Tag: DME

Multiple Medical Exams When Initial Experts Come up Short

There is wide discretion for the BC Supreme Court to order a plaintiff to be examined by multiple defence expert witnesses where the alleged injuries call for it.  While the law does not allow multiple exams to be conducted simply to get “the best expert” on each area in dispute, where initial experts come up short due to limitations in their area of expertise further examinations may be allowed.  This was demonstrated in reasons released today.
In today’s case (Garford v. Findlow) the Plaintiff was injured in two collisions.  In the course of her lawsuit she agreed to be examined by three defence physicians, namely an orthopedic surgeon, a dentist and a neurologist.  When the Defence asked for a further exam with a psychiatrist the Plaintiff drew the line.  The Court found, however, despite the multiple exams a further expert was warranted as the existing experts pointed to psychiatric issues playing a role in the Plaintiff’s condition and conceded this was an area out of their expertise.  In allowing the exam Master Bouck provided the following reasons:

[37]         In this case, I find that Dr. Miller’s examination is not an attempt to bolster an earlier opinion of another expert. Neither Drs. Piper, Gershman nor Dost provide a medical opinion on the plaintiff’s mental health, nor do any of them address the cause of the mental health complaints. These physicians comment on Ms. Garford’s mental health condition but no diagnosis is made with deference given to a psychiatrist to make such findings. It is pure speculation that Dr. Stewart-Patterson will provide a diagnostic opinion. Regardless, Dr. Stewart-Patterson’s credentials do not closely resemble those of a psychiatrist.

[38]         Given these findings, I am not at all certain that the defendants are required to meet the higher standard stipulated in Hamilton v. Pavlova. None of the authorities suggest that there is an absolute limit on the number of independent medical examinations that may be ordered under Rule 7-6(2). More to the point, all other assessments or examinations have been directed towards the plaintiff’s physical rather than mental condition.

[39]         On the question of timeliness, the defendants say that they will be in a position to serve any expert opinion by February 2, 2015. Whether the plaintiff will be able to assess and respond to any report remains to be seen. Obviously, the court was persuaded in De Corde that the timeliness factor weighed against granting the IME order. However, as the court determined in Critchley v. McDiarmid, 2009 BCSC 28, the order requiring a plaintiff attend an IME relatively close to trial does not necessarily mean that the trial will be adjourned or the plaintiff prejudiced: paras. 11?14.

[40]         In my view, the defendants are not required to show any exceptional circumstances as this is not an application for a subsequent examination by an expert in the same field or a multidisciplinary assessment as was the case in Wildemann v. Webster.

[41]         In terms of proportionality, the plaintiff has been out of the workforce for four years and is not expected to return to her pre-accident employment as a dental assistant. It is apparent that there will be a significant claim for both past and future income loss. The plaintiff’s claim for special damages is also indicative of the amount involved. I accept defence’s unchallenged submission that Ms. Garford will be seeking damages well in excess of $100,000 at trial. As with the court in Kim v. Lin, I find that the SCCR 1-3 factors in this case favour the order being made.

[42]         The plaintiff may not be pursuing a psychiatric opinion at this time, but she clearly blames the accidents for her mental health condition and necessity for psychological counselling. In my view, the task of identifying let alone proving other causes or sources for these mental health issues cannot be accomplished by simply cross-examining the plaintiff at trial.

[43]         In conclusion, I find that the plaintiff’s attendance at an IME with Dr. Miller will put the parties on an equal footing in terms of addressing diagnosis and causation of the plaintiff’s mental health condition. The examination may also address the interplay of the plaintiff’s mental and physical complaints.

"Belt and Suspenders" Exam Denied in Face of Previous Opinion on Plaintiff's Medical Condition

