a particular physician had available to them when they were reviewing the lab results at a particular time?

You may want to know who accessed a certain report, when they accessed it and even where they were when they did it, as well as for how long they had access to it. Technical specifications can also be important. For instance, you might want to know what the systems settings are for automatically logging off a user if there has been no activity. Although each hospital will have procedural guidelines that instruct system users to ensure they log off before they leave a computer, no doubt there will be potential that a defendant might claim that a record has been altered in their name because they didn’t log off.

Distance medicine facilitated by electronic health information is becoming more common. For example, it is possible that there may be a CT scan ordered by a physician in one small hospital, conducted by a radiology technician in another hospital, then reviewed by a radiologist in a third hospital. If your client was injured as a result of a problem related to diagnostic imaging it may be important to gather information from audit trails and/or access logs about the CT requisition, the CT scan itself, the timing of the radiologist’s access to the imaging, the radiologist’s inter-pretation and recommendations, if any, and when and how the radiologist sent that information to the treating physician. This information can be critical to create a time-line of when events unfolded, the events themselves, and to determine if changes were make to the records after a bad outcome became known.

Screen shots can also be useful when many individuals are involved. For example, if the issue you are investigating relates to the possibility of an error in processing a tissue sample in a laboratory, it will be vital to understand which laboratory tech-nician was involved in each step of the process. If a department relies on an electronic system for tracking the sample, screen shots that show the date, time, initials of the laboratory staff member, identification of the patient, and the processing number of the sample, might be the best or only way to determine who was involved in each step. These screen shots would not be available through the medical records department, and would need to be requested through the specific department involved and possibly the information technology department.

Hospital Staff May Need to Assist

The medical records department of a hospital is not necessarily the department that can produce an audit trail or access logs. Generally medical records departments deal with requests for the records themselves, but it is likely to be the health information technology department that will produce audit trails and access logs. The hospital may need to enlist the assistance of the hospital’s information technology staff to access the audit trails and confirm how much detail is available through the system in use at the hospital.

If the information of interest comes from a specific piece of medical equipment, the vendor for the equipment may be able to help you understand what information should be available and how to access it. Still, it will likely be necessary for the hospital’s biomedical engineering department to obtain that data.

The information available through access logs and audit trails of a patient’s medical records can be critical in helping you fully understanding your client’s case. There is no single entry-point for accessing this information. Of course, once the action is started, if the hospital is one of the defendants it will be necessary to make requests for these records through counsel. Regardless of where you direct your request for records, make sure you understand what information could be available beyond the medical record that would routinely be produced, so you can create a detailed and complete timeline for your case that includes a thorough understanding of who accessed your client’s records, and what, if anything, they did to those records.

This piece was originally posted in The Verdict. You can also read the PDF from our Publications page. 

The Financial Burden of Medical Malpractice Lawsuits

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Medical malpractice cases have a well-deserved reputation for being both very difficult and very expensive. In their book, A Practical Guide to Medical Malpractice Litigation, Judge Heather Lamoureaux and Brian Devlin, QC describe the field this way:

The lawyer who seeks to successfully represent plaintiffs in the highly specialized field of medical negligence litigation must attain additional skills far beyond those of the ordinary civil litigation lawyer… Medical malpractice litigation demands an extraordi-nary investment of time, money and willingness to assume considerable risk. Few lawyers are willing to take these cases as the potential barriers to successful resolution are considerable. Indeed, medical negli-gence litigation represents a unique challenge for the lawyer for a number of reasons.

Many of the difficulties involved in medical malpractice litigation are associated with the skill and time required to learn the medicine involved in each case, craft an argument and present your medically complex case in a way the judge will understand. However, the financial toll of running a medical malpractice case is equally difficult.

What is the CMPA?

