Incompetent or unethical doctors hurt victim claimants on a regular basis. In any medical-legal case the medical diagnosis and prognosis are the foundation upon which a claim is built or upon which it crumbles. Therefore, when a plaintiff innocent victim brings a claim for injuries he or she is often asked to see a doctor chosen by the defendant insurance company. The doctor chosen by the defendant insurance company will provide a report to the insurance company which will often be extremely important in whether or not ongoing treatment benefits are terminated or not, and it will also affect the ultimate size of the settlement.
Dr. Anthony Russell, a rheumatologist at the University of Alberta, who has a focus on fibromyalgia routinely prepares medical-legal reports of victims for the auto insurance industry. Occasionally Dr. Russell’s medical-legal reports are subject to cross-examination at trial when the victim proceeds to trial. Such was the case in Jones v. Stepanenko 2016 ABQB 295. Dr. Russell was retained by the defendant auto insurance company to examine the victim in a motor-vehicle collision from 2009, which went to trial in 2016. The victim alleged that she suffered from fibromyalgia as a result of the collision and indeed, all of her treating physicians and the independent experts retained by the victim to examine her agreed with this position.
Dr. Russell did not agree. Dr. Russell has written extensively about fibromyalgia. Dr. Russell has the opinion that there is insufficient scientific evidence to say that fibromyalgia is caused by trauma.
In the particular case of Jones v. Stepanenko, Dr. Russell wrote a medical-legal report after assessing Ms. Jones stating that Ms. Jones, the victim, did suffer from fibromyalgia, indeed her condition was so apparent he could not find otherwise. However, Dr. Russell did find, to assist the defendant auto insurance company, that Ms. Jones had the fibromyalgia prior to the accident. In support of this diagnosis Dr. Russell pointed to pre-accident complaints of fatigue dating back to Ms. Jones’s early adolescence. This medical-legal report caused the defendant auto insurance company to withdraw treatment payments to Ms. Jones years ago, and also resulted in the parties being unable to settle the case and it therefore went to trial.
At trial and as a result of the cross-examination by the victim’s lawyer, Dr. Russell’s opinion was discredited and rejected by Justice Eidsvik of the Alberta Court of Queen’s Bench. Justice Eidsvik found that Dr. Russell’s opinions were “seriously compromised” in cross-examination. For example, with respect to Dr. Russell’s opinion that the fibromyalgia existed before the collision, he was referred to the general practitioner’s treatment chart and when confronted with vague entries of fatigue and a diagnosis of attention deficit disorder, Dr. Russell conceded on the stand that in order for him to make a fibromyalgia diagnosis, he would have to rule out that the fatigue problem was not related to typical teenage issues and staying up until early hours of the morning. Ultimately on the stand Dr. Russell disagreed with his own medical-legal report that he had previously provided to all parties, and agreed with the lawyer for the victim that there was little in the medical record to suggest that the victim had fibromyalgia before the accident.
With respect to causation and Dr. Russell’s opinion that trauma does not cause fibromyalgia, the victim’s lawyer cross-examined Dr. Russell heavily on the scientific publications. Dr. Russell ultimately conceded that there are many other rheumatologists who believe that there is indeed a link between trauma and fibromyalgia and indeed that this is a widely held belief. Dr. Russell also conceded on cross-examination that there’s no definitive study that trauma cannot cause fibromyalgia.
Finally, Dr. Russell conceded on cross-examination that his opinion is based on “scientific qualification.” In other words, there is not, in his limited view, enough data to link trauma with fibromyalgia. This was not clearly stated in his medical-legal report. The end result after cross-examination was that Dr. Anthony Russell’s opinion was completely rejected by the Alberta Court of Queen’s Bench and the decision of the court was made based upon other medical doctors’ opinions.
Brent L. Handel, Q.C.