Tag: Defence Medical Exams

ICBC Insurance Benefits, Independent Medical Exams and Witness Immunity

Written by admin on March 1, 2010. Posted in independent medical exams, Uncategorized. 99 Comments on ICBC Insurance Benefits, Independent Medical Exams and Witness Immunity

Further to my many previous posts discussing Independent Medical Exams in the context of ICBC Injury Claims, reasons for judgement were released today highlighting a very interesting issue; the ability to sue an Independent Medical Examiner.
When a person is seeking medical benefits from ICBC under their own policy of insurance (Part 7 Benefits) ICBC has the right to send that person for a “medical examination“. ICBC gets this power from s. 99 of the Insurance (Vehicle) Regulation which holds as follows:

Medical examination

99 (1) An insured who makes a claim under this Part shall allow a medical practitioner, dentist, physiotherapist or chiropractor selected by the corporation, at the expense of the corporation, to examine the insured as often as it requires.

(2) The corporation is not liable to an insured who, to the prejudice of the corporation, fails to comply with this section.

When ICBC obtains a medical exam under s. 99 they often base their decision of what Part 7 benefits to pay based on the physician’s recommendations.

For a variety of reasons ICBC tends to use a handful of doctors over and over again for these independent examinations. In turn the business of independent medical exams is quite profitable for some BC doctors.

It is not uncommon for a medical examiner to author a report to ICBC which contradicts the opinions of a person’s treating physicians. When this happens ICBC sometimes cuts off benefits from an insured even when the treating physicians feel further funding of therapy is appropriate. When ICBC and an insured differ as to what benefits should be paid the insured can sue ICBC and the Court’s can offer a binding resolution. What about the independent medical examiners? Can they be sued? Reasons for judgement were released today by the BC Supreme Court addressing this very interesting issue.

In today’s case (Mund v. Sovio) the Plaintiff was injured in a 2007 motor vehicle collision. The Plaintiff applied to ICBC for Part 7 Benefits. In the course of processing the request for benefits ICBC sent the Plaintiff to Dr. Sovio for a medical examination under section 99. Dr. Sovio authored an opinion which was apparently harmful to the Plaintiff’s interests in which he stated that:

a) the Plaintiff was “staying at home, not doing any exercise and appears to be content to carry on in this fashion”;

b) “there is nothing to suggest that” the Plaintiff “should be disabled to this degree” and the Plaintiff’s “medical care appears to be somewhat disjointed”;

c) “legal matters” were interfering with the Plaintiff’s case; and

d) the Plaintiff “has a history of [being] off work for an extended period of time in the past and seems content to continue with this role of disability at this time”.

After receiving this report the Plaintiff and ICBC could not agree as to what PArt 7 benefits ought to be paid. The Plaintiff responded in a unique way, he sued Dr. Sovio directly arguing that Dr. Sovio failed to assess his injuries in “an objective, fair and even handed manner.“.

Dr. Sovio applied to dismiss the lawsuit arguing, despite any consequences the report may have had between the Plaintiff and ICBC with respect to Part 7 benefits, that he owed the Plaintiff “no duty in contract, no duty of insurer-insured good faith and no duty of care in negligence”. Dr. Sovio went further and argued that even if there was such a duty that the lawsuit had to be dismissed because he had “witness immunity“.

Madam Justice Hyslop of the BC Supreme Court sided with Dr. Sovio’s arguments and dismissed the Plaintiff’s lawsuit. In doing so the Court made the following critical findings:

[34] Dr. Sovio’s role and relationship with Mr. Mund cannot be greater than that of ICBC. It is not within the power of Dr. Sovio to determine whether Mr. Mund receives Part 7 benefits. The power and the exercise of that power is that of ICBC. ..

