Court denies ICBC’s request for Independent Medical Examination with Orthopaedic Surgeon

In a decision published yesterday, the court in Pridge v. Barnett, 2016 BCSC 2556, denied ICBC’s request for an Independent Medical Examination with an Orthopaedic Surgeon on the basis that the plaintiff had already been examined by an ICBC appointed Physiatrist.  Madam Justice Power said:

[1]             THE COURT:  This is the defence application that the plaintiff attend an independent medical examination with Dr. Darius Viskontis, an orthopaedic surgeon.

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[4]             The plaintiff also argues that this is not a first independent medical examination, but a second one, and that the court should not exercise its discretion in favour of granting a further independent medical examination.

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[14]         The parties have placed a number of authorities before me, both in the application and response.  Having considered those materials, I am of the view that the weight of the materials satisfies me that this is a second examination and is not required to ensure reasonable equality between the parties in the preparation of the case for trial.

[15]         The defence has the benefit of two reports of Dr. Filbey which are comprehensive and two reports of Mark Swain, an occupational therapist.  The plaintiff does not intend to call an orthopaedic surgeon at trial.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/16/25/2016BCSC2556.htm

Court Criticizes ICBC For Use of Orthopaedic Surgeon in Soft Tissue Case

In the recent decision of Khudabux v. McClary, 2016 BCSC 1886, the court criticized ICBC’s reliance on the opinion of an Orthopaedic Surgeon in a Soft Tissue Case, preferring the evidence of a Physiatrist.  Using somewhat colