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:
 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.
 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.
Earlier this year reasons for judgement were released declining to reimburse a private MRI cost as a disbursement due to lack of evidence of urgency. Reasons for judgmeent were released last week by the BC Supreme Court, New Westminster Registry, reaching a similar conclusion.
In last week’s case (Kumanan v. Achim)the Plaintiff was injured in a collision and her treating physicians requested an MRI for diagnostic purposes although the need for this was described as “non-urgent”.. The Plaintiff arranged the MRI through a private facility. In declining the disbursement associated with the private MRI the Court noted that while there was nothing unreasonable about obtaining an MRI in there was no evidence justifying straying through the MSP system. In rejecting the disbursement the Court provided the following reasons:  In evidence was a note from Dr. Harji dated July 16, 2011 that read: For diagnostic clarification in regards to this individual’s MVA related injuries, I would advise MRI of cervical and lumbar spine. I would avoid radiation based imaging, i.e. x-rays and CT as well as bone scans.  On July 17, 2011, Dr. Suddall who was a physiatrist scheduled to examine Ms. Kumanan also requested an MRI examination of her cervical and lumbar spine. His note read: Persistent neck and back pain with minor right sided hand and leg symptoms. Difficulty functioning and remains unable to resume working. X-ray report, CT report pending from Mount St. Joseph Hospital. I have asked patient to proceed with MRI of cervical and lumbar spine privately via lawyer and ICBC.  Importantly, Dr. Harji describes the Plaintiff’s status for this purpose as non-urgent…  …In this case, there was no trial date pending when the MRI examination was requested by the two physicians. Rather, a notice of trial was not filed until August 2012 reserving a trial date for March 2013. As matters transpired, this case settled in February of 2013.  I was not provided with any evidence as to what the wait time may have been to have the MRI examination done in the public health care system. It is also noteworthy that while the recommendation for the MRI examination was made in mid July 2011 it was not acted upon until after some other x-rays were done in October 2011 and only after that, on November 2nd, 2011, was the MRI examination done.  I am left to wonder whether that if a place had been reserved in the public health care system in July 2011, the Plaintiff might not have had the MRI examination done if not by November of 2011, not too much longer thereafter.  Accordingly, I am not satisfied that it was reasonable to incur this expense when it was incurred and it is disallowed.
Adding to this site’s arcived decisions addressing the recovery of private MRI costs as a disbursement, reasons for judgement were released recently by the BC Supreme Court, Victoria Registry, disallowing such a claim.
In the recent case (Cooknell v. Quinn) the parties could not agree on the reasonableness of a variety of disbursement items including a privately funded MRI. In rejecting this item Master Bouck held that the claim must fail as there was no evidence supporting the need for a privately funded MRI. Master Bouck provided the following reasons:  Dealing firstly with the MRI disbursement, the facts of this case are somewhat analogous to those described by then Registrar Blok in Phelan v. Newcombe.  Although Dr. Smith did recommend an MRI in this case (it is not clear exactly when), there is no explanation offered for proceeding to a private clinic when a publicly funded scan was available — or at least no evidence to suggest that such a process was unavailable. As the MRI charge is disallowed on this basis, I do not need to consider whether such an investigation was necessary or proper.
Reasons for judgment were released last week by the BC Supreme Court, Vancouver Registry, allowing the costs associated with a private MRI to be recovered as a disbursement in a personal injury claim.
