Speculation no reason for 2nd defence medical exam.

On July 24, 2014, the BC Supreme Court, Vancouver Registry, confirmed that a second Court ordered defense medical exam is inappropriate solely in anticipation of an event which may not occur.

In 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 defence 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.