Late DME Application Dismissed; Responsive Exam Limitations Discussed

Helpful reasons for judgement were recently released by the BC Supreme Court, New Westminster Registry, dismissing a defence application to have a Plaintiff assessed by a neurosurgeon.  In short the Court found the application was brought too late in the claim and that there was insufficient evidence to justify a physical exam for a truly ‘responsive‘ medical report.
In the recent case (Dhaliwal v. Owens) the Plaintiff was injured in a 2009 collision.  The injuries included low back pain.  Surgery was anticipated but as time went on the Plaintiff experienced some symptom improvement and surgery became less likely.
In the course of the lawsuit the Defendants put the matter into fast track litigation (Rule 15).  They failed to obtain a medical report in a timely fashion.  When they finally did apply the 84 day service deadline set out in Rule 11-6(3) had come and gone.  The Defendants argued that they needed the report for responsive purposes and further that the cancellation of the Plaintiff’s anticipated surgery amounted to a change of circumstances justifying the late application.   Master Keighley rejected both of these arguments and dismissed the application.  In doing so the Court provided the following reasons:
[7]  Now, I had indicated earlier that it is likely that had this matter come to light a year ago, this application would not have been before me today.  What causes the problem is Rule 11-6(3) which requires that an expert report, in general terms, be delivered at least 84 days prior to the scheduled trial date.  The 84th day, I am told by counsel who have done the arithmetic, passed…almost a couple of weeks ago…
[14]  Now, this is not a situation, and we do sometimes see it, where the physician has either directly or indirectly provided evidence with respect to the necessity of a physical examination of a party.  There is nothing before me in the material to explain why a physical examination is required in this case other than the statements from the paralegal that I have referred to.
[15]  In the case of Wright v. Brauer, a decision of Mr. Justice Savage reported as 2010 BCSC 1282, Justice Savage considering similar circumstances said at paragraph 22
In my opinion, the bare assertion reported to a legal assistant in this case is insufficient to support an order under Rule 7-6(1) that the plaintiff attend the Examination, when the defendants are limited to providing response reports under Rule 11-6(4)”
Justice Savage dismissed the application and is reference to Rule 11-6(4) harks back to his remarks at paragraph 12 of that decision where he said:

Rule 11-6(4) was enacted to fill a lacuna in the Rules.  Under the former Rules, Rule 40A permitted parties to call expert evidence in reply without notice at trial.  In order for such evidence to be admitted, however, it had to be truly responsive to the expert evidence of a witness called by the opposing party.”

He noted that in the case before him, the defendants were, as here, limited by the Rule to what referred to as Justice Williamson in the case of Kelly v. Kelly (1995), 20 BCLR (3d) 232 “truly responsive rebuttal evidence” by virtue of the provisions of Rule 11-6.
[16]  Similarly, Mr. Justice Cullen in the case of Ludecke v. Hillman, 2010 BCSC 1538, considered an appeal from a master’s order which has allowed an examination to provide “truly responsive” evidence.  Justice Cullen upheld the master’s order determining that the necessary evidentiary foundation for the examination was found in the material before him.  In reaching that conclusion, he said:
“To reach the requisite threshold under Rule 11-6(4) the applicant must establish a basis of necessity for the examination to properly respond to the expert witness whose report is served under subrule (3) by the other party.”
[17]  The plaintiff’s injuries, it seems to me, have not really changed in this case.  She has more or less since the outset complained of low back pain, low back problems.  What has changed, if anything, in recent months is the decision of the medical practitioners treating her with regard to the advisability of surgery.  It appears that they have decided for the meantime that surgery is the less desirable option.  Notwithstanding that decision, the plaintiff continues to suffer pain to the extent that she remains, apparently, unable to work.  There has been ample time int his litigation, even before this change in the plaintiff’s circumstances, for the defence to seek and obtain evidence from a neurosurgeon or other specialist with respect to her condition.  Although the provisions of Rule 7-6 and its predecessor Rule were enacted to attempt to affect a level playing field between the parties with respect to medical evidence, I do not see that the defence will be prejudiced by being restricted to an opportunity to have Dr. Turnbull or another practitioner of their choice examine the available evidence and render an opinion at trial as to the appropriate treatment of the plaintiff’s injuries.  Overall, of course, I have been considering the issue of proportionality and in the particularly refined context of an application brought in a case governed by Rule 15-1.
[18]  The application is dismissed.
As of today this case is unreported but, as always, I’m happy to provide a copy of the reasons for judgement to anyone who contacts me and requests these.

Defence Psychatric Exam Request Dismissed for Being Brought Too Late

Reasons for judgment were released last month dismissing an ICBC request to have a Plaintiff examined by a psychiatrist finding that the application was brought too late in the litigation and would unfairly balance the playing field should the Plaintiff need to respond to the examination.
In last month’s case (De Corde v. De Corde) the Plaintiff was injured in a 2007 collision.  She alleged physical injuries, a head injury and also “emotional distress“.
In the course of the lawsuit the Plaintiff agreed to be assessed by three physicians chosen by the Defendant (or their insurer ICBC).  Specifically a general practitioner, a neurologist and an orthopaedic surgeon.  The Defendant brought an application for the Plaintiff to also be assessed by a psychiatrist.  The application was brought with just barely sufficient time to have a report generated to comply with the time lines set out in the Rules of Court.
Master Bouck dismissed the application finding the medical playing field was already balanced and an additional report by a psychiatrist served on the cusp of the deadline set by the Rules of Court would be prejudicial to the Plaintiff.  The Court provided the following reasons:

[37] The overriding principle is that an independent medical examination ought to be permitted if necessary to ensure reasonable equality between the parties in their preparations for trial.

[38] In this case, there are at least two considerations that compelled the dismissal of the application.

[39] First, there is no basis to suggest that the defendant is at a disadvantage in terms of evidence.

[40] Second, the application is brought so close to trial that the plaintiff might be prejudiced (by the adjournment of the trial) if the order was granted.

[41] This is not a case where a new diagnosis or symptom has arisen since the last independent medical examination. Indeed, much of the information that is relied on by defence in this application was in that party’s possession before the plaintiff attended the examinations by Drs. Wahl and Moll.

[42] The plaintiff’s mental health is commented upon in all of the reports presented to the court. None of the various medical professionals have recommended psychiatric treatment or diagnosis. It is appreciated that the diagnosis of the plaintiff’s symptoms differs as between these medical professionals. However, regardless of the diagnosis, all of these professionals suggest a treatment plan. That plan ranges from simple reassurance to medication to counselling to future neuropsychological reassessments…

[45] In short, there is simply no basis to suggest that the evidence presented to date requires a psychiatric opinion in order to “level the playing field”. Experts on both side of this case make certain treatment recommendations that will probably lead to some resolution of the plaintiff’s mental health symptoms. Whether the plaintiff follows those recommendations goes to the question of mitigation.

[46] Another important factor to consider is the timeliness of the defendant’s request, particularly when the opinions of the three defence experts (let alone those of the plaintiff) have been known for several months.

[47] I accept the submission that given the type of specialist involved, the plaintiff would have been hard pressed to answer Dr. Solomon’s opinion in time for trial. Thus, the plaintiff may be compelled to seek an adjournment of the trial which is scheduled to occur nearly five years after the accident. Such a result would hardly be in keeping with a speedy resolution to the claim: Rule1-3.

[48] In considering the question of prejudice, I presumed that Dr. Solomons would be able to comply with the 84-day deadline. But that deadline is not really the issue. It is the deadlines that the plaintiff must meet that leads to the possible prejudice.

[49] The plaintiff need only demonstrate that an adjournment of the trial is a possibility: Critchley v. McDiarmid, 2009 BCSC 134 at paras. 21 and 22…

[62] Given the timelines that must be met under SCCR together with the common acknowledgment that psychiatric assessments are not so easily obtained on short notice, there appeared to be a real possibility that the trial would be adjourned to allow the plaintiff to address the defence’ s new expert evidence.

[63] Thus, an order requiring the plaintiff’s attendance at a psychiatric independent examination would result in an inequality of evidence favouring the defence. I have already made the same finding in the case at bar.

Should the Rules of Court Be Flexible for Treating Physicians?

(The Below article was first published yesterday at Slaw)
There are two types of expert medical witnesses in personal injury cases; treating physicians and ‘professional‘ witnesses.  I don’t note this with any criticism of the latter category but simply point out that often doctors are brought to Court (by both Plaintiffs and Defendants) to act as independent medical experts to provide opinion evidence.  These professional witnesses often have no role in treating an injured plaintiff.
The BC Supreme Court Rules have strict requirements for expert opinion evidence.  These Rules are applied with equal rigour to both categories of experts.   ‘Professional‘ witnesses  often have little difficulty producing reports which comply with the strict requirements of Rule 11-6.  Treating physicians, on the other hand, often have crucial evidence to share and their opinions are highly valued but they sometimes struggle with the technical requirements of the rules of court.
Treating physicians often want little to do with the Court and have little experience with the nuances of writing reports that meet the rules of evidence.  When asked to author medico-legal reports many are reluctant to do so in the first place and when they do the reports are not slick, polished or necessarily compliant with all of Rule 11’s requirements.
This lack of compliance can risk treating experts’ reports being excluded from evidence.  While the Rules of Court provide judges with discretion to allow expert evidence to be admitted even if technically non-compliant with the Rules of Court “if the interests of justice require it“, this threshold often will not be met by explanation of witness inexperience with the Rules of Court.
New York personal injury lawyer Eric Turkewitz raised the following concern in response to judicial scrutiny of treating doctor reports in his jurisdiction:
New York’s No-Fault law is out of control. It seems to have reached the point where judges are almost demanding one of two things from injured patients: That their doctors get legal tutoring on how to write reports that will satisfy the judiciary, or alternatively, that injured patients seek treatment from only those doctors that already know how to write medical-legal reports.
As was illustrated in the recent BC decision of Milliken v. Rowe, a treating expert is perhaps the most desirable witness for a trier of fact to hear from when it comes to addressing a Plaintiff’s injuries.  Appreciating this, can a balance be struck holding these experts to a more flexible standard when providing a Court with opinion evidence?  Should the Rules be amended to create different standards for treating doctors versus professional witnesses?  Thoughts and feedback are appreciated.

"No Authority" For ICBC Independent Medical Exam in UMP Arbitrations


While there is no shortage of caselaw addressing the BC Supreme Court’s ability to order a Plaintiff to undergo an Independent Medical Exam in the course of a personal injury lawsuit, Arbitrators determining Claimant entitlement to Underinsured Mototist Protection (“UMP”) Compensaiton have no such authority.  This was determined in an UMP decision released last year.
In last year’s case (Undisclosed v. ICBC) the Claimant was severely injured by an underinsured motorist in Washington State.  The Plaintiff succeeded in her liability claim against the motorist and was awarded over $1 million in damages.  The liability finding was binding against ICBC but the damage award was not as it was not determined under BC law.
In the course of the Claimant’s UMP arbitration (conducted under the Commercial Arbitration Act applying the Domestic Commercial Arbitration Rules of Procedure) ICBC applied to introduce into evidence an independent medical report obtained by another Defendant in the Washington litigation and further to compel the Plaintiff to attend three so-called ‘independent’ medical exams.
Arbitrator Camp ruled that while ICBC was entitled to introduce the report obtained in the previous litigation, the arbitrator had “no jurisdiction” to compel the Plaintiff to attend an independent medical exam.  Arbitrator Camp provided the following reasons:
25.  I have reviewed the Rules that govern this arbitration as amended in 1995 and 1998 and I again find no express or implied authority in an arbitrator to order that the claimant undergo an independent medical examination or evaluation.  This lack of jurisdiction is underscored by the fact that the 1995 and 1998 amendments to the Rules expressly empowered an arbitrator, at his or her discretion, to order a pre-hearing oral examination of a party.
26.  I am mindful of the argument by ICBC that I must treat ICBC fairly and I must give ICBC the full opportunity to present its case.  I am also mindful of my obligation that I must strive to achieve a just, speedy and economical determination of this proceeding on its merits.  See Rule 19.
27.  This accident and the injuries to this claimant happened over 14 years ago and without being critical of any counsel, the wheels of justice in this case are grinding very slowly, some might say too slowly.  This claimant has been examined by a host of medical practitioners, both treating physicians and independent medical examiners, as well as other medical oriented practitioners.  She has been examined under oath on two occasions on the subject of her damages.  All of this evidence is at hand.  Certainly, it can be argued that there are outstanding uncertainties pertaining to her medical condition and pertaining to her future care and capacity to earn income but that will always be the case.
28.  I conclude that I have no jurisdiction to order a form of independent medical examination.  I also wish to add that if I did have such jurisdiction and if that jurisdiction was discretionary, in this case and in all of the circumstances pertaining to this case, I would not exercise my discretion in favour of ordering the independent medical examinations as requested by ICBC.

More on the Responding Report "IME" Limitation


Adding to this growing database of caselaw considering the relationship of Rule 7-6 and  Rule 11-6(4), reasons for judgement were recently released by the BC Supreme Court, Chilliwack Registry, demonstrating that “responding” independent medical exams will not be granted as a matter of course.
In the recent case (Godfrey v. Black) the Plaintiff was injured in a motor vehicle collision.  She sued for damages.  Her pleadings specifically identified an alleged TMJ Injury.  In the course of the lawsuit the Plaintiff was examined for discovery with respect to her TMJ pain.  She also served an expert report addressing this injury in compliance with the time-lines set out in the Rules of Court.
The Defendant brought an application for the Plaintiff to be assessed by a TMJ specialist of their choosing.  Their application was brought after expiry of the 84 day expert report service deadline   They argued an exam was necessary in order to obtain a responding report under Rule 11-6(4).   Master Caldwell disagreed and dismissed the motion finding no sufficient evidence was tendered to explain the need for a physical exam.  In doing so the Court provided the following reasons:
[2]  I am told that the pleadings, when they were issued, specifically identified among other things injury to the temporomandibular joint (“TMJ”).  That, it is said, and I agree, put the defence on specific notice that there was an issue relating to the jaw and the TMJ…
[9]  There is no evidence before me to indicate why this particular dental expert believes it necessary for him to do a physical examination of the patient.  In fact, the instruction letter from counsel specifically asks for among other things a critique of the report of the first dentist.  Many of those bullets which appear in the letter which I will not make further reference to appear able to be done on the basis of a criticism of methodology or findings as opposed to requiring an independent examination of the person of the plaintiff…
[13]  I have been referred to several cases, but the one which I find the most helpful is the case of Wright v. Brauer, 2010 BCSC 1282 a decision of Mr. Justice Savage in similar circumstances where he was dealing with a trial date in the near future and an examination such as this where there was no medical evidence as to why a physical examination was necessary in order to provide a truly rebuttal or critical report…
[15]  In my view, the same reasoning applies in this case…
[18]  This application comes late in the day, a year after the defence was well aware that TMJ was an issue that should be looked into.  Had they wished to get a full report, they were well able to make that application or the request earlier.  I am not satisfied on the material that there is a basis for me to infer from the submissions of counsel or the material filed that an independent medical examination of the person of the plaintiff is required in order for this dentist to provide a truly rebuttal report.
These reasons are unpublished but as always I’m happy to share a copy with anyone who contacts me and requests these.

More on the Prohibition of Recording Court Ordered Medical Exams


Reasons for judgement were published this week demonstrating that while the BC Supreme Court has discretion to permit a Plaintiff to tape record a Court-ordered medical exam, this discretion is rarely exercised.
In this week’s case (Colby v. Stopforth) the Plaintiff and her litigation guardian were ordered to attend a series of medical exams.  The Plaintiff sought permission to tape record these.  Madam Justice Dardi refused to allow this and in doing so provided the following comments:

[18] However, that is not the end of the analysis. I must next consider whether in the unique circumstances of this case the plaintiff has nonetheless adduced cogent evidence that the use of an audiotape would advance the interests of justice.

[19] The plaintiff forcefully argues that the audio recordings are required to protect Mr. Rogers. The plaintiff’s overarching concern is the potential for an evidentiary conflict between Mr. Rogers and an examiner, particularly given that Mr. Rogers is a key witness whose credibility will be a central issue at trial. Mr. Rogers also asserts that he requires this procedural safeguard because of his status as Ms. Colby’s committee—as a fiduciary he is required to act in her best interests.

[20] The court in Wong observed that a medical examination, although part of the discovery process, is quite different in nature from statements made to an independent medical examiner and cannot be equated with the statements taken under oath on an examination for discovery: Wong at paras. 27-29.

[21] As I mentioned in my earlier ruling, I am not persuaded that the potential for an evidentiary conflict between Mr. Rogers and the examiners is, in itself, a cogent reason for ordering an audio recording. Plaintiffs routinely answer questions at independent medical examinations, as they are required to do under the Rules, when their credibility is at issue.

