Brain injury diagnosis and assessment in personal injury cases has changed in the last 30 years. Technology and new discoveries have provided more accurate tools for evaluating the existence of brain injury. However, the British Columbia court system has been slow to recognize and utilize these new tools. Unlike Ontario, the BC courts have recently refused to accept single-photon emission computed tomography (“SPECT”) scans in personal injury cases.
SPECT scans have been a diagnostic tool traumatic brain injury for over a decade. However, the Supreme Court in BC has refused to benefit from the the SPECT as evidence. In this Supreme Court case the judge referred to the SPECT scan as “novel science” : Gutfriend v. Case,2022 BCSC 2055.
The Legal Test
Admissibility of expert evidence was extensively reviewed by the Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton Co., [2015] 2 S.C.R. 182. Expert evidence is admissible when the following steps are satisfied:
Step 1
a) The evidence must be logically relevant;
b) The evidence must be necessary to assist the trier of fact;
c) There must be no exclusionary rule prohibiting the evidence;
d) The expert must be properly qualified, impartial, independent, and unbiased; and
e) The underlying science must be judged legally reliable.
Step 2
Relevance, reliability and necessity are then measured against the counterweights of consumption of time, prejudice and confusion.
The party opposing the admission of the evidence must then to show that there is a realistic concern that the expert will not be impartial, independent, and unbiased. If successful, the burden shifts back to the party calling the evidence, who must establish, on a balance of probabilities, this aspect of the admissibility threshold.
Admissibility of SPECT Scan in British Columbia
For SPECT scans the Court in Gutfriend found that SPECT evidence meets the criteria for logical relevance, necessity, no exclusionary rule, and a qualified expert. However, the judge concluded that the science does not support the use of SPECT for individual clinical diagnostic purposes.
The court found that SPECT remains a very sensitive test for traumatic brain injury. Unfortunately, according to the judge:
“the specificity is not sufficient to provide legally reliable information for diagnostic purposes in a setting where the issue is to distinguish brain injury from other psychiatric disorders and/or conditions.”
As a result the expert report was not admissible. Any reference to the brain perfusion SPECT, or the doctor’s opinions, were not admissible and were redacted from the record.
Admissibility of SPECT Scans in Ontario
The court arrived at a different conclusion in Wabie v Wilson, 2022 ONSC 4296, decided in October, 2022. In Wabie the Ontario court was faced with a similar situation. The court had to decide whether the results of a SPECT scan should be used as a secondary tool to diagnose traumatic brain injury (“TBI”).
The Ontario Court found that SPECT scans can be used as a secondary diagnostic tool and can be used to support a TBI diagnosis. However, the court found that the SPECT scan cannot be used as a primary diagnostic tool.
The Court reviewed the use and purpose of the SPECT scan. On the Wabie case the SPECT scan evidence was obtained after a TBI diagnosis was made and was used to support the diagnosis. The Court found that the SPECT scan was not used to distinguish the existence of a TBI from anxiety or depression. The Court therefore accepted the SPECT scan evidence as a secondary diagnostic tool.
The court in Ontario is however ambivalent about the use SPECT scans in personal injury trials. In a 2021 car accident brain injury case the court found the SPECT scans evidence to be inadmissible. In Meade v Hussein, 2021 ONSC 7850, the court concluded that SPECT scan should not be used to distinguish TBIs from anxiety or depression.
It was not clear in Gutfriend whether the experts used the SPECT scans result as the primarily diagnosis tool in finding the claimant suffered a post-concussion syndrome. However, if the diagnosis of post-concussion syndrome was made independent of the scan result there appears to be no legal reason that it could not be used as a secondary tool.
This inconsistently at the Supreme Court level will have to be clarified by a higher court. Allowing SPECT scan to be used in personal injury cases will give judges better to tools to assess the validity of traumatic brain injury cases. This will in turn assist litigants in resolving these disputes without the necessity of a trial.