Treating Physicians: Fact or Expert Witnesses?

Leonard v. Kline, 2011 ONSC 2730 (CanLII) is a personal injury action arising out of a motor vehicle accident. The plaintiff sought leave from Mr. Justice Gregory Ellies to call ten experts. (Section 12 of the Evidence Act requires that a party who wishes to call more than three expert witnesses at trial obtain leave from the court.) The defendant was only planning to call two experts and took the position that the expert testimony sought to be adduced by counsel for the plaintiff was duplicative.

Justice Ellies agreed, in part. He grouped together two rehabilitation consultants who had worked together and ruled that only one of them could testify. He did the same thing with two occupational therapists: only one was permitted to give evidence at trial.

He permitted an orthopaedic surgeon, a psychiatrist, a psychologist and an actuary to testify, reasoning that each had addressed the issue of the plaintiff’s employability from the standpoint of a different field and the testimony of these witnesses was not duplicative.

Interestingly, two of the experts on the list provided by counsel for the plaintiff were treating physicians. With respect to these witnesses, Justice Ellies said, “it is my view that neither of these experts ought to be permitted to express an opinion on whether the plaintiff is now employable….Drs. Shamess and Maione are ‘fact’ witnesses and their evidence ought to be restricted to that. As treating physicians, they are entitled to give evidence with respect to their observations of the plaintiff, both pre- and post-accident, their medical diagnoses, and the treatment prescribed. They ought not to provide opinion evidence with respect to whether the plaintiff is now competitively employable, as that is the purpose for which the plaintiff proposes to call the other experts.”

(Dr. Maione, the family doctor, had not provided a report in compliance with Rule 53.03.)

Whether a professional witness is an expert or a fact witness (or both) is an interesting question. Placing the professional into one category or the other has significant consequences for their testimony. For example, Justice Ellies held in this case that the two treating physicians were testifying only as to questions of fact. This would presumably mean that they would not have to deliver reports under R. 53.03 and would not have to acknowledge a supervening duty of impartiality to the court. (Justice Ellies did seem to have adverted to this, since he specifically mentioned that one of the two witnesses had not delivered a report.)

However, in limiting the scope of the testimony to be given by these witnesses, His Honour said that they could give evidence as to their “medical diagnoses”. Now, it strikes us that if these doctors were to testify as to the fact of their diagnoses having been made, that would be fact evidence. But if their testimony were being relied upon for the accuracy of their diagnoses, it seems to us that that would be opinion evidence, as it is not evidence that a lay person would be entitled to present.

Master Calum MacLeod referred to the sometimes murky separation between expert and fact witnesses in Andersen v. St. Jude Medical Inc., 2007 CanLII 64140 (ON S.C.), where he said:

[I]t is worth summarizing the practice with respect to obtaining the evidence of witnesses as set out in the rules and the caselaw. It is necessary in doing so to distinguish between fact witnesses and expert witnesses. In theory these are distinct roles. Factual witnesses, of course, testify to their knowledge of events or documents and with limited exceptions may only testify concerning first hand knowledge. These witnesses give evidence about what they saw or did or wrote or received and perhaps if it is relevant about their own intentions or knowledge at the time. Expert witnesses, by contrast, may have no first hand knowledge of the events in question but are called to give the court the benefit of their scientific, technical or other specialized knowledge.

In practice the world of witnesses is not so neatly divided and there are many situations in which an expert is also a fact witness. Indeed, it is common to find situations in which professional opinions formed at relevant times by one of the proposed experts form part of the factual nexus itself. Common examples are treating physicians whose diagnosis and prognosis may have determined the treatment choices made by an injured plaintiff. Engineers or architects who are responsible for design and supervision of construction projects are similar examples. When litigation ensues, these professionals may be hybrid witnesses who will testify about what actually happened and what decisions or advice they gave and may also be retained as experts for the purpose of trial.

Master MacLeod’s synthesis of the law seems to suggest that a treating physician’s diagnosis will be a question of fact only in relation to the fact that it was made. Whether the diagnosis was accurate or not would, by implication, be a matter of opinion.

Thus, it seems to us that Justice Ellies’ ruling with respect to the treating physicians in this case would have to be understood in the same way: the testimony of the treating physicians as to their diagnoses could only be adduced for the fact of their having been made.

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