Recent Amendments to Nova Scotia Civil Procedure Rule 55.14: Treating Physician Reports

Civil Procedure Rule 55.14 was amended on June 24, 2022 to update the admissibility requirements of Treating Physician Narratives. The first change is to the terminology as Treating Physician Narratives are now called Treating Physician Reports (“TPR”). The update in the Rule means a significant change, especially for the personal injury plaintiff, who has the burden of proving their damages at trial through admissible medical evidence.

The Rule change was made to incorporate concepts developed in recent case law (see, e.g., Brown v. Nova Scotia Association of Health Organizations Long Term Disability Plan, 2020 NSSC 301.). The Rule now requires the Treating Physician to file a Representation which:

·       Confirms the opinions on which the plaintiff seeks to rely were formulated in the course of treatment.

·       Identifies the notes representing the opinion and the notes supporting the opinion.

·       Include a transcript approved by the physician of any notes that are difficult to read; and

·       Include a statement of qualifications (e.g., curriculum vitae).

The Prothonotary, Caroline McInnes, issued a ‘Hints and Tips’ memorandum on January 16, 2023 that summarizes the major changes brought about by this rule, including:

·       The deadline for filing and rebutting the TPR now mirrors that of an expert’s report (no later than 6 months before the Finish Date: CPR 55.14(3); 3 months for rebuttal: CPR 55.14(4)).

·       There is a new process set for obtaining an advanced ruling to determine if the TPR has sufficient information to deal with the physician’s opinion: CPR 55.16

·       The trial/application hearing judge must determine admissibility of the TPR; there are new factors set out to be used in making this determination: CPR 55.15

·       A treating licensed nurse practitioner may now file a TPR: CPR 55.17. Note that this is a very limited exception acknowledging that some plaintiffs may only have a licensed nurse practitioner.

This change unfortunately adds an extra step for our already overworked physicians and nurse practitioners, and it remains to be seen how receptive treating clinicians will be to completing the required Representation. Plaintiff lawyers have a role to play in explaining the Representation to physicians and facilitating its completion. This will also create a burden for Plaintiffs if they want to rely on notes from a retired physician who can no longer be reached at an office address.

The Rule change could be positive in terms of potentially reducing the number of witnesses at trial and has added clarification around what will be admissible as a Treating Physician Report under Rule 55.14. As there is yet to be a judicial interpretation of these changes, we will be waiting to see how the admissibility of medical evidence evolves over time.

Carter Simpson has prepared this document for information only. It is not legal advice. You should consult Carter Simpson about your unique circumstances before acting on this information. Carter Simpson excludes all liability for anything contained in this document and any use you make of it.