[22] Nor upon careful consideration am I persuaded on the evidence that Mr. Rogers’ status as a committee, in itself, is a sufficiently compelling or cogent reason to warrant the use of an audio recording. To permit the use of audio recording here would be to place Mr. Rogers in a preferred or advantageous position to that of a plaintiff who attends an independent medical examination on his or her on behalf. There may be cases where it is appropriate that a litigation guardian or committee should be permitted the opportunity to have the independent medical examination audio recorded, but on the evidence adduced this is not one of them.

[23] In summary, the evidence in this case falls short of establishing that the use of an audiotape recording would advance the interests of justice. Based on the reasoning articulated by the Court of Appeal in Wong, I cannot conclude on any principled basis that the plaintiff has met the onus in the circumstances of this case for showing that the use of an audiotape recording at the independent medical examinations will advance the interests of justice. I therefore decline to make any orders in this regard.

For more on this topic you can click here to access my archived posts discussing recording what transpires at independent medical exams.

Treating Surgeon Allowed to Give Expert Evidence Despite Non-Compliance With Rules of Court


Although the BC Supreme Court Rules have strict requirements with respect to the admission of expert opinion evidence Rule 11-7(6) gives the Court a wide discretion to dispense with these if “the interests of justice require it“.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this discretion.
In this week’s case (Milliken v. Rowe) the Plaintiff was injured in a 2007 collision.  At trial the Plaintiff presented expert opinion evidence from a privately retained physiatrist.  The Plaintiff’s treating orthopaedic surgeon was also called to the stand, however, he was not called as an expert witness but rather as a witness of fact.  Despite this limitation the Court exercised its discretion under Rule 11-7(6) and permitted the treating surgeon to give opinion evidence addressing diagnosis and prognosis.  In doing so Mr. Justice Davies provided the following reasons:

[55] Dr. Zarkadas was not called as an expert witness at trial but he is obviously a well-qualified orthopaedic surgeon. He is also Ms. Milliken’s treating physician concerning her right shoulder difficulties.

[56] As such he was able to assist me in assessing Ms. Milliken’s future prospects if the surgery is undertaken or if it is not. To that extent, his more immediate involvement with and treatment of Ms. Milliken allows insight that was not previously available to Dr. Andrew Travlos (adduced as opinion evidence by the plaintiff) arising from his examinations and enquiries six months earlier.

[57] In those circumstances, notwithstanding the failure of the plaintiff to seek to have Dr. Zarkadas qualified to provide opinion evidence, I determined to receive his evidence concerning his diagnosis and prognosis related to Ms. Milliken’s right shoulder injuries.

[58] I did so over the objection of the defendant because of my belief that the determination of damages in this case should be based upon the best evidence available.

[59] In my opinion, the ability to achieve a just result should be served, rather than thwarted, by the application of procedural rules.

[60] The Court’s power to exercise discretion to allow relief from the harsh consequences of non-compliance with procedural rules recognizes that principle.

[61] I also, however, recognized that the defendant could be prejudiced by the admission and consideration of Dr. Zarkadas’ prognostic evidence if not given an opportunity to answer it.

[62] I accordingly provided the defendant an opportunity to consider whether to call rebuttal evidence before rendering judgment.

[63] I was subsequently informed that the defendant did not intend to do so.

More on the DME Prohibition of Bolstering Previous Opinions

While Plaintiff’s in personal injury lawsuits sometimes have to be subjected to multiple defence medical exams (DME) one well-settled principle is that subsequent exams to bolster a previous defence opinion are not permitted.  Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, demonstrating this principle in action.
In last week’s case (Dillon v. Montgomery) the Plaintiff was involved in two motor vehicle collisions.  He sued for damages with both claims set for trial at the same time.   In the course of the lawsuit he agreed to attend a defence medical exam with an orthopaedic surgeon.  The examination included a neurological assessment.
The Defendant then applied for a second exam, this time with a neurologist, arguing this was necessary “to ensure reasonable equality between the parties in the preparation of a case for trial“.  Master Bouck disagreed finding a further exam was not necessary in the circumstances and amounted to an effort to “bolster” the previous opinion.  In dismissing the application the Court provided the following reasons:

[17] Dr. McGraw reviews the findings contained in the neurological consult report in his own report. In additon, Dr. McGraw conducted a neurological examination.

