Plaintiff claimed he would be prejudiced if he could not rely on both medical reports
The BC Supreme Court has permitted the admission of two medical legal reports in a personal injury case despite an express prohibition against more than one report in the Evidence Act.
In Apostolopoulos v. Cheung, 2023 BCSC 166, the plaintiff George Apostolopoulos filed a claim for damages for the injuries he sustained in a motor vehicle accident. The defendant Yan Peng Cheung served an orthopedic surgeon’s medical legal report following an independent medical examination. The plaintiff served two medical legal reports—one was from a chiropractor Dr. Stanley Jung, and the other was from the plaintiff’s treating neurosurgeon Dr. Shahid Gul.
The defendant filed an application for an order that only one of the two medical legal reports served by the plaintiff is admissible at the trial scheduled to commence on March 21. The defendant relied on s. 12.1(2)(b) of the Evidence Act, restricting each party to one report from one expert. The defendant argued that the plaintiff could admit either Dr. Gul’s report or Dr. Jung’s report at the trial, but not both.
The BC Supreme Court pointed out that the Evidence Act provides for an exemption to the one medical expert report rule. The court said it may allow additional experts or reports “if the report is not a duplication of another report, and the application would suffer prejudice that is disproportionate to the additional time and expense that will be incurred if the additional report is admitted.”
The plaintiff argued that Dr. Gul’s report fell within this exemption. He asserted that Dr. Gul and Dr. Jung’s reports were not duplicative. The plaintiff also claimed he would be prejudiced if he could not rely on both reports. He argued that two reports would cause “little to no prejudice to the defendant, add no more than an hour of trial time, and require no additional court days.”
The court noted that the act explicitly exempts an expert report served before February 6, 2020. The defendant argued that the plaintiff served Dr. Gul’s report to the defence counsel only on December 14, 2022, beyond the period allowed by law. However, the court found that shortly after the accident, the plaintiff’s counsel corresponded with Scott Floto, an adjuster from the Insurance Corporation of British Columbia (ICBC). The adjuster then forwarded Dr. Gul’s report to the defence counsel.
The court concluded that Dr. Gul’s report was served before February 6, 2020, and the fact that it was again served to defence counsel in 2022 did not undermine the earlier service. Accordingly, the court allowed the plaintiff to rely on two expert reports during the trial.
