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Avoid Becoming a Hired Gun- Brain Injury Opinion Rejected Again

Medical Experts

Doctors and therapists that want to avoid earning the label of “hired gun” should:

(1) limit the amount of work they do for one insurance company; (2) keep up to date with changes in medical research; (3)avoid unnecessarily criticizing medical colleagues without adequate justification; and (4) diagnose a condition in the same way they would for their own patients.

“Hired guns” for ICBC  are doctors that are hired over and over again by ICBC and those doctors almost always deny the existence of an injury.  It appears from the decisions of the Supreme Court that Dr. Dost is hired frequently by ICBC and regularly denies the existence of mild traumatic brain injury.
Claimant’s referred to Dr. Dost as a result of a car accident related injury need to be aware of the opinions of Dr. Dost regarding brain injury before allowing him to become part of the treatment team.
In this case, as in several others,Dr.Dost criticizes the treating doctors and then denies that the claimant suffered a brain injury. Again the court disagreed with Dr. Dost finding the claim did suffer a brain injury and awarded over $700,000.00, $210,000 of which was for pain and suffering and loss of enjoyment of life (Tan v. Mintzler and Miller, 2016 BCSC 1183). 

Dr. Dost examined the claimant and in his report he  directly contradicts the evidence of the claimant’s experts, specifically Drs. Kaushansky, Weiss, and Cameron.

 Dr. Dost did not agree that the claimant had suffered a brain injury.  Dr. Dost explained that the claimant’s  “patchy recall” of the car accident was not due to brain injury but rather due to natural attrition of memory amplified by a psycho-emotionally traumatic event!  Her memory loss Dr. Dost claimed was therefore not likely due to an unreported loss of consciousness. The judge totally disagreed with this tripe stating,

Dr. Dost suggested that Ms. Tan’s loss of memory during this period of time was due to natural attrition, but under the circumstances I find that suggestion unlikely.  Even Ms. Tan’s earliest medical records indicate a loss of memory during that period.  I therefore accept the factual assumption made by the plaintiff’s doctors that Ms. Tan suffered a period of retrograde amnesia.

Dr. Dost remained critical of the claimant’s medical experts for relying on the claimant’s reporting, for failing to consider or formulate a differential diagnosis, and for relying on the MRI to diagnosis a brain injury.

In complete contrast to Dr. Dost the Court found the claimant suffered an mild traumatic brain injury, MTBI,  during the accident and that she suffers from depression, anxiety, and mild PTSD.  She now has no residual capacity to work and is unemployable due to the cognitive issues caused by the accident, including her mood swings, poor stamina, and memory issues.  The judge also found that the claimant suffered from chronic pain on her left hand side and in her face and jaw.

The claimant’s personal injury award is broken down as follows: Pain and Sufferings $210,000; Past Loss of Income $110,000; Future Loss of Earning Capacity $350,000;Cost of Future Care $57,493; In-Trust Claim $6,000; and Out of pocket expenses $3,000 for a total of $736,493.00.

In recent years many of ICBC hired guns have retired but are now being replaced by a new contingent of physicians apparently willing to say almost anything to support ICBC in their denial of a claim.  These doctors need to be told that their opinions must be independent in the sense that it is the product of the expert’s independent judgment is uninfluenced by who has retained him or her or the outcome of the litigation.  The opinion must also be unbiased in the sense that it does not unfairly favour one party’s position over another- New Expert Evidence Test.

Posted by Vancouver Personal Injury Lawyer Mr. Renn A, Holness, B.A. LL.B.

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Tags: Brain Injury, icbc case examples, ICBC hired guns, ICBC Injury claim, loss of earning capacity, MTBI case, Pain and Suffering

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