[37] I find that Dr. Sovio is not in a fiduciary relationship, nor in a doctor/patient relationship, nor is one created between Mr. Mund and Dr. Sovio as a result of the medical examination by Dr. Sovio of Mr. Mund…

[48] In British Columbia, ICBC may choose, pursuant to s. 99, the medical practitioner. The sole purpose of the s. 99 examination is that the medical practitioner examine the insured. It is entirely at the discretion of ICBC when, and if, there is an examination. There is no requirement that the medical practitioner provide a plan of care for the insured such as the Ontario DAC. The doctor’s opinion is not binding on anyone; neither the insured nor the insurer. ICBC may use, for different claims, for different insureds, the same medical practitioner time and time again. ICBC may reject the medical practitioner’s opinion in whole or in part. It is simply not a process in which the insured participates in other than to present himself or herself to the medical practitioner designated by ICBC…

[71] In Howatt v. Klassen, 2005 CanLll 11191, Dr. Klassen was requested by the College of Physicians and Surgeons of Ontario to examine Dr. Howatt. That was the extent of the relationship between Dr. Klassen and the plaintiff, Dr. Howatt. The court concluded that Dr. Klassen acted as an agent and for an appointee of the college. In dismissing Dr. Howatt’s action, the court stated:

[11] In any event, I agree with the submission that Dr. Klassen is protected by the common law doctrine of witness immunity, which protects individuals from civil suit based on their status as witnesses or potential witnesses at judicial proceedings. The case law establishes that this protection is absolute so that even allegations of bad faith are insufficient to exclude the application of the witness immunity doctrine.

[72] A similar situation occurred in N. (M.) v. Forberg, [2009] A.J. No. 253. The court found a witness immunity applied to a psychologist who counselled children involved in a custody and access dispute. In proceedings between the parents of the children, the mother of the children asked the psychologist to give an opinion. The opinion was adverse to the plaintiff father, and the court found the psychologist owed no duty of care, no fiduciary duty to the father and concluded that witness immunity applied, stating the following at para. 57:

If professionals in the field of health care are exposed to the threat of law suits when they intervene on behalf of persons to whom they clearly owe a duty and have determined are vulnerable individuals, there will be a chilling effect on the willingness of health care providers to deliver their necessary assistance to the Court, and to be full and frank in their opinions when doing so.

[73] Similarly, Dr. Sovio, in providing assessments pursuant to s. 99, must not be exposed to the threat of lawsuits for delivering his opinion, even if those opinions or actions are contrary to those of Mr. Mund…

Dr. Sovio is not a public official, but an expert retained by ICBC. His position is similar to that of Dr. Klassen in Howatt and Ms. Froberg. …

[79] For these reasons, Mr. Mund’s ASC is struck out and the claim dismissed for failure to disclose a reasonable cause of action.

Court Ordered "Independent Medical Exams" and the Standard of Review – A Second Kick at the Can

Written by admin on February 18, 2010. Posted in Civil Procedure, independent medical exams. 49 Comments on Court Ordered "Independent Medical Exams" and the Standard of Review – A Second Kick at the Can

When a court orders a Plaintiff to attend an independent medical exam (click here to read some related posts on this topic) in an ICBC or other Injury Claim and the parties appeal what is the standard of review used in the appellate hearing?
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing this issue.
In today’s case (Barbosa v. Castillo) the Plaintiff attended an Independent Medical Exam (IME) with an Orthopaedic Surgeon chosen by the Defendant. He gave an opinion that the plaintiff did not have a “functional problem” with respect to any neurological complaints. The Plaintiff then served expert reports outlining that he had nerve root irritation which negatively impacted his ability to work.
The Defence asked for a second medical exam, this time with a neurologist. On application to Court the presiding Master rejected the motion. The Defendant appealed the ruling. On hearing the appeal Mr. Justice Schultes had to decide, amongst other things, what the legal test was on these types of applications. He ruled that the appeal can be a rehearing (as opposed to requiring proof that the Master was ‘clearly wrong’) in essence giving the appellant a second kick at the can. Specifically the Court held as follows:

[14] Before proceeding further, it is necessary to establish the applicable standard of review of the learned master’s decision. It is well established that on purely interlocutory matters, it must be demonstrated that the master was “clearly wrong” in his or her decision. However, when the ruling raises questions that are vital to the final issue in the case, the reviewing court approaches the matter as a rehearing. When the master’s decision deals with a question of law, the standard of review is correctness: Abermin Corp. v. Granges Exploration Ltd., [1990] B.C.J. No. 1060 (S.C.), and Joubarne v. Sandes, 2009 BCSC 1413 at para. 14.

