ICBC wants to send me to a second medical examination – do I have to go? What if I don’t like the doctor they want to send me to? Can I object to going based on my review of the doctor’s past work as a medical-legal expert?
In a recent judgment of the British Columbia Supreme Court, Master Harper dealt with an application for an order requiring the plaintiff to attend a second independent medical examination with a particular neurologist (Wohlleben v Dernisky, 2016 BCSC 976). The plaintiff conceded that an examination by a neurologist was justified, but objected to the neurologist in question, a Dr. Dost. The plaintiff filed an affidavit summarizing past cases in which Dr. Dost had acted as a medical expert, includes quotes from two judges in two different cases noting that Dr. Dost was combative, and a third judge noting “many shortcomings” with the doctor’s opinion. The affidavit contained quotes from the plaintiff’s own medical expert noting that the plaintiff tended to either not acknowledge or minimize pain and physical limitations, and further noting that she was excessively stoic and tended to minimize her distress. The plaintiff wrote in her affidavit that these qualities made her inability to repose trust and confidence in Dr. Dost assume greater significance.
Master Harper noted the following in allowing the application and dismissing the plaintiff’s opposition:
[5] In the present application, it is clear from the plaintiff’s affidavit that the impetus behind the opposition to Dr. Dost comes from her counsel, and not from the plaintiff herself. It is highly unlikely, in my view, that plaintiff’s counsel provided the plaintiff with copies of decisions in which Dr. Dost was a witness at the plaintiff’s request. The selection of cases does not include the cases referred to before me by counsel for the defendants in which Dr. Dost’s evidence was accepted.
[6] Counsel for the defendants referred to other trial judgments in which the trial judge accepted Dr. Dost’s opinion. For instance, in one case, the trial judge found him to be “clear, forthright, and helpful.”
[7] There is no demonstrated misconduct on the part of Dr. Dost, and indeed, the plaintiff does not suggest there is any. The plaintiff says that she finds herself unable to repose her trust and confidence in Dr. Dost and offer him the level of cooperation necessary for the examination to reach a meaningful conclusion. This evidence is simply a bare assertion and not based on any evidence of misconduct.
[8] As for the relevance of Dr. Mackoff’s statement in his report that the plaintiff is being “excessively stoic and clearly minimizes her physical and psychological distress”, this description of her personality forms no reasonable foundation for the plaintiff’s subjective view that she is unable to repose trust and confidence in Dr. Dost.
Master Harper went on to say the following:
[13] It is not the law that the plaintiff gets to choose the expert to examine him or her: Sinclair (para. 15). The names of alternatives would only come into play where the plaintiff demonstrates, by a preponderance of evidence, sufficient grounds to justify the court in concluding that its discretion should not be exercised in favour of the appointment of the defendant’s nominee: Sinclair (paras. 16 and 17). Questions of fairness, partiality, credibility, and objectivity of a physician are matters for the trial judge, not the motions judge or master on an application: Sinclair (para. 21). Further, at para. 22 of Sinclair:
[22] … In my view, for the Plaintiff to succeed, there must be evidence of real or effective inappropriate conduct on the part of the nominee doctor, and not simply the whim or idiosyncrasies of the Plaintiff or similar views of his or her Counsel. …
[14] There is no evidence of inappropriate conduct on the part of Dr. Dost. The views of the plaintiff, in my view, do not reasonably support the opposition to Dr. Dost. For these reasons, I grant the order requiring the plaintiff to attend the examination by Dr. Dost.
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