Expert Evidence and Cost in Personal Injury, TLABC Medical-Legal Conference, Mexico, 2013

Expert Evidence in Court

The Trial Lawyer Association of British Columbia has again done an exceptional job of communicating information which is of interest to both doctors and lawyers. Often each professional will need to know the same material but it will have far reachingly different applications and outcomes. In the interest of the patient, it's extremely beneficial for us doctors to be more learned about what judges are seeking to learn and what lawyers are asking for when they seek the testimony of an Expert Witness.
Dr. Mark Frobb provided a marvellous opening overview of the role of the expert witness and what was expected and indeed required. Dr. Frobb's notes are detailed and excellent. He clarified how to avoid the pitfall of advocating for the patient in contrast to presenting an expert opinion.

 Robert Richardson, Pacific Juris Law Group, presented mostly information new to be as a physician on "Financing and Recovery of Medical and Rehabilitation Costs'.

 Dr. Spiro Polyhronopoulos presented on the Emergency Room Physicians role in Personal Injury Cases. I 've included that elsewhere but it was a highly informed discussion of documentation and where at times to find it. I couldn't help but think that both these learned gentlemen's presentations should be repeated in medical journals. What was clear from both too was that there are a lot of 'rules' in the court which aren't openly apparent, no doubt have a good reason, but are often obscure.

It is now possible for me to answer many questions that patients have raised and I had previously been as confused as they were. That alone has made this conference most helpful and I will change my practice and the information I give in accordance with what is new learning.

Further what was especially interesting for me was the encouragement of all the presenters for expert witnesses and lawyers to pick up the phone and talk to each other, better communications being obviously in the best interest of the shared patient/client.

What follows are the rough notes I took regarding assessing damages and loss. I was particularly interested in this topic as it pertains to 'prognosis' and 'future care'. The presenters were brilliant and astute. The questions that followed from the audience and subsequent discussions that continued in the halls showed just how prevalent the interest was in understanding court rulings and how judges make decisions in these cases.

There was much more than I recorded but I like to share my notes if only to allow others who might be interested in this topic or this course to get a feel for the depth of discussion and considerations involved. I learned alot thanks to these very fine professionals. I wasn't able to record all of the 'references' of cases which indeed would have been of more interest to the lawyers in the room. The level of research that was involved was obviously impressive. I've included my rough and clearly incomplete notes just to give an idea of the breadth and depth of material covered. TLABC and the individuals no doubt have more detailed information which could be accessed through them directly. My apologies for any errors misspellings etc - (Consider the appropriate 'disclaimer' applies, please)

Jan 22, 2013 TLABC Medical Legal Conference 2013 Expert Evidence in Personal Injury Cases - Bringing Out the Big Guns -Stewart Daroux, (Zimmer and Associates, Cranbrook) -Angela Price-Stephens (Murphy Battista, Vancouver)

Stewart Daroux presented first beginning with the question: Why we do all this -to obtain compensation and treatment for injured parties -measure of compensation is Damages Purpose of Damages -in simplest terms damages awarded to innoscent party against the at fault party -intention or purpose - to put injured person in position he or she would have been had accident not occurred Athey v Leonate (1996) Supreme Court of Canada

 The essential purpose and most basic principle of tort law is that the plaintiff must be placed in position ...... However the plaintiff is not to be placed in a position better than his or her original one. It is therefore necessary not only to determine the plaintiff's position after ......but the 'original position' The difference.....is the loss.

Compensation for Loss Plaintiff has Burden of Proof -all the burden of proving liability, causation ,loss and therefore entitlement rests with plaintiff -defendants are often represented by insurance company who make it their business to poke holes in a plaintiff's case - while respecting counsel I have some concern about insurance company policies
Proving Loss - position would have been in but for the accident versus position given the accident - we must lead factual evidence -a good deal of evidence is based on opinion, expert opinion Expert evidence -as a general rule, a witness may testify only to he facts within his or her knowlege - a good deal of modern litigation involves weighing opinions of opposing experts ad cases often turn on quality of expert advice and testimony

Madam Justice Beverly McLachlin - newly freed from its old constraints, expert evidence burst on courts - age of expert arrived

Mr. Justice J.A. Hinkson of our BCCA- Dec 2012 - Persuasion and the Complex Case (I really want to get a copy of Mr Justice J. A. Hinkson's presentation and believe from the references and discussions regarding it that it would be of interest to most clinicians)

 R.v. Mohan, 1994  To be admissiable, relevant and necessary limits to - expert witness not permitted to usurp the role or jury by offering their opinion on conclusions of fact Quntette Coal v. Bow Valley (1988) Emil Anderson v BC Railway C (1987) Hennessy v Rothman (1988) The 'treating experts' need alot of education specific to this matter "or matter of law' (Baas v Jellema 2000 While no longer strictly prohibited, an opinion which goes to the ultimate issue in a case well be strictly scrutinized.... Experts typically used in a Personal Injury Case -Fact dependent - may need expert evidence to prove - liability, causation, damages

Liability Witnesses -engineers -architects - medical experts -experts re customs and practice in other occupations Damage Witnesses to give Opinions Regarding -general damages -special damages Past loss of earnings or earning capacity Damages, - past , present and future In proving past or present loss the test is on 'balance of probabilities'

Test for future or contingent losses is whether there is a real and substantial possibility of the loss occurring - One kick at the can - it is of utmost importantce therefore that we have the best prognostication available. Future losses -requires expert opinion evidence -Workng together with the medical team to ensure that the right experts are consulted and drawing on our own experice as counsel ..... Treating experts - treaters - gp physio, chiro, MT , OT -greatest opportunity to observe claimant -observation before and after MVA -create a record -can be fact witnesses and are often asked to provide opinions within scope of own expertise as well

