Assessing the Medical Opinion

Certain decisions have expressed the view that there is a preference given to the evidence of the treating physician.

Such was the conclusion of the Nova Scotia Court of Appeal. The Court of Appeal agreed with the trial judge’s views who gave precedence to the opinion of the treating physician. ¹

The defence medical expert had not seen the plaintiff personally prior to his recommendation to cease benefits, at which he noted that the claim was “suspect” from its inception. The trial judge gave favour to the treating psychiatrist over this same person who later also became the independent reviewer who had assessed the plaintiff.

The judge favoured the views of the treating psychiatrist over that of the defence expert, a hired consultant, who had performed his one and only face to face assessment of the plaintiff at the request of the Plan for the purposes of the litigation.

Moreover, the judge was entitled to, and did, note the fact that although defence expert was generous throughout in his criticism of insured’s physician, and that the plaintiff was compliant with the treatment plan.

All of these considerations reasonably support the judge’s decision to give more weight to the opinion of the treating physician as opposed to that of the defence expert.

This view was expressed, however, as a general statement in a 2009 decision of Arbitrator Palichuk. ²

The accuracy of this statement as a universal truth is very much in doubt. In reality, trial judges will make the assessment of the reliability of the evidence of professional witnesses as is the case with any witness. If anything, the decided cases have often seen the treating physician as an advocate of the patient, and hence destructive to the cause.

Such a finding was made in the British Columbia Supreme Court in November of 2005. ³ The court took exception to the reliability of the family physician, Dr. Pamela Squire, who wrote on one occasion to the specialist:

I am wondering if you could dictate a consult letter and give your opinion about her ability to work – even better could you see her again, briefly just to be able to reassert that she is unemployable so that I can help her fight for benefits”. Further, in her referral of May 6, 2005, Dr. Squire asked for Dr. Hershler’s assessment of “this devastated 43 year old nurse” and that she would appreciate his assessments and comments on her ability to work adding that “Dr. Dunne said she was not fit to work but insurance co. says that is not being disabled”.

The trial judge took his views of this particular evidence to a grander scale, commenting on the lack of impartiality generally offered by the treating family physician:

In my experience, family physicians are often somewhat more sympathetic to their patients than is the case with a specialist who does not have an ongoing relationship with the patient. Dr. Squire has demonstrated, particularly in her evidence given at trial, that she is at the front of the line in that department. She demonstrated that she was so much the advocate that I find that it would be unsafe to rely on her opinion.

This, however, was not the view of McCawley J. ⁴ The family physician, the court stated, may well be in a better position to assess the symptoms and that as with all evidence, it must be assessed in context.

This decision was upheld on appeal, in which the above finding was directly challenged unsuccessfully.

This issue was also reviewed in the Supreme Court of B.C. decision. ⁵ The court took issue with the evidence of the plaintiff’s physician concluding he had become the plaintiff’s advocate, not only because he was the sole physician who supported her complaints of chronic pain but that he did so as he “accepted without reservation the plaintiff’s self-report of symptoms, their degree and effect”.

This was done even when he was aware of the difficulties “inherent in an assessment for diagnosis of fibromyalgia”. The family physician also supported her claim for LTD when two specialists, to whom he referred the plaintiff, disagreed. The decision emphasized the need for the clinician to assume a degree of skepticism when assessing a claim based purely on subjective complaints.

The court in a 2011 decision of the Alberta Queen’s Bench ⁶ noted that the patient physician relationship in a fibromyalgia case was of particular importance, which hence emphasized the need for an impartial view of the treating doctor.

Counsel should take care to ensure the independence of the professional witness. All reports, including draft reports will be compellable. Each party must maintain an impartiality and distance from the professional report.

This was not the case in a 2003 decision of the Manitoba Queen’s Bench. ⁷The expert tendered by the plaintiff, Dr. Shane, had provided an original medical report to the plaintiff and her counsel, which was revised prior to submitting his completed report. While some of the amendments were intended to correct factual errors, one addition was troubling, which stated that:

Furthermore it is my opinion that Ms. Verbong is unable to work at any position for which she is suited by reason of education or training.

This was a complete addition as opposed to any editing of a similar comment. His evidence was seen as that of an advocate “or special pleader” for the plaintiff and was rightly discarded. The trial decision was upheld on appeal, although from the brief endorsement it is not apparent if this issue was argued upon review.

The same result followed, a 1997 decision of the British Columbia Supreme Court ⁸ concluding that the plaintiff’s treating physician had lost all objectivity and in dismissing his testimony as unreliable:

The plaintiff’s doctor, Dr. Collette, has lost all objectivity in dealing with the plaintiff. He has allowed himself to become an advocate for the plaintiff. He has championed the plaintiff’s cause, seemingly becoming her co-dependant, to the extent of failing to follow through with the many recommendations of the specialists who examined the plaintiff. For this reason, I place little weight on his evidence.

Ironically, a defence expert in a 2005 decision of the Ontario Superior Court ⁹ testified that his view was that treating physicians were not as objective in giving their opinions as consulting doctors. The court concluded that this attempt to tarnish the reputation of the two treating physicians, neither of whom he had ever met, showed a lack of impartiality on his part.

A good example of how counsel and the court would like to see a physician testify is depicted in the 2004 decision: ¹⁰

Dr. Dick testified in a balanced and straightforward manner, which in no way suggested his role was that of patient advocate for the purpose of advancing his patients’ claims in litigation. He impressed me as a conscientious, and capable family physician whose expertise was acknowledged by the defence, and whose busy, rural practice has more than exposed him to the regular assessment, treatment and management of chronic pain.

The reality, of course, is that there are no rules. The finding of a professional witness as reliable or otherwise is incapable of any set presumptions or guidelines. Trial judges will apply common sense credibility assessments as would be done for any witness, in an attempt to determine the reliability of the professional medical witness.

Counsel should insure that the professional medical witness remains objectively neutral and does not take on the role of patient-advocate which will diminish the reliability of the professional report. In cases involving a context in which there is no objective medical evidence, the physician ideally should be cautious of accepting a patient’s self-report of symptoms and view the patient with a critically objective eye.