During the usual course of a
personal injury action an injured plaintiff may be treated by one or more
medical professionals. Those professionals typically maintain clinical notes of
each visit. If a matter proceeds to trial and the plaintiff elects not to call
the treating physician, for example, the lawyer hired by ICBC may ask the court
to draw what is termed an “adverse inference”, meaning they ask the court to make
a finding that the plaintiff elected not to call that treating physician
because had that doctor actually attended court to testify, they would have
likely given unhelpful information. Such an unfavourable finding of the court
would likely hurt one’s case at trial, to some degree.
This issue arose in the recent
decision Beggs v. Stone, 2014 BCSC 2120. Ms. Beggs was a plaintiff who
suffered various soft tissue and psychological injuries following a 2009 motor
vehicle collision. At trial the plaintiff did not call as witnesses some
treating professionals. The plaintiff did however advance various other expert
medical opinion evidence. The defence lawyer asked the trial judge to
correspondingly draw an adverse inference because of this. Mr. Justice N. Smith
declined to do so placing particular emphasis on the fact that the plaintiff
had disclosed to the defence her clinical records from the relevant treating
professionals and these records were subsumed into the experts’ analyses.
Court stated as follows:
Counsel for the defence seeks an adverse inference from the plaintiff's failure
to call the family physician who treated her before and in the year following
the accident and more particularly the psychologists who treated her both here
and in Winnipeg after the accident. The factors for drawing an adverse
inference are set out in Buksh v. Miles, 2008 BCCA 318, at para. 35.
These include the evidence before the court, the explanations for not calling
the witness, the nature of the evidence that could be provided, the extent of
disclosure of the witness's clinical notes and the circumstances of the trial.
In declining to draw an adverse inference, I place particular emphasis on the
fact that the clinical records of all of these professionals were disclosed to
defence counsel and were reviewed by all the experts who gave their opinions in
part based upon those records. The plaintiff's pre-accident condition and
post-accident progress are well documented, and there is nothing to suggest
that there is anything in those records that contradicts anything that the doctors
who have testified have stated.
All said, the proper disclosure
of relevant clinical records has the potential to hinder a defence plea that
the court draw an adverse inference should a treating professional not be
called as a witness at trial.