1. What Makes a Good Medical Report? And What Makes a Bad One? Medical-Legal Reports and Testimony – November 6, 2013 1

2. Formal Requirements Gone are the days of the hired gun Rule 53 was recently amended for a reason Most important are: (i)the expert’s qualifications (ii)instructions (iii)the opinion on each issue, and (iv)the reasons for the opinion Gone are the days of the hired gun Rule 53 was recently amended for a reason Most important are: (i)the expert’s qualifications (ii)instructions (iii)the opinion on each issue, and (iv)the reasons for the opinion Medical-Legal Reports and Testimony – November 6, 20132

3. An Accurate CV CV is critical to establishing expertise Lawyer can have a field day on cross- examination if it’s misleading or inaccurate Testimony can follow you into subsequent cases [Bearden v. Lee [2005] O.J. No. 1583] CV is critical to establishing expertise Lawyer can have a field day on cross- examination if it’s misleading or inaccurate Testimony can follow you into subsequent cases [Bearden v. Lee [2005] O.J. No. 1583] Medical-Legal Reports and Testimony – November 6, 20133

4. Objectivity Identify inconsistencies, but don’t comment on credibility Don’t discuss fault/liability Avoid adjectives: – Violent collision – Devastating effect on… – Hardworking and dedicated employee – Vehicle was written off Identify inconsistencies, but don’t comment on credibility Don’t discuss fault/liability Avoid adjectives: – Violent collision – Devastating effect on… – Hardworking and dedicated employee – Vehicle was written off Medical-Legal Reports and Testimony – November 6, 20134

5. The “Roaming” Expert Only opine within your area of expertise – roaming into other areas suggests advocacy and undermines all areas of your report e.g. The difference between diagnosing chronic pain and chronic pain syndrome Only opine within your area of expertise – roaming into other areas suggests advocacy and undermines all areas of your report e.g. The difference between diagnosing chronic pain and chronic pain syndrome Medical-Legal Reports and Testimony – November 6, 20135

6. Subjective Complaints Patient’s subjective complaints cannot trump: – Relevant history in family doc's CNRs – Information from other specialists – Discovery evidence DON’T BE AFRAID TO ASK FOR RECORDS YOU THINK ARE MISSING Patient’s subjective complaints cannot trump: – Relevant history in family doc's CNRs – Information from other specialists – Discovery evidence DON’T BE AFRAID TO ASK FOR RECORDS YOU THINK ARE MISSING Medical-Legal Reports and Testimony – November 6, 20136

7. Write For The Judge Don’t assume that your audience knows the significance of a positive Romberg Test, or the implications of Waddell`s signs Explain your methods for measurements Don’t list various ROM measurements without the averages as benchmarks Don’t assume that your audience knows the significance of a positive Romberg Test, or the implications of Waddell`s signs Explain your methods for measurements Don’t list various ROM measurements without the averages as benchmarks Medical-Legal Reports and Testimony – November 6, 20137

8. Causation Causation is often overlooked or ignored, but EVERYTHING hinges on it Experts can often agree on diagnosis and treatment, but the real debate is causation Think in “but for” terms: How would this person have turned out ABSENT the accident? Causation is often overlooked or ignored, but EVERYTHING hinges on it Experts can often agree on diagnosis and treatment, but the real debate is causation Think in “but for” terms: How would this person have turned out ABSENT the accident? Medical-Legal Reports and Testimony – November 6, 2013 8

9. Causation cont. A plaintiff’s report missing the “but for” analysis: – Can be attacked as biased – Does not help the file get settled – May surprise plaintiff’s counsel if first raised during cross-examination at trial A plaintiff’s report missing the “but for” analysis: – Can be attacked as biased – Does not help the file get settled – May surprise plaintiff’s counsel if first raised during cross-examination at trial Medical-Legal Reports and Testimony – November 6, 20139

10. Future Needs Comment on the person’s need for future treatment (frequency and duration) to assist with care costs, but within your area Comment about an injury’s impact on HK or home repair abilities based on real restrictions, keeping the “but for” analysis in mind (e.g. plaintiff might need assistance at age 75 regardless of the accident) Comment on the person’s need for future treatment (frequency and duration) to assist with care costs, but within your area Comment about an injury’s impact on HK or home repair abilities based on real restrictions, keeping the “but for” analysis in mind (e.g. plaintiff might need assistance at age 75 regardless of the accident) Medical-Legal Reports and Testimony – November 6, 201310

11. The Ultimate Issue No longer a general rule barring opinion evidence on the ultimate issue Tension exists because: – It may usurp the function of the judge or jury – There is a danger that jurors may abdicate their role as fact-finders and adopt the opinion of the experts No longer a general rule barring opinion evidence on the ultimate issue Tension exists because: – It may usurp the function of the judge or jury – There is a danger that jurors may abdicate their role as fact-finders and adopt the opinion of the experts Medical-Legal Reports and Testimony – November 6, 201311

12. The Ultimate Issue cont. What about “permanent” and “serious” impairments of “important” function opinions in MVA litigation? Justice Moore rejected opinion evidence [Baines v. Hehar] about a claimant’s “permanent and serious” injuries. By so saying, [the doctor] stepped beyond his role as an expert witness and strayed into the domain of the trial judge. By parroting the language of the legislation and applying it to the plaintiff’s case, the doctor appears to be intent on influencing me toward an outcome favourable to the plaintiff; that is advocacy and not the impartial, objective or helpful assistance the court expects from an expert. Further, [the doctor] attempted to address the ultimate question. What about “permanent” and “serious” impairments of “important” function opinions in MVA litigation? Justice Moore rejected opinion evidence [Baines v. Hehar] about a claimant’s “permanent and serious” injuries. By so saying, [the doctor] stepped beyond his role as an expert witness and strayed into the domain of the trial judge. By parroting the language of the legislation and applying it to the plaintiff’s case, the doctor appears to be intent on influencing me toward an outcome favourable to the plaintiff; that is advocacy and not the impartial, objective or helpful assistance the court expects from an expert. Further, [the doctor] attempted to address the ultimate question. Medical-Legal Reports and Testimony – November 6, 201312

13. Discussion Points 1.What about interview notes, measurements, e-mails with counsel, interviews with the family, and draft reports? 2.How to address cultural sensitivities in the patient interview, the testing component, and the final report? 3.Is counsel risking a negligence claim when retaining a known “advocate”? 4.Can an expert be cross-examined on prior cases where their evidence was rejected? If so, at what stage? (i.e. during qualification or during cross- examination) 1.What about interview notes, measurements, e-mails with counsel, interviews with the family, and draft reports? 2.How to address cultural sensitivities in the patient interview, the testing component, and the final report? 3.Is counsel risking a negligence claim when retaining a known “advocate”? 4.Can an expert be cross-examined on prior cases where their evidence was rejected? If so, at what stage? (i.e. during qualification or during cross- examination) Medical-Legal Reports and Testimony – November 6, 201313