As previously discussed, while the BC Supreme Court Rules permit multi-disciplinary defence medical exams in appropriate circumstances.  Once a Defendant obtains an opinion from a properly qualified expert with respect to the Plaintiff’s alleged injury, a further exam will not be ordered to bolster the opinion of the initial expert.  This is sometimes referred to as the “Belt and Suspenders” principle.  Reasons for judgement were recently published by the BC Supreme Court, Victoria Registry, further addressing this issue.
In the recent case (Knowles v. Watters) the Plaintiff alleged she suffered from balance issues including imbalance, dizziness and light-headedness due to a motor vehicle collision.  In support of her case the Plaintiff tendered reports from a neurologist  psychologist, an otolaryngolosit and a general practitioner    The Plaintiff’s otolaryngologist opined that the dizziness issues were “multifactoral” in origin   .
The Plaintiff agreed to see a defence expert who opined that “there was nothing in my evaluation to suggest that she has sustained any injury to her peripheral balance mechanisms, including the inner ear vestibular mechanisms“.  The Defendant then sought  an additional exam with an ENT to further address this issue.  Master McCallum dismissed the application finding the Defendant already had an opinion on the issue and a further expert was not warranted in the circumstances   In dismissing the application the Court provided the following reasons:
[8]             The defendant says that Dr. Moll’s report is restricted to neurological functions, and is not a complete answer or a complete response, if it were looked at in that way, to what Dr. Noel had to say. The defendant says that can only be accomplished by an examination by Dr. Bell.
[9]             In this case the defendant has had the opportunity the authorities require to essentially balance the playing field. Counsel are agreed that the authorities I have been cited are to that effect. The court’s job is to ensure that there is a so-called level playing field or that the parties have the opportunity to deal with the case fairly on the merits.
[10]         The plaintiff here has, as is always the case, the opportunity to visit various specialists and get various reports. The defendant’s opportunity is limited to reports necessary to ensure that a fair trial can be obtained on the merits. In this case it is too fine a distinction to make to say that Dr. Moll, who made a comprehensive examination and gave a comprehensive report on the plaintiff’s balance complaints, can be distinguished from what Dr. Bell might or might not do as an otolaryngologist. There is no evidence to say that Dr. Moll was unable to make the report he did, that if he had had more information he might have made a different report, or indeed that if he had seen Dr. Noel’s report that he might have come to a different conclusion. None of that is the case. The plaintiff has disclosed its reports to date. The defendant has had a fair opportunity to respond to those reports. Dr. Moll’s report is indeed a complete response to Dr. Noel’s report. The plaintiff’s own report from Dr. Noel does not suggest that there is an underlying otolaryngological cause to the plaintiff’s symptoms. He says that the ENG test was normal except for one abnormality that he says is most likely due to other causes. Dr. Noel says the symptoms were multifactorial, not related to one issue. That is at odds with what Dr. Moll has to say, but that is what the jury will have to decide when the case comes to trial.
[11]         This is not a case where the defendant has made out the burden on him to demonstrate that this application is necessary. The application is dismissed. Costs should go as costs in the cause. There is no reason to depart from the usual rule.

ICBC Part 7 Exam Once Again Thwarts Defence Medical Exam Request

Earlier this month I discussed a case dismissing a defence application for an ‘independent’ medical exam where the Plaintiff already attended an ICBC arranged medical examination.  Further reasons for judgement were released by the BC Supreme Court, Vancouver Registry, with the same disposition.
In this week’s case (Soczynski v. Cai) the Plaintiff was injured in a 2008 collision.  Both she and the Defendant were insured by ICBC. As is the usual practice in BC, the same ICBC adjuster was handling the Plaintiff’s claim for no-fault benefits and also her tort claim.
The adjuster arranged an independent medical exam with an orthopaedic surgeon.  The Plaintiff attended.  In the course of the lawsuit the Defendant brought a court motion to compel the Plaintiff to be examined by a second surgeon.  The motion was dismissed, however, with the Court finding that the previous ICBC exam created a ‘level playing field’.  Master McDiarmid provided the following useful reasons:
[21] In reviewing the facts in this case, and keeping in mind the main principle to be looked at here, the principle of keeping the parties on an equal footing, I find that in the circumstances of this case, and in particular, the fact that the ICBC adjuster was handling both the Part 7 and tort claims, and did not respond when she knew that the plaintiff’s position was that the examination in front of Dr. Bishop was to deal with both those claims, I find that the examination which took place at the behest of ICBC on January 27, 2009 by Dr. Paul Bishop constituted the first medical examination as contemplated by Rule 7-6(1). The defendants want a further examination by another medical practitioner who practices in the area of orthopaedics. The plaintiff is not relying on any orthopaedic specialists. Keeping in mind the “level playing field” principle, it is not appropriate to order a further examination of the plaintiff by a medical practitioner having expertise in the area of orthopaedics.
For an example of a recent case where an ICBC Part 7 exam which went beyond Part 7 matters did not prohibit a tort Defence Medical exam you can click here to read Master MacNaughton’s recent reasons for judgement in Assalone v. Le.

