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Second defence IME ordered despite overreaching opinions from the first IME

If I attend one IME at the request of the defence, can they make me attend a second?  What if the first IME doctor gave an opinion about all my alleged injuries?  What if that opinion was outside the scope of the first doctor’s expertise?

Today’s judgment summary is of a decision of the BC Court of Appeal (the case of Tran v. Abbott 2018 BCCA 365). Ms. Tran alleged she was injured in a motor vehicle collision, and alleged she suffered physical and neurological or psychological injuries. Ms. Tran attended an independent medical examination (an “IME”) with defence neurologist Dr. Prout. Dr. Prout’s report gave various opinions, including some opinions about musculoskeletal issues. In January 2018, the defence requested that Ms. Tran attend a second IME, this time with an orthopaedic expert, arguing that they were entitled to an assessment by an expert of physical or musculoskeletal injuries. Ms. Tran’s lawyers disputed their entitlement, saying Dr. Prout had already provided a full opinion on the physical and musculoskeletal issues. The defence sought a court order compelling Ms. Tran’s attendance at the second IME.

The initial application was denied by the chambers judge, who concluded that while Ms. Tran’s injuries were “multifaceted” and could usually not be addressed by one IME, Dr. Prout’s opinion went beyond his neurological expertise, and covered the physical injuries. She noted her expectation that his opinion would be objected to at trial on the basis that it went beyond his expertise. However, given the opinion did extend into the physical injuries, she concluded that the defence was not entitled to a second IME which would bolster the existing opinions of Dr. Prout.

The defence appealed the chamber’s judge decision, saying she erred in failing to apply the overriding principle of discretion guided by ensuring reasonable equity of the parties, and failed to consider and misapplied factors which guide that discretion. The chambers judge had relied on the reasoning in Hamilton v. Pavlova, 2010 BCSC 493, including the finding that there is a higher standard required to compel attendance at a subsequent IME.

The Court of Appeal allowed the appeal, overturning the decision of the chambers judge. In so doing, they rejected the rationale of Hamilton requiring a higher standard for subsequent IMEs because the increasing the standard has no basis in the Supreme Court Civil Rules. The Court directed that further examinations should be ordered where necessary to enable the “case to proceed with the parties on a basis of equity”.  In ordering Ms. Tran attend the second examination, the Court made the following findings:

[28]         The summary in Hamilton has been the foundation for the proposition that a higher standard is required to be met by a party seeking a second or subsequent IME. This supposed requirement, in my view, has no support in the language of the Rules. Simply put, different considerations apply to the assessment of whether a party should be granted a second or subsequent IME.

[30]         As this Court noted in Wildemann, “[t]he rules are designed to secure a just determination of every proceeding on the merits and to encourage full disclosure” (at 246). The rules should be given a fair and liberal interpretation to meet those objectives.

[31]         In this case, the judge relied upon the proposition from Hamilton that a second IME would not be allowed for the purpose of attempting to bolster an earlier opinion of another expert (at paras. 11‑12). As authority for that proposition, Hamilton refers to two cases: Trahan v. West Coast Amusements Ltd., 2000 BCSC 691, and Norsworthy v. Greene, 2009 BCSC 173. However, both Trahan (at para. 48) and Norsworthy (at para. 18) state that a second examination may be appropriate where there is some question that could not have been dealt with on the first exanimation. Such a question arises where some of the plaintiff’s injuries fall outside the first examiner’s expertise.

[32]         In my view, it is well-established that the purpose of an IME is to put the parties on an equal footing with respect to the medical evidence, and Rule 7‑6 specifically contemplates more than one IME: Wright v. Sun Life Assurance Company of Canada, 2014 BCCA 309 at para. 31.

[37]         In this case, the judge concluded that parts of the neurologist’s report went beyond his expertise, and thus a report from an expert with appropriate and different expertise would “bolster” the first report (at para. 26). Without opining on whether that view is correct, the practical effect of the ruling is to preclude the defendant from obtaining a report from an expert with appropriate qualifications on a live issue, the etiology of the plaintiff’s complaints.

[40]         The primary purpose of Rule 7‑6 is to put the parties on an equal footing with respect to medical evidence. Although, in general, what steps are necessary to achieve that end is a matter of discretion for the chambers judge, the ruling in this case would preclude that equality. The judge erred in her application of the Rule.

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