Being injured in any accident is a traumatic and devastating experience for the injured person and their loved ones.
When bringing a personal injury claim and seeking to hold negligent individuals accountable, a question is whether the defendant can require you to undergo medical examinations. This article looks at the circumstances in which courts may order examinations.
Courts can order the plaintiff to undergo examination
In a personal injury claim, it is often necessary to prove the extent of the injuries and their impact. Obtaining expert evidence from medical practitioners and others, including those that have treated you, may be needed. The defendant may wish to obtain their own evidence from professionals. Sometimes the parties can disagree about the nature of the examinations required, and the court is called upon to make a decision.
Under the Courts of Justice Act, the court is able to order a party whose physical or mental condition is in question to undergo a physical or mental examination by one or more health practitioners. The party needs to answer the health practitioner’s questions, and the answers given can form part of the evidence presented to the court.
As set out in the Rules of Civil Procedure:
- the party being examined is normally required to provide the other party with any reports and records made by health practitioners that have treated or examined them;
- after concluding the examination, the health practitioner needs to prepare a report for the parties; and
- the court can order a second or further examination.
Ontario courts have said that assessments may not be restricted to those performed by medical practitioners; examinations may also be conducted by, for example, an occupational therapist, vocational expert, or evaluator.
The guiding principle is trial fairness
The plaintiff can argue that the examinations proposed by the defendant are unnecessary or unfair. In the event of a dispute, the burden is on the party seeking the assessments to demonstrate the facts of the specific case, that the examinations are necessary for trial fairness and that the assessments will not delay the trial.
The examinations need to be necessary. For example, a defendant is not entitled to examine the plaintiff with respect to something that has not been placed in issue by the plaintiff. Furthermore, a defendant is not entitled to examinations by specialists whose expertise is duplicative or repetitive.
Courts normally allow the defendant to conduct the same examinations as the plaintiff has deemed necessary for their case. As the Superior Court of Justice said in Van Dijk-Alac v Aviva General Insurance Company:
“trial fairness should operate as the guiding principle in this area, so if the plaintiff has decided that expert evidence from one specialty based on an examination of the plaintiff is relevant to the adjudication of her claim at trial, courts should loathe denying the defence a fair opportunity to respond with expert evidence from the same specialty based on an assessment of the plaintiff.”
Plaintiff sought damages for injuries suffered in a motor vehicle accident
A recent Ontario Superior Court of Justice decision shows how these principles may apply in practice.
In D’Eon v Hosseini, the plaintiff was injured in a motor vehicle accident and claimed damages for physical and psychological injuries sustained, including loss of income, future care costs and housekeeping and home maintenance that she claims she cannot do because of her injuries.
The plaintiff alleged that she had suffered a traumatic brain injury that left her with psychological impairments, including anxiety and depression, which impacted her work ability. She also alleges pain from soft tissue injuries.
Defendant requested plaintiff to undergo a range of examinations
While the plaintiff agreed to attend a neuropsychological assessment, she did not agree to the defendant’s request that she be examined by a psychiatrist, neurologist, physiatrist and vocational specialist.
The plaintiff argued that she did not have a psychiatric disorder (just pain arising from her injuries), examinations by a physiatrist and neurologist were overlapping, and that assessment by a vocational specialist was premature.
Court ordered the plaintiff to attend the examinations as they were relevant and maintained fairness
Justice Wilson decided that the defendant was entitled to have the plaintiff examined by a psychiatrist, neurologist, physiatrist and vocational specialist.
Firstly, the plaintiff had a history of anxiety disorder, and her treating psychiatrist had provided a report for the court. Her Honour explained that the defendant was not required to accept her doctor’s opinion as she was entitled to test it and have an opinion from a specialist on the plaintiff’s current status and the role of the accident in causing it.
Secondly, the plaintiff was advancing a case of traumatic brain injury superimposed on a history of multiple concussions. Justice Wilson decided that given the plaintiff’s complicated medical history, and the issue of the role of the accident in the plaintiff’s current status, an assessment by a neurologist was reasonable.
Thirdly, the plaintiff delivered reports from two physiatrists on her chronic pain issues and the role of the accident in causing this. Her Honour held that trial fairness dictated that the defendant could also have a physiatrist examine her to address the evidence of the plaintiff’s experts.
Finally, Justice Wilson decided that trial fairness also dictated that the defendant was entitled to a vocational assessment. This was relevant to the plaintiff’s future employment prospects, which impacted the calculation of future income loss.
Contact Tierney Stauffer LLP in Ottawa, Kingston, Cornwall, Arnprior & North Bay for Advice on Your Personal Injury Claim
At Tierney Stauffer LLP, we can guide you through the entire process of bringing a personal injury claim. We recognize that no two accidents or accident injuries are the same, which is why we give each client the personalized attention needed to bring about the best possible resolution. We are a large team spread across various convenient locations to assist our clients with various needs. Call us at 1-888-799-8057 or contact us online to set up a free consultation to discuss your matter with an experienced lawyer.
