Direct Examination of Experts and the Capacity of medical Practitioner

Direct Examination of Experts and the Capacity of medical Practitioner

Last year the BC Court of Appeal in Ford v. Lin, 2022 BCCA 179 commented on the capacity in which a medical practitioner may testify at trial.

In specific, it first confirmed that where a party tenders an expert report at trial that any direct examination of that expert must be limited to what is necessary for clarification of the report. Basically, the Court of Appeal confirmed that in these circumstances the requirements set out in Pedersen v. Degelder, 1985 CanLII 430 (BC SC) are to be followed.

Second, it provided clarity on what is permissible when a party hopes to call a medical practitioner in a dual capacity. That is, to provide expert opinion but also to elicit “lay” or “fact” evidence from them. The Court of Appeal provided as follows:

[65]      When, however, a party intends to call a witness to give both opinion and fact evidence, they must comply with the rules and procedures applicable to each type of evidence. For example, when, as in the case at bar, an order has been made requiring the parties to provide will-say statements for non-expert witnesses, such statements must be provided with respect to that aspect of a witness’s testimony that falls outside the four corners of their report. As well, witness lists should be drafted so as to disclose a witness is being called to give both types of evidence. I agree with Mr. Lin that the fact that Dr. Comeau’s and Dr. Raabe’s names appeared in both the “Witnesses to be Called” and “Experts Reports” sections of Ms. Ford’s trial brief did not serve to indicate they were being called other than as experts in relation to their reports. In this regard, I note that Dr. Tsai and Dr. Williamson, who were called only as experts, were also listed on Ms. Ford’s trial brief in the same way.

[86]      With that context in mind, I return to my interpretation of the current law in British Columbia. That an expert is able to give “fact” evidence does not automatically open the door to a party both filing a report and calling the expert. When the “facts” sought to be elicited in the witness box relate to the basis for the opinion, a party must choose how they wish to present both those facts and the opinion. If a party chooses to tender a report, then they cannot call the expert as a “fact” witness” unless the “fact” evidence to be elicited is relevant to some matter other than the opinion in the report or falls within Rule 11-7(5)(a)(ii). Put otherwise, a party is not entitled to “double up” on presenting an opinion or the foundation on which it is based.

[90]      When a party calls a doctor as a fact witness, the doctor’s testimony is subject to the rules that apply to any other fact witness. What this means is that a party is not entitled, as a matter of course on direct examination, to tender their own out-of-court statements. Absent an exception to this general exclusionary rule, a plaintiff can no more call a doctor to testify they said their back was sore on a particular day than they can their next-door neighbour.

[91]      Ms. Ford submits the trial judge improperly restricted Dr. Comeau’s direct examination in two ways. The first is in limiting the scope of that examination to clarifying her report, i.e., the limitation in Rule 11-7(5)(a)(ii). The second is in not permitting Dr. Comeau to testify as to subjective complaints Ms. Ford made in the post-report period, i.e., during the approximately three and a half years between when the report was written and the trial took place.

[94]      With respect to the second point, Ms. Ford has again not referred to any authority that permits a plaintiff, in direct examination and as a matter of course, to adduce their own statements to a treating clinician in anticipation that party-admissions might be elicited during cross-examination. At the direct examination stage, such evidence is inadmissible hearsay. It serves no purpose. In this regard, I note that at the hearing of this appeal, Ms. Ford argued that a plaintiff has the right to ask questions of a treating clinician with respect to their records even if it may have no purpose or be oath-helping, because it is part of the narrative. As is apparent, I do not accept this as a correct statement of the law.

[95]      It is important to keep in mind that the judge’s ruling applied only to Dr. Comeau’s direct examination. In the event that what could be taken to be a party-admission was elicited during cross-examination Ms. Ford was entitled, in re-examination, to elicit other statements she made to Dr. Comeau, not for their truth, but to provide the judge with context in considering the weight to be given to any potential party-admissions: see Johnny v. I.C.B.C., 2007 BCCA 43 at paras. 15–20, 64 B.C.L.R. (4th) 337; Smith v. Wirachowsky, 2009 BCSC 1434 at para. 22(b), 2 B.C.L.R. (5th) 347. Mr. Lin accepts that it would be unfair to permit a defendant cross- examining a plaintiff’s treating clinician to, in effect, “cherry pick” statements the plaintiff made to a treating clinician without giving the plaintiff an opportunity to provide a fuller picture of what transpired over the course of treatment. Indeed, in this case, during re-examination, Ms. Ford did elicit statements she had made to Dr. Comeau.