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.

bc injury law, De Sousa v. Bradaric and Borthwick, Dr. Davis, indepenent medical exams, Mr. Justice Smith, Rule 7, Rule 7-6, Rule 7-6(1), Rule 7-6(2), subsequent medical exams

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.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

Disclaimer