ICBC's Part 7 Exam Thwarts Defence Medical Exam Application

As previously discussed, when a Defendant is insured with ICBC their ability to set up an ‘independent‘ medical exam can be compromised if ICBC exercised their rights to have the Plaintiff examined under section 99 of the Insurance (Vehicle) Regulation and if that exam went beyond what was required for a ‘part 7’ opinion.  Reasons for judgement were recently released by the BC Supreme Court, Rossland Registry, demonstrating such an outcome.
In the recent case (Wocknitz v. Donaldson) the Plaintiff was injured in a 2008 collision.  Both the Plaintiff and Defendant were insured by ICBC.  Before litigation got underway ICBC had the Plaintiff assessed by a physiatrist.   As is not uncommon with these types of examinations, the report generated exceeded the narrow scope of Part 7 Benefit needs.
In the course of the lawsuit the Plaintiff obtained their own expert opinion from a physiatrist.  The Defendant’s brought an application to compel the Plaintiff to be assessed by another physiatrist and by a psychiatrist.  They argued this was necessary to ‘level the playing field’.  Mr. Justice Pearlman disagreed and dismissed the application.  In doing so the Court provided the following helpful reasons:

[14] In Robertson v. Grist, 2006 BCSC 1245, at paragraph 14, Madam Justice Dillon addressed the question of whether a Part 7 examination constitutes a first independent medical examination for the purposes of a tort claim. She said this:

[14]      Whether the Part 7 examination constitutes a first independent medical examination depends upon the scope of the examination, given the rest of the circumstances here.  There was no limitation on Dr. Jaworski’s examination and the request letter covered matters that would solely be relevant to a tort action.  The doctor’s report was not limited to a rehabilitation opinion about whether the injuries sustained in the accident totally disabled the plaintiff from work within 20 days of the accident and for a period of 104 weeks or less, the criteria in section 80 of the Part 7 benefits Regulations.  The examination was a first independent medical examination within the meaning of Rule 30.

[15] In this case, the letter from the adjustor instructing Dr. Findlay has not been put in evidence.  However, it is clear from Dr. Findlay’s report that it deals with matters which go beyond an inquiry restricted to Part 7 benefits, and deals with matters directly relevant to the tort claim. ..

[19] In this case, there have been no subsequent unforeseeable events which would, in my view, warrant a second examination by a physiatrist.

[20] With respect to the application of the defendants for an order for an independent medical examination by a psychiatrist, again this is not a case where such an examination is required in order to level the playing field.  This is not a case where the plaintiff has obtained or intends to obtain a psychiatric report.  An independent medical examination by a psychiatrist is a particularly invasive form of examination and, in the circumstances of this case, it is not one that I would be prepared to order.

[21] With respect to the defendants’ submission that because Dr. Findlay provided his report some nine months after the accident, he was not in a position to pronounce in any definitive way with respect to a prognosis, in my view the timing of Dr. Findlay’s examination was a matter that was entirely within the control of the defendants.  That does not provide a basis which would justify an order for a second independent examination by a physiatrist.  As counsel for the plaintiff has pointed out, it would still be open to the defendants to have Dr. Findlay review the report of Dr. Valentine, and the clinical records that have been produced, and to provide a rebuttal report for use at trial.

[22] The application of the defendants for the two independent medical examinations sought is dismissed.

Multiple Defence Medical Exams: The Prohibition of "Belt and Suspenders" Applications


While the Rules of Court permit Defendants to compel a Plaintiff to attend multiple medical exams in certain circumstances, there is a general prohibition in having multiple exams to address the same topic.  Reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, dismissing an application in these circumstances calling it a “belt and suspenders application“.
In today’s case  the Plaintiff was injured in a motor vehicle collision.  In the course of the claim she attended numerous ‘independent‘ medical exams with physicians selected by the Defendant.   Some of these physicians opined that the Plaintiff’s difficulties were not from the collision but due to “opioid dependencies“.
The Defendant asked that the Plaintiff attend a further exam with Dr. Baker, a so -called “addictionologist“.  The Plaintiff refused and an application was brought.  Master Baker dismissed the application noting the general prohibition of multiple exams to bolster a previous opinion.  In dismissing the application the Court provided the following helpful reasons:

[7] To get back to the point, the defence’s position is that some or much of these difficulties relate to, they say, opioid dependencies that have arisen in advance of this motor-vehicle accident.  This is denied or contradicted by the report of her family physician, Dr. Singhal.