[15] A decision to deny a defendant the opportunity to have an independent medical examination conducted of the plaintiff can raise questions that are vital to the final issue in the case. In Belke v. Bennett, 2006 BCSC 536, Mr. Justice Barrow provided the following helpful approach at para. 5:

If the Master’s order amounts to a refusal, whether in whole or in part, of an application to have the plaintiff submit to an independent medical examination, it may deprive the defendant of discovering evidence necessary for a full examination of the plaintiff’s claim or of a defence advanced. It is in that sense that a decision may be said to go to an issue vital to the trial. […] If, on the other hand, the Master’s order simply sets terms on which the independent medical examination is to be conducted or directs that such an examination not be performed by a particular professional, the defendant is not deprived of potential evidence, and the order cannot be characterized as going to an issue that may be vital to a final issue at the trial.

[16] I adopt this analysis. I think the master’s decision in this case fell within the first situation envisioned in Belke. Denying the defendant’s application effectively foreclosed any exploration of Dr. Hunt’s opinion, let alone any rebuttal of it, on behalf of the defendant by an expert with the specific expertise necessary to cope with the report on its own terms.

[17] If uncontradicted, Dr. Hunt’s opinion could be determinative of several of the kinds of damages claimed by the plaintiff, in particular as to the true nature and extent of his injuries and their impact on his future earning capacity. These questions appear to be vital to several final issues. Accordingly, I will treat this appeal as a rehearing.

Mr. Justice Schultes went onto allow the appeal and order the second defence medical exam. In doing so the Court provided the following useful summary of the law discussing factors courts can consider in applications for multiple independent defence medical exams:

[19] Turning to the actual merits of the defendant’s application on the rehearing, an excellent summary of the applicable law in this area was provided by Madam Justice D. Smith, then a member of this court, in McKay v. Passmore, 2005 BCSC 570 at paras. 15 – 19:

15. The principles to be followed in deciding whether the defendants have shown an adequate basis for a second IME are set out in Trahan v. West Coast Amusements Ltd.[2000] BCSC 691 (CanLII), [2000] BCSC 691, at para. 48:

The authorities establish that additional medical examinations are in the discretion of the court … (citations omitted).

That discretion is to be exercised judicially, considering the evidence adduced. A second examination to permit the defendant a second opinion on the same subject matter will not be allowed. A second examination may be appropriate where there is some question which could not have been dealt with on the first examination … (Citations omitted).

That the magnitude of the loss is greater than previously known is not in and of itself sufficient to permit a second examination … (Citations omitted).

Where diagnosis is difficult and existing assessments are aged, further assessment may be required …

And in Roberge v. Canada Life Assurance Co. [2002] BCSC 1500 (CanLII), [2002] BCSC 1500 at paragraph 9:

The distinction is quite important. Simply put, when a person in litigation makes a claim for a personal injury, the defendant is, without oversimplifying the matter, almost always entitled to a medical examination of the plaintiff. A much higher standard is imposed when the defendant seeks a second medical examination of the plaintiff.

16. The overriding question is whether a second medical examination is necessary to ensure reasonable equality between the parties in their preparation of a case for trial: Wildemann v. Webster [1990] CanLII 206 (BC C.A.), [1991] 50 B.C.L.R. (2d) 244 (C.A.).

17. Reasonable equality does not mean that the defendant must be able to match expert for expert or report for report. I refer to Trahan v. West Coast Amusement Ltd. and toMacNevin v. Vroom [21 December 2004] New Westminster S072995 (S.C.).

