Multiple Medical Exams When Initial Experts Come up Short

There is wide discretion for the BC Supreme Court to order a plaintiff to be examined by multiple defence expert witnesses where the alleged injuries call for it.  While the law does not allow multiple exams to be conducted simply to get “the best expert” on each area in dispute, where initial experts come up short due to limitations in their area of expertise further examinations may be allowed.  This was demonstrated in reasons released today.
In today’s case (Garford v. Findlow) the Plaintiff was injured in two collisions.  In the course of her lawsuit she agreed to be examined by three defence physicians, namely an orthopedic surgeon, a dentist and a neurologist.  When the Defence asked for a further exam with a psychiatrist the Plaintiff drew the line.  The Court found, however, despite the multiple exams a further expert was warranted as the existing experts pointed to psychiatric issues playing a role in the Plaintiff’s condition and conceded this was an area out of their expertise.  In allowing the exam Master Bouck provided the following reasons:

[37]         In this case, I find that Dr. Miller’s examination is not an attempt to bolster an earlier opinion of another expert. Neither Drs. Piper, Gershman nor Dost provide a medical opinion on the plaintiff’s mental health, nor do any of them address the cause of the mental health complaints. These physicians comment on Ms. Garford’s mental health condition but no diagnosis is made with deference given to a psychiatrist to make such findings. It is pure speculation that Dr. Stewart-Patterson will provide a diagnostic opinion. Regardless, Dr. Stewart-Patterson’s credentials do not closely resemble those of a psychiatrist.

[38]         Given these findings, I am not at all certain that the defendants are required to meet the higher standard stipulated in Hamilton v. Pavlova. None of the authorities suggest that there is an absolute limit on the number of independent medical examinations that may be ordered under Rule 7-6(2). More to the point, all other assessments or examinations have been directed towards the plaintiff’s physical rather than mental condition.

[39]         On the question of timeliness, the defendants say that they will be in a position to serve any expert opinion by February 2, 2015. Whether the plaintiff will be able to assess and respond to any report remains to be seen. Obviously, the court was persuaded in De Corde that the timeliness factor weighed against granting the IME order. However, as the court determined in Critchley v. McDiarmid, 2009 BCSC 28, the order requiring a plaintiff attend an IME relatively close to trial does not necessarily mean that the trial will be adjourned or the plaintiff prejudiced: paras. 11?14.

[40]         In my view, the defendants are not required to show any exceptional circumstances as this is not an application for a subsequent examination by an expert in the same field or a multidisciplinary assessment as was the case in Wildemann v. Webster.

[41]         In terms of proportionality, the plaintiff has been out of the workforce for four years and is not expected to return to her pre-accident employment as a dental assistant. It is apparent that there will be a significant claim for both past and future income loss. The plaintiff’s claim for special damages is also indicative of the amount involved. I accept defence’s unchallenged submission that Ms. Garford will be seeking damages well in excess of $100,000 at trial. As with the court in Kim v. Lin, I find that the SCCR 1-3 factors in this case favour the order being made.

[42]         The plaintiff may not be pursuing a psychiatric opinion at this time, but she clearly blames the accidents for her mental health condition and necessity for psychological counselling. In my view, the task of identifying let alone proving other causes or sources for these mental health issues cannot be accomplished by simply cross-examining the plaintiff at trial.

[43]         In conclusion, I find that the plaintiff’s attendance at an IME with Dr. Miller will put the parties on an equal footing in terms of addressing diagnosis and causation of the plaintiff’s mental health condition. The examination may also address the interplay of the plaintiff’s mental and physical complaints.

bc injury claims, Defence Medical Exams, DME, Garford v. Findlow, ime, independent medical exams, Maser Bouck, 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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