Forced consent is a strange concept and one that has found its way into injury litigation yet again.
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, ordering a plaintiff to attend a Defence medical exam and to sign a consent form or risk claim dismissal.
In today’s case (Gill v. Wal-Mart Corporation) the Plaintiff alleged injury following a slip and fall. The Plaintiff agreed to attend an independent medical assessment requested by the Defendant but refused to sign the doctor’s ‘consent’ form. In ordering the Plaintiff to sign or risk claim dismissal Mr. Justice Funt provided the following reasons:
 With respect to the Master’s second reason that the plaintiff would not be signing the form of consent voluntarily, I respectfully disagree. The plaintiff may choose not to sign the consent form in which case the IME will not be conducted. The defendant may, however, bring an application to strike the plaintiff’s claim against the defendant.
 Although not necessary having regard to the binding authority of Kalaora, I note that the case at bar is readily distinguishable from Peel where our Court of Appeal set aside an order requiring particular parties to endorse a “consent order”. Ordering endorsement of a “consent” court order is not consent. In the case at bar, in context, the court is not forcing the plaintiff to sign the form of consent. If the plaintiff chooses not to sign the form of consent, the plaintiff’s claim may be struck. It is the plaintiff’s choice…
 The plaintiff is ordered to sign the subject form of consent used by Dr. Travlos. If the plaintiff refuses to sign the form of consent, the defendant, Mr. Pandher, is at liberty to apply to have the plaintiff’s claim struck.
Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, confirming that a second Court ordered defense medical exam is inappropriate solely in anticipation of an event which may not occur.
In the recent case (Litt v. Guo) the Plaintiff was involved in two collisions and sued for damages. In the course of the lawsuit the Plaintiff consented to a defence medical exam with a physician that addressed the Plaintiff’s injuries. As trial neared the Defense applied for a further exam with a new physician arguing that the initial report was dated and further that “the plaintiff might file a newer report” and the Defendant wished to respond to this anticipated development. In noting that both arguments were insufficient for a Court ordered second defense medical exam Madam Justice Fenlon provided the following reasons:
 The second ground raised by the defendants, and the ground that Mr. McHale referred to as the primary basis supporting the application for another IME by a different specialist, is that the most recent report of Dr. Bishop will be two years old at the date of trial in October 2014. The defendants fear that the plaintiff might file a newer report before the August 4 deadline for delivery of such reports, and the defendants say they would then be at a disadvantage because the plaintiffs will have a fresher report, a report based on a more recent assessment of the plaintiff.
 The defendants submit that they would wish to put before the Court the best evidence, the evidence of an examination of the plaintiff at a time more recent than October 2012. There are, in my respectful view, two weaknesses with that submission. The first is that it anticipates what has not yet occurred. If the plaintiff does submit a report prepared by one of her experts based on a recent examination of the plaintiff and if something new comes out of that report, then presumably Dr. Bishop could be invited to comment on it and the defendants would be in a position to file a rebuttal report. There is nothing in the record before me to suggest that he would not be able to comment on such a report or that there would be a need for further examination should he, in fact, be faced with such a report.
 The second weakness is that passage of time alone is not a basis for ordering a second medical examination of a plaintiff. Dr. Bishop’s report is very clear in terms of his diagnosis, prognosis and his description of the pattern of symptoms Ms. Litt will experience into the future. He describes a likely aggravation of symptoms on activity, which it seems is exactly what is reflected in the medical reports which initially led to this application.
 In short, despite Mr. McHale’s able submissions, I cannot find that a further examination is necessary to ensure reasonable equality of the parties in preparing for this trial.
