Independent Medical Exams and Forced "Waivers"


When Plaintiffs attend defence medical exams some doctors require patients to fill out questionnaires and waivers of liability.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing this area of law and concluding that Plaintiffs cannot be forced to sign waivers through the Court ordered independent medical exam process.
In today’s case (Mund v. Braun) the Plaintiff was involved in a motor vehicle collision and allegedly sustained some complex injuries.  In the lawsuit the Plaintiff agreed to attend a defence medical exam with a neurologist (Dr. Makin).  Dr. Makin requested that the Plaintiff sign a waiver form indicating that the Plaintiff “will not sue Dr. Makin outside of BC.”.  As previously discussed, BC law provides doctors with a strong immunity from lawsuits arising from carelessness in the independent medical examination process.  The reason for this waiver was to apparently protect the doctor against the remote chance that the Plaintiff could sue outside of BC.  The Plaintiff refused to sign the waiver.
The Defendant brought a motion and the BC Supreme Court was asked to decide whether the Plaintiff could be forced to sign such a waiver.  Mr. Justice Brown dismissed this motion finding that unless the Court of Appeal rules otherwise the law is settled that BC Courts don’t have jurisdiction to force plaintiff’s to sign such waivers.  In addressing this point Mr.  Justice Brown held as follows:
[38] In any case, on the question of requiring the plaintiff to sign the Jurisdiction agreement, I am bound by Desjardins (Litigation guardian of) v. Huser, 2010 BCSC 977; Kobzos v. Dupuis, 2006 BCSC 2047; Stead v. Brown, 2010 BCSC 312; Peel Financial Holdings Ltd. v. Western Delta Lands, 2003 BCCA 180; Rafferty v. Power (1993), 15 C.P.C. (3d) 48 (BCSC); and Allan-Trensholme v. Simmie, [2006] B.C.J. No. 720 (BCCA). I do not have jurisdiction to order the plaintiff to sign the Jurisdiction Agreement. On the narrow point of whether jurisdiction remains with the court under the Civil Rules to require a party to sign an authorization for documents in the possession of a third party but over which the party has sufficient control, e.g. the party’s clinical records kept by their physician, that is governed by the cited cases until such time as the Court of Appeal specifically rules on that. For now, the general question appears settled; and as for the facts at bar, in my view, the consent in this case falls squarely within the ambit of the authorities cited.
This case is also worth reviewing for the Court’s discussion of the extent of testing that can take place during a Court ordered exam.  Dr. Mund wished to conduct electro-diagnostic testing of the Plaintiff.  The Plaintiff refused.  Mr. Justice Brown held that this test was permitted and in so finding stated as follows about doctors discretion during the testing process:
[16] I accept Dr. Makin’s explanation that electro-diagnostic studies are considered an extension of neurological examinations. I find the testing is minimally invasive, and would not invade the plaintiff’s privacy…

[19]         Given the variety of causes attributed to the plaintiff’s symptoms, which include thoracic outlet syndrome, myofascial factors, soft tissue pathology in the neck and right shoulder, cervical spine disc disease with a degenerative factor and even diabetes II, diagnosis is obviously a not straight forward exercise in this case.

[20]         I am satisfied nerve conductions studies are relevant to the issues raised and the pleadings and in the medical reports written for the plaintiff. The defendant submits there is at least a possibility the plaintiff’s tingling and numbness could result from degeneration in his cervical spine or unrelated nerve problems in his right arm; and the origin and causation of his neck, shoulder and arm symptoms are related to the pleadings.

[21]         I also agree that affording Dr. Makin leeway to conduct nerve conduction studies he sees as necessary is required in order to ensure reasonable equality between the parties. The studies will not necessarily duplicate earlier ones. An electro-diagnostic study is a reasonable extension of the clinical examination if the examining physician comes to judge it necessary to form, or confirm, their professional diagnostic opinion.

[22]         Therefore, the plaintiff will submit to electro-diagnostic testing by Dr. Makin if requested to do so.

bc injury law, Dr. Makin, electro-diagnostic testing, independent medical exams, Mr. Justice Brown, Mund v. Braun, Rule 7, Rule 7-6, Rule 7-6(1), waivers

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ERIK
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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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