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Defence medical exams and adverse inference

What happens if I see a specialist at the request of defence counsel and they don’t obtain a medical opinion? Does this mean I just wasted my time or are there any consequences for defence? What sort of impact could their decision have in court?

In the case of Norris v. Burgess, 2015 BCSC 2200 (http://www.courts.gov.bc.ca/jdb-txt/sc/15/22/2015BCSC2200.htm) defence counsel requested that the plaintiff attend an examination with a psychiatrist of their choice. The plaintiff attended the examination and the defendants chose not to obtain a medical opinion. At the trial, which was held before a jury, the plaintiff applied to testify as to her attendance and the surrounding circumstances of the medical examination arguing that it was necessary to show, among other matters, that she had not exaggerated her injuries. Defence counsel argued that this would be highly prejudicial and likely result in the jury drawing an adverse inference because the psychiatrist would not be called and no report had been produced. Mr. Justice Funt ruled in the plaintiff’s favour and allowed her to testify before the jury noting that an unwanted but foreseeable consequence does not give rise to an unfair prejudice:

[13]        As Rule 7-6 of the Supreme Court Civil Rules contemplates, an individual medical examination may be ordered where the “physical or mental condition of a person is in issue”. In this case, the independent medical examination was not pursuant to a court order. The Rule, however, illustrates that an independent medical examination will usually occur only where there is a physical or mental condition in issue.

[14]        The plaintiff’s medical condition is clearly in issue. Where the defence asserts that the plaintiff may have exaggerated her injuries, steps taken by the plaintiff at the request of the defence may be relevant.

[15]        Even if there were for closing argument an agreed stipulation of the plaintiff’s attendance at the independent medical examination, I would prefer that the evidence be led as part of the plaintiff’s case. I would be concerned that the jury could be confused. Evidence and argument should be kept separate.

[16]        Civil litigation is adversarial and litigant-driven. Where one party asks that the other party attend an interview or examination with a third person (whether or not that person is an expert) and the other party so attends, the requesting party should not be surprised that the interview or examination may be relevant with evidentiary consequences, including the possibility of an adverse inference. An unwanted but foreseeable consequence does not give rise to unfair prejudice.

[17]        In short, plaintiff’s counsel may lead evidence as to the plaintiff’s attendance, and surrounding circumstances, regarding the independent medical examination requested by the defendants.

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