Court of Appeal Considers Gap in Plaintiff’s Report of Symptoms
In EDMONDSON V. PAYER, 2012 BCCA 114 (“EDMONDSON”), a judgement released on March 8, 2012, the Court of Appeal considered and rejected a number of arguments by the appellant (the Defendant), who was appealing from a judgment that awarded the Plaintiff $40,000 in non-pecuniary damages due to injuries suffered in a motor vehicle collision. One of these arguments was based on the fact that there was a 31-month gap between reported symptoms in the Plaintiff’s clinical records.
In the trial decision of EDMONDSON (reported at 2011 BCSC 118), Smith J. considered arguments by the Defendant that put the credibility of the Plaintiff in issue. However, Smith J. did not find that there was sufficient evidence to support a finding that the Plaintiff’s subjective evidence of ongoing pain five years post-collision lacked credibility, holding that “a defendant who accuses a plaintiff of deliberate falsification − an accusation that effectively amounts to one of fraud and perjury − must be prepared to present the court with something more than speculation and innuendo” (at para. 3). On the facts of the case, Smith J. was not prepared to find that the Plaintiff had continued to report symptoms after she had recovered from her injuries.
In EDMONDSON, the reasons of Kirkpatrick J.A. (writing for a unanimous panel of three judges) dealt with the appellant’s argument that the trial judge had erred in his approach to the assessment of the Plaintiff’s credibility. In particular, the appellant submitted that the trial judge erred in not finding that the Plaintiff’s credibility was undermined by a failure to explain the 31-month gap in her clinical records during which there was no mention of the claimed ongoing injuries.
The appellant took issue with the following comments of the trial judge relating to the import of the gap in the clinical records (at paras. 36-37 of the trial decision):
 WHILE THE CONTENT OF A CLINICAL RECORD MAY BE EVIDENCE FOR SOME PURPOSES, THE ABSENCE OF A RECORD IS NOT, IN ITSELF, EVIDENCE OF ANYTHING. FOR EXAMPLE, THE ABSENCE OF REFERENCE TO A SYMPTOM IN A DOCTOR’S NOTES OF A PARTICULAR VISIT CANNOT BE THE SOLE BASIS FOR ANY INFERENCE ABOUT THE EXISTENCE OR NON-EXISTENCE OF THAT SYMPTOM. AT MOST, IT INDICATES ONLY THAT IT WAS NOT THE FOCUS OF DISCUSSION ON THAT OCCASION.
 THE SAME APPLIES TO A COMPLETE ABSENCE OF A CLINICAL RECORD. EXCEPT IN SEVERE OR CATASTROPHIC CASES, THE INJURY AT ISSUE IS NOT THE ONLY THING OF CONSEQUENCE IN THE PLAINTIFF’S LIFE. THERE CERTAINLY MAY BE CASES WHERE A PLAINTIFF’S DESCRIPTION OF HIS OR HER SYMPTOMS IS CLEARLY INCONSISTENT WITH A FAILURE TO SEEK MEDICAL ATTENTION, PERMITTING THE COURT TO DRAW ADVERSE CONCLUSIONS ABOUT THE PLAINTIFF’S CREDIBILITY. BUT A PLAINTIFF WHOSE CONDITION NEITHER DETERIORATES NOR IMPROVES IS NOT OBLIGED TO CONSTANTLY BOTHER BUSY DOCTORS WITH REPORTS THAT NOTHING HAS CHANGED, PARTICULARLY IF THE PLAINTIFF HAS NO REASON TO EXPECT THE DOCTORS WILL BE ABLE TO OFFER ANY NEW OR DIFFERENT TREATMENT. SIMILARLY, A PLAINTIFF WHO SEEKS MEDICAL ATTENTION FOR UNRELATED CONDITIONS IS NOT OBLIGED TO RECOUNT THE HISTORY OF THE ACCIDENT AND RESULTING INJURY TO A DOCTOR WHO IS NOT BEING ASKED TO TREAT THAT INJURY AND HAS NO REASON TO BE INTERESTED IN IT.
However, the Court of Appeal in EDMONDSON did not agree with the appellant that the above considerations constituted an error of law. Although Kirkpatrick J.A. agreed with the appellant that the above statements of the trial judge are not “legal principles” that can be applied in every case, she emphasized that they were common sense considerations that were useful in analyzing the particular facts of the case at hand:
 … IN MY VIEW, THE “LEGAL PRINCIPLES” ARTICULATED BY THE JUDGE ARE SIMPLY PROPOSITIONS – THAT THE ABSENCE OF A REFERENCE IN A CLINICAL RECORD TO A SYMPTOM IS NOT DETERMINATIVE OF THE NON-EXISTENCE OF THE SYMPTOM; A PLAINTIFF WHOSE CONDITION DOES NOT CHANGE IS “NOT OBLIGED TO CONSTANTLY BOTHER BUSY DOCTORS WITH REPORTS THAT NOTHING HAS CHANGED”; ANDA PLAINTIFF WHO SEES A PHYSICIAN FOR AN UNRELATED CONDITION IS NOT OBLIGED TO RECOUNT THE CIRCUMSTANCES ASSOCIATED WITH THE MOTOR VEHICLE ACCIDENT WHEN THE PLAINTIFF IS NOT SEEKING FROM THAT PHYSICIAN TREATMENT FOR THE MOTOR VEHICLE ACCIDENT INJURIES.
 I AGREE WITH THE APPELLANT THAT THESE PROPOSITIONS DO NOT AMOUNT TO LEGAL PRINCIPLES APPLICABLE IN EVERY CASE. NEVERTHELESS, THE PROPOSITIONS REFLECT A COMMON SENSE APPROACH TO THE ARGUMENTS RAISED BY THE DEFENDANT IN THIS CASE AND ADDRESS THE APPELLANT’S REAL ARGUMENT – THAT MS. EDMONDSON NEVER OFFERED AN EXPLANATION AS TO WHY, FIVE YEARS AFTER THE ACCIDENT AND IN THE FACE OF OBJECTIVE EVIDENCE THAT SHE HAD SUBSTANTIALLY OR FULLY RECOVERED FROM HER INJURIES, SHE CONTINUED TO SAY SHE EXPERIENCED PAIN.
Kirkpatrick J.A. found, on the particular facts of the case, that the 31-month interval in the Plaintiff’s clinical records where no symptoms were reported did not in itself preclude the possibility of ongoing but unreported pain during that time.
Kirkpatrick J.A. also commented on the fact that the Defendant did not directly confront the Plaintiff at trial with the theory that the gap in the clinical records indicated that she had completely recovered well before trial, and that she had only continued reporting symptoms subsequently to help her personal injury claim. Although the gap in the clinical records was dealt with on cross-examination, the fact that the Defendant did not give the Plaintiff an opportunity to fully respond to the assertion that her credibility was wholly undermined by this gap diminished the strength of the argument (see paragraph 38).
The Court of Appeal’s ruling in EDMONDSON suggests that where there is an extended gap between reported symptoms in a plaintiff’s clinical records, a court will not automatically draw the conclusion that the plaintiff recovered during that time. Rather, the court will take a common sense approach and look at the clinical records in light of all the surrounding evidence.
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