Defence Medical Exams – Best Expert Not Required to "Level the Playing Field"

(Update: November 14, 2011The case discussed in the below post in now publicly available.  Master Scarth’s reasons for judgement can be accessed here)
Further to my previous posts about Independent Medical Exams in BC Supreme Court Injury Claims unpublished reasons for judgement recently came to my attention (Hou v. Kirmani BCSC Vancouver Registry, 20091119) dealing with the ability for a Defendant to have an injured party undergo multiple exams where the first defence expert feels an opinion from a second expert would be of benefit.
In this recent case the Plaintiff was a pedestrian who was apparently struck by a vehicle.    She suffered “multiple injuries including traumatic brain injury“.  One of her most serious injuries was a foot and ankle injury.  She consented to attend a Defence Medical Exam with an orthopaedic surgeon.  He provided the following opinion:
(the Plaintiff) would benefit from an opinion from a foot and ankle orthopaedic surgeon, as further surgical intervetnion may be of benefit to her and this might include surgical correction of her deformity so as to allow her to bear weight and walk short distances more appropriately. …I do not feel further passive treatment for her left foot and ankle will be of any benefit to her..
The Defendant brought a motion to compel the Plaintiff to be examined by a second orthopeadic surgeon, this time one with a specialty in foot an ankle injuries.  The Plaintiff opposed arguing a further exam was not necessary.  Master Scarth agreed and dismissed the motion.  In doing so the Court made the following comments about the purpose and limitations of Defence Medical Exams:
…I am not of the view that Rule 30 is intended to allow follow-up on every issue which is raised by experts who examine the plaintiff.
Dr. Arthur was chosen, and I accept the submissions of the plainitff in this regard, with the knowledge that there were concerns regarding this plaintiff’s ankle.  Thee is, it is fair to say, nothing new since Dr. Arthur was retained, apart from his reticence to provide an opinion.  And he does not say, I do not believe, that he is not qualified to give the opinion which is missing, if it is missing.  He simply says, I think it is fair to conclude, that in the best of all worlds she would be seen by an orthopaedic surgeon with a subspeciality training.  In my view that is not the purpose of Rule 30.
As mentioned above, this is an unreported judgement but if anyone wants a copy feel free to contact me and I’ll be happy to e-mail a copy of the transcript.

bc injury claims, Defence Medical Exams, DME, Hou v. Kirmani, ime, independent medical exams, Master Scarth, multiple defence medical exams

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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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