Court of Appeal sets aside award for future cost of Botox treatments saying "no evidentiary foundation for the award"

Personal Injury Blog

In reasons for judgment released this morning, the BC Court of Appeal in Reimer v. Bischoff, 2017 BCCA 4, overturned a trial judge’s $34,000 award for future cost of Botox treatments.  In finding the Botox treatments to be not medically justified, the Court of Appeal said the following:

[26]         Included in the future cost of care award is $34,768.90 for Botox treatment.

[29]         The parties do not dispute that determining the cost of future care involves identifying medically justified and recommended treatment responding to injury caused by an accident that sustains or improves the mental or physical health of the plaintiff.

[30]         It is quite clear on the record that the judge fell into error in concluding that the cost of Botox treatment had been recommended by a medical professional. The respondent had testified that she had in the past used Botox for cosmetic reasons, and found that it provided relief from her migraines. The use of Botox to treat migraine was confirmed to her by a Dr. Donat, and the respondent testified that its use to treat migraines had been recommended to her by Dr. Donat and Dr. Buttars. Neither of those opinions was in evidence in an admissible form for their truth. The only admissible medical evidence concerning Botox was an opinion that if the other preventive treatments should become ineffective, then a trial with Botox might be recommended…

[31]         I am satisfied that there was no medical evidence before the court capable of justifying the cost of Botox treatment. Moreover, the possibility that Botox would be recommended in the future was entirely speculative…

[32]         In my view, there was no evidentiary foundation for the award of the future cost of Botox treatment and no basis on which to assume… that treatment of the migraine headaches by using Botox would ever be medically recommended for the respondent.

[33]         I would set aside the award for the future cost of Botox treatment.

The full text of the decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/ca/17/00/2017BCCA0004.htm

 

McQuarrie