Imminent Trial Thwarts Defense Clinical Record and Medical Examination Request

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, denying a defence application for production of various clinical records and requesting a defence medical exam largely based on the proximity of trial.

In the recent case (Shannon v. Cook) the Plaintiff was involved in a vehicle collision and claimed damages.   Various pre collision medical records were produced.   With trial only three months away the Defendant brought an application for a host of further records to be produced along with a request for a further defence medical examination.

The Court dismissed both applications finding that with the trial being just around the corner the expert medical evidence should be mature and it was simply too late in the process for such an application to be granted.  In dismissing the applications Master Cameron provided the following reasons:

[7]            The parties have a ten day trial pending in January 2020, and now just three months before trial, defence counsel brings this application seeking production of clinical records, medical records, employment records and third party expert reports going back as far as ten years from the date of the subject motor vehicle accident. In my view, it is simply too late at this stage of the proceeding for the defendant to suggest that these records are necessary to properly prepare for trial. Any experts retained by the defendant have been retained , save for the companion application for one further independent medial examination which I will address, and either have prepared their reports or are on the verge of doing so given that the 84 day limit for delivery of expert reports expires next week.

[8]            There is nothing in the affidavit evidence to suggest that any of the experts retained by the defendant have been handicapped in any way in providing opinions about the injuries sustained by the plaintiff, her current circumstances and her prognosis. If there was the need for those historical records, I expect that defence counsel would have received that request from their experts and would have included such requests as a foundational pillar supporting this application.

[9]            In this context, I adopt what Master Muir said in Marchant‑Larson v Bahrami, 2017 BCSC 2337, as follows:

[7] The defendants bring no specific evidence in support of their application that more than two years of records are required. They simply point to the pre‑existing conditions, the evidence that these pre‑existing conditions are of some considerable length and history prior to the accident, and certainly well prior to two years before the accident. There is no evidence from any expert that more than two years of disclosure are required in order to properly analyze her propensity for having the problems she is currently experiencing or to establish a baseline for an analysis of her present condition.

[8] There is nothing before me that takes this outside of the sort of general concept that two years prior to a motor vehicle accident is a sufficient investigation, barring other evidence, to allow the defendants to properly investigate the facts surrounding pre‑existing conditions.

[10]          Accordingly, the application for the production of these historical clinical records and other associated records is dismissed.

The proximity of trial also proved fatal for the requested further defence medical exam with the Court noting as follows:

21]          I am satisfied that in keeping with the now well known authorities referred to by counsel it is not necessary to maintain an “even playing field” in this case and would not be proportional or the interests of an orderly resolution of the case to require the plaintiff to attend yet another independent medical examination this close to trial and the application is dismissed.