It is well established that failure of an ‘independent medical examiner’ to physically examine a patient is not, in and of itself, a reason for an expert report to be inadmissible in the BC Supreme Court. However, when a litigant relies on such a report the weight the court attaches to it is often negatively impacted. Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In this week’s case (Johal v. Meyede) the Plaintiff was injured in a 2010 rear end collision. Fault was admitted by the Defendant. The Plaintiff suffered injuries which were ongoing at the time of trial and expected to effect her well into the future. In the course of defending the claim ICBC retained a neurologist who did not examine the Plaintiff and provided a more conservative opinion with respect to the plaintiff’s limitations and care needs. In placing less weight on this opinion, in part for failing to examine the plaintiff, Mr. Justice Funt provided the following reasons:
 The defendants also called Dr. F. Kemble as an expert witness. He had been retained to provide a responding medical-legal report. He was qualified, without objection, to provide expert evidence with respect to neurology. Dr. Kemble concluded his October 22, 2013 report saying:
I do not feel that there is any indication for any thoracic outlet surgery. Ultimately, the probability is that she will be able to work full time although she will probably have minor difficulty in terms of using her arm and moving her neck. I am optimistic, that with the measures outlined by Dr. Travlos and Dr. Caillier, that the pain will significantly reduce.
 For two reasons, I have given less weight to Dr. Kemble’s report and testimony than the other medical experts. First, he did not meet or examine the plaintiff. Second, in cross-examination, Dr. Kemble conceded that the basis for his report could be incorrect to the extent it was based on the assumption that the plaintiff’s symptoms would become intermittent.
While the BC Supreme Court does have the ability to compel a Plaintiff to attend a defence medical exam a proper evidentiary foundation must be established before the Court will be prepared to exercise this power. Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, dismissing an application due in part to a lack of evidence from the proposed physician.
In last week’s case (Rathgeber v. Freeman) the Plaintiff was injured in a collision and sued for damages and also sought Part 7 benefits from ICBC. ICBC sent the Plaintiff to an independent medical exam with an orthopedic surgeon who provided a report addressing the Plaintiff’s injuries. Some four years later the tort claim was still ongoing and the Defendant brought an application for a further exam with the same physician. The Court dismissed this noting that the previous exam covered tort issues and even if there was a change of circumstances making a further report necessary there was nothing in the evidence justifying a further physical examination. In dismissing the application the Court provided the following reasons:
 In some respects, Dr. Kousaie’s November 9, 2009 report “resembles” a report in a tort claim. The doctor sets out his qualifications, for example, as well as facts and assumptions. He includes details of the accident, the plaintiff’s recreational history and comments on the possibility of academic impairment. He indicates that the examination involved a comprehensive physical examination. Those aspects of the report appear to be more consistent with a comprehensive report prepared to address the plaintiff’s complaints in a tort action.
 On the other hand, the report is now four years old and while Dr. Kousaie makes reference to the neck injury, he appears to have focused on low back pain as the plaintiff’s major complaint at the time of his 2009 assessment. Dr. Kousaie’s review of the then available imaging and x-rays did not indicate any trauma to the spine although some minor disc bulges were noted in the lumbar area.
 More recent assessments, and that of Dr. Twist in particular, suggest an increasing focus on the neck injury and indeed the CT scan referred to earlier shows a small circumferential disc bulge in the cervical spine, a condition not evident at the time of Dr. Kousaie’s first examination.
 Taking a holistic view of the circumstances, Dr. Kousaie’s 2009 report is comprehensive and to some extent addresses issues more relevant to a tort claim than a Part 7 claim. The results of the CT scan and the shift in focus to the plaintiff’s neck injury, however, are issues which the defence may need to address. There is, however, nothing in the evidence before me to show why a further examination, rather than a review of the available materials by Dr. Kousaie or some other qualified specialist, is necessary to achieve reasonable equality with respect to medical evidence. While I do not wish to be taken as suggesting that the proposed examiner should, in all cases, provide an affidavit with respect to the necessity for a further examination, such an affidavit would have been of significant assistance to me in this case.
 On the basis of the material before me, the application is dismissed.
Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, dismissing an application for an independent medical exam noting the Defendant’s could have obtained the sought information through the discovery process.
In this week’s case (Foster v. Chandel) the Plaintiff was injured in a 2009 collision. The Plaintiff agreed to attend a Defense medical exam. Subsequent to this the Defendant requested a second exam with a psychiatrist. The Defendant argued that this was necessary because “the plaintiff is taking the maximum dosage of anti-depressant medication; has been seen by a psychiatrist (but not for treatment); and is suggested [by her family doctor] to be suffering from a mood disorder related to chronic pain.“.
