Canada: The Use Of Medical Reports At Trial – Campbell v. Roberts

Last Updated: June 3 2014
Article by John A. Nicholson

The use of a physician's medical reports at trial has been a recurring topic in the Courts recently.  One of the issues that has been the focus of recent judicial commentary concerns the use that can be made of medical reports that have been prepared by a physician in the ordinary course of treating a patient.  A treating practitioner's reports will often express the physician's opinion about matters that may be controversial between parties to litigation – for example, the diagnosis of an injured plaintiff's injury, his or her prognosis, or the cause of an injury.   

What use can be made of such "opinions" at trial?  In order for the opinions in these reports to be admitted into evidence, is it necessary for the physician to author a separate "expert report" and comply with all of the requirements under the Rules of Civil Procedure for the admission of expert evidence? These types of questions have been coming before the Courts with regularity recently, and it appears that this issue will likely come before the Court of Appeal in the near future. 

In Campbell v. Roberts 2014 ONSC 1574 Justice Cory Gilmore considered the use that could be made of medical reports that had been authored by one of the plaintiff's treating physicians in a medical  negligence action.  The plaintiffs argued that the reports were admissible in evidence under section 52 of the Evidence Act to support the proof of the opinions contained in those reports.  The defendant disagreed and argued that the opinions contained in the reports could not be admitted into evidence unless the plaintiff obtained an expert report from the physician, commissioned specifically for use in litigation. 

Justice Gilmore permitted the medical reports to be filed under section 52 of the Evidence Act, and held that an expert report prepared specifically for litigation purposes was not necessary in order for the opinions contained in the reports to be admitted into evidence.  However, the opinions contained in the reports concerning the plaintiff's diagnosis were only admissible for the purpose of explaining the treatment provided by the physician.  Those opinions were not admissible for the purpose of proving the plaintiff's diagnosis in the context of the litigation – which was a contentious issue between the parties.

This issue concerned an interpretation of section 52(2) of the Evidence Act, and its purposes.  Section 52(2) provides:

Medical Reports

A report obtained by or prepared for a party to an action and signed by a practitioner and any other report of the practitioner that relates to the action are, with leave of the court and after at least ten days' notice has been given to all other parties, admissible in evidence in the action.

Justice Gilmore's analysis was as follows:

  1. The phrase "obtained by or prepared for a party" does not mean that the report has to be commissioned by the party for litigation purposes.  If the report is obtained through the ordinary course of documentary discovery, that is sufficient. 
  2. An original signature by the physician on the document is not required.  It is common medical practice for medical reports to be electronically signed, and an electronic signature is sufficient.
  3. The purpose of section 52 is to ensure trial efficiency.  There is a clear distinction between reports that are admissible under section 52 and true expert reports that are commissioned under Rule 53 related to expert opinions commenting on litigation issues. If section 52 were interpreted to require a separate report to be prepared by the physician, and to testify in court, the result would be impractical and frustrate the purpose of section 52.
  4. An opinion with respect to diagnosis in a medical report can be used in different ways in court.  When the opinion is admitted into evidence under section 52, the opinion is only admissible for the purpose of explaining the treatment provided by the physician.  The opinion is not admissible for the purpose of proving the contentious issue in the litigation concerning the plaintiff's diagnosis.
  5. The defendant has an absolute right to cross-examine the author of any medical reports tendered by the plaintiff.  This protects against any concerns that the admission of medical reports under section 52 may violate the hearsay rule.  

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