Defendant Fails To Show Why Plaintiff Should Attend Examination 450 km Away Contrary to Medical Advice - McGowan v. Green, 2020 ONSC 686

February 03, 2020, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

McGowan v. Green, 2020 ONSC 686

Date of Decision: January 30, 2020
Heard Before: Justice Tausendfreund

INDEPENDENT MEDICAL EXAMINATION: is defendant entitled to request an independent medical examination of the plaintiff by a physician of the defendant’s choice; defendant is requesting examination of plaintiff by medical provider 450 km away; is this reasonable to expect; impact on plaintiff’s medical and mental state; what is resonable;

Defendants are generally permitted to choose their own examiner in personal injury cases. In this particular case the Defendant argues that This particular physician does not travel to the location in question. The Defendant is willing to pay for reasonable travel expenses and hotel accommodations for the Plaintiff to attend the examination.

The Plaintiff advised the Defendant that traveling from Ottawa to Mississauga will be inconvenient and possible medically detrimental. The Plaintiff produced documentation from their treating neuropsychologist in support of this position. The plaintiff is diagnosed with a major neurocognitive disorder due to a TBI and major depressive and adjustment disorders.

The neuropsychologist did acknowledge that the Plaintiff has travelled for holiday and to appointments to see him in Kingston, Ontario. The Plaintiff has also travelled regularly to see their family physician in Belleville. The family physician has provided documentation that currently the Plaintiff has difficulty travelling due to post-concussion symptoms.

The Justice reviewed the law and the evidence noting that in Nutley v. Kuper, 2008 Pierce, J summarized the principles in guiding determination of the location of a defence medical in tort proceedings as follows:

• There is no general rule as to the place of the examination: Lamarr v. Marsman et al. (1975), 1975 CanLII 335 (ON SC), 8 O.R. (2d) 583 (H.C.J.) P.2;
• Prima facie, the Defendant has a right to select the physician to perform the examination: Smith v. Liberty Life Assurance Co. of Boston, 2003 CanLII 11628 (ON SC), [2003] O.J. 2966 (OSC), para. 14;
• As the Defendant’s medical expert may well be the only medical witness for the defence at trial, the courts should not unreasonably interfere with the choice of the medical assessor where the assessment is not unreasonably inconvenient: Manning v. Ryerson, [1992] O.J. 1392;
• The place of examination should be determined by what is convenient and just: Manning, ibid at para 5.

The Justice in this case added the following:

• The convenience of the party to be examined is a factor to be considered: Baker v. Hayes, 1991 CarswellOnt 3556 at para 2.
•  “The convenience of the party” includes providing adequate transportation, as the party’s circumstances require.
   

Justice Tausendfreund determined that there is uncontradicted evidence from the Plaintiff’s treating physicians that ‘go beyond raising a concern about a level of inconvenience” and that serious medical setbacks could result.

While the defendant has a right to choose a medical expert, “this right is not unfettered, particularly if the medical well-being of the patient might be compromised”.

The Defendant failed to show compelling reasons why this was the only expert that could perform the exam, nor did they provide evidence why they could not retain in neuropsychologist in Ottawa or a slower destination than the GTA. On this basis the motion was dismissed and costs awarded to the Plaintiff.

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