[8] Dr. Baker a specialist, in this area, not just of addiction and addiction parameters or aspects of that, but also chronic pain management, I understand.  Even the brief c.v. to which I was referred was impressive.  His membership in various societies, the committees he serves on, all of which impressed me.

[9] Having said all that, I cannot see that this case is in any significant way distinct from that decided by Mr. Justice Voith, to which I just referred.  With greatest respect, at least two specialists for the defence have commented on, concluded, and been quite specifically direct that they regard (the Plaintiff) as having been either habituated, as one — Dr. Smith, I think, said it — or dependent, euphemistically perhaps, addicted to opioids.  This has had consequences for her recovery, or her response to the accident.

[10] I agree entirely, with greatest respect, with Mr. Justice Voith and his impression of the case that he decided.  I agree that there’s no doubt that Dr. Baker has greater expertise on that particular point.

[11] But as Mr. Justice Voith says, that’s not the measure of whether or not to direct an I.M.E.  The phrase — I know it has a pejorative ring to it — but it was used at least a couple of times, once by me — that this is a “belt and suspenders application” by the defence.  They already have expert opinion on the subject.

[12] They were met, from the plaintiff’s perspective, by opposition to Dr. Hashimoto opining on that aspect.  The view, as taken by the plaintiff, that Dr. Hashimoto is not qualified to give this opinion that’s outside his expertise.  They have not taken that perspective in respect of Dr. Smith.

[13] It doesn’t really matter to me whether they did or didn’t, because whether or not a second or subsequent I.M.E. should be ordered does not rely upon the plaintiff’s opinion as to the admissibility of an expert’s opinion, or in fact any other evidence.  That is for the court to decide; and it is, with respect, for the defence to structure its case and its strategies.

[14] I am satisfied, on the circumstances and facts before me, that this does constitute a situation in which the defence is wishing to bolster the opinion of Dr. Smith at least, and possibly Dr. Hashimoto, with the further and yes, more focused opinion of Dr. Baker.

[15] The law in this area does not support that course.  That is sufficient, in my respectful view, to decide the issue.

For the sake of convenience I should point out that the decision of Mr. Justice Voith that Master Baker referenced was Zawadzki v. Calimoso which was recently transcribed and can be found here.

Conflicting Duties? Treating Doctors Duties to Their Patients and to the Court


As previously discussed, one of the biggest changes in the New BC Supreme Court Civil Rules is an overhaul to the requirements for admissibility of expert opinions.  These changes have created some tension in personal injury claims.
In no area of law are expert opinions used more frequently than in personal injury lawsuits.   The opinions of treating physicians are often crucial in the success of a personal injury claim.  In fact, if a plaintiff fails to call their own doctor in support of their case the Court could draw an ‘adverse inference‘ and assume the doctor will say something negative.
One of the changes imposed by the New Rules is a requirement that experts certify that their duty is to “assist the court and not to be an advocate for any party“.  In reality, this requirement always existed although it was not specifically spelled out in the former rules.   Despite this, some treating physicians have been concerned with this new explicit requirement and refuse to provide expert opinions on the basis that they feel they are ethically required to be advocates for their patients.
Fortunately, the BC College of Physicians and Surgeons has squarely addressed this concern and informed their members that the New Rules of Court are not inconsistent with doctors duties to their patients.  Specifically, in the September 2010 issue of the College’s quarterly publication physicians were advised as follows:
The College does not view the New BC Supreme Court Civil Rules to be in conflict with the Canadian Medical Association Code of Ethics, including the fundamental responsibility to consider first the well being of the patient.  With respect to the duty imposed under Rule 11-2 the College has always expected physicians providing expert reports to be fair, objective, and provide opinions that are supported by available information.
This expectation applies equally to physicians whether they are appointed by the plaintiff, defence, jointly or by the Court.  Additionally, whether physicians are acting as experts in the capacity of treating physicians or independent medical experts, they still must provide balanced and objective reports.   The College does recommend that, when asked to provide an expert opinion, treating physicians discuss with their patients the physician’s duty to assist the court and not be an advocate for any party.
The truth of the matter is that treating doctors should be advocates for their patients health.  They should not be advocates for their patients personal injury claims or other legal matters.  The above clarification will hopefully assist physicians who have felt conflicted from providing opinions under the New Rules of Court.

