Tag: multiple defence medical exams

Yet To Be Produced Defence Medical Report Derails Request For Second Defence Medical Exam

Last week I highlighted reasons dismissing a defence application for a second independent medical exam where they had the benefit a first exam but no report was yet produced.  Today similar reasons were published by the BC Supreme Court, Vancouver Registry.

In today’s case (Rong v. Yelland) the Plaintiff was injured in a collision and sued for damages.  In the course of the lawsuit the Plaintiff consented to be assessed by an orthopedic surgeon of the Defendant’s choosing.  After the assessment but prior to any report from the assessment being produced the Defendant requested that the Plaintiff also attend a functional capacity evaluation with a kinesiologist.  The Plaintiff declined.

The Defendant brought an application to compel attendance.  In dismissing this application the Court noted there is no way of knowing whether the medical ‘playing field‘ was even without the defence surgeon’s report.  Master Cameron provided the following reasons:

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Non Disclosed Defence Report Thwarts Request for Second Independent Medical Examination

Reasons for judgement were recently given by the BC Supreme Court, New Westminster Registry, dismissing a defence request for an independent medical examination of a Plaintiff where the Plaintiff already saw an expert of the Defendants choosing but the Defendants have yet to produce a report from that expert.

In the recent case (Khan v. Cabrera) the Plaintiff was involved in a collision and sued for damages.   In the course of the litigation the Plaintiff consented to be explained by a neurologist of the Defendant’s choosing and “that report has not yet been disclosed by the defence to the plaintiff“.

The Defendant requested that the Plaintiff also be assessed by an orthopaedic surgeon arguing that such an exam is necessary to provide an opinion about a pre-accident orthopaedic injury the plaintiff had sustained and also to address collision related injuries.

The Court dismissed the application in large part because it was unclear what opinion the Defendants would already have the benefit of from the first appointment.  In short the litigation ‘playing field’ may already be even.  In dismissing the application Master Keighley provided the following reasons:

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Expert Opining on All Plaintiff Injuries Disentitles Second Defence Medical Exam

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, denying a second defence medical exam in circumstances when their first examiner opined on all the Plaintiff’s alleged injuries.
In today’s case (Monohan v. Yang) the Plaintiff was examined by a neurologist of the Defendant’s choosing.  The Defendant sought a second exam with an orthopedic surgeon arguing the Plaintiff was alleging “two distinct categories of injuries, those being neurological and musculoskeletal injuries which require both a neurological and orthopedic assessment.”.
The application was dismissed on the basis that the Defendant’s first chosen examiner opined on all these issues thus making a second exam unnecessary.  In dismissing the defence application Mr. Justice Tindale provided the following reasons:

[21]        In Hamilton v. Pavlova, 2010 BCSC 493, Mr. Justice Bracken, in reviewing the principles associated with this type of application, stated the following at paragraphs 10 through 16:

[10]      Rule 30(1) provides discretion to the court to order an independent medical examination, and under Rule 30(2), more than one examination may be ordered.  Counsel, in their helpful submissions, have thoroughly canvassed the relative authorities on this point.  From those authorities, certain principles emerge.  The case law is against a background of the rules of court, and in particular, the principle that the rules are designed to secure a just determination of every proceeding on the merits and to ensure full disclosure, so the rules should be given a fair and liberal interpretation to meet those objectives . . .

[11]      Rule 30(2) is a discretionary rule, and the discretion must be exercised judicially.  An independent examination is granted to ensure a “reasonable equality between the parties in the preparation of a case for trial” . . . 

[12]      Reasonable equality does not mean that the defendant should be able to match expert for expert or report for report . . .

[13]      A second exam will not be allowed for the purpose of attempting to bolster an earlier opinion of another expert.  That is, there must be some question or matter that could not have been dealt with at the earlier examination . . .

[14]      There is a higher standard required where the defendant seeks a second or subsequent medical exam of the plaintiff  . . .

[15]      The application must be timely.  That is, the proposed examination should be complete and a report available in sufficient time to comply with the rules of admissibility and to allow enough time for the plaintiff to assess and respond if necessary . . .

[16]      Finally, subsequent independent medical examinations should be reserved for cases where there are some exceptional circumstances . . .

[22]        In my view, Dr. Moll did fully opine on all of the physical injuries alleged by the plaintiff.  Dr. Moll gave his opinion with regard to a diagnosis, prognosis, and the causation of not only the plaintiff’s neurological complaints, but her musculoskeletal injuries.  The opinion of an orthopedic surgeon would only go to bolster the opinion of Dr. Moll.

[23]        While I appreciate the defendants may not have specifically requested the opinion that they received from Dr. Moll, he is their expert and he opined on all of the plaintiff’s physical injuries. 

[24]        Dr. Moll did raise the new issue of a psychological injury.  However, an orthopedic surgeon cannot address that issue.

[25]        For all of the above‑noted reasons, the defence application is dismissed.

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.

Speculation No Reason for Second Defence Medical Exam

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, confirming that a second Court ordered defense medical exam is inappropriate solely in anticipation of an event which may not occur.
In the recent case (Litt v. Guo) the Plaintiff was involved in two collisions and sued for damages.  In the course of the lawsuit the Plaintiff consented to a defence medical exam with a physician that addressed the Plaintiff’s injuries.  As trial neared the Defense applied for a further exam with a new physician arguing that the initial report was dated and further that “the plaintiff might file a newer report” and the Defendant wished to respond to this anticipated development.  In noting that both arguments were insufficient for a Court ordered second defense medical exam Madam Justice Fenlon provided the following reasons:

[10]         The second ground raised by the defendants, and the ground that Mr. McHale referred to as the primary basis supporting the application for another IME by a different specialist, is that the most recent report of Dr. Bishop will be two years old at the date of trial in October 2014. The defendants fear that the plaintiff might file a newer report before the August 4 deadline for delivery of such reports, and the defendants say they would then be at a disadvantage because the plaintiffs will have a fresher report, a report based on a more recent assessment of the plaintiff.

[11]         The defendants submit that they would wish to put before the Court the best evidence, the evidence of an examination of the plaintiff at a time more recent than October 2012. There are, in my respectful view, two weaknesses with that submission. The first is that it anticipates what has not yet occurred.  If the plaintiff does submit a report prepared by one of her experts based on a recent examination of the plaintiff and if something new comes out of that report, then presumably Dr. Bishop could be invited to comment on it and the defendants would be in a position to file a rebuttal report. There is nothing in the record before me to suggest that he would not be able to comment on such a report or that there would be a need for further examination should he, in fact, be faced with such a report.

[12]         The second weakness is that passage of time alone is not a basis for ordering a second medical examination of a plaintiff. Dr. Bishop’s report is very clear in terms of his diagnosis, prognosis and his description of the pattern of symptoms Ms. Litt will experience into the future. He describes a likely aggravation of symptoms on activity, which it seems is exactly what is reflected in the medical reports which initially led to this application.

[13]         In short, despite Mr. McHale’s able submissions, I cannot find that a further examination is necessary to ensure reasonable equality of the parties in preparing for this trial.

"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.

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.

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.

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If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

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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