Private MRI Obtained for Diagnositic Puroses Producable in Injury Litigation

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, ordering a plaintiff to disclose the results of a private MRI to defendants.
In today’s case (Prothero v. Togeretz) the Plaintiff was injured in a collision and sued for damages.  In the course of the lawsuit the Plaintiff’s physician wished for the Plaintiff to have an MRI and asked that this be obtained privately to expedite matters.  ICBC refused to pay for this service so the Plaintiff arranged to do so privately.  The Plaintiff did produce the MRI images arguing these were privileged.  The Court disagreed and ordered them to be produced.  In reaching this decision Master Caldwell provided the following reasons:

[10]         On the material before me I am unable to agree with plaintiff counsel’s assertion of litigation privilege or solicitor’s brief privilege. It appears clear on the material that the MRI was requested by Dr. Fernandes as part of his course of investigation and treatment of the plaintiff for injuries resulting from the motor vehicle accident; he then obtained the results and referred the plaintiff to a specialist for further assistance in diagnosis and treatment. Dr. Mutat was a treating doctor at the time this took place and only took on the role of expert at a later date when approached by plaintiff’s counsel.

[11]         In the result, the MRI disk is producible and is ordered produced; it came into existence for diagnostic and treatment purposes at the request of Dr. Fernandes, not for litigation purposes at the instance of plaintiff’s counsel. In this regard it would seem that the cost of the MRI will be addressable as a special damage matter relating to medically necessary investigation and treatment rather than as a disbursement in the litigation however that will remain to be determined in the fullness of time.