In last week’s case (Wu v. Ly) the plaintiff commissioned a private MRI following a motor vehicle collision. This was done following a recommendation of her treating physician. In allowing this disbursement to be recovered District Registrar Cameron provided the following brief reasons:  In Colasimone v. Ng and Mo, 2007 BCSC 1179, Madam Justice Gropper was dealing with an appeal of a decision of District Registrar Blok (as he then was) that allowed the cost of MRI scans as a taxable disbursement. Her Ladyship notes: In his reasons for judgment Registrar Blok describes MRI scans as presenting a “special problem in considering party and party bill of costs.” He notes that MRI scans can be used for either or both treatment and litigation and sometimes the line is blurred. The Registrar concludes: I am satisfied that a sufficient litigation purpose was shown on the evidence before me such that the disbursement was reasonably incurred, necessary and proper in a litigation purpose. Specifically the purpose here was for Mr. Maryn to make a decision about the impending trial. Registrar Blok has considered the “special problem” that MRI scans present in his decision of Ward v. W.S. Lessing Ltd., 2007 BCSC 877. He comments that the cost of MRI scans have been allowed and disallowed as a disbursement. There are cases which support either position, but as the Registrar notes, each turns on its facts. The Registrar continues: If an MRI was performed for the purposes of treatment, then it may be claimed as an item of special damages. If it is used as an aid in the litigation process, then it is properly claimed as a disbursement on a party and party bill of costs. Those are the typical questions that are dealt with when MRIs are at issue. [T]here must be some judgment applied, perhaps with medical input, in considering the necessity for the procedure in a litigation context, given the injuries involved, the likely damages, what the MRI is expected to achieve from a litigation standpoint and so on.  In paragraph 22 of her decision, Her Ladyship concludes by saying, having reviewed all of the evidence: Thus the scans were for two purposes: to determine the extent of the plaintiff’s injuries and for treatment purposes.  In the result Madam Justice Gropper upheld the Registrar’s decision, finding he did not clearly err in finding that the disbursement related to MRI scans was reasonably, necessarily and properly incurred for the purposes of the litigation.  In this case there is evidence before me that the impetus for the MRI was from Dr. le Nobel, who was a treating physician for the Plaintiff and who was continuing to suffer ongoing pain and discomfort some four years following the motor vehicle accident. Because of Dr. le Nobel’s concern about her continuing symptoms and to better assess them, he recommended that an MRI examination be done.  Mr. Wiseman was involved as counsel in the process and pointed out that the cost for the MRI examination was one that was paid directly by him. He was concerned to have the best evidence available to serve as a foundation to most reliably assess the Plaintiff’s claim for damages. I am satisfied that this is one of those cases where the MRI was obtained for two purposes being for diagnosis and also to assist the Plaintiff and her counsel in better evaluate and present her claim for damages.  Mr. Chalcraft did not take any issue with the cost of the MRI other than to object to the claim for interest. Mr. Wiseman abandoned the claim for interest, and as a result the MRI disbursement is allowed as claimed in the sum of $1,595.
Reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, disallowing recovery of the costs of a private MRI in a personal injury lawsuit.
In this week’s case (Repmicki v. 616696 BC Ltd) the plaintiff obtained a private MRI in the course of his lawsuit. At settlement the parties could not agree whether this disbursement was reasonable and brought the matter before the Court. District Registrar Cameron held that while having an MRI was reasonable, there was no evidence justifying the expense to be privately incurred. In dismissing the claimed disbursement the Court provided the following reasons:  While the medical evidence that I was referred to satisfies me that obtaining an MRI examination in this case was a reasonable step to take in the Plaintiff’s interest and to assist with a determination of whether or not there was a causal link to her neck, upper back, and lower back injuries and the motor vehicle accident, I am not satisfied that it was reasonable to incur the additional expense to have the MRI examination done in the private healthcare system. I may have been persuaded it was reasonable to do so if, in fact, there was evidence that there was going to be an ongoing and significant delay in having the MRI examination done in the public healthcare system, but that evidence was not before me.  For these reasons, the disbursement will be disallowed.
Reasons for judgement were released last week by the BC Supreme Court, Kelowna Registry (Culos v. Chretien), rejecting compensation for the cost of an MRI recommended by a Massage Therapist. In finding this was not an appropriate special damage in the circumstances (ie -without the request coming from a medical doctor) Mr. Justice Rogers provided the following comments: The plaintiff is not entitled to the cost of the MRI or the magnetic belt that he claims. The former is not recoverable because the massage therapist who recommended it to the plaintiff did not have the qualifications to either prescribe the scan or to interpret its result. The magnetic belt sounds like a bit of Old West quackery. No evidence at trial supplied a foundation for a finding that this belt was necessary to control or cure the plaintiff’s complaints.
Further to my recent post on this topic, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, addressing the recovery of private MRI costs in a personal injury lawsuit.
In last week’s case (Piper v. Hassan) the Plaintiff was injured in a 2006 rear-end collision. The Defendant admitted fault for the crash. The Plaintiff suffered soft tissue injuries and an aggravation of pre-existing back pain and depression. The Plaintiff sought substantial damages at trial although much of the claim was not accepted with the Court finding that much of the Plaintiff’s symptoms would have occurred absent the collision due to pre-existing degenerative changes in the plaintiff’s back.
