IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120508

Docket: M104279

Registry:
Vancouver

Between:

David
James Hopp

Plaintiff

And:

Robert
Pearson Lopez

Defendant

Before:
Master MacNaughton

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: The defendant applies for a further examination for
discovery of the plaintiff on the basis that questions asked were objected to
without valid reason. In addition, the defendant seeks restrictions on
intervention by plaintiff’s counsel at any resumed discovery and prohibitions
on plaintiff’s counsel discussing with his client matters which were addressed
at the first examination.

[2]            
This action arises from a September 11, 2008 motor vehicle accident. The
plaintiff was examined for discovery on October 31, 2011. A summary trial of
this matter is scheduled to proceed on October 16, 2012.

[3]            
The questions in dispute surround the plaintiff’s treatment by Dr.
Tajinder Lalli, a chiropractor, both before and after the motor vehicle
accident. The series of questions in dispute focus on Dr. Lalli’s clinical
notes and records from April 21, 2008 to May 16, 2011. The plaintiff was asked
about his pre-accident medical conditions and the nature of the conversations
he had with Dr. Lalli and others. In response, the plaintiff agreed that he had
sought treatment from Dr. Lalli, but indicated that he did not recall his
interactions with him.

[4]            
Rule 7-2(18) sets out the obligation of a party being examined for
discovery. In this case, the relevant subsection is (a), which provides that a
person being examined for discovery “must answer any question within his or her
knowledge or means of knowledge regarding any matter, not privileged, relating
to a matter in question in the action”.

[5]            
The parties agree that the scope of examination for discovery is very
broad and counsel for the party being examined should not interfere, except
where it is clearly necessary to resolve ambiguity in a question or to prevent
injustice. That principle has been set out in a number of cases and has not
changed under the new Supreme Court Civil Rules. It was recently
affirmed in Nwachukwu v. Ferreira, 2011 BCSC 1755. As the court said
there:

A largely hands-off approach to
examinations for discovery, except in the clearest of circumstances, is in
accord with the object of the Rules of Court, particularly the newly
stated object of proportionality. Allowing wide-ranging cross-examination on
examination for discovery is far more cost effective than a practice that
encourages objections which will undoubtedly result in subsequent chambers applications
to require judges or masters to rule on the objections. (para. 33)

[6]            
The parties also agreed that an examination for discovery is in the
nature of cross-examination. While the parties agree on these broad principles
as they apply to the scope of examination for discovery and the role of
counsel, they have a fundamental disagreement about the appropriateness of a
particular line of questions asked of the plaintiff. The plaintiff says that
the questions call on him to speculate or to give an opinion. The defendant
says that he is merely trying to gain admissions.

[7]            
I will briefly review the particular line of questions. The plaintiff
indicated that he had been seeing Dr. Lalli for some time prior to April 2008. He
was shown the handwritten records from Dr. Lalli’s clinic, Origin Health. The
plaintiff acknowledged that the first pages of the records were in his
handwriting. Starting at page 6 of the records, and for dates in April 2008,
the handwriting was not the plaintiff’s and he did not know who had made the
notes. The plaintiff was asked what he was complaining about when he went to
see Dr. Lalli on April 28, 2008. He responded that he could not recall. The
plaintiff acknowledged that he sat down with Dr. Lalli, had a discussion with
him, and went through some forms.

[8]            
Defence counsel translated some of the abbreviations in the forms and/or
in the records and asked the plaintiff whether he was suffering from lower or
mid-back pain. The plaintiff could not recall, nor could he recall the
frequency of any pain he was then suffering. The notes described his symptoms
with the words "dull ache". The plaintiff could not recall
specifically what he told Dr. Lalli on that date. The plaintiff was asked
whether he experienced dull aches in either his low or mid-back and he did not
recall what pain he was experiencing in 2008. He was then asked at question
475:

All right. So, if the words, as
an example, description of symptoms are, "dull" and "ache",
would you accept the fact that that is what you likely told him?