Master Bouck dismissed the application noting all of this could be explored through the discovery process. In reaching this conclusion the Court provided the following reasons:
 There is no evidence from any medically-trained person suggesting that a psychiatric examination is necessary or useful to either diagnose or treat the plaintiff. The plaintiff is taking medication in the dosage recommended by physicians with no suggestion of prescription abuse. The emotional symptoms are said by the medical experts to emanate from the plaintiff’s physical pain, not from any alleged psychiatric condition or disorder.
 The defendants submit that the psychiatric examination may reveal other causes for the plaintiff’s anxiety and depression. It may also reveal the nature and extent of these conditions.
 Such information can be sought at the plaintiff’s examination for discovery. A psychiatric examination should not be ordered simply to allow the defendants to ask the same questions asked in discovery but in a different manner and venue.
 The nature and extent of the plaintiff’s pain disorder and resulting symptoms is revealed in the records and reports of the treating physicians. There is no evidence to suggest that a psychiatrist could offer a “better” diagnosis or prognosis on that condition.
 The facts of this case have many parallels to those discussed in Wocknitz v. Donaldson, 2010 BCSC 1991. As in that case, the defendants do not have the necessary evidentiary foundation to support an order for “this particularly invasive form of examination”: para. 20.
When opinion evidence is introduced into court the factual underpinnings which the opinion is based on must be proven otherwise the opinion evidence is of no value. This was demonstrated in reasons for judgement released last week by the BC Supreme Court.
In the recent case (Paller v. Regan) the Plaintiff was injured in a 2009 collision. ICBC admitted the defendant was at fault but disputed the collision caused any injuries. In support of their position they relied on an orthopaedic surgeon who never examined the Plaintiff but provided an opinion that it was “unlikely” the Plaintiff’s injuries were caused by the crash. In support of this conclusion the doctor assumed this was a low speed impact. Madam Justice Fenlon rejected this evidence finding that the foundation of the opinion was not proven. In dismissing the surgeon’s evidence the Court provided the following reasons:
 The only medical opinion evidence tendered by the defence is a report of Dr. Dommisse, an orthopedic surgeon. He did not examine Mr. Paller, but reviewed medical records, imaging, and the reports of Drs. Whittington and Chu. Dr. Dommisse opined that it is unlikely that the accident caused a disc tear or herniation. He stated in his written report:
As outlined above, I have not had the benefit of examining Mr. Paller. I am therefore unable to fully comment on Dr. Chu’s report. In my opinion, however, it is unlikely that Mr. Paller suffered a disc tear and/or disc protrusion at L4/5 in a motor vehicle accident of this magnitude.
In my clinical experience, I have seen approximately four lumbar disc herniations as a result of motor vehicle accidents. These accidents were higher velocity collisions, two of which occurred when the driver drove head on into a house.
 Dr. Dommisse assumed that the speed of Mr. Regan’s vehicle was 5 km/h, a number provided by Mr. Regan in a statement given to ICBC shortly after the accident. In cross-examination Mr. Regan was unable to be precise about his speed. He agreed that he was accelerating on to the street, that his speed was moderate, and that he did not brake before the collision.
 I conclude that the opinions of Dr. Chu and Dr. Whittington are to be preferred to that of Dr. Dommisse. As he acknowledged, Dr. Dommisse’s opinion was restricted by lack of an examination of the plaintiff. Further, it was largely anecdotal and was based on a fact, the speed of Mr. Regan’s vehicle at 5 km/h, that was not proved at trial.
 Dr. Jung is a psychologist who has treated Mr. Paller on two occasions. He provided an opinion that Mr. Paller is suffering from Anxiety Disorder, NOS, as defined in the DSM 4, the Diagnostic and Statistical Manual of Mental Disorders. Dr. Jung is of the opinion that the anxiety developed as a result of a reaction to chronic injury and pain. I accept his opinion.