[18] This expert’s opinion is that the plaintiff’s “back pain is of muscular origin and not related to intervertebral disc disease, arthritis of the apophyseal joints, or nerve root irritation”…

[28] In the case at bar, I determined that an examination by Dr. Moll is not necessary to put the parties on equal footing.

[29] First, there was nothing new in the medical evidence since the examination by Dr. McGraw that might justify an examination by a neurologist. The only alleged new information is the plaintiff’s ongoing complaints of tingling in his arms and legs. These complaints are of long standing and even pre-date the accidents.

[30] Second, a neurological opinion has been obtained [by the plaintiff] which negates any correlation between the plaintiff’s symptoms and the motor vehicle accidents. Indeed, Dr. Shtybel’s resident made no findings of neurological impairment whatsoever. In other words, the only purpose of an independent medical examination by a neurologist would be to prove a negative, or, perhaps bolster Dr. McGraw’s opinion. This circumstance is different than the one considered in Kim v. Lin where there had yet to be any medical opinions proferred to explain ongoing (and even worsening) accident related complaints.

[31] Finally, the fact that the plaintiff has ongoing complaints that may be considered neurological symptoms does not warrant this second examination. The defence is “not entitled to pursue every potential medical possibility” to address the plaintiff’s subjective complaints: Lowry v. Spencer, (10 December, 1990) Vancouver Registry No. B883909 as cited in Trahan v. West Coast Amusements Ltd., 2000 BCSC 691 at para. 49.

For more on this topic you can click here to access my archived posts summarizing the judicial application of Rule 7-6(2).

Why Physical Examination Is Not Always Necessary for a "Balanced Playing Field"

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating that a physical examination is not always necessary for parties to put themselves on a ‘balanced playing field‘ in a personal injury claim.
In this week’s case (De Sousa v. Bradaric) the Defendant appealed from a Master’s decision refusing to permit a second psychiatric independent medical exam of the Plaintiff.  You can click here for my original post discussing the initial applicaiton.
As previously summarized, the Plaintiff was injured in a 2003 collision which allegedly caused physical and psychiatric consequences.  In the course of the lawsuit the Defendants had the Plaintiff assessed by a psychiatrist of their choosing.  This psychiatrist (Dr. Davis) concluded that there was “no psychosis“.
Shortly after this the Plaintiff was admitted in hospital on multiple occasions.  She was ultimately diagnosed with “chronic paranoid schizophrenia” by her treating physicians.  These records were shared with Dr. Davis but despite the diagnosis from treating specialists he “rigidly and categorically rejected any diagnosis of a psychotic conditions“.  For this reason the Master refused to order a second examination.
In the appeal Mr. Justice Smith allowed the introduction of new evidence, specifically a further report from Dr. Davis indicating that he had a terminal illness and will not be able to participate in trial.  The Defendant’s argued that in these circumstances a further exam should be ordered.  Mr. Justice Smith found that while that could be the case, here it was not necessary because the Defendant had already received a report from their second psychiatrist who opined about the Plaintiff’s condition despite not physically examining her.   In dismissing the application the Court provided the following reasons:

[16] The question that arises on the new evidence, given the unavailability of Dr. Davis for trial, is whether the defendant needs a new psychiatric examination to be placed on that all important equal footing. For that purpose I turn to the report of Dr. Vallance that was before the master. This is of course a report that the defendant has, can rely upon at trial, and presumably Dr. Vallance will be available to be cross-examined on it.

[17] Dr. Vallance prefaces his report by stating:

I have not personally examined Ms. De Sousa. Consequently such opinions as I offer in this report are offered only on the understanding that such opinions are significantly limited in the weight that can be given to them absent such an examination.

As a general statement, that is undoubtedly true. However, it must be reviewed in the context of this case and the issues that will be before the court on which medical opinion evidence will be necessary.

[18] Dr. Vallance states that, based on his review of the records, there is no doubt about the fact that the plaintiff now suffers from paranoid schizophrenia. So he does not suggest that he needs to conduct an independent medical examination to confirm or exclude that diagnosis.

[19] The real issue in this case is whether that condition was caused or contributed to by the accident. On that point Dr. Vallance gives a firm opinion. He states:

I believe that if her physical condition and such anxiety as she had arising from the traumata that she experienced had been significant stressors timing the onset of that first episode, then her psychotic illness would have developed sooner rather than later. I believe that her psychosis began out of the blue, as it usually does, and at an age that is usual for the appearance of a first episode.

