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Failure to Visit Doctor Not Used Against Personal Injury Claimant


July 26, 2011- Most personal injury lawyers will suggest that an injury claimant have a family doctor examine them on a regular basis following a car accident injury.  This makes good sense because a patient will get better treatment if the doctor is familiar with the injury and the doctor will be in a better position to answer the lawyers questions later on, if necessary.
However, some injury claimants have never had the need for a family doctor in the past and after being injured in a car accident do not instinctively go hunting for a doctor. Some personal injury claimants have gone months or years before seeking medical attention and when they come to my office there is very little “proof” of their injury.  This type of visit to my law office usually comes after ICBC has given the claimant a very low offer.  Unable to negotiate a reasonable out-of-court settlement with ICBC the injury claimant hopes at that late stage to get a lawyer that knows what to do. For some it will be too late, for the fortunate few the case can be repaired.
Credibility in a case where an injury claimant has not attended regular doctor visits is very important.  Some judges will commend claimants for getting on with  life, rather than seeing doctors in an attempt to build a record for  litigation.  However you open up the possibility that the judge may conclude your lack of attendence at the doctor means you had minimal complaints. In a recent personal injury case I reviewed Judge Burnyeat  quoted  Mayenburg v. Lu, [2009] B.C.J. No. 1915 (S.C.), stating:

  “Ms. Co did not regularly attend to be treated by Dr. Porten.  The credibility of Ms. Co was put in questions by Mr. Watson as a result.  In this regard, I adopt the following statement made in Mayenburg, supra, where Myers J. stated:

“The defendants challenge the credibility of Ms. Mayenburg. They point to the limited number of times she visited physicians to complain about her pain. They also refer to the fact that she did not raise the issue of her injuries when she visited Dr. Ducholke on several occasions for other unrelated matters.

I do not accept those submissions, which have been made and rejected in several other cases: see Myers v. Leng, 2006 BCSC 1582 and Travis v. Kwon, 2009 BCSC 63. Ms. Mayenburgis to be commended for getting on with her life, rather than seeing physicians in an attempt to build a record for this litigation. Furthermore, I fail to see how a plaintiff-patient who sees a doctor for something unrelated to an accident can be faulted for not complaining about the accident-related injuries at the same time. Dr. Ducholketestified how her time with patients was limited.

In summary, Ms. Mayenburg’s complaints to her doctors were not so minimal as to cast doubt on her credibility.”

Post by Mr. Renn A. Holness
Issue: How often should an injury victim have to visit a doctor to prove their injury?

Tags: Delay, ICBC Injury claim, ICBC Lawyers, Insurance Claim

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