"Proportionality" and Multiple Independent Medical Exams


One of the biggest changes in the New BC Supreme Court Civil Rules is the requirement that the court secure the determination of a proceeding in ways that are “proportionate to the amount involved in the proceeding, the importance of the issues in dispute, and the complexity of the proceeding“.
Reasons for judgement were released today considering this concept in relation to ICBC’s request for multiple independent medical exams in an injury lawsuit.
In today’s case (Kim v. Lin) the Plaintiff was injured in a 2006 BC collision.  She sued for damages and ICBC defended as statutory third party.  The Plaintiff gave evidence at her discovery that she suffered from pain in numerous areas in her body including “problems with her eyes, ringing in her ears, neck pain, problems with her shoulders and shoulder blades, her upper back, her hip, her lower back, bruising to her hips, leg, knee and ankle pain, as well as headaches, dizziness, hair loss, weight problems and a variety of emotional problems, including impaired memory and concentration, sleep, fatigue and decreased energy levels“.
In the course of the claim the Plaintiff attended two medical appointments arranged by ICBC, the first with a neurologist, the second with a psychiatrist.   ICBC had also secured reports from two of the Plaintiff’s treating physicians.  ICBC wished to have the Plaintiff assessed by an orthopaedic surgeon but the Plaintiff refused arguing such an application was not necessary.  Mr. Justice Voith ultimately decided that this assessment was necessary in order to ‘balance the playing field’ and ordered that the Plaintiff attend.
In reaching this decision the Court considered the role that proportionality plays when a defendant asks a plaintiff to attend multiple independent medical exams.  Mr. Justice Voith provided the following useful discussion:

[28]        Finally, I turn to the relevance of the severity of the plaintiff’s injuries and the alleged impact of those injuries on Ms. Kim. These issues are also germane to the plaintiff’s submission that “proportionality” should influence the outcome of this application. While R. 1-3(2) establishes that “proportionality” is an over-arching consideration which informs the interpretation and implementation of the Rules, its significance, however, is greater for some Rules then for others.

[29]        Thus, for example, the former R. 26, which related to document production, imposed a uniform obligation to produce documents under the well-known Peruvian Guano standard, affirmed inFraser River v. Can-Dive, 2002 BCCA 219 at 12, 100 B.C.L.R. (3d) 146. Rule 7-1(1) has modified this uniform standard. Instead, Rules 7-1(11)-(14) dictate how and when the production of additional documents may be required. Within this regime, “proportionality” will no doubt have much influence.

[30]        In other cases or for other Rules, however, the reality is that “proportionality”, though not expressed in precisely those terms, has historically and inherently already played a significant role. The former R. 30(1) is an example of this. Under R. 30(1), courts routinely considered, as one of many factors, the severity of the plaintiff’s injuries and the potential magnitude of the plaintiff’s claim in addressing the appropriateness of further independent medical examinations.

[31]        Thus, for example, in Gulamani v. Chandra, 2008 BCSC, 1601 Madam Justice Arnold-Bailey, in addressing the factors that underlay her decision said, in part, at para.34:

…Third, the nature of some of the plaintiff’s claims in this case, including a thoracic outlet syndrome and chronic pain syndrome, and the plaintiff’s claim relating to her ongoing physical and mental disability such that she is unable to practice her profession and properly care for her family, make it a case of significant size and medical complexity.

[32]        Similarly, the former R. 68, regarding expedited litigation, engaged in very similar considerations, with its reference to “proportionality” in R.68(13) and its presumptive direction of “not more than one expert” in R.68(33).

