In personal injury cases there is usually a need to rely on evidence from a doctor or other health practitioner to determine the extent of injuries. However, for any number of reasons the injured party might not be eager to undergo a medical examination. Where a medical examination (which can be physical or mental) has been refused, there are steps that lawyers can take to get a court order requiring a medical examination be completed by the injured party. The penalty for non-compliance is serious, and if the injured person is a plaintiff, can include the dismissal of their case.
Daggitt v Campbell, decided in April, 2016 by the Ontario Superior Court addresses court ordered medical exams. The case deals with an unfortunately common situation. The plaintiff was injured in a car accident, and their injuries lead to a decline in mental health. Before the hearing the plaintiff had already agreed to several medical exams, and completed a treatment program for both chronic pain and mental health. After treatment the plaintiff was examined by a physiatrist and an orthopaedic surgeon and no further treatment was recommended. The defendant wanted another medical exam, this time to be performed by a psychiatrist. The court did not grant the defendant’s request.
The decision is highlights some of the issues faced in the courtroom when asking for a court ordered medical exam. In order for a judge to require a medical examination they will want to be sure that it is legitimately necessary and that without it the trial process will be unfair. In determining whether to require a medical examination, a judge will assess a complex set of factors. Some of these factors are: the risk of delaying the trial, giving both sides an opportunity to present evidence on an issue, and expense. Where there were prior medical examinations, the judge will also want to hear from a health practitioner about why a subsequent examination is necessary. If a lawyer does not convincingly address those factors, then, a judge will be resistant to finding in their favour. In this case, the defendant simply did not provide enough evidence about why the further medical exam was necessary.
The decision also serves as a reminder that it is important to pick the right expert. Not all experts will bring the same credibility to the courtroom. Some develop a reputation for favouring their own client, instead of being fair, objective and nonpartisan. This type of biased expert is sometimes referred to as a “hired gun”. If the judge perceives that a party wants to use a “hired gun” to do a medical exam, they may not allow the medical examination to be conducted by that expert.
