In personal injury claims, medical examinations are pivotal as they may uncover important evidence. While plaintiffs obtain medical notes from their attending physicians and supporting medical team and experts, when necessary, the defence may also request that the plaintiff attend a specific medical examination. These examinations, often called Independent Medical Examinations (“IME”), are requested by the defence to obtain an impartial assessment of the plaintiff’s injuries or medical condition. However, “independent” does not necessarily imply neutrality, and the process can be inherently complex and contentious.
As a result of a recent decision from the Ontario Superior Court of Justice, this blog will examine the legal underpinnings for these assessments and examine the rights and obligations of plaintiffs and medical practitioners. Our discussion will also focus on how plaintiff medical examinations impact case outcomes, settlement negotiations, and legal strategies within personal injury litigation.
Plaintiff sustained serious injuries after being struck by vehicle
In Bock et al. v. Gudelis, the plaintiff, “EB,” was a pedestrian struck by a motor vehicle operated by the defendant on October 14, 2017. At the time of the hearing, EB was 94 years old and living in Sarnia, Ontario. In her statement of claim, she alleged that she sustained various personal injuries as a result of the accident, primarily to her feet and legs. “JB” is also a plaintiff in the action under the Family Law Act for loss of care, guidance and companionship.
In support of her claim, EB was assessed by Dr. Khan at the request of her counsel. In the report dated August 12, 2022, Dr. Khan diagnosed EB with:
- Right elbow sprain/strain;
- Status post non-displaced oblique fracture of the fifth metatarsal of the right foot;
- Non-specific dysesthesia of the lower left limb; and
- Chronic myofascial pain and lumbar sprain/strain since resolved.
Plaintiff requested to attend medical assessment three hours away from her home
The defendant arranged for EB to attend a medical examination with a physiatrist in Scarborough, Ontario, in June 2023. However, she expressed concerns about the extensive travel involved in attending the assessment. She requested that the examination take place in Sarnia or in London, Ontario, which was closer to her home. Her counsel argued that it was unreasonable for her to travel six hours for a two-hour medical assessment and suggested that assessors are willing and able to travel to London.
Defence counsel agreed to reimburse EB for lunch. However, he noted that the plaintiff’s counsel had confirmed the examination and arranged transportation accordingly. The defence further argued that there was “no valid reason why Ms. Bock could not attend” and emphasized that there was a $600 cancellation fee for the appointment. Finally, the defence counsel noted that the defendant was entitled to select the doctor for the assessment. Ultimately, the defence commenced this motion to compel the plaintiff’s attendance at the medical assessment.
Family physician opines that travel would be “detrimental” to the plaintiff’s health
EB’s lawyer advised the defence counsel that EB was“very willing” to attend the medical assessment. However, she was elderly and concerned about travelling such a long distance. As such, she stated that her client would not pay the cancellation fee and suggested that the assessment be cancelled or relocated. The physiatrist selected by the defence indicated she would not travel to London. In response, the plaintiff asserted that she would travel to Kitchener, Ontario, if the assessment could take place there, in addition to confirmation that her lunch and transportation would be covered. An affidavit obtained from EB’s family physician indicated, among other things, that EB:
- Suffered from chronic pain and lumbar disc disease;
- Had low energy levels and was rapidly losing weight;
- Was in remission for ovarian cancer;
- Has limited mobility in both feet and uses a walker to ambulate.
It was also the family physician’s opinion that EB was unable to travel long distances due to her health and medical conditions, and travel from Sarnia to Scarborough would “be detrimental” to her health, with the possibility of such travel causing regression in her physical rehabilitation.
Court should not lightly dismiss recommendations of a family physician
Beginning its analysis, the Court acknowledged that no defence expert had assessed the plaintiff, and the defendant was prima facie entitled to do so. The Court noted that the defence’s choice of physician is important as it is often the defence’s sole medical witness. The Court also referred to the decision in McGowan v. Green, in which the plaintiff led uncontradicted evidence that required travel from Ottawa to Mississauga “may result in the worsening of the plaintiff’s symptoms and could result in a set back of the therapeutic gains she achieved in her rehabilitation to date.” Accordingly, in that case, the motion to compel the plaintiff’s attendance was dismissed.
The Court rejected the defence’s argument that EB’s family physician did not establish that travel would be an “unreasonable inconvenience” and instead highlighted the “real risk” of travel being detrimental to EB’s overall health. The Court also acknowledged that individuals of a similar age to the plaintiff have varying levels of independence, and the Court should “exercise a measure of common sense.”
Doctor’s note insufficient to excuse all plaintiffs from attending a defence medical examination
The Court did, however, state that “all plaintiffs should not be excused from reasonable travel to a defence medical examination simply with a family doctor’s note” and that a different conclusion might have been reached if the plaintiff was younger. However, in this particular case, given the plaintiff’s circumstances, the Court was satisfied that significant travel for the plaintiff was “beyond inconvenient” and jeopardized her health.
This was a “rare case” in which the Court found that the defence’s choice of expert “must yield” given her refusal to travel to London. The Court emphasized that this should not be viewed as a precedent which allows plaintiffs to interfere with a defendant’s choice of expert in medical examinations, as this would create “the possibility of mischief.” As such, the Court dismissed the defendant’s motion but provided the defendant with leave to arrange another defence medical examination as far away as London, Ontario.
Contact the Personal Injury Lawyers at Tierney Stauffer LLP in Ottawa for Trusted Advice on Pedestrian Accidents
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