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Medical investigation is not privileged if it is clearly for treatment rather than legal purposes

During litigation, if your doctor orders investigative tests and ICBC refuses to pay for them, is ICBC later entitled to see the results?

In today’s case of Prothero v. Togeretz 2015 BCSC 764 , the plaintiff’s GP requested an MRI for investigation, specialist referral, and rehabilitation of symptoms.  Due to the wait in the public system, a private MRI was booked, and ICBC refused to pay for the private MRI. The plaintiff then sought to keep the results of the MRI confidential from ICBC.  In rejecting the plaintiff’s argument that the MRI was subject to privilege, Master Caldwell made the following remarks and ordered production of the MRI:

[10]         On the material before me I am unable to agree with plaintiff counsel’s assertion of litigation privilege or solicitor’s brief privilege. It appears clear on the material that the MRI was requested by Dr. Fernandes as part of his course of investigation and treatment of the plaintiff for injuries resulting from the motor vehicle accident; he then obtained the results and referred the plaintiff to a specialist for further assistance in diagnosis and treatment. Dr. Mutat was a treating doctor at the time this took place and only took on the role of expert at a later date when approached by plaintiff’s counsel.

 [11]         In the result, the MRI disk is producible and is ordered produced; it came into existence for diagnostic and treatment purposes at the request of Dr. Fernandes, not for litigation purposes at the instance of plaintiff’s counsel. In this regard it would seem that the cost of the MRI will be addressable as a special damage matter relating to medically necessary investigation and treatment rather than as a disbursement in the litigation however that will remain to be determined in the fullness of time.

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