 In summary on this issue, I find that Mr. Paller’s injuries, physical and psychological, were caused by the accident on February 24, 2009.
Reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, addressing court orders for late defence medical exams.
In this week’s case (Jackson v. Yusishen) the Defendant brought an application for a ‘responsive’ functional capacity evaluation. Mr. Justice Barrow dismissed the application finding that on the facts before him the evidentiary burden for a late exam were not met. Despite this result the Court provided the following interesting comments addressing that a late defense medical exam may be justified in exceptional circumstances:
 There are three rules engaged by this application. The Rules of Court distinguish between new or fresh expert reports and responsive reports. Rule 11‑6(3) provides that, unless the court otherwise orders, expert reports other than responsive reports must be served on all parties of record at least 84 days before the scheduled trial date.
 Rule 11‑6(4) deals with responsive reports and provides that such reports must be served on every party of record at least 42 days before the trial date.
 The third rule engaged by this application is Rule 7‑6, which provides that the court may order a person submit to an examination by a medical practitioner or another appropriately qualified person. An order under Rule 7‑6(1) is discretionary. While there are a host of factors that should be considered when exercising the discretion conferred by that rule, one of the factors might broadly be taken to be whether the examination sought will advance the litigation, in the sense of potentially yielding relevant evidence touching on a material issue.
 In the context of a personal injury action, meeting that evidentiary threshold where the object of the examination is the eventual production of a fresh or new expert report will not usually be difficult. On the other hand, where the time limited for serving fresh or new expert reports has passed, and thus the only purpose of an independent medical examination is in furtherance of the production of a responsive expert report, the evidentiary burden will generally be more difficult to meet…
 Although the evidentiary burden has not been met in this case, I acknowledge that, on occasion, there may be circumstances which might justify the ordering of an independent medical examination, otherwise than in support of the preparation of a responsive report. It may be that, in some cases, the court may anticipate or at least allow for the possibility that a fresh opinion would be exceptionally admissible, notwithstanding that the 84‑day deadline has passed. Although not framed that way in Luedecke, the issue may have arisen at trial after the production of the report that the master ordered. In this case, however, there is no basis to conclude that an independent medical examination is necessary to level the playing field.
In my continued efforts to highlight unreported injury law decisions of the BC Supreme Court, reasons for judgement were recently provided to me addressing the qualifications of a chiropractor to opine on injury causation and prognosis. This unreported case is a little dated (from 2008) however the discussion is of value and I am happy to publish the decision here.
In the recently provided case (Sloane v. Hill) the Plaintiff was injured in a collision. She sued for damages and proceeded to jury trial. In the course of the trial the Defendant objected to the qualifications of the Plaintiff’s chiropractor arguing that a “chiropractor has no basis in training or expertise” to offer opinions regarding diagnosis and prognosis for traumatic injuries. Mr. Justice Grist disagreed and allowed the chiropractor to be qualified as an expert. In doing so the Court provided the following reasons:
 Chiropractors are licenced to provide this form of care, and there is no indication that chiropractors are generally incompetent in what they do or, in particular in the process of forming diagnosis and prognosis. If nothing else here, the forecast for the future ties to what the chiropractor expects to be the future cost of performing her services…
 The chiropractor will testify and will be subject to cross-examination…
 The admissibility of an expert’s report is dealt with in R v. Marquard  SCJ No. 119 (SCC). At issue is the witness’s ability, through experience and training, to aid the triers of fact in opinion based on special training or experience; opinion the triers are not likely to be able to form on their own.
 Here, I think the chiropractor does offer something towards this end. Further, through cross-examination and with the medical evidence to be called, I think there will be ample opportunity for counsel to put the opinion in proper perspective, and there is little likelihood of prejudice. I think the public is well-acquainted with different healthcare providers, what they can offer and their limitations.
 On balance, I am of the view these opinions can be taken in evidence.
As always I am happy to provide a copy of the full transcript of this unreported decision to anyone who contacts me and requests one.
In my continued efforts to track judicial comments addressing expert witness advocacy, reasons for judgement were released last week by the BC Supreme Court, Cranbrook Registry, dismissing an application for a defence medical exam where the proposed examiner wrote a previous report that, in the Court’s view, “border(ed) on advocacy“.