The
question was objected to and was later paraphrased as:

Well, I am asking whether or not,
Mr. Hopp, you, having read these records and looked at them at this point in
time, would you accept the fact that if Dr. Lalli wrote in your chart that your
chief complaint was a chronic recurrent LBP or MBP, would you agree that you
likely had a discussion with him about that?

[9]            
There was subsequent discussion between counsel and the question was
again paraphrased as:

Whether or not if, in a set of
records that relate to him, the doctor that he is having a conversation with
writes in the note "dull ache", would he accept that, in fact, is
what he told the doctor. I am asking whether or not he accepts what the doctor
has written about what his complaints were that day.

[10]        
Similar questions were asked about a further note which said that
symptoms were aggravated by “work” and “sitting”. Again, the plaintiff had no
specific recollection about his symptoms in 2008, or his discussions with Dr.
Lalli.

[11]        
The questions were objected to on the basis that they called for
speculation and an opinion. Plaintiff’s counsel acknowledged that it was
appropriate to have the plaintiff review the notes to help refresh his memory
about his interaction with Dr. Lalli, but objected to their use for the purpose
of confirming whether the plaintiff accepted that Dr. Lalli’s records reflected
what the plaintiff had told him on that day.

[12]        
I have determined that the questions were properly objected to. That is
because the obligation on a witness on an examination for discovery is to
answer questions within his or her knowledge or means of knowledge. The
plaintiff in this case, does not know and, in light of his earlier answers
about his April 2008 visits with Dr. Lalli, could not know who recorded the
notes in question, whether they reflected the recorder’s perceptions or
observations as opposed to something the plaintiff told him, whether they reflected
historical or present conditions, what the various abbreviations meant, and
whether the notes are complete.

[13]        
As Justice Smith said in Edmondson v. Payer, 2011 BCSC 118, clinical
records are not intended to be, and usually are not, 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. (para.
32)

[14]        
In this case, there is no record of the questions that elicited the
information recorded in Dr. Lalli’s clinic’s records or that what was recorded
reflected anything that the plaintiff said. The plaintiff should not be
required to speculate about Dr. Lalli’s record-keeping practices and whether he
could presume that if Dr. Lalli recorded a note, it reflected a statement the
plaintiff made during their interaction. Dr. Lalli’s record-keeping practices,
and the reasons he or someone else recorded the notes is within Dr. Lalli’s
knowledge, but not the plaintiff’s.

[15]        
In Bancroft-Wilson v. Murphy, 2009 BCCA 195, the Court of Appeal
considered whether clinical records might be admissible as a record of
admissions against interest in appropriate circumstances. In that case, the
defendant sought to rely on clinical notes to support an inference that the
plaintiff did not complain of the symptoms he alleged, because his doctor’s
notes did not contain any reference to those symptoms. The defendant was
arguing for an admission by omission. At paragraph 11, the court held that such
an argument overstretched the limits of the admissions exception. The court
went on to say that the “notes standing alone are of little if any weight for
the purposes intended by the defendant”.

[16]        
Although in this case we are not dealing with an admission by omission,
the same conclusion can be reached. Dr. Lalli’s notes do not reflect that he is
recording statements made by the plaintiff. In the face of the plaintiff’s
evidence that he does not recall what he discussed with Dr. Lalli in April of
2008, or the specific complaints for which he sought treatment, it is unfair to
ask him to confirm that if Dr. Lalli recorded complaints in his notes, the
plaintiff must have described those complaints, and thereby obtain an admission
which might be used against the plaintiff’s interest. The plaintiff just cannot
know without having information from Dr. Lalli about what his records mean, and
how they were created.

[17]        
While it is true that the scope of an examination for discovery is
broad, it is still an examination of the plaintiff’s knowledge, and not what he
thinks Dr. Lalli may have recorded or may not have recorded, and why. Those
matters should be left for the examination of Dr. Lalli.

[18]        
Because I have not ordered further examination for discovery, it is not
necessary for me to deal with the other two parts of this application.

[19]        
Now, the parties did not make submissions on costs.

[20]        
MR. MURPHY:  Just follow the Rules, My Lady.

[21]        
MR. KOLB:  I would agree.

[22]        
THE COURT:  All right.

“Master
MacNaughton”