Insurers and defence counsel should consider a recent British Columbia Supreme Court judgment when instructing experts with respect to independent medical examinations (IMEs). If there is a substantial problem with one IME, this decision, De Sousa v. Bradaric and Borthwick,, makes the threshold for obtaining a second one more onerous.
Situation Leading To Case Before A Master Of The Supreme Court
The claim arises from a motor vehicle accident in October 2003 following which the plaintiff alleges she suffered a variety of soft tissue injuries and psychiatric damage. The plaintiff, Ms. De Sousa, attended an IME in October 2007 with a psychiatrist at the request of previous defence counsel. The defence maintained before a Master of the Supreme Court that in the first IME the plaintiff had neither been forthright nor had provided pertinent information to the examining doctor.
The Master denied the defence’s application for a second IME with a psychiatrist. This recent judgment was an appeal of that decision and once again resulted in a denial for a further IME.
Reasons For Requesting A Second Medical Examination
The reasons for requesting a second IME appeared to be cogent. At the first IME, there was no indication that the plaintiff had a history of psychosis as the defendants had no records that indicated a potential psychological condition. The psychiatrist’s report focussed on chronic pain and post-traumatic stress. However, he did conclude that Ms. De Sousa had no psychosis. He had asked her if she had any previous psychiatric involvement or contact or issues. Her response was that she had none.
However, three months before that IME, in July 2007, Ms. De Sousa had been admitted to hospital for one day for a “psychiatric/psychotic event” and, in August 2007, she was admitted to hospital under the Mental Health Act’s emergency provisions for six days. She was diagnosed as having a psychotic disorder of a brief nature at that time. Defence counsel was advised that the plaintiff had stayed in the hospital for “cognitive and memory issues” but they only received the records (including the diagnosis of a temporary psychotic condition) on or after October 24, 2007, the day of the IME.
For that reason, the examining doctor did not have these records at the time of the IME. The apparent consequence was that neither defence counsel nor the examining psychiatrist had notice of any psychotic issue underlying Ms. De Sousa’s claim until after the IME. The records diagnosing the plaintiff with a temporary psychotic condition were forwarded to the expert subsequently, however, and this did not cause him to change his opinion.
Later, Ms. De Sousa was diagnosed with chronic paranoid schizophrenia. The defence relied on this change in her condition since the IME as grounds for a second one. The psychosis, at the time of the appeal, appeared to form the most substantial aspect of the plaintiff's claim.
Master Refuses Application For Second Medical Examination
In the original application, the Master held that, despite the importance of the plaintiff’s psychosis to her claim, a further IME to address this issue was not required to ensure equality between the parties in preparation for trial.
Appeal To Supreme Court Also Fails
The appeal of the Master’s decision also considered if a second IME was required to ensure equality between the parties. The defence submitted that, although it had a second report by another expert, this report was based on a records review alone—an examination of the plaintiff would assist in ensuring a fair hearing of the issues. Further, the author of the first report had a terminal illness and would be unable to appear at trial for cross-examination.
Mr. Justice Nathan Smith stated that a second IME was not required because “the defendants are in as good a position as they are likely to be to advance their position that this severe psychiatric condition is causally unrelated to the motor vehicle accident. I am not satisfied that a further psychiatric examination will add anything to the matter or will be of any further assistance to the Court.” He stated that the author of the second report could be cross-examined on the relevant issues and that an examination would not assist with the material question in this case—whether the psychiatric damage was caused by the subject accident.
Ramifications of Decision
The decision suggests that a change in a plaintiff's condition or the emergence of a new issue during the prolonged lead-up to trial in a chronic-pain claim may not form the basis for another IME. This ruling underscores the importance of carefully considering the timing of an IME in relation to a trial.
For more information on expert medical evidence in insurance litigation and insurance law in general, please contact
Robert Hodgins……………………..rhodgins@singleton.com
Mitch Dermer.....................................mdermer@singleton.com