18. The defendants must satisfy the court that there is some question or matter that could not have been dealt with at the first examination: Jackson v. Miller [1999] B.C.J. No. 2751 (S.C.).

19. In considering how to exercise the discretion to grant a second IME, the court should take into account the timeliness of the application in the light of Rule 40A and the practicalities of trial preparation… [citations omitted.]

Late Applications for Defence Medical Exams in ICBC Injury Claims

Written by admin on February 13, 2010. Posted in independent medical exams, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court considering the issue of timing of applications for compelled medical exams in the context of an ICBC Injury Claim.
Under the current BC Supreme Court Rules expert evidence that is not ‘responsive‘ is required to be served on opposing parties 60 days before it is tendered into evidence. This requirement is set out in Rule 40A. (As of July 1, 2010 a new set of BC Supreme Court Rules will come into force and Rule 11 will govern the admissibility of reports which makes some changes to timelines for exchange of expert evidence).
When a Defendant comes to court asking for a compelled exam BC Courts have considered the issue of timing and if the application is inside the timelines for service of a report the Defendant may have an uphill battle. Reasons for judgement were released today demonstrating this.
In today’s case (Moore v. Hind) the Plaintiff was injured in 2 motor vehicle collisions. Both trials were set to be heard together. ICBC brought an application to compel the Plaintiff to be assessed by Dr. Ray Baker, a doctor who specializes in so-called ‘addiction medicine‘. This application was brought late in the litigation process. ICBC argued that the medical evidence served by the Plaintiff’s lawyer gave a “clear and emphatic indication that the plaintiff may suffer a drug addiction problem” and as a result the need for the late application.
The Plaintiff disagreed arguing that ICBC could have pursued this line of inquiry earlier in the process. Master Keighley agreed with the Plaintiff and dismissed the motion. In doing so the Court placed weight on the late timing of this application and this proved fatal to ICBC’s argument. Specifically the Court stated as follows:

[10] This application raises certain practical difficulties. One is the question of whether a further examination and the likely preparation of a report at this time will jeopardize the existing trial date. There is certainly very little time left now between the date of this application and the trial. It is unlikely that the plaintiff would have sufficient opportunity to in any way rebut the findings in a report prepared by Dr. Baker. It seems to me there is a substantial likelihood that should the order sought be granted, an application may be made to adjourn the trial.

[11] It also seems to me that this application is unnecessarily brought at a late date. There was, to my mind, a significant indication of overuse or misuse of prescription drugs as early as a year ago, and arrangements might then have been made in a more orderly fashion to have an examination by Dr. Baker or another, with respect to these issues.

[12] Having read portions of Dr. Smith’s report, it seems to me, however, that the third parties may well be afforded an opportunity to yet achieve a level playing field by having their own expert, Dr. Smith, consider the reports, the clinical records and other information relating to the claim with regard to assessing the issue of the plaintiff’s prescription drug use and its impact potentially upon her claim.

[13] In this regard it seems to me that the prejudice to be suffered by the third party in not having an opportunity to have a further assessment is minimized, whereas the potential prejudice to the plaintiff is substantial. She is depicted in the medical reports as being a highly tense, anxious individual, and it would seem, and indeed she suggests that she will be extremely prejudiced if this claim is not resolved at the earliest possible date. There is also an issue of inconvenience which is of a relatively minor nature, in that she has another medical examination scheduled for the morning of the proposed examination and would be obliged to cancel that if ordered by the court to attend for an appointment with Dr. Baker. She also then had made plans to visit with her mother in the Christmas holidays, beginning on the night of December 22nd. Those issues of inconvenience are of a relatively minor nature and would not be conclusive in themselves.

[14] I am satisfied that the application should be dismissed. It is simply brought at too late a date and it is likely that it will result in an adjournment of this trial, which the material before me indicates, if adjourned, would likely not be rescheduled until perhaps June of 2011.