[33]        Ms. Kim is a young woman. She says she suffers severely from multiple complaints. She asserts that many of these injuries are acute in terms of their severity and the ongoing difficulty they cause her. By way of example, and without addressing each of her injuries, Ms. Kim claims that she presently suffers from both headache and neck pain which she rates on a pain scale at an 8 or 9 out of 10, where 0 equates to no pain and 10 equates to such severe pain that it would cause one to seek emergency medical treatment. She has discontinued her studies. The report of Dr. Tessler at page 3 indicates that she now only works two days a week.

[34]        If it can be established that Ms. Kim’s present circumstances were caused by the Accident, the “amount involved” in her claim has the prospect of being quite significant, a relevant consideration under R.1-3(2)(a). Similarly, the “issues in dispute”, a relevant consideration under R.1-3(2)(b), are important for both parties.

[35]        Accordingly, I am satisfied that considerations of “proportionality” do not militate against the third party’s application but rather support the appropriateness of the medical examination before Dr. Kendall that it seeks. Further, I do not consider that the purpose of the report of Dr. Kendall can properly be said to either bolster the report of Dr. Tessler or to undermine its findings. Instead, I am satisfied that a further examination of Ms. Kim by Dr. Kendall is necessary to have the plaintiff’s concerns properly addressed by a physician with the requisite or appropriate expertise.

ICBC Tort Claims, Part 7 Benefits and Multiple "Independent" Medical Exams


As I’ve previously written, ICBC can typically arrange an ‘independent’ medical exam (IME) in one of two ways.  The first is when an ‘insured’ applies for first party no-fault benefits.  Section 99 of the Insurance (Vehicle) Regulation gives ICBC the power to compel an IME in these circumstances.  The second is under Rule 7-6(1) of the BC Supreme Court rules which allows the court to order an independent exam to “level the playing field” in an injury lawsuit.
As a monopoly insurer ICBC often has one adjuster assigned to look after a person’s claim for no-fault benefits and at the same time look after the defendant’s interests in the Plaintiff’s tort claim.  Often times ICBC will obtain a no-fault benefits medical exam and then once a tort claim is launched seek a second exam with a different physician pursuant to the BC Supreme Court Rules.  Can ICBC do this?  The answer is sometimes yes but is highly factually dependent and reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with this area of law.
In today’s case (Imeri v. Janczukowski) the Plaintiff was injured in a motor vehicle collision in 2005.  The Plaintiff and Defendant were insured with ICBC.  The same ICBC adjuster was looking after the Plaintiff’s no-fault benefits claim and acting on behalf of the defendant in the tort claim.  ICBC sent the Plaintiff for an IME with an orthopaedic surgeon (Dr. Boyle) as part of the no-fault benefits application process.  In the course of the tort claim the Defendant then sought an order sending the Plaintiff for an IME with a different orthopaedic surgeon (Dr. McGraw).  The Plaintiff opposed this motion and argued that if ICBC is entitled to a second exam it should be with the the same doctor.  Master Shaw sided with the Plaintiff.  In doing so the Court provided the following useful reasons:

[17]        Rule 7-6(1), which is the new Rule 30, provides as follows:

Order for medical examination

(1) If the physical or mental condition of a person is in issue in an action, the court may order that the person submit to examination by a medical practitioner or other qualified person, and if the court makes an order under this subrule, the court may also make

(a) an order respecting any expenses connected with the examination, and

(b) an order that the result of the examination be put in writing and that copies be made available to interested parties of record.

[18]        In Stainer v. Plaza, 2001 BCCA 133, Finch J.A. (as he then was) said at para. 8:

… the purpose of Rule 30 is to put the parties on an equal footing with respect to medical evidence.

[19]        Although the first question would be whether the defence needs an IME of an orthopaedic specialist to put the parties on an equal footing with respect to medical evidence, counsel for the plaintiff did not oppose the plaintiff attending a defence IME with an orthopaedic specialist as long as it was Dr. Boyle. The plaintiff agrees to go back to Dr. Boyle for the IME.

[20]        The plaintiff’s submission is that the plaintiff has already attended a first IME for tort purposes with Dr. Boyle and, if a further IME is appropriate, it should be a follow-up with the original expert for the defence.

