More on the DME Prohibition of Bolstering Previous Opinions
While Plaintiff’s in personal injury lawsuits sometimes have to be subjected to multiple defence medical exams (DME) one well-settled principle is that subsequent exams to bolster a previous defence opinion are not permitted. Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, demonstrating this principle in action.
In last week’s case (Dillon v. Montgomery) the Plaintiff was involved in two motor vehicle collisions. He sued for damages with both claims set for trial at the same time. In the course of the lawsuit he agreed to attend a defence medical exam with an orthopaedic surgeon. The examination included a neurological assessment.
The Defendant then applied for a second exam, this time with a neurologist, arguing this was necessary “to ensure reasonable equality between the parties in the preparation of a case for trial“. Master Bouck disagreed finding a further exam was not necessary in the circumstances and amounted to an effort to “bolster” the previous opinion. In dismissing the application the Court provided the following reasons:
[17] Dr. McGraw reviews the findings contained in the neurological consult report in his own report. In additon, Dr. McGraw conducted a neurological examination.
[18] This expert’s opinion is that the plaintiff’s “back pain is of muscular origin and not related to intervertebral disc disease, arthritis of the apophyseal joints, or nerve root irritation”…
[28] In the case at bar, I determined that an examination by Dr. Moll is not necessary to put the parties on equal footing.
[29] First, there was nothing new in the medical evidence since the examination by Dr. McGraw that might justify an examination by a neurologist. The only alleged new information is the plaintiff’s ongoing complaints of tingling in his arms and legs. These complaints are of long standing and even pre-date the accidents.
[30] Second, a neurological opinion has been obtained [by the plaintiff] which negates any correlation between the plaintiff’s symptoms and the motor vehicle accidents. Indeed, Dr. Shtybel’s resident made no findings of neurological impairment whatsoever. In other words, the only purpose of an independent medical examination by a neurologist would be to prove a negative, or, perhaps bolster Dr. McGraw’s opinion. This circumstance is different than the one considered in Kim v. Lin where there had yet to be any medical opinions proferred to explain ongoing (and even worsening) accident related complaints.
[31] Finally, the fact that the plaintiff has ongoing complaints that may be considered neurological symptoms does not warrant this second examination. The defence is “not entitled to pursue every potential medical possibility” to address the plaintiff’s subjective complaints: Lowry v. Spencer, (10 December, 1990) Vancouver Registry No. B883909 as cited in Trahan v. West Coast Amusements Ltd., 2000 BCSC 691 at para. 49.
For more on this topic you can click here to access my archived posts summarizing the judicial application of Rule 7-6(2).