Tag: Rule 7-6(2)

Defendant Denied Second Medical Exam Despite Potential "Concerns" Of First Expert's Opinion

(Update:  The below decision was upheld on Appeal by Mr. Justice Smith on September 29, 2011)
Although Rule 7-6(2) of the BC Supreme Court Civil Rules permits multiple court ordered medical examinations, there is a general prohibition of multiple exams to comment on the same topic.  Useful reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this in the context of a psychiatric condition which developed following a motor vehicle collision.
In this week’s case (De Sousa v. Bradaric and Borthwick) the Plaintiff was injured in a 2003 collision which allegedly caused physical and psychiatric consequences.  In the course of the lawsuit the Defendants had the Plaintiff assessed by a psychiatrist of their choosing.  This psychiatrist (Dr. Davis) concluded that there was “no psychosis“.
Shortly after this the Plaintiff was admitted in hospital on multiple occasions.  She was ultimately diagnosed with “chronic paranoid schizophrenia” by her treating physicians.  These records were shared with Dr. Davis but despite the diagnosis from treating specialists he “rigidly and categorically rejected any diagnosis of a psychotic conditions“.
In the face of this clear diagnosis from the treating physicians a second Defence Medical Exam was sought, this time with a different psychiatrist.  The Court rejected the application despite potential “concerns….with the quality or reliability” of Dr. Davis’ opinion.  In rejecting the application Master Baker provided the following helpful reasons:

[13] I am not satisfied at all that in these circumstances, with these facts and history, that a second IME is justified. It is easily as consistent in my mind that the defence now disagrees or is concerned about issues with Dr. Davis’ position and report. It is easily consistent, in my view, that the application aims to mediate or improve upon Dr. Davis’ opinions.

[14] Yes, Mr. McIvor is absolutely correct that the psychosis, if any, was at a fairly nascent stage in 2007 when Dr. Davis saw her and that it has apparently, if one takes the evidence of the plaintiff, become full-blown. Well, so be it. In my respectful view, Dr. Davis is a psychiatrist. He is an expert in psychiatric matters. He has been consulted on, I am told, many occasions. That is not denied. I would expect him to be alive to the issue. He certainly inquired of Ms. De Sousa and very soon after was advised of the psychotic overlay or potential for it and has absolutely rejected that.

[15] In all the circumstances, I just cannot see a basis for the second opinion. It is a multi-stage test, of course. There are aspects of this both counsel have properly put before the court, starting with as Mr. McIvor has pointed out the Chief Justice in Wildemann (1990), 50 B.C.L.R. (2d) 244 (C.A.). It must be an exceptional case that justifies the second IME or one that is required to place the parties on equal footing. I cannot see that in this particular case. What is, I think, concerning the defence, I infer, is concerns they have with the quality or reliability of a report obtained in this specific area of expertise.










[16] The court should be concerned according to McKay v. Passmore, 2005 BCSC 570, that the matter is something that could not reasonably be seen or anticipated or dealt with at the time. Well, again, I do not see that that applies in this case. There was a previous committal for psychotic reasons. Counsel called and advised that she had been to the hospital, possibly not for psychotic reasons, possibly as I said earlier for cognitive reasons; possibly he did not have in hand the medical records. He probably did not. It sounds to me like it was on an emergency basis, but surely that should have given rise to real concerns on the part of any inquiring professional such as Dr. Davis.

[17] The passage of time alone does not justify a second IME. That is true. However, that may be qualified, I suppose, when the passage of time allows for the development of a whole new area of concern or symptomology. Certainly, as I have said already a couple of times, her psychosis has really developed and become much more obvious, apparently. However, I do not think this aspect applies because it should have been evident to a reasonable inquiry at the time that there was a real issue about this…











[21] Yes, this may be developing into a major claim, but that does not change all of the other considerations that I have applied and taken from the cases, all of which lead me to conclude that the application should be dismissed, and it is.

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.

Defence Medical Exams and Cancellation Fees

Reason for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing cancellation fees charged by doctors when a Plaintiff fails to attend a previously agreed to independent medical exam.
In today’s case (Minhas v. Virk) the Plaintiff was involved in a 2007 BC motor vehicle collision.  The Plaintiff alleged brain injury.  The Plaintiff attended two independent examinations with specialists of the Defendant’s choosing and agreed to attend a third appointment.  As the third exam date approached the Plaintiff ultimately reneged on his agreement by adding a condition that the Defence was not prepared to agree to.
The doctor’s office had a policy to charge $1,650 unless he was given 2 months notice of cancellation.  The Plaintiff did not comply with this policy and instead gave just over 2 working days of notice.
The Defendant brought a motion seeking to have the Plaintiff assessed by the doctor and to pay the cancellation fee.  Master Caldwell ruled that it was inappropriate for the Plaintiff to “unilaterally rewrite” the previous agreement to see the doctor and ordered the Plaintiff undergo the independent medical exam.  The Court refused, however, to order that the Plaintiff pay the cancellation fee finding 2 days notice was sufficient.  Master Caldwell provided the following useful reasons:
[15] The request that the plaintiff be required to pay the cancellation fee for the December 21 appointment is dismissed.  There is no evidence before me which indicates what, if any, efforts the doctor made to fill that appointment slot or to otherwise mitigate his loss.  In addition, I find Dr. Wong’s requirement of 2 months notice to be unreasonable, particularly in the absence of any explanation.  In this case the cancellation occurred on either the 15th or 16th of December (if not earlier) thus providing at least 2 full working days notice and probably more.  The material before me which simply states the doctor’s cancellation policy and nothing more, simply does not support the order sought.
The Court was also asked to order a further medical exam with a different specialist.  This application was dismissed with the Court noting that one of the purposes of the New Rules of Court is to “move toward a focusing and limiting of experts and expert opinion“.

