The "Shoehorn" Prohibition To Responsive Defence Medical Exam Requests

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One rule that has perhaps received more attention than other in recent years is Rule 11-6(4) in the context of Responsive Medical Exams.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, further addressing this topic and coining the “shoehorn” prohibition to responsive independent medical exams.
In this weeks’ case (Turnbull v. Tarnohammadi) the Plaintiff was injured in a motor vehicle collision.  In the course of the lawsuit the Plaintiff was assessed by Dr. Salvian who expressed concern that the Plaintiff suffered from Thoracic Outlet Syndrome.  His records were exchanged in the litigation process.  As the expert evidence deadline neared the Plaintiff served a proper expert report setting out Dr. Salvian’s findings.
The Defendant then brought an application for the Plaintiff to attend a physician to obtain a ‘responsive‘ report.  Master Baker dismissed the application noting it should have been brought sooner and parties are not allowed to “shoehorn” a late request for a medical exam into the responsive evidence rule.  In dismissing the application Master Baker provided the following reasons:

[13] Dr. Salvian was consulted and gave a report which became part of the clinical records of the family doctor, Dr. Murphy.  The clinical records, including that report, were made known to the defence long ago.  In fact, Dr. Salvian’s, I will call it report number one, which was dated 2010, was listed in the plaintiff’s list of documents in April of 2011.

[14] In that report it is clear that Dr. Salvian, if he did not very specifically diagnose carpal tunnel syndrome or thoracic outlet syndrome — and I do not decide at this point whether he did or he did not — made it absolutely clear, at least to me, that that was a significant factor in his mind.

[15] On the last page of his report, page 20, he says:

In any event, it is my opinion that the carpal tunnel syndrome and the post-traumatic thoracic outlet syndrome and the soft tissue injury of the neck are directly caused by the flexion extension injury, …

He then talks a little more about spontaneous carpal tunnel syndrome.

[16] I also agree with Mr. Parsons that his latter report does not add significantly to that, not in such a fresh way that would justify surprise on the part of the defence.

[17] That being the case, I take Mr. Parsons at his word, and I agree it would have been perfectly appropriate had at some point before the 84-day deadline the defence requested an IME to deal with Dr. Salvian’s perspectives;  that would have been appropriate.

[18] To wait after that point is to — as I think one authority, perhaps Mr. Justice Macaulay used the phrase — “shoehorn” the opinion into a compacted, truncated chronology, i.e., the 42-day limit for a responsive report, when, in fact, it should have been anticipated well in advance of that and it should have been subject to the same 84-day rule.

[19] Again, nothing in this precludes the defence from delivering a responsive medical report.  It is just as in the Gregorich case, I do not see that it is necessary to do that to direct the independent medical examination.