In the course of the lawsuit the Plaintiff obtained a private MRI. At trial the Plaintiff sought to recover the cost associated with this. The Defendant opposed this arguing it was not a reasonable expense. Mr. Justice Pearlman disagreed and allowed recovery of this item. In doing so the Court provided the following reasons: Mr. Piper also paid $1,975 for the full spine MRI performed May 18, 2007. The defendant submits this was an unnecessary expense. I disagree. Dr. McGrath had recommended an MRI study. At a time when the plaintiff was experiencing increased back pain and sought medical advice to determine its cause and possible treatment, it was not unreasonable for him to pay for a private MRI, rather than wait in line for publicly funded radiology. The full spine MRI assisted both Dr. Yu and Dr. McGraw in their diagnoses of the extent of the plaintiff’s injuries attributable to the motor vehicle accident, showed the progression of degenerative changes to the plaintiff’s spine, and aided Dr. McGraw in forming his opinion that the plaintiff had not suffered a disc herniation. I find that the plaintiff is entitled to recover $1,975 for the MRI study.
Further to my previous posts on this topic, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, disallowing the cost of a private MRI as a special damage in a personal injury claim.
In last week’s case (Madsen v. Bekker) the Plaintiff was injured in a 2006 collision. In the course of the Plaintiff’s lawsuit the Plaintiff obtained three private MRI’s. The Plaintiff advanced the costs of these MRI’s as special damages at trial. In declining to compensate the Plaintiff for these expenses Mr. Justice Truscott provided the following brief reasons: I decline to award anything for the three MRIs because the plaintiff decided to do these on his own, when Dr. Hobson told him that they were not medically indicated. In the circumstances there is no evidentiary basis for such an award.
It is worth pointing out that the costs associated with Private MRI’s can be recovered in a personal injury claims if a medical practitioner gives evidence that the expense is reasonably incurred for a valid medical purpose related to the claim.
Further to my previous post on this topic, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing when an MRI is a reasonable disbursement in a personal injury lawsuit.
In today’s case (Farrokhmanesh v. Sahib) the Plaintiff was injured in two BC collisions. He sued for damages and settled his claims prior to trial. However, the parties could not agree on whether some of the Plaintiff’s disbursements were reasonable. The parties applied to the Court to resolve the issue and Registrar Sainty held that the Plaintiff’s privately retained MRI was not a recoverable disbursement. The Plaintiff appealed this ruling. Mr. Justice Ehrcke dismissed the appeal and in doing so made the following comments about MRI’s in personal injury lawsuits:
 The applicant submits that the Registrar erred in principle by saying that there must be a medical reason for ordering the MRI. In my view, the applicant’s submission seeks to parse the Registrar’s decision too finely. In reviewing the Decision of the Registrar with the appropriate level of deference, it would be wrong to focus on a single word or a phrase taken out of the context in which it occurs.
 When read in context, the Registrar’s reason for disallowing the cost of the MRI is that she found it was not necessarily or properly incurred. In coming to that conclusion, she took into account that no medical professional had advised counsel of the probable utility of an MRI in the particular circumstances of this case. Mr. Fahey had deposed in para. 11 of his affidavit that he was unaware of the plaintiff exhibiting any objective signs of injury when he ordered the MRI scans.
 I am unable to find that the Registrar acted on a wrong principle in disallowing the cost of the MRIs in this case, and I would not interfere with her Decision.
To be on the safe side it is a good idea to have a treating medical practitioner requesting an MRI or other diagnostic test to maximize the chance that these expenses will be recoverable disbursements.
The winning side to a lawsuit in the BC Supreme Court is allowed to recover reasonable disbursements. Some of the greatest costs of advancing injury lawsuits are those associated with expert medical evidence. Today, reasons for judgement were released by the BC Supreme Court, Vancouver Registry, considering two common disbursements of Plaintiff lawyers in ICBC injury lawsuits; Private MRI’s, and medico-legal reports.
In today’s case (Farrokhmanesh v. Sahib) the Plaintiff was injured in two BC car crashes. He settled his claims for $42,000 plus costs and disbursements. The parties could not agree on some of the disbursements and the BC Supreme Court was asked to resolve the dispute. The two biggest items in dispute were private MRI’s ordered by the Plaintiff’s lawyer and a medico-legal report from a psychologist. Both of these items were disallowed as unreasonable expenses.
The Plaintiff’s lawyer sent his client for a private MRI to better investigate a shoulder injury. The two scans cost just over $2,000. The Plaintiff’s lawyer gave the following explanation for incurring this expense in the prosecution of the claim:
The plaintiff claimed damages herein as a result of injuries she sustained to both her neck and trapezius (shoulder area). Her symptoms persisted for years after the accident and were continuing when I made arrangements to have the plaintiff undergo magnetic imaging. I wanted to obtain the best possible imaging in order to ascertain the nature and extent of the plaintiff’s injuries and to uncover objective evidence of injury…
I ordered the scans because in my view presentation of my client’s claim required it. The plaintiff had been off work for a long time and had continuing complaints. These pain symptoms were also causing significant depression. I knew the fact of whether or not there were objective signs of injury as opposed to only subjective complaints was going to be an important issue at trial and thus I ordered the scans to obtain evidence going to this issue.