[21]        In Rowe v. Kim, 2008 BCSC 1710, Master Keighley at para. 14 states:

A party seeking to have a second examination preformed by a practitioner practicing in the same speciality or discipline as a practitioner who has already examined a person faces an uphill battle: Hothi v. Grewal, [1993] 45 B.C.L.R. (3d) 394 (SC); Hamada v. Semple, [1983] B.C.J. No. 1307 (SC). Successful applicants are those who are able to demonstrate that something has happened since the first examination which could not have been foreseen or which could not, for some other reasons, have been addressed by the first examiner. It also seems to me that material filed in support of the application should indicate why a further examination by the doctor who performed the original assessment is not appropriate.

[22]        The evidence submitted in this matter does not set out why it would not be appropriate to send the plaintiff back to Dr. Boyle. There was no evidence why Dr. McGraw should be preferred over Dr. Boyle.

[23]        The plaintiff does not resist seeing Dr. Boyle. It is not necessary to find sufficient reasoning for the further examination by Dr. Boyle.

[24]        I find the February 28, 2006 report of Dr. Boyle contains opinion relevant to both the Part 7 claim and the tort claim. The defence has not provided any evidence to explain the opinion content in the report relevant to the tort claim, other than the statement of the adjuster in her letter to the plaintiff setting the appointment that the IME is for the Part 7 claim purposes. It is not known what the request or instructions to Dr. Boyle were. Based on the content of the resulting report, there is opinion relevant to the tort claim. I find the IME by Dr. Boyle on February 28, 2006 is a first examination by an orthopaedic specialist in the tort claim as well as for a Part 7 claim.

The New BC Supreme Court Rules and "Responsive" Expert Reports


Important reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, interpreting and applying Rule 11-6(4) for the first time.  This rule deals with “responsive” expert opinion evidence.
Under the old Rules of Court parties could call responsive expert evidence without notice provided the evidence was truly responsive.  The new rules of court changed this and require responsive expert reports to be served 42 days ahead of the scheduled trial.
In today’s case (Wright v. Bower) the Plaintiff was involved in a motor vehicle collision and alleged chronic back pain as a result of the crash.  Her lawyer served expert reports addressing these injuries in compliance with the time lines set out in the rules of court.  The Defendant brought a motion to compel the Plaintiff to attend an examination with an orthopaedic surgeon in order to obtain a ‘responsive’ report.  The Plaintiff opposed arguing that an examination was not necessary for the Defendant to obtain a truly responsive report.  Mr. Justice Savage agreed with the Plaintiff and dismissed the motion.  In doing so the Court provide the following useful reasons setting the parameters for responsive expert evidence:

[12]         Rule 11-6(4) was enacted to fill a lacuna in the Rules.  Under the former Rules, Rule 40A permitted parties to call expert evidence in reply without notice at trial.  In order for such evidence to be admitted, however, it had to be truly responsive to the expert evidence of a witness called by the opposing party.

[13]         In Stainer, supra, the British Columbia Court of Appeal considered Rule 40A(3) and the scope of the Court’s discretion to admit responsive evidence.  At paragraphs 16-18, Finch J.A. said:

[16]      …The admission of expert evidence is now governed by Rule 40A(3)

An expert may give oral opinion evidence of a written statement if the opinion has been delivered to every party of record at least sixty days before the expert testifies.

[17]      That rule applies equally to all parties.  In the normal course, a defendant will wish to protect his right to adduce expert evidence at trial by giving the notice required by that rule.  But the court retains a discretion to admit responsive evidence of which notice has not been given:  Pedersen v. Degelder (1985), 62 B.C.L.R. 253 (B.C.S.C.); Kroll v. Eli Lilly Canada Inc. (1995), 5 B.C.L.R. (3d) 7 (S.C.); and Kelly v. Kelly (1995), 20 B.C.L.R. (3d) 232 (S.C.).  In the latter case Mr. Justice Williamson said:

I would restrict, of course, as courts I think must, the practice of having opinion evidence without notice strictly to truly responsive rebuttal evidence, and I think that if that rule is carefully observed, there should be no difficulties.

[18]      That is, in my respectful view, a correct statement of the proper practice. …

[15]         Amongst other things, the parties argued before me regarding whether the new Rules have substantively changed the practice which existed under Rule 40A.  They agreed that this is an important practice point, and a case of first impression.