He then says:

Such diagnoses as paranoid schizophrenia often reveal themselves slowly over time, and therefore, based on the longitudinal history rather than cross-sectional examination, earlier episodes are often diagnosed as other conditions until the full picture is revealed.

[20] Thus on the crucial causation issue, Dr. Vallance’s own report does not support the suggestion that an independent medical examination is needed to place the parties on an equal footing. Indeed he specifically questions the usefulness of a single medical examination and stresses the need to review the entire history, as he has already done, based on the records.

[21] There is also evidence before me from the plaintiff’s family physician that in light of the plaintiff’s present psychiatric condition, a further medical examination at this time will actually be harmful to her health. That prejudice to the plaintiff must, in my view, be considered, although if I thought that a further psychiatric examination was necessary to put the parties on an equal footing, I would have said that means would need to be devised to manage that risk, perhaps with the assistance of the treating psychiatrist.

[22] However, that is not the case here. It appears to me from the evidence of Dr. Vallance that the defendants are in as good a position as they are likely to be to advance their position that this severe psychiatric condition is causally unrelated to the motor vehicle accident. I am not satisfied that a further psychiatric examination will add anything to the matter or will be of any further assistance for the court.

Compelled Independent Medical Exams and "Consent"


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing a much debated topic; can a Plaintiff be forced to sign a ‘consent‘ document when compelled to attend an independent medical exam under the Rules of Court.  In short the Court held that this was possible.
In this week’s case (Kalaora v. Gordon) the Plaintiff was injured in a motor vehicle collision and sued for damages.  In the course of the lawsuit the Plaintiff agreed to attend a defence medical exam.  At the appointment the physician asked the Plaintiff to sign a consent form authorizing the physician to proceed with the medical examination.  The Plaintiff refused to sign this.  The Defendant brought an application to compel this document to be signed.  In granting the application Madam Justice Hyslop provided the following reasons:

[79] Rule 13-1(19) of the Supreme Court Civil Rules provides assistance in this matter:

Orders on terms and conditions

(19) When making an order under these Supreme Court Civil Rules, the court may impose terms and conditions and give directions it considers will further the object of these Supreme Court Civil Rules.

[80] In Nikolic, Mr. Justice Williams stated that Rule 1(12) (the former Rule)

grants the court wide discretionary powers, in the making of orders, to impose terms and conditions and give directions as its thinks just. Read collectively [he is referring to the then document rules], a master or judge of this Court has the jurisdiction to create the mechanisms by which relevant non-privileged documents in a litigant’s “power” will be produced, including the jurisdiction to order him or her to execute the necessary documentation allowing a record-holder, whether residing in or outside British Columbia, to effect the release of those documents.

Rule 13-1(19) together with Rule 7-6(1), (the medical examination rule) read together, permit the court to order that the plaintiff to sign an authorization.

[81] By refusing to sign a consent or give a verbal agreement, Dr. Smith is open to charges of assault and battery. To insist that the defendant find another psychiatrist to pursue the medical examination without the consent of the plaintiff is unlikely.

[82] When plaintiff’s counsel consented to the medical examination of Mr. Kalaora by Dr. Smith, and Mr. Kalaora appeared at Dr. Smith’s office as scheduled, it certainly could be inferred that Mr. Kalaora agreed to the medical examination. However, when he refused to sign the consent or consent verbally, he withdrew that consent.

[83] Based on the case law, the Supreme Court Civil Rules and their purpose, the underlying need for full disclosure, the court can order a litigant to sign a consent or authorization.

[84] The plaintiff made it clear that they are agreeable to attending a medical examination with Dr. Smith. I order that the plaintiff attend a medical examination with Dr. Smith at a time and place as agreed. I order that the plaintiff sign an authorization or consent in the exact terms as sought by Dr. Smith for the original medical examination which did not proceed.

For two recent case summaries further discussing the Court’s ability to order a Plaintiff to sign authorizations/waivers you can click here and here.  From my perspective there appears to be some inconsistency in the authorities addressing the power of the BC Supreme Court to order a Plaintiff to sign an authorization and clarification from the BC Court of Appeal or by way of Rules Amendment would be helpful.

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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