Expert Opinions In Records Are Generally Inadmissible Evidence

Expert

Expert opinions contained in the hospital records are generally inadmissible  Reid v Balcaen  2003 BCSC 1533, and Egli v Egli 2003 BCSC 1716.

This is because hearsay evidence is not admissible for the truth of the contents unless it can be admitted by applying the proper legal  principles.

In the Reid case,  the plaintiff has applied to introduce into evidence hospital records from a hospital.

These records have been certified by the appropriate records officers from the respective institutions.  The plaintiff relied on s. 51 of the Hospital Act, R.S.B.C. 1996, c. 200, which provides as follows:

51(1) A record regarding a patient that is prepared in a hospital by an employee or by a practitioner is the property of the hospital.

 

(2)   A copy of a hospital record certified to be true and correct by the administrator of the hospital or by another officer of it is admissible as evidence in a court without proof of the official position or signature of the administrator or officer.

 

[4]  Within the records of the hospital, there is a consultation report prepared by a doctor specialist.

The defendant objects to the introduction into evidence of that report on the basis that it is an expert opinion and the plaintiff has not complied with the requirements of Rule 40A of the Rules of Court.

[6]            Interpreting the section in the manner set out above is to interpret it in a manner that is consistent with the approach that has been taken by courts in this province to s. 42 of the Evidence Act, R.S.B.C. 1996, c. 124, which deals with the admissibility of business records and is often relied upon to ground the admissibility of clinical records, a close cousin of hospital records.  Although there are limitations or safeguards built into s. 42 of the Evidence Act that are not found in s. 51 of the Hospital Act (for example, the former section is limited to matters “in which direct oral evidence of a fact” would be admissible), there is no reason, particularly in light of the principled approach to hearsay evidence that has been endorsed by the Supreme Court of Canada, to approach these two sections differently.

[7]            In McTavishv.MacGillivray (18 July 1997), Vancouver Registry No. D944248 (B.C.S.C.), Burnyeat J. had occasion to consider s. 42 of the Evidence Act and its application to clinical records.  He reviewed the rationale underlying the common law exception to the hearsay rule as defined by Mr. Justice Hall in Ares v.Venner, [1970] S.C.R. 608.  In doing so, he noted that the foundation for that exception lay in the twin dictates of Wigmore that ground the principled approach to the hearsay rule that has been embraced by the Supreme Court of Canada.  Those twin dictates are a circumstantial guarantee of trustworthiness and necessity.  As to the relationship between the Rules and s. 42 of the Evidence Act, Burnyeat J. concluded at para. 11 that:

Section 42 should not be used to avoid the provisions of Rule 40A, especially where potential witnesses are otherwise available and the only “necessity” is that there has not been compliance with Rule 40A.

 

[8]            In my view, there is no reason to give s. 51 of the Hospital Act any different treatment than that accorded to s. 42 of the Evidence Act.  Indeed, there are compelling reasons for treating them similarly.

[9]            Returning to the facts of this matter, I find that the consultation report of Dr. Watson is admissible, provided it is stripped of those portions that are properly viewed as expert opinion or are otherwise inadmissible.

 

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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