No Medical Report Thwarts Request for Second Defence Medical Exam

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, rejecting a defense application for a defense medical exam where they had not provided a report following an initial exam.
In today’s case (Thandi v. Higuchi) the Plaintiff agreed to be assessed by an orthopedic surgeon selected by the Defendant.  No report was produced following this assessment and the Defendant requested a further a exam with a neurologist.  In dismissing the application the Court noted that the lack of a report left the court without a proper evidentiary foundation respecting the equality of the playing field.  Master Harper provided the following reasons:

[6]             The major impediment to the defendant’s application in this case is the absence of Dr. Loomer’s report. It might be the case that the defendant could establish the necessity for a third independent medical examination before a neurologist, but the Court does not have sufficient evidence to assess that issue. Here, I rely on Koulechov v. Dunstan, 2015 BCSC 393 at para. 6, which is on all fours with this application:

[6]        It is counsel’s prerogative, of course, to control the timing of disclosure in a civil case. However, an order for a second independent medical examination under Rule 7-6 is a discretionary remedy that will only go if it is required to put the parties on an equal footing with respect to medical evidence: Stainer v. Plaza, 2001 BCCA 133 at para. 8. In the present application, in the absence of Dr. Gittens’ report, it is impossible for me to evaluate if there is any inequality in evidence or if an orthopaedic IME could redress it. …

[7]             Applying the Koulechov decision to the present application, I am not in a position to assess whether the medical complaints that involve neurological complaints were addressed by Dr. Loomer, could have been addressed by Dr. Loomer, or whether Dr. Loomer declined to opine on any neurological complaints because it was outside his area of expertise.

[8]             So quite simply, the defendant has not met the evidentiary burden necessary to justify the order sought and, therefore, I dismiss the application.