I knew when I ordered the scans that upon resolution of the subject claims the client would likely be required to sign a release thereby ending her ability to make any further claim for damage, on a permanent basis, to her neck and shoulder. Knowing this and the fact I was responsible for giving advice to the plaintiff regarding her injury and damages and the release, I ordered the scans to ensure there was no latent injury not previously uncovered. This was one of the reasons I ordered the scans. The plaintiff herein was going to forever give up her right to sue in connection with these injuries and thus it was my view that it was important to have the scans undertaken. In fact it was a term of the settlement herein that the plaintiff sign an ICBC form of release.
Registrar Sainty disallowed these disbursements providing the following reasons:
 The test for determining whether a disbursement ought to be allowed is:
…whether at the time the disbursement or expense was incurred it was a proper disbursement in the sense of not being extravagant, negligent, mistaken or a result of excessive caution or excessive zeal, judged by the situation at the time when the disbursement or expense was incurred”. (Van Daele v. Van Daele,  B.C.J. No. 1482; 56 B.C.L.R. 178 (C.A.) (at para. 109))
 The provisions of Rule 57(4) of the Rules of Court relating to the Registrar’s discretion to award disbursements are broad. In general:
The registrar must consider all of the circumstances of each case and determine whether the disbursements were reasonably incurred and justified. He must be careful to balance his duty to disallow expenses incurred due to negligence or mistake, or which are extravagant, with his duty to recognize that a carefully prepared case requires that counsel use care in the choice of expert witnesses and examine all sources of information and possible evidence which may be of advantage to his client. (see Bell v. Fantini(1981), 32 B.C.L.R. 322 (S.C.)) at para. 23.))..
 I am going to disallow the claim for reimbursement for the two MRI scans. I cannot accede to Mr. Fahey’s argument that simply because he, as counsel, thought it was necessary to obtain MRI scans I ought not to question that decision unless I find it to be extravagant or overly zealous. In my view, and I am going to expand on what Registrar Blok held in Ward v. W.S. Leasing Ltd., to be allowed as a necessary and proper disbursement, there must be some medical reason for ordering an MRI. It is not simply enough that counsel seeks some (potential) objective evidence of an injury. Nor is it enough that counsel wishes to ensure that there is no latent injury such that his client might sign the standard release required. There is always a risk in personal injury litigation that a new injury or an injury that has not yet been determined might be found following settlement. That is simply a risk of litigation and a risk of settlement.
 I am not satisfied on the evidence before me that costs of the MRI scans were necessarily or properly incurred in the conduct of the proceeding and I will not allow them.
Psychologists Medico-Legal Report:
The other disputed item was a medico-legal report from a psychologist. The Plaintiff retained the services of both a psychologist and a psychiatrist. They both authored reports addressing the Plaintiff’s injuries. The cost of the psychologist’s report was near $4,000. The Defendant argued it was unreasonable for the Plaintiff to retain both experts stating that “(either) one of them could have provided the expert evidence required“. Registrar Sainty agreed and disallowed this disbursement. In doing so the Court reasoned as follows:
 I am not convinced, on the evidence before me, that it was necessary and proper to hire both experts given that their expertise clearly overlaps and each used similar methodology in assessing the plaintiff. The plaintiff saw both Dr. Joy and Dr. Sehon in July 2008. There was no reason, in my view, to have the plaintiff assessed by both, except to some extent, to do some “doctor shopping” (and in saying so I mean no disrespect to Mr. Fahey’s decision to have the plaintiff seen by both Dr. Joy and Dr. Sehon). My view is bolstered by the fact that, at the time that both experts were retained (or at least at the time their reports were ordered), the plaintiff had not yet seen Dr. O’Shaunessy (and certainly his report was not available) and thus Mr. Fahey’s concerns over having an expert who could “match” Dr. O’Shaunessy were unfounded.
 I find that is was not necessary or proper to have two experts engaged in a similar assessment at the time these experts were retained and, accordingly I disallow the claim for the expert report and fees charged by Dr. Joy in the amount of $3,937.50.
If you would like further information or require assistance, please get in touch.
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.
This blog is authored by personal injury and ICBC Claims lawyer Erik Magraken. Use of the site and sending or receiving information through it does not establish a solicitor/client relationship. The views expressed and the content provided on this blog is for nonprofit educational purposes. It is not, and is not intended to be, legal advice on any specific set of facts. The use of this website does not create a solicitor-client (attorney-client) relationship. If you require legal advice, you should contact a lawyer directly.