Treatment providers who testify in court need to comply with the rules set out for expert opinion witnesses if they’re giving an account based on opinion rather than facts or observation, the Divisional Court said in a recent decision.
The ruling provides “a badly needed guide” for the personal injury bar, says Kieran Dickson, the lawyer who represented the defendants in Westerhof v. Gee.
The Divisional Court’s ruling clarifies a murky area of the law made even more difficult to grasp by contradicting case law, according to Dickson. But opposing counsel Jane Poproski says parties will bear greater financial cost because of the court’s unique decision dealing with Rule 53.03 of the Rules of Civil Procedure.
Courts previously decided in various ways when it comes to who needs to comply with Rule 53.03, which deals with an acknowledgment of the expert’s duty, in order to give an account in court.
Previously, the answer to that question relied on the type of witness involved, specifically whether the person is a treatment provider or an expert hired for the purpose of the litigation. In a decision dated June 20, the Divisional Court said the labelling of the expert doesn’t matter as much as the type of testimony the person will give.
“The important distinction is not the role or involvement of the witness, but the type of evidence sought to be admitted,” wrote Justice Thomas Lederer.
“If it is an opinion evidence, compliance with Rule 53.03 is required; if it is factual evidence, it is not.”
Rule 53.03 requires experts to submit a report detailing their experience, the nature of their opinion, and an acknowledgment of their duty to the court, which includes impartiality. In Westerhof, the trial judge refused to admit the testimony of some experts as they hadn’t complied with Rule 53.03.
The court also clarified when physicians treating a party involved in a case will be able to speak in court without having tendered a report as required by the rule.
“They may give evidence as to their observations of the plaintiff and their description of the treatment provider,” the court stated.
“This is factual and not opinion evidence. Simply put, a treating physician or other treating professional who limits his or her evidence in this way does not need to be qualified and is not treated as an expert. It is when the witness seeks to offer opinions as to the cause of the injury, its pathology or prognosis that the evidence enters into the area of expert opinion requiring compliance with the Rule 53.03.”
Both Dickson and Poproski agree that the decision would mean more professionals would fall under the category of an expert witness and require a report before giving evidence in court. That would mean more costs to the parties bringing the experts to court, says Poproski.
“I don’t think they’ve considered enough the expense their rationale is going to result in,” she tells Law Times.
“That is something that was argued before them but it’s not reflected in their decision.”
She adds: “If we’re to hire each treatment provider independently to create a report, you’re looking at almost an exponential expense.” The opposing side will also be spending time and money writing a rebuttal report, she notes.
As more treatment providers are subject to the rule, Poproski says doctors will also have to write a report acknowledging that their duty to the court is superior to their obligation to the party that brought them there, something she suggests is in conflict with their ethical responsibilities for their patients.
The court also disagreed with Poproski on what exactly is a fact versus an opinion. Poproski had argued a diagnosis is a fact, a statement the judge disagreed with.
“A diagnosis is not always a fact,” wrote Lederer.
“In the law of evidence, an opinion is an ‘inference from observed facts’ as quoted in R. v. Collins. A diagnosis begins as an inference a doctor, relying on his or her expertise and experience, makes from observations and other information to identify an injury or disease. It may, as a result of further observation or response to treatment, prove to be correct. It may also turn out to be wrong.”
Whether a judge will treat a diagnosis as a fact depends on the purpose of that evidence, the court found. If a doctor gives evidence of the diagnosis to justify subsequent treatment, the court would treat it as a fact that resulted in a certain response. But the court maintains that the diagnosis could still be wrong.
“It may be that the inference to be drawn seems irrefutable as a result of observations that can be made, for example, by use of X-ray. Even so, for the purpose of evidence, it remains an opinion.”
For his part, Dickson says the court’s decision sets a clear precedent after what has been “inconsistent handling” of the matter in previous rulings.
“I think it’s very important for practitioners, trial lawyers who are experiencing this issue in pretty much every personal injury trial because there has been this long-standing question over [whether] treatment providers in particular are to comply with Rule 53. The debate comes up in seemingly every personal injury trial.”
Personal injury lawyer James Howie of Howie Sacks & Henry LLP agrees. “The issues come up in virtually every personal injury case. It is significant because counsel will face great uncertainty about which experts you can have testify and which ones you might be limited to being able to have testify.”
He does point to a drawback, however. “One drawback will be uncertainty counsel will face leading up to trial. Counsel may be somewhat arbitrarily limited in what evidence counsel feels needs to be called to fully explain the case to the judge or jury while the rules might restrict this and prevent counsel from doing their job [of] fully representing their client. Justice might not occur because of limits placed on evidence permitted.”