More on BC Injury Claims and Multiple Defence Medical Exams
Further to my recent post on this topic it is well settled that the BC Supreme Court can order that a Plaintiff undergo multiple defence medical exams in a Personal Injury Claim depending on the circumstances of any particular case.
There are some limitations on this and one such restriction relates to having the same injury reassessed when nothing has changed since an initial defence examination. Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, demonstrating this.
In this week’s case (Bidgood v. Kostman) the Plaintiff was involved in a personal injury lawsuit. The Plaintiff consented to being examined by an orthopaedic surgeon at the request of the Defendant. This surgeon provided a report commenting on the Plaintiff’s injuries. As the lawsuit progressed the Plaintiff exchanged the medical reports that she wished to rely on to the Defendants as required by the Rules of Court. These reports commented on the Plaintiff’s chronic myofascial pain. This prompted the Defence to seek a second medical exam, this time with a physiatrist. The Plaintiff did not consent to this and a Court motion was brought to compel attendance.
The Defence argued that they needed the additional exam to assess the allegation of chronic myofascial pain. Master McCallum of the BC Supreme Court rejected the motion finding that the Defendant had a proper opportunity to assess this alleged injury when they had their first defence medical exam. Specifically Master McCallum noted the following:
[7] The authorities are clear, and there is no real dispute between counsel here. The court can order any number of reports by nominees of a party, but in this case, in order to have an additional report on this issue of myofascial or soft tissue pain, there has to be some evidence that something has changed. There is no such evidence. The diagnosis and findings of Dr. Wahl in his report are remarkably similar to the reports that he had when he saw the plaintiff. They are remarkably similar to the reports that have been delivered later, and particularly Filbey’s report. It is clear that nothing has changed in the plaintiff’s symptomology. There is no suggestion here that Dr. Wahl made a comment that she should be seen by someone else as he was unable to make findings of fact with respect to what was troubling her or could not make a diagnosis. None of that is found in Wahl’s report. It is simply the case that the defendants now wish to have the matching specialist, as Lofgren says in her affidavit, because the defendants believe that Dr. Wahl’s report may somehow not stand up to Dr. Filbey’s report. There is no evidence of that. There is no evidence that an orthopedic surgeon could not make findings in the way he did. There is no evidence that Dr. Filbey is somehow better off to report on the findings that he made. That is simply not the case.
[8] The plaintiff may be right when she says that the defendants have an expert whose report does not favour the defendants’ case particularly, and that a further report may aid them more than Dr. Wahl’s report. This is not a case where the defendants are in a position of inequality or the defendants are prejudiced by whatever the plaintiff has done in the time between Dr. Wahl’s report and the 40A deadline. None of that occurred. The prejudice will occur if the examination by Dr. Hirsch, the further report, goes ahead because that will be, as the plaintiff says, fresh evidence on this issue to which they will feel obliged to respond. If the defendants want a rebuttal report, then the defendants are entitled to obtain one. They do not need to have the plaintiff examined to accomplish that.
[9] The application for the examination by Hirsch is dismissed. In the circumstances ?? we do not have a liability problem here, do we, so the plaintiff will get her costs in any event.
As readers of this blog know the BC Supreme Court Rules are being overhauled in July 2010. The Court will continue to have the power to order multiple medical exams in particular circumstances but one thing that will change is that the concept of ‘proportionality’ will be introduced into the analysis. It will be interesting to see how this principle affects the law of multiple defence medical exams in ICBC and other BC Personal Injury Litigation.