Court Ordered Defence Medical Exams and the Right to Take Notes
It is not uncommon for discrepancies to arise about the exact details of an appointment following Court ordered medical exams. These exams can last from several minutes, to several hours, or even (in the case of Functional Capacity and Neuropsychological Exams) to several days. If a discrepencey arises as to what was said by the Plaintiff a Trial Judge can face a he-said she-said situation. This can lead to serious disputes because the outcome of a personal injury trial can turn largely on a Plaintiff’s reliability and consistency.
When such a dispute arises the examining physician often has access to his or her notes detailing the examination. This can sometimes work to the doctor’s advantage when a Court is asked to decide what was actually said. To remedy this can a Plaintiff take their own notes while attending an independent medical exam? Reasons for judgement were recently published on the BC Supreme Court website addressing this issue..
In today’s case (Makowsky v. Jawandha) the Plaintiff was involved in two separate motor vehicle collisions. He alleged injury including brain damage and memory problems. In the course of the lawsuit the Plaintiff was ordered to attend an independent medical exam with a psychiatrist. Given the Plaintiff’s poor memory the Court further ordered that “someone invited by the plaintiff could observe the examination“.
The Plaintiff attended the exam with a friend. During the exam the friend took extensive notes detailing the discussion between the Plaintiff and the Physician. The Physician claimed this was distracting and put an end to the exam believing the extensive note-taking violated the general BC prohibition on recoding Court ordered medical exams. The parties put the matter before the Court.
Ultimately the Court held that the Plaintiff’s observer could take notes so long as doing so did not interfere with the examination. Madam Justice Gray provided the following useful reasons:
[15] There is a right, in my view, for the observer to take notes, but not in a manner that slows or interferes with the examination. For example, the observer cannot ask someone to pause in what they are saying, or say, “Just a minute, I’m taking a note,” or make noise or gesture in a way that creates a distraction. …
[17] The examination can proceed on the basis that the doctor agrees that there can be an observer present and that observer can take notes, but on the basis that the observer will take notes quietly and out of view of the doctor and patient.
I should point out that although this decision was recently published it was decided in 2008 under the former BC Supreme Court Rules. There is, however, no reason that I’m aware of to conclude that the Court’s reasoning would not apply to the current Rules.