A recent Divisional Court decision has re-examined the type of evidence that treating physicians and other health professionals are able to provide in personal injury actions.
In Westerhof v. Gee (Estate), 2013 ONCSC 2093, the court stated that a treating physician may give evidence in court regarding their observations of an injured patient and a description of the treatment they are provided.
However, a treating physician may be unable to provide an opinion with respect to a diagnosis or prognosis unless they are certified as an expert by the court. As a result, they must comply with Rule 53.03 of the Rules of Civil Procedure which includes the filing of an expert report and an Acknowledgement of Expert’s Duty (Form 53).
Westerhof is a departure from earlier lower court decisions which provided more flexibility for treating physicians to communicate their knowledge of a patient’s condition at trial. The case will severely impact the type and form of evidence introduced by treating practitioners.
An application for leave to appeal this decision has been already filed at the Court of Appeal for Ontario.