[16]         Rule 40A gave the Court discretion to admit responsive evidence of which notice had not been given.  Rule 11-6(4) now provides that notice must be given of responsive expert evidence (although I note that the Court retains discretion to admit expert evidence of which sufficient notice has not been given).

[17]         I would expect that, in the ordinary course, an examination would be ordered under Rule 7-6(1) where a person’s medical condition was in issue in an action, provided it was requested in a timely way.

[18]         However, at this point in time in the action, the defendants are limited to what Mr. Justice Williamson referred to in Kelly, supra, as “truly responsive rebuttal evidence”.  The application must be considered in that light; the question on this application is not one of notice, but whether the Examination should be ordered to enable the defendant to file responsive evidence.  The authorizing Rule, 7-6(1) uses the term “may”.

[19]         In Kroll v. Eli Lilly Canada Inc. (1995), 5 B.C.L.R. (3d) 7, Sanders J., as she then was, noted that “true response evidence, does not permit fresh opinion evidence to masquerade as answer to the other side’s reports”.

[20]         In C.N. Railway v. H.M.T.Q. in Right of Canada, 2002 BCSC 1669, Henderson J. considered the admissability of “reply reports” holding that only the portions of the reports that provided a critical analysis of the methodology of the opposing expert were admissible as responsive evidence.  The portions of the reports describing the authors’ own opinions on the matters in issue were not admitted.

[21]         In this case, the defendants do not explain why an examination is required in these circumstances, other than a statement by a legal assistant that counsel says such is “necessary to properly defend this action and to respond to the reports of Dr. Weckworth and Dr. O’Connor”.  Master McCallum in White v. Gait, 2003 BCSC 2023 declined to order an examination where it had not been shown why such was required to produce a responsive report.

[22]         In my opinion, the bare assertion reported to a legal assistant in this case is insufficient to support an order under Rule 7-6(1) that the plaintiff attend the Examination, when the defendants are limited to providing response reports under Rule 11-6(4).  In the circumstances, the application is dismissed.  The plaintiff is entitled to costs of the application.

Defence Medical Exams – Best Expert Not Required to "Level the Playing Field"

(Update: November 14, 2011The case discussed in the below post in now publicly available.  Master Scarth’s reasons for judgement can be accessed here)
Further to my previous posts about Independent Medical Exams in BC Supreme Court Injury Claims unpublished reasons for judgement recently came to my attention (Hou v. Kirmani BCSC Vancouver Registry, 20091119) dealing with the ability for a Defendant to have an injured party undergo multiple exams where the first defence expert feels an opinion from a second expert would be of benefit.
In this recent case the Plaintiff was a pedestrian who was apparently struck by a vehicle.    She suffered “multiple injuries including traumatic brain injury“.  One of her most serious injuries was a foot and ankle injury.  She consented to attend a Defence Medical Exam with an orthopaedic surgeon.  He provided the following opinion:
(the Plaintiff) would benefit from an opinion from a foot and ankle orthopaedic surgeon, as further surgical intervetnion may be of benefit to her and this might include surgical correction of her deformity so as to allow her to bear weight and walk short distances more appropriately. …I do not feel further passive treatment for her left foot and ankle will be of any benefit to her..
The Defendant brought a motion to compel the Plaintiff to be examined by a second orthopeadic surgeon, this time one with a specialty in foot an ankle injuries.  The Plaintiff opposed arguing a further exam was not necessary.  Master Scarth agreed and dismissed the motion.  In doing so the Court made the following comments about the purpose and limitations of Defence Medical Exams:
…I am not of the view that Rule 30 is intended to allow follow-up on every issue which is raised by experts who examine the plaintiff.
Dr. Arthur was chosen, and I accept the submissions of the plainitff in this regard, with the knowledge that there were concerns regarding this plaintiff’s ankle.  Thee is, it is fair to say, nothing new since Dr. Arthur was retained, apart from his reticence to provide an opinion.  And he does not say, I do not believe, that he is not qualified to give the opinion which is missing, if it is missing.  He simply says, I think it is fair to conclude, that in the best of all worlds she would be seen by an orthopaedic surgeon with a subspeciality training.  In my view that is not the purpose of Rule 30.
As mentioned above, this is an unreported judgement but if anyone wants a copy feel free to contact me and I’ll be happy to e-mail a copy of the transcript.

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ERIK
MAGRAKEN

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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.

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