When a party intends to rely upon a medical report instead of calling a medical expert and/or call more than 3 experts, an Evidence Act notice of intention to that effect should be served.
A significant deadline to keep in mind for litigation experts (rule 53 experts) is that expert reports are due 90 days before the pre-trial conference.
Pursuant to section 52 of the Evidence Act, a medical report may be relied on instead of calling the expert to testify. This is the case for participant experts (ie treating doctors) as opposed to litigation experts (AKA rule 53 experts). It is not permissible to both call the witness to testify and file the report as well. Any party wishing to do so must serve an Evidence Act notice of intention regarding filing medical reports.
There are two main rationales behind giving notice in this situation. First, filing the expert medical report may be far less costly than having the expert attend. Second, it gives opposing a counsel a heads up that the expert is not going to be called. Opposing counsel can summons the expert or insist they be called. There are costs consequences if having the expert attend in person turns out to be unnecessary.
10 days notice is the minimum requirement.
Click here to purchase a template Evidence Act notice regarding filing medical reports
More than 3 Experts
Pursuant to section 12 of the Evidence Act, it is necessary to seek leave to call more than 3 experts. If that is the intention, it is worthwhile to give opposing counsel a heads up by way of an Evidence Act notice of intention. In personal injury and medical malpractice trials, more than 3 experts is commonplace. This is a reference to rule 53.03 experts.
Click here to purchase a template Evidence Act notice regarding calling more than 3 experts
Medical Reports, Judges and Juries
In Jury trials where the medical expert testifies, although the report generally cannot be introduced as an exhibit (and won’t be in any document brief), most Judges appreciate being provided with a copy of the medical report to help them follow along with the medical expert’s testimony. A copy should therefore be printed for the Judge to be used as an aid memoire – basically a tool to follow the evidence.
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