Ignoring Medical Advice can Prove Costly in B.C. Personal Injury Litigation

Ignoring Medical Advice can Prove Costly in B.C. Personal Injury Litigation

Any personal injury lawyer will tell you it is a bad idea to represent yourself in court. It is equally ill-advised to serve as your own doctor following a car accident, even if you happened to be a highly-skilled physician. When seeking damages against a negligent driver in court, a B.C. judge will review your complete medical history following the accident. A doctor who treats him or herself as a patient and ignores a care plan recommended by another physician may undermine a legal claim for damages in court.

Nagaria v. Dhaliwal: Doctor Opts to Treat Himself Following Rear-End Car Accident

Consider this recent decision from the British Columbia Supreme Court. This case began with a rear-end auto accident in Surrey four years ago. The plaintiff, a neurologist, was stopped at a red light when the defendant’s truck struck him from behind.

The plaintiff declined to seek medical treatment at the accident scene. He also declined to go to the hospital despite later claiming he sustained “neck and back pain and a headache.” Instead, he returned to his medical practice and resumed working.

Later that same day, the plaintiff visited another physician in a neighboring office and asked him for an examination. This physician did not testify in the plaintiff’s subsequent personal injury lawsuit against the defendant. According to medical records, the second physician “formed a treatment plan for the plaintiff” including a variety of lab tests to ascertain the extent of his accident-related injuries.

The plaintiff did not follow this treatment plan, however, yet he diagnosed himself as sustaining a “soft tissue injury.” He then opted to create his own treatment plan, which diverged significantly from the one recommended by the second physician. The plaintiff later testified that he rejected the second physician’s advice because he feared it would restrict his ability to continue his own medical practice.

Judge: A Party’s “Social Status” Does Not Establish His Credibility

The plaintiff’s personal injury lawsuit was tried before Justice Kenneth W. Ball in March of this year. The defendant admitted liability for the accident. So the only question for the court to decide is how much, if any, damages to award the plaintiff.

The plaintiff sought non-pecuniary damages for his pain and suffering. Based on the relevant case law, he asked Justice Ball for an award of between $60,000 and $95,000. The defendant argued for a lower range of damages, approximately $3,000 to $13,000. The defence also sought a mitigation of damages–that is, a reduction in the final award–based on the plaintiff’s failure to follow the second physician’s recommended treatment plan.

Justice Ball’s final decision favored the defence’s position over that of the plaintiff. The key factor for the Court was the plaintiff’s credibility as a witness, or lack thereof. As Justice Ball explained, the plaintiff’s case largely revolved around his own “subjective complaints of stiffness, headache and other pain.” Since he declined to undergo the tests advised by the second physician or provide the court with any pre- or post-accident medical records whatsoever, Justice Ball had little to go on but the plaintiff’s testimony.

There were a number of problems with that testimony. First, Justice Ball was “unable to accept the plaintiff’s statements about his discussions with [the second physician] as accurate historical statements.” Second, the plaintiff’s self-diagnosis and self-treatment was inconsistent with the standard of care required by the College of Physicians and Surgeons. Third, there were a “number of inconsistencies” between the plaintiff’s trial testimony and the medical history he provided to the second physician. Some of these statements were not directly related to the plaintiff’s medical condition, yet they were still inconsistent, which was relevant to a determination of his overall credibility as a witness.

Finally, Justice Ball took special exception to two submissions the plaintiff made in support of his credibility. The first was apparently that a witness should be presumed credible when he or she “comes from the same social or economic setting as the judge.” Justice Ball rejected such thinking out-of-hand, noting that to agree with such a notion “would be a profound error of law and would impugn the impartiality of the court.”

Second, the plaintiff submitted that “the Court should take special care in making a credibility finding adverse to the plaintiff because he appears from time to time as a professional expert witness, and draws a portion of his income from that activity.” Again, this was a non-starter with Justice Ball. Again, he explained that the “social status” of a witness bore no relevance to his credibility as a party or litigant in a particular proceeding.

Ultimately, the Court concluded that while the plaintiff did suffer a soft-tissue injury in the accident caused by the defendant, it was a minor one. Furthermore, the plaintiff’s own refusal to follow medical advice other than his own constituted a failure to mitigate his damages. Justice Ball fixed the final award for non-pecuniary at $19,000, which he reduced 10% for the failure to mitigate, which worked out to $17,100.

Contact a Surrey ICBC and Car Accident Lawyer Today

Car accident victims often fail to seek prompt medical treatment. This particular case is notable for the fact the victim actually was a doctor. Unfortunately, his decision to self-diagnose and ignore independent medical advice severely reduced the amount of damages he received from the negligent defendant. He also appears to have damaged his own professional credibility in light of some of the submissions he made before Justice Ball.

Even if you are not a doctor, there are still important lessons here for anyone else involved in a car accident. Do not try to handle things yourself. Seek proper medical care and contact a qualified Surrey ICBC lawyer to assist you with any insurance or litigation issues that may arise. At Preszler Law Firm, we assist individuals in Surrey and throughout B.C. who have been injured due to driver negligence. Since we work exclusively on a contingency basis, you do not pay unless we win. Contact us today to schedule a free consultation.

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