Defence Experts “Crossed the Line”: Boyd v. Edington

by John McKiggan

In the recent decision of the Ontario Superior Court of Justice Boyd v. Edington, Dr. Richard Edington was ordered to pay $15 million dollars to Danielle Boyd and her family as a result of a catastrophic and debilitating brain injury she suffered due to Dr. Edington’s failure to diagnose the fact that she was suffering a stroke caused by dissection of one of her vertebral arteries.

15 Million dollars in compensation

The parties agreed, before the trial, on the amount of damages the plaintiffs would be entitled to receive if Dr. Edington was found to be responsible for Boyd’s injuries. The National Post reported on this story in part due to the significant amount of the damage award.

As I pointed out to the National Post reporter, damage awards in excess of 10 million dollars were once unusual. But larger awards have now become more common as plaintiff’s experts become more sophisticated in showing the significant cost in caring for a severely injured person.

The courts have also become more sensitive to the lifetime effects of catastrophic injuries that can impact ones earning capacity. In Ontario, there have been a number of damage awards in excess of 10 million dollars over the last few years. The insurance industry has taken note, and expressed concern, in an article in the trade journal Canadian Underwriter magazine.

Experts supposed to be neutral

What I think is most interesting about the decision is Justice Sproat’s commentary on the conduct of the defendants experts.

Experts have a special place in the courts in Canada. They are the only witnesses that allowed to offer their opinions rather than limiting their testimony to facts like every other witness.

However, despite the adversarial nature of court proceedings, experts are required to maintain their impartiality, regardless of which side they have been retained to testify for.

Experts become Advocates

In the Boyd v. Edington case it is clear Justice Sproat felt the defendant’s experts had crossed the line from impartiality to advocacy.

Ms. Boyd reported she had consumed one or two alcoholic drinks the day she reported to the Emergency Department at the hospital.

All of the defendants experts latched onto this fact to suggest that alcohol use may have been the cause of Ms. Boyd’s garbled speech she spoke to the nurses at the hospital, a condition called alcohol nystagmus. Garbled speech is also a sign of stroke.

Justice Sproat stated at paragraph 68:

“The evidence of the defence witnesses on the subject of Ms. Boyd’s alcohol consumption leads me to conclude that… they had crossed the line from objectivity to advocacy.”

Justice Sproat stated further at paragraph 74:

“I found the efforts of the defence witnesses to justify Dr. Edington’s inclusion of alcohol in his differential diagnosis completely unreasonable. I further find that the defence experts exhibited partiality and advocacy in their evidence in this regard.”

High Stakes

As the amount of damage awarded in the Boyd v. Edington case shows, in medical malpractice cases there is a lot at stake. Experts are paid a great deal of money to provide the court with their opinion in order to assist the court in rendering a fair and just decision.

When defence witnesses cross the line from impartial experts to hired guns it hurts not only the plaintiff but our entire justice system.

In Boyd v. Edington the end result worked out in favour of the plaintiff. Unfortunately, that is not always the case.

Want More Information?

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The revised edition of the book contains a new chapter on the link between medical malpractice and birth injuries, and cerebral palsy claims caused by hypoxia and ischemia.

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