More on BC Injury Claims and Multiple Defence Medical Exams

Written by admin on January 23, 2010. Posted in Civil Procedure, independent medical exams, Uncategorized. 54 Comments on 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.

Defence Medical Exams – BCSC More Than Just A "Rubber Stamp"

Written by admin on January 20, 2010. Posted in Civil Procedure, ICBC Privacy Issues, independent medical exams, Uncategorized. 56 Comments on Defence Medical Exams – BCSC More Than Just A "Rubber Stamp"

As readers of this blog know when people sue for damages in the BC Supreme Court as a result of an Injury Claim they give up certain privacy rights. Documents need to be disclosed to opposing counsel, examinations for discovery can be compelled, even ‘independent‘ medical exams can be ordered.
In the course of an Injury Claim Rule 30 of the BC Supreme Court Rules permits a Court to order that a Plaintiff undergo a Defence Medical Exam(DME) in order to “level the playing field“. It is generally accepted that at least one DME will be ordered by the Court if requested in a typical personal injury claim. Such an order, however, is not an automatic right and reasons for judgement were released today demonstrating this.
In today’s case (Chapman v. Magee) the Plaintiff was injured in “a reasonably nasty motor vehicle accident involving…a car and a motorcycle“. The Injuries included a flailed chest and a broken ankle.
The Defence lawyer asked that the Plaintiff attend a defence medical exam with a respirologist and an orthopaedic surgeon. The Plaintiff’s lawyer did not consent and a court motion was brought to compel attendance. Master Caldwell dismissed the application finding that the materials in support were “significantly wanting“. The Court noted that while the evidentiary burden on these applications is not high the Court is not a ‘rubber stamp‘ and some evidence needs to be tendered. Specifically Master Caldwell stated:

There is nothing in the material where counsel opines as to the need for these reports or these examinations to be done, which, as I see the case authority, and in particular, Astels, para. 23, where the court says:

In addition to the paralegal’s affidavit, there was also in evidence a letter from counsel for the defendants to counsel for the plaintiff concerning the proposed medical examination in which counsel for the defendant said:

You will be asking the court to retrospectively decide whether or not the plaintiff was totally disabled the date the action was commenced. Clearly medical opinion in that regard is relevant.

[5] He is opining there as counsel as to the importance and purpose of the Rule 30 examinations. In my view, that sets out a bare minimum, and I do not want to be overly technical because it may or may not be efficient to go on that basis, but in my view there is not a scintilla of evidence here from counsel or otherwise as to the use that this information would be put to. I can certainly speculate and it would appear from the pleadings that I could speculate as to what use it might be made, but far and away from what the minimum level is, it would be nice on these applications to have letters or some kind of material from a doctor opining as to why they need to see the person. That certainly goes beyond what would be needed, but in my view, Astels puts down a bare minimum.

[6] And as I say, I may be being overly technical, but I do not think so. These are not rubber-stamp applications and they cannot become rubber-stamp applications. There must be some substance relating to what this information is going to be used for and what the focus is going to be. And, frankly, having gone over the lunch hour and again read the letters, I can find no such supporting evidence in the material filed by the defendant.

[7] On that basis, this application for today by the defendants is dismissed. It is dismissed without prejudice to their right to re-bring the application on proper material because I think there may be something out there and I think Rule 1(5) does say “on the merits” and it should not be just simply a technical slam-dunk there. But the application on the basis of the material before me has to be dismissed in my respectful view. It has to be dismissed on the basis that costs will be to the plaintiff in any event of the cause on this because the material brought by the defence simply is not adequate. The issue of costs in subsequent application, should the defence seek to bring such an application, can be dealt with by the court that hears that application.

As with all civil procedure cases I will cross reference this with the New BC Supreme Court Civil Rules. Rule 30 is replaced with Rule 7-6 and the wording is almost identical under the new rules making precedents such as this one useful under the soon to be in place new system.