9 May, 2024
Perhaps the most important aspect of a personal injury claim is the collection of evidence that supports a plaintiff’s damages. Canadian courts strictly adhere to the concept that plaintiffs should be put back in a position as if the tort never occurred. As a result, a claimant could have the most straightforward facts in terms of liability and causation, but nothing can be awarded without evidence of specific harm being suffered.
But what can someone do when their injuries aren’t visible or otherwise difficult to prove? Chronic pain is one such example as recognized by the Supreme Court in Martin v. Nova Scotia (Workers Compensation Board), 2003 SCC 54:
“…since chronic pain sufferers are impaired by a condition that cannot be supported by objective findings, they have been subjected to persistent suspicions of malingering on the part of the employers, compensation officials and even physicians…”
This is where personal injury lawyers and their clients have reaped the benefits of medical technology advancements. Among the pivotal innovations are the introduction of the computed tomography scan in 1967 and the magnetic resonance imaging in 1977. These breakthroughs were further built upon by subsequent developments such as functional magnetic resonance imaging in 1990 and diffusion tensor imaging in 1994. The ability of these machines to produce images of a patient’s internal anatomy has proven invaluable in reaching accurate diagnoses that would otherwise be too risky or clinically impossible to assess.
This blog highlights recent medical advancements that can assist plaintiffs in substantiating their personal injury claims. The first part will focus on diagnostic technology, whereas the second considers data collection and presentation.
Diagnostic innovation
Beginning with the most glamorous technological development this decade, artificial intelligence, these tools are not necessarily medical devices but their application to medicine will be profound. There are several advantages that AI has over its human counterparts in diagnosing patients: improved accuracy (or absence of bias), the ability to analyze large amounts of data and identify patterns not discernible to humans, reduced costs, and increased efficiency. All of this is to say that injured persons should benefit from more persuasive evidence that is easier and cheaper to obtain. Assuming this technology continues to improve, we may see a replacement for the dreaded “battle of the experts” that currently plagues personal injury claims.
Another breakthrough is the rise of high-resolution ultrasound imaging. While ultrasound has been used for decades in medical practice, recent developments in transducer technology and image-processing algorithms have elevated its capabilities to new heights. Today’s ultrasound machines can produce incredibly detailed images of soft tissues, muscles, tendons, and ligaments, providing clinicians with a non-invasive tool for diagnosing injuries with remarkable accuracy. These images may further assist in proving conditions that cannot be detected on lower-yield imaging techniques and are therefore subject to skepticism.
Collection of evidence
Wearable medical devices have emerged as invaluable tools for monitoring and documenting injuries. From smartwatches equipped with accelerometers to wearable electrocardiogram monitors, these devices offer real-time data on vital signs, movement patterns, and physiological parameters. By continuously monitoring the wearer’s health status, these devices can provide objective evidence of the impact of an injury on daily activities and functional capacity, bolstering the credibility of personal injury claims. Canada saw the first case to consider this evidence when a Fitbit’s data was used to corroborate a plaintiff’s injuries. It’s been speculated that in time this technology could become the “black box” for the human body.
The concept of telemedicine has been around longer than many people realize, beginning in the late 1970s here in Canada. The primary motivation and function of this technology was to bring medical services to rural patients. Over the years, telemedicine has grown alongside society’s needs and through the support of government. The ‘need’ for telemedicine exploded with the COVID-19 pandemic for its obvious benefit of preventing the spread of the virus. Other, more conventional advantages of telemedicine include a reduction in hospitalizations, readmissions, lengths of stay, and costs to the taxpayers. The boon to personal injury lawyers and their clients is that virtual consultations allow for quicker access to treatment providers and a faster and more streamlined acknowledgment of symptoms by medical professionals.
The way forward
Historically, Courts have faced challenges in accepting injuries based solely on subjective evidence, as it has led to credibility and reliability concerns. The result has been diminished damages and the possibility for under-compensation. It’s important, then, that personal injury lawyers representing injured clients be aware of the most recent and reliable sources of evidence available to them. Prudency in this regard can go a long way in avoiding problematic contingencies raised by defence counsel. Personal injury lawyers should also be aware of the impression that is made when you rely on subjective evidence of injury despite the availability of objective evidence. You never want a judge or jury doubting the veracity of an injured client’s complaints due to the absence of otherwise available objective proof.
Andy Rady is a personal injury lawyer in London and a Partner who leads the personal injury group at Harrison Pensa.
Brandon Bedard is an Associate and personal injury lawyer at Harrison Pensa. He specializes in disability claims, car accidents, slips and falls, sexual assault matters, defamation, and occupiers’ liability.