In last week’s case (Moll v. Parmar) the Defendant sought to have the Plaintiff examined by a neuropsychologist. Prior to the proposed exam the doctor wrote a “very vigorous critique” relating to the Plaintiff’s expert’s conclusions. The Court held that, in such circumstances, it is “not appropriate for the court to order a medical examination…by an expert who has previously taken such a strong stance“.
In dismissing this application Mr. Justice Meiklem provided the following reasons:
 Turning first to the Master’s errors alleged by the appellant, I initially gave rather short shrift to Mr. Harris’ submission that Drs. Craig and Williams had been recruited as advocates for the defence by virtue of the nature of the defence requests to them and the nature and content of their reports, that they should be viewed as lacking the necessary objectivity to warrant being appointed by the court to conduct IMEs of the plaintiff. After considering the retainer letters and the reports of Drs. Williams and Craig, I see considerable merit in the appellant’s argument with respect to Dr. Williams’ compromised objectivity. The circumstances in respect of Dr. Craig’s report are somewhat different.
 The appellant’s concern was not only the advocacy bias apprehended by the plaintiff, but also the bias concerning the plaintiff’s condition that was already demonstrated by the roles these experts were retained for and the reports they had already delivered. He considered it highly improbable and purely theoretical that either of these specialists would be able to change any previously expressed views after their examinations of the plaintiff.
 Dr. Williams’ report emanated from a retainer letter wherein the pertinent paragraph stated simply that Mr. Moll was advancing a claim for a head injury in a highway collision and then stated: “I ask that you please kindly review the enclosed report of Dr. Jeffrey Martzke dated May 1, 2012, together with the enclosed documentation set out in the attached schedule “A”, with a view to discussing Mr. Moll’s claim with me.” The letter promised to forward Dr. Martzke’s raw test data, which was forwarded in due course and reviewed by Dr. Williams.
 Dr. Williams described the purpose of his report as responding to the reports of Dr. Martzke and Dr. Wallace (the plaintiff’s vocational consultant) and he said he limited his comments to aspects pertaining to the methods, procedures and process of the reports, as well as the sufficiency of the conclusions recommendations or diagnoses of Drs. Martzke and Wallace.
 Dr. Williams’ report is, however, a very rigorous critique of Dr. Martzke’s methods and testing, as well as his conclusions, and in my view does at least border on advocacy, as argued by Mr. Harris. Dr. Williams’ criticisms of Dr. Martzke’s report and findings may well be found to be completely correct, and my comments will not fetter the trial judge’s rulings if the report is tendered, but I do not think it is appropriate for the court to order a medical examination of a plaintiff by an expert who has previously taken such a strong stance in accepting the role as a reviewer of a previous examiner’s report, particularly in view of the specific provisions of Rule 11-2(1) of the Civil Rules.
An Excerpt From Proceedings from the BC Supreme Court, Nanaimo Registry, was recently shared with me addressing the choice of a Defence Psychiatric Exam where a Plaintiff raised an apprehension of bias. In the face of such concerns the Court did not allow a Defence Medical Appointment to proceed with the Defendant’s psychiatrist of choice and instead ordered that the Defendant choose a different psychiatrist.
In the recent decision (Henry v. Reeves) the Plaintiff alleged he suffered a chronic pain syndrome as a result of a collision. The Defendant requested a Defence Psychiatric Exam. Mr. Justice Halfyard ordered that the Defendant was entitled to such an exam. The Plaintiff raised concerns about the Defendant’s chosen physician highlighting the proposed doctor’s ICBC billings and further pointed out two cases where the chosen physician was judicially criticized.
Mr. Justice Halfyard considered these submissions and noted that the Plaintiff has “got a point here” and ultimately concluded that “I am not going to order (the Proposed physician)..to conduct the medical examination” making the parties settle on a different physician.
To my knowledge this Excerpt of Proceedings is not publicly available but as always I am happy to provide a copy to anyone who contacts me and requests one.