Defendant Wants To Use The Same Doctor Previously Used By Plaintiff For A Second Medical Exam

Doctors are often relied on in personal injury cases in order to help the courts determine the extent of someone’s injuries and the impact those injuries may have on their ability to live a normal life. In a recent case from the Supreme Court of Nova Scotia, the court was tasked with determining whether the same doctor could provide an independent medical exam (IME) for the insured in one accident, while later providing it on behalf of the insurance company in a subsequent accident.

Two accidents, one doctor

The plaintiff in the case was involved in two motor vehicle accidents. The first occurred in 2009 and the second occurred in 2011. The plaintiff commenced separate legal actions from the accidents, which were eventually consolidated by a consent order on January 18, 2017.  The plaintiff’s claims were that she sustained various soft tissue injuries that left her with an ongoing partial disability. She further claimed that the injuries she sustained in the first accident exacerbated her injuries from the second accident.

The case is set to go to trial in 2019. However, before the second accident had occurred, the plaintiff’s Section B insurer (providing accident benefits regardless of who was at fault in a car accident) obtained an IME from a doctor (“the doctor”). After the second accident occurred, the defendant’s counsel also retained the doctor to do an IME on the plaintiff, this time to assess the plaintiff’s “current medical condition and the cause and effect of her injuries and/or disabilities, particularly as between the first and second accidents.”

On the advice of her counsel, the plaintiff refused to attend the second IME. The plaintiff’s counsel explained their refusal in a brief:

“The crux of our objection to the choice of (the doctor) lies in the fact that he has already seen (the plaintiff) in relation to injuries sustained in one of the consolidated matters and rendered his opinion on the causation, diagnosis, and prognosis of those injuries for another party peripherally involved in this litigation.  He is therefore no longer an independent medical examiner in these factual circumstances.  It is a straightforward position and one which, on review of the relevant case law, our courts have thus far not addressed in any decision that is factually analogous to this situation.”

While the plaintiff accepted the defendant’s right to obtain an IME as well as the doctor’s professional qualifications, she had concerns about the doctor’s independence, objectivity, and bias. She requested a different doctor be selected to perform the second IME.

The court’s analysis

The court turned to the province’s Civil Procedure Rules 21.02(2) and 55.04, which for the purpose of the case require an expert at a trial to provide an objective opinion in order to assist the court, and that the expert may apply independent judgment in doing so.

Case law cited by the court made it clear that the defendant in a personal injury claim has a prima facie right to have the plaintiff examined by a medical expert of its choosing (providing they are qualified). The Nova Scotia Court of Appeal ruled as recently as 2016 that “Presumptively, if the defendant has chosen a qualified expert (s) to conduct an IME/testing, then their choice should be respected, unless the circumstances make the choice an unreasonable one.”

Once the defendant exercises its right to choose an expert, it then falls on the plaintiff to demonstrate that the choice of expert is unreasonable. The court was not persuaded by the plaintiff’s concern over the doctor’s objectivity, independence, or bias. The court’s oral decision said “I am not satisfied that the plaintiff has established a sufficient legal basis for the Court to interfere with the selection of (the doctor) to perform a further IME in the aftermath of the second accident. Sufficient evidence must be provided to show that the defendant’s expert of choice is unreasonable. To draw the conclusion sought by the plaintiff is in my view too far a leap in reasoning, in the absence of any specific evidence to the contrary, to displace the presumption that works in the defendant’s favour as above recited.”

In dismissing the plaintiff’s claim, the court took its position one step further, saying that the doctor might be in a better position than a new doctor to assess and offer an opinion due to his experience with the plaintiff.

It is critical to obtain the advice of a skilled personal injury lawyer in the event that you or a loved one is injured in an automobile accident. At Derfel Injury Law we fight to get maximum compensation for our clients from personal injuries stemming from automobile or other types of accidents. Please call us at 416-847-3580 or reach us online if you have been involved in an accident or have otherwise suffered a personal injury and feel you may be owed compensation.