Can A Litigation Guardian Be Ordered to Attend an Independent Medical Exam?


(UPDATE:  Please note Leave to Appeal the Below Decision was granted by the BCCA on January 25, 2011)
When a mentally incompetent person brings a lawsuit in BC they must do so through a litigation guardian or a committee.  Generally, when personal injuries are the subject of a lawsuit, the Defendant is entitled to have the Plaintiff attend an ‘independent’ medical exam.  What about the litigation guardian?  Can they be ordered to attend an independent medical exam?  The BC Supreme Court Civil Rules are silent on this point however, reasons for judgement were released today considering this question using the Court’s ‘inherent jurisdiction’.
In today’s case (Bishop v. Minichiello) the Plaintiff was injured in a 2005 motor vehicle collision.  He was an infant at the time and brought the lawsuit by way of litigation guardian.  The Plaintiff became an adult prior to the lawsuit resolving.  Normally, when this occurs, the Plaintiff files an affidavit and overtakes the lawsuit without the litigation guardian.  In today’s case the Plaintiff did not do this apparently because his injuries may have rendered him “unable to appreciate the extent of his own injuries and unable to effectively conduct the litigation on his own behalf.”.
The Defendant brought a motion that both the Plaintiff and his litigation guardian attend a series of medical exams.  The Plaintiff opposed arguing that the Rule authorizing the Court to compel a Plaintiff to attend an Independent Medical Exam does not empower a Court to extend the order to a litigation guardian.  Mr. Justice McEwan noted that while this was true it could be remedied by resorting to the Court’s inherent jurisdiction.  In granting the application the Court noted as follows:
[12] The defendant submits that although Rule 7-6 (1)-(3) makes no specific provision for a person other than the party to be examined to attend and answer questions, Wong (guardian ad litem) v. Wong [2006] B.C.J. No. 3123 (C.A.) established that the court may, in the interests of justice make ancillary orders to give effect to the purpose of the Rules, found in Rule 1(5) [now Rule 1-3]. In Wong, the question was whether the court could order a plaintiff to video tape an examination…

[13]         Rule 20-2 reads:

(3)        Unless a rule otherwise provides, anything that is required or authorized by these Supreme Court Civil Rules to be done by or invoked against a party under disability must:

(b)        be invoked against the party by invoking the same against the party’s litigation guardian.

[14]         Rule 13-1 reads:

(19)      When making an order under these Supreme Court Civil Rules, the court may impose terms and conditions and give directions it considers will further the object of these Supreme Court Civil Rules.

[15]         On the question of inherent jurisdiction I think the characterization found in R & J Siever Holdings Ltd. v. Moldenhauer 2008 BCCA 59, is most apt:

In addition to the powers conferred by the Rules of Court, the Supreme Court of British Columbia, as a superior court of record, has inherent jurisdiction to regulate its practice and procedures so as to prevent abuses of process and miscarriages of justice: see I.H. Jacob, “The Inherent Jurisdiction of the Court” (1970) 23 Current Leg. Prob. 23 at 23-25. As the author said, at 25,

The inherent jurisdiction of the court may be exercised in any given case, notwithstanding that there are Rules of Court governing the circumstances of such case. The powers conferred by the Rules of Court are, generally speaking, additional to, and not in substitution of, powers arising out of the inherent jurisdiction of the court. The two heads of powers are generally cumulative, and not mutually exclusive, so that in any given case, the court is able to proceed under either or both heads of jurisdiction.

[16]         The Rules do not, properly speaking, confer jurisdiction. To the extent that they reflect a consensus of the Judiciary (and the Bar) as to the presumptions, or expectations, or shifts in onus that will contribute to the just and expedient conduct of litigation, they are useful in bringing predictability and stability to civil procedure. To the extent that they do not reflect such a consensus, they cannot be regarded as mandatory impediments to doing the right thing in any particular case.

[17]         The silence of Rule 7-6 on the question of ordering the litigation guardian to attend an independent medical examination, does not, in and of itself, preclude the making of such an order, if it otherwise makes sense to do so in order to advance the speedy, just and inexpensive determination of the proceeding on its merits.

[18]         Whether such an order is appropriate requires the court to weigh the plaintiff’s objection against the defendant’s rationale for the request…

[20]         The plaintiff’s objection to the attendance of the litigation guardian is primarily that a conversation between the litigation guardian and the examining physician creates a form of statement that is not controlled within the process and that might well lead to conflict or confusion later, if the guardian and the Doctor do not agree as to what was said.

[21]         The defendant’s point is, primarily, that in a case where the defence is guessing as to the mental status of the plaintiff, it would be prudent to have the person who knows him best, and who is also the litigation guardian, available to answer questions about his condition, especially where it is suggested that, among the effects of the injuries suffered in the accident, is a lack of insight or appreciation on Brandon Bishop’s part of the harm that has occurred.

[22]         In Tsantilas (Litigation Guardian) v. Johnson, Cranbrook Registry #18128 (20100211) Melnick, J. made a similar order in a case involving both counsel who appear in this proceeding. In what I gather to be a case of an under-age person, the court ordered the attendance of the litigation guardian at an assessment…

[23]         I think that as long as the case continues to be conducted by Charlotte Bishop as litigation guardian, the implication that, for reasons related to his injuries Brandon Bishop is unable to conduct the litigation will remain, along with the implication that talking to him will not yield the whole story. The plaintiff’s concerns about possible confusion do not outweigh the defendant’s interest in the appointed examiners getting accurate and complete information. Accordingly, Charlotte Bishop, as litigation guardian, must attend and answer the questions posed by the examiners as they require.

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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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