Lindsay McGivern

Most doctors in Canada are members of the Canadian Medical Protective Association (the “CMPA”) – a member-funded organization that provides defence for physicians involved in medico-legal matters. The CMPA was incorporated by an Act of Parliament in 1913, and since that time has amassed significant expertise and a substantial defence fund ($2.7 billion as of 2009). These resources are made available to assist physicians named in lawsuits or complaints to their Colleges. The funds are used to pay defence counsel, expert witnesses and damages. In 2009, the CMPA spent $115 million on legal costs and $12 million in expert fees.

The CMPA takes a very hard line on these cases because being named in a lawsuit can affect not only a physician’s reputation, but also his or her ability to obtain admitting privileges in a hospital. In turn, that can affect a physician’s ability to earn an income. Many people have experience with settling claims with insurance companies and expect that the CMPA will handle medical malpractice claims in a similar way. The CMPA is not an insurance company, and does not operate on the same principles. The protection of the professional integrity of physicians is key to their operations – it is imbedded in their mission statement and guides most of what they do. The $2 billion the CMPA has amassed in its defence fund is earmarked for defending physicians. If the CMPA judges a physician’s conduct to be defensible, it will vigorously defend the physician, to the Supreme Court of Canada if necessary. The CMPA is prepared to spend more money on defending a case than they might have to pay in a judgment. To further ensure they are able to provide the most effective defence for their members, the CMPA retains a small number of highly skilled lawyers to conduct their defence. In British Columbia, the majority of this work is conducted by a small number of lawyers at Harper Grey. All of that combined means that the CMPA has the resources and the mandate to mount a significant defence on behalf of a physician. The CMPA is not in the business of settling a case just to make it go away – they are prepared to defend to the end, and have the resources and access to the expertise necessary to do so.

CMPA Defends their Members

The commitment of the CMPA to defending their members is even more evident when you consider the statistics. The latest statistics released by the CMPA indicate that out of the total number of legal cases resolved by the CMPA in 2015 only 0.45% resulted in a legal judgment in favour of the plaintiff. There are a higher number of settlements but that number is still only ~39% of the cases concluded in the year. The CMPA statistics show that of the 96 cases that proceeded to trial in 2010, only 15 resulted in a judgment against the physician. In that same year, there were 278 cases settled and 526 dismissed, discontinued or abandoned. Similarly, in 2011, only 68 cases proceeded to trial, only 13 of which resulted in a judgment against the physician. In that year, there were 293 cases settled and 533 dismissed, discontinued or abandoned. These statistics confirm, at a glance, the high-risk nature of this type of litigation. All of this means that there are significant financial risks that must be considered before starting a medical malpractice lawsuit, including a financial risk/benefit analysis.

Medical malpractice claims are exceedingly expensive to run. Except for the rare occurrence where the medical error is a non-technical matter or so obvious that a layperson may be expected to have knowledge, all medical malpractice claims require expert evidence to prove both a breach of the standard of care and causation. Judges do not know the medicine or the intricacies of the medical procedures and will therefore not infer negligence without expert evidence. Often, numerous experts with different qualifications are required for each case (doctors, nurses, technicians etc). In addition to the liability case, experts are also needed to opine on the cost of future care and other damages issues. The need to obtain at least one report from 15 different experts is not unusual. With the hourly rates charged by medical practitioners, the costs of obtaining these opinions add up rather rapidly. The disbursements associated with a typical medical malpractice lawsuit can range from $50,000 to $200,000.

As in other areas of the law, the more seriously injured the plaintiff (and therefore the greater the care requirements) the larger the damages claim. Unfortunately, for most catastrophically injured parties, the cost of care requirements consume all their resources. Many plaintiffs, particularly parents of injured children, are struggling financially on account of the expenses associated with providing for their needs. It is a reality of this area of the law that most plaintiffs cannot afford to divert their limited funds to this process, especially with all the uncertainties involved. The result of this is that, for the most part, medical malpractice lawsuits must be run on a contingency fee basis and the lawyers must carry the disbursements for the duration of the action. Often, the plaintiffs are not in a place where they can cover the cost of these disbursements without judgment in their favour so the lawyers must be prepared to absorb these costs in the event of an unsuccessful claim. Obviously, the contingency fee arrangement also means that the lawyers, in the event of a loss, will not be paid for the time spent running the file.

Insurance to Reduce Risk

There is an emerging option for reducing risk: litigation insurance to protect parties against adverse costs and\or disbursements (depending upon the coverage purchased). This is an option that has been in use in motor vehicle litigation for some time. Some insurers are now providing coverage for medical malpractice claims. If the claim is unsuccessful, no fee is payable and the insurer will cover the adverse costs and\or disbursements up to the amount of indemnity purchased (again depending upon the coverage provided). If the claim is successful, however, a fairly substantial fee is usually required. Insurers are much more reluctant to offer this kind of protection for medical malpractice litigation due to the risks involved, and it is typically offered on a case by case basis. In the medical malpractice context, litigation insurance is both very difficult to obtain and can be very costly.

All in all, medical malpractice litigation is very risky.

The costs associated with proceeding with medical malpractice actions are considerable and expenditures can be great. The outcomes are never certain. The high costs involved in running medical malpractice files means that losses come with a huge financial toll.

This piece was originally posted in The Verdict. You can also read the PDF from our Publications page. 

Adverse Inference – Failure to Call a Treating Physician

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The law of adverse inference allows the court, in certain circumstances, to presume that a party has failed to call a certain witness because that witness would not have helped the party’s case. In medical malpractice, as well as other injury litigation, adverse inferences are often sought against a plaintiff for failing to call his or her treating physician as a witness. In this paper, we examine the circumstances in which an adverse inference will be drawn for a failure to call a treating physician to testify, and what factors the court will consider in making such a determination.

It is well settled that an adverse inference may be drawn against a party who fails to call a material witness at trial. The failure to call a material witness may amount to an implied admission that the evidence of the absent witness would not support, or would be contrary to, that party’s case. This principle is subject to many conditions, however, and the party against whom an adverse inference is sought may provide an adequate explanation for the failure to call the witness. As endorsed by the BC Court of Appeal in R. v. Rooke, 1988 CanLII 2946 (BCCA):

In any event, the party affected by the inference may of course explain it away by showing circumstances which otherwise account for his failure to produce the witness. There should be no limitation upon this right to explain, except that the trial judge is to be satisfied that the circumstances thus offered would, in ordinary logic and experience, furnish a plausible reason for non-production.

A witness may be equally available to both parties, or the party against whom an adverse inference is sought may have special access to the witness. In the latter case, there is a stronger basis for an adverse inference to be drawn.1 Further, a trial lawyer may have many reasons for deciding against calling an available witness, such as if the point of evidence in question has been adequately covered by other witnesses, or because a witness may simply not present well in court. Therefore, it cannot be said that every failure to call an available witness should result in an adverse inference being drawn.

The notion of adverse inference is related to the “best evidence rule,” which states that parties should put forth the best evidence that the nature of the case will allow. As such, an adverse infer-ence should only be drawn in situations where the evidence of the witness not called would be superior to the other evidence at trial in respect to the facts to be proven.2

THE EVOLUTION OF THE LAW ON ADVERSE INFERENCE

Levesque v. Comeau, [1970] SCR 1010, is often cited for the proposition that a court must presume an adverse inference in cases where a party failed to call evidence from a prominent treating physician. In Levesque, the main issue before the court was whether the motor vehicle accident in which the plaintiff was involved was the cause of her serious hearing impairment. The plaintiff called only one expert to opine that trauma was a potential cause of her hearing loss, and that expert had examined her more than a year after the accident. She had consulted several other doctors and undergone examinations in the meantime, but none of these doctors was called to testify. As the plaintiff alone could bring this evidence before the court, Pigeon J. held that the court must presume that she did not do so because the evidence from these treating doctors would have adversely affected the plaintiff’s case.

The application of the adverse inference rule for the failure to call a treating physician has evolved in British Columbia over the years. In Barker v. McQuahe, (1964) 49 W.W.R. 685 (BCCA), Davey J. stated that a plaintiff seeking damages for personal injuries “ought to call all doctors who attended him in respect of any important aspect of the matters that are in dispute, or ex-plain why he does not do so.”3 Today, however, given the various medical practitioners that an injured plaintiff may see, the courts have recognized that requiring a plaintiff to call every medical professional consulted as a witness would raise litigation costs by requiring more reports from physicians or additional attendances of physicians in court, with nothing added to the knowledge of counsel, but with time and expense added to the trial process.4 The rationale for drawing an adverse inference for failing to call a treating or primary care physician is that the physician would be the individual best able to give evidence as to the plaintiff’s condition throughout the relevant periods of time. When a treating physician is not called to testify on behalf of the plaintiff, courts have the discretion to draw an adverse inference, but are not required to do so.5

Although most case law deals with an adverse inference being drawn against a plaintiff for failing to call a treating physician as a witness, the inference may be drawn against the defendant in certain circumstances. In Norris v. Burgess, 2015 BCSC 2200, the plaintiff attended a defense medical examination by a psychiatrist, but the defendant chose not to obtain an opinion from the psychiatrist and did not call him as a witness. Speaking for the court, Funt J. held that the plaintiff could lead evidence as to her attendance and surrounding circumstances of the independent medical examination. In coming to this conclusion, Funt J. noted that civil litigation is an adversarial process, and where one party requests “that the other party attend an interview or examination with a third person (whether or not that person is an expert) and the other party so attends, the requesting party should not be surprised that the interview or examination may be relevant with evidentiary consequences.”6

In Buksh v. Miles, 2008 BCCA 318, the BC Court of Appeal set out a number of factors the court should consider in determining whether an adverse inference should be drawn against a party if a treating physician is not called to testify:

  1. The evidence before the court;
  2. The explanation for not calling the witness;
  3. The extent of disclosure of the doctor’s clinical records; and
  4. The circumstances of the trial, such as where there has been an agreement to introduce clinical records that may be contrary to the inference, or where the witness’s views are apparent in the report of another witness.7

In the following sections, we look at how these factors have been applied in case law when deciding whether the adverse inference will be drawn.

APPLICATION OF THE LAW ON ADVERSE INFERENCE

  1. The Evidence Before the Court

This first factor considers what evidence was before the court through other means, and what the witness who was not called would have been expected to provide evidence on. If the evidence of the treating physician was available through other witnesses that were called, this would have a significant impact on the court’s analysis. However, as stated in Lurtz v. Duchesne, [2003] O.J. No. 1541, if “the evidence provided was available through other means, but it is not the best evidence available, the court may still draw an adverse inference.”8

The court will also consider the nature and extent of the evi-dence that the treating physician could be expected to bring. A party is free to dispense with relatively unimportant or repetitive evidence, but an adverse inference may be drawn if the witness’s evidence is critical to the plaintiff’s case. In Keech v. Chang, [2009] O.J. No. 1614, the plaintiff alleged the defendant physi-cian pierced her spinal cord while administering anesthetic in preparation for hip replacement surgery. It was her position that the negligence caused serious neurological deficits, as well as significant depression, anxiety, and sleep deprivation. The court drew an adverse inference against the plaintiff for failing to call two of her physicians who had been treating her for approximately 25 years, as these physicians would have “been in the position to comment on how this surgery has affected her mental health and general outlook on life.” 9

Buksh v. Miles involved a scenario in which the plaintiffs failed to call evidence from two physicians at walk-in clinics who saw the plaintiffs within days of the accident. They did, however, call their family doctor, who treated them prior to the accident, and continued to treat them afterwards. Since the absent witnesses were not longstanding family doctors, and all their clinical records had been admitted into evidence, the court declined to draw an adverse inference for the failure to call the walk-in clinic doctors.

Whether the treating physician in question is a specialist or a general practitioner may also impact whether an adverse inference will be drawn. In Barker v. McQuahe, the plaintiff did not call his treating specialist, and the court drew the inference that the specialist did not support the opinion of the plaintiff’s general practitioner, who had been called to testify. Since the specialist would have presumably been better qualified to opine on the plaintiff’s injury than the general practitioner, the court concluded that his evidence would not have helped the plaintiff’s position. Prato v. Insurance Corporation of British Columbia, 2003 BCSC 76, involved the opposite scenario: the plaintiff’s specialists were called to testify, but a general practitioner was not. The court found that there was less of a concern about the lack of support-ing evidence from a general practitioner than if the situation was reversed, and declined to draw an adverse inference.

  1. Explanation for Not Calling the Witness

Mohamud v. Yu, 2016 BCSC 1138, involved a claim for dam-ages resulting from two motor vehicle accidents. Of concern to the court was an absence of any objective evidence from any treating physician confirming the plaintiff’s injuries. Most notable from the court’s perspective was the failure of the plaintiff’s trusted family doctor to testify or provide an expert report. The plaintiff’s explanation was that she had called witnesses she had considered the most necessary, she did not have the means to obtain every medical report possible, and that a family doctor is not necessarily the best to provide an opinion. She further argued that it was open to the defendant to call her family doctor.

The court did not agree that the plaintiff’s family physician was not the best witness to provide evidence as to her injuries, as he was “the only person who could have given the court an opin-ion about the plaintiff’s condition, informed by a longstanding relationship and observations throughout the relevant periods of time.”10 The court also did not accept the fact that the defendant could have called the doctor as a witness to be adequate in explaining the plaintiff’s failure to do so.

Similarly, in Keech v. Chang, counsel for the plaintiff suggested that the court did not need medical testimony from the plain-tiff’s longstanding treating doctors as to the effect of the alleged negligence on her mental health, as the plaintiff herself was the best able to testify as to the effects of the injury on her life. The court disagreed: “This ignores the fact that even if Ms. Keech honestly believes most of her current problems are attributable to the lesion, she may well be mistaken, and lacks the objectiv-ity and medical perspective needed to tease apart her pre- and post-surgical complaints.”11

In Chappell v. Loyie, 2016 BCSC 1722, the plaintiff did not call his family doctor as a witness even though this doctor had treated the plaintiff around the time of the accident and for many years prior. As causation was the primary issue in the case, the defendant urged the court to draw an adverse inference, submitting that the family physician was the witness best able to provide evidence as to the plaintiff’s pre-existing injuries, and opine on what injuries were caused by the accident. Counsel for the plaintiff pointed out that it was open to the defendant to call the doctor as a wit-ness, but that there had not attempted to do so. Counsel for the defendant countered that it was not usually feasible to obtain an opinion from a plaintiff’s treating family doctor as he or she is usually unwilling to undermine the trust of a doctor-patient relationship. The court agreed that while this may be a real and practical consideration, because the plaintiff had stopped seeing the doctor regularly after July 2012, it was open to the defendant to at least approach the doctor and consider calling him as a wit-ness. Considering the entire circumstances, the court declined to draw an adverse inference against the plaintiff.

As previously mentioned, counsel may have tactical reasons for not calling a witness, such as the witness’s demeanor or presentation in court. The BC Supreme Court has stated that when deciding whether to draw an adverse inference, the court can consider the unsworn statements of counsel regarding the reasons for not calling the witness.12

  1. Extent of Disclosure of the Clinical Records

The extent of the clinical records disclosed will impact whether the adverse inference is drawn. The defendants in Djukic v. Hahn, 2006 BCSC 154, urged the court to draw an adverse inference against the plaintiffs for failing to call three treating physicians. Speaking for the court, Josephson J. provided five reasons for declining to do so:

  1. Both parties have produced volumes of medical evidence from a number of doctors;
  2. Complete clinical records of these doctors were disclosed to the defence;
  3. These same records were expressly considered and subsumed in the opinions of doctors whose reports are before me;
  4. Having disclosure of these records, it was open for the defense to interview and call these doctors as witnesses without risk of being blindsided;
  5. These were not doctors whom Mrs. Djukic con-sulted on a regular basis.13

In Hodgins v. Street, the plaintiff failed to call her family physician as a witness or to provide a report, and the defendant asked the court to draw an adverse inference. Although the family doctor’s clinical records were produced, they were “simply records kept in the ordinary course of business” and did not contain any opinion evidence. As a result, the court ultimately decided to infer that the plaintiff did not call her family doctor as he would not have provided favorable evidence.

CIRCUMSTANCES OF TRIAL

Lastly, when deciding whether to draw an adverse inference, the court may consider the circumstances of the trial, such as where there has been an agreement to introduce clinical records that may be contrary to the inference, or where the witness’s views are apparent in the report of another witness.

In Beggs v. Stone, 2014 BCSC 2120, the court declined to draw an adverse inference against the plaintiff for failing to call her family physician and the psychologists who treated her before and after the accident. In coming to the decision, the court emphasized the fact that the clinical records of these physicians were reviewed by defense counsel and the experts who provided opinions based, in part, on those records. The plaintiff’s pre and post accident condition and progress were well documented, and there was nothing to suggest that anything that was in the records contradicted any of the evidence from the doctors that were called as witnesses. The views of the plaintiff’s treating doc-tors formed part of the reports of the experts and, as a result, an adverse inference was not drawn.

Other circumstances will also be considered by the court. The defendants in Prato v. Insurance Corporation of British Columbia sought an adverse inference against the plaintiff for not calling two family doctors to testify. One of these doctors was not avail-able to testify at trial and counsel for the defendant required him to attend for cross-examination. The doctor’s records, therefore, which contained opinion evidence, were not admitted. In these circumstances, the court declined to infer that the doctor held views which would negatively impact the plaintiff’s case.

CONCLUSION

An adverse inference may be drawn against a party for failing to call a material witness if it is apparent from enough other evi-dence that the witness would have been able to assist the court by providing evidence on a material issue. In medical malpractice and other injury claims, it is not necessary to call every physician that the plaintiff has seen. However, if a plaintiff’s physician is able to provide superior evidence regarding the plaintiff’s position, counsel would be prudent to provide this evidence to the court – or be prepared to have a good explanation for not doing so.

  1. R. v. Jolivet, 2000 SCC 29, at para. 27.
  2. Buksh v. Miles, 2008 BCCA 318, at para. 30 [Buksh].
  3. Barker v. McQuahe, (1964) 49 W.W.R. 685 (BCCA) at 689, as cited in Hodgins v. Street, 2009 BCSC 673 at para. 57.
  4. Buksh, supra note 2, at para. 34.
  5. McTavish v. Boersma, 1997 CanLII 4372 (BCSC) at para. 14.
  6. Norris v. Burgess, 2015 BCSC 2200 at para. 16.
  7. Buksh, supra note 2, at para. 35.
  8. Lurtz v. Duchesne, [2003] O.J. No. 1541 at para. 26.
  9. Keech v. Chang, [2009] O.J. No. 1614, at para. 209 [Keech].
  10. Mohamud v. Yu, 2016 BCSC 1138, at para. 40.
  11. Keech, supra note 9, at para. 211.
  12. Tower Waterproofing v. Mondiale Development Ltd., 2013 BCSC 1772 at para 24, citing Fresneda v. Ocean Pacific Hotels Ltd., 2008 BCSC 238.
  13. Djukic v. Hahn, 2006 BCSC 154, aff’d 2007 BCCA 203, at para. 60.

This piece was originally posted in The Verdict. You can also read the PDF from our Publications page. 

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