Non treating experts - hired to asess and provide medical legal opinions - provided with facts and assumptions on which to base opinions add facts to basis of opinions from own findings upon examination/testing -are typically provided in advance with pertinent medical history, and records, an overview of the case and paid to review and consider those -chosen for their particular expertise and experiene in dealing with type of injuries -must be credible - see Jayetileke v Blake, 2010, BCSC 1478

Importance of Treating Experts - factual basis form the foundation of a case -good time is spent pouring over and interpretting the treater's record -Provides basis for supporting or challenging the opinions of other experts -gatekeepers of health care resources Lawyers and treaters helping each other helps patients/clients Treaters can help by - keeping accurate and detailed notes of injury symptons, avoid the one visit one note syndrome -communicating concerns with us -review of expert reports -letting us know what treatment you would like to see funded

Lawyers can (hopefully help by - getting early appointments for diagnostic imaging or procedures -arranging lengthy paid assessment by specialists who may have treatment suggestions or plans that help you better treat your patient (after the presentation i learned in a discussion with three active lawyers, one a QC, all the various limitations and considerations that apply to sharing information, how wrongful sharing or not sharing can hurt the lawyer or the client, but despite this when there are recommendations that would potentially improve care, lawyers want their clients to get this however other aspects of reports they might not want to share because of the overall 'strategy' which then must be weighed against risks and benefits -

I came away with a much 'broader' understanding of 'information' as seen in the courts as compared to my clearly 'utopian' best of possible worlds approach to 'freeware' science approach to knowledge, which in this case could well be used against my patient rather than in their best interest. - fascinating learning of all the various permutations and what lawyers must consider and how differently they must think from physicians in specific areas.... I started out thinking they were being unnecessarily difficult and came away thankful they were and understanding the necessity of it as well as the legislation that surrounds something we physicians rarely have to consider. )) -

taking financial pressure of local health care authorities -obtain funding for treatment modalities reduce financial stress

Overview of Damages

Angela Price Stevens took over the discussion from here and one lawyer shared that most lawyers know this information but Angela's presentation had been the best because it was imaginative. Angela Price Stevens is not only a brilliant legal mind but she's also beautiful. So add that to her discussion of the cost of loss of sexual fulfillment as a consequence of injury. Us older guys certainly sat up and took note, with by my rough estimate many fewer needing coffee refills even though this was the last of the days presentations. Having got our attention she held it throughout her talk as she moved onto the topic of 'punative costs' and discussion of the status quo. From the subsequent discussion many were wanting change while others clearly saw pitfalls. Fascinating and who would have thought. Frankly I didn't know how detailed these assessments were and appreciated over all the thorough and 'ideal' breakdown. I was very thankful for the information.

 She began by saying "I almost exclusively deal with medical malpractice - case I'm dealing with now has 37 experts on both sides, normal is 12 or 13"

 Quantum/Value of the case as opposed to liability/blameworthiness

Which experts are about which loss Overview of Damages non- pecuniary - pain and suffering, loss of enjoyment past wage loss - date of injury to date of settlement - futurre loss of wages vs loss of capacity - often different but often used interchangeably - loss of capacity works on theory that I as an individual have an asset which is me, healthy body, healthy mind, - in some way if they have chronic pain, they have suffered diminishment in capacity loss of opportunity - career opportunities are closed due to their injury - contracts missed, etc. cost of future care -

huge costs loss of interdependent relationship - relatively new damage - loss of marriagility 1989 course, concept is two fold, recognises fact that someone seriously injured, once they lose opportunity of intrinsic value of loving relationship - that falls under general damages, other aspect of loss of marriageability , recognising when you enter into interdependent relationship have ability to share lot - statistics out there, social scientists - especially in cultural difference, eg asian, East Indian, -

there can be cultural aspect special damages - out of pocket expenses, tax gross up - economist or financial adviser may be involved management fees/committee fees - economist

Aggravated damages - designed to compensate injured party, augmentation of injured party Punitive damages - designed to punish defendant - aggravated and punitive damages are often not addressed well in canadian law COI Cost of Future Care (COFC) Care/treatment Physiotherapy OT Personal trainter/RA Massage (sensual) Speech & Language Therapy Pool Therapy Case Manager (OT) Personal Care giver 

Accommadation adaptation of existing home additional costs of new build semi-independent living live in caregiver Misc additional costs of vacationing medical marijuana costs associated with unborn child (eg head injury patient - attractive, but immature, what would cost of this young man hooking up with someone with their own problems and having a child - what would possible cost be, - lawyer felt her role was recognising the 'real risk' that the man might lose his disability money to child maintenance 

What is the appropriate standard for future care? Full compensation v "make do" (plaintiff does not have to just make do) Pecuniary loss = full compensation Fair and reasonable - on facts of case -does not mean 'medically necessary' but needs to be 'medically justified' -physician is not required to prove or approve of COFC

 C-P-C Condition - Prognosis - Care Physical neurologist psychiatrist neuro - opthalmologist life expectacy functional capacity evaluation vocational assessemtn Mental neuro-psychologist psychiatrist counsellor/psychologist Treating clinicians OT/Speech/Child care specialist COFC (Cost of Future Care) Report - Economist reports Lost of Interdependent Relationships Cojocaru v BC Womens' Hospital 2009

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