ICBC hired an ear, nose and throat specialist, Dr. Bell, to assess an injured claimant at an independent medical examination. He wrote that the first recorded complaint of her imbalance was about a month after the collision and that this was too long for trauma to have been its cause.
Dr. Bell’s reasoning was:
- “A vestibular injury should typically produce an immediate onset of symptoms.
- If she had sustained a traumatic injury at the time of the accident she would have had significant symptoms and clinical findings such as nystagmus [form of eye movement present in both eyes] at the scene of the accident [the ambulance crew], the emergency department or certainly within a few days.”
On August 12, 2014 Mr. Justice Macaulay gave his decision in this case called Hill v. Murray. Ms. Hill claimed that she had suffered a mild traumatic brain injury or post-concussion syndrome and a vestibular injury (trauma to the inner ear) as a result of a car accident which resulted in ongoing fatigue, memory, concentration, and balance problems.
He rejected Dr. Bell’s opinion and stated that:
- “In the present case, much of Ms. Hill’s evidence respecting the onset and nature of her specific complaints is supported by the evidence of family members, co-workers and friends.
- Particularly, in the hours, days, weeks and months immediately following the accident, I do not fault Ms. Hill for failing to give a complete rendition of all aspects of her injuries to her family doctor.
- I accept that the recovery process evolves and that what, to the patient, appears important, unimportant, or possibly is even mischaracterized due to the effects of medications, differs from time to time.”
The judge concluded that Ms. Hill’s injuries were permanent and awarded her $1.061,224 including:
- $120,000 for her pain and suffering and
- $733,000 for her loss of future earning capacity.
He relied on a summary of the law by Justice N. Smith in the Edmondson case about the relevance of clinical records:
- “… [Clinical records] are usually not, and are not intended to be, a verbatim record of everything that was said. They are usually a brief summary or paraphrase, reflecting the information that the doctor considered most pertinent to the medical advice or treatment being sought on that day. There is no record of the questions that elicited the recorded statements.
- The difficulty with statements in clinical records is that, because they are only a brief summary or paraphrase, there is no record of anything else that may have been said and which might in some way explain, expand upon or qualify a particular doctor’s note.
- The plaintiff will usually have no specific recollection of what was said and, when shown the record on cross-examination, can rarely do more than agree that he or she must have said what the doctor wrote.
- Further difficulties arise when a number of clinical records made over a lengthy period are being considered. Inconsistencies are almost inevitable because few people, when asked to describe their condition on numerous occasions, will use exactly the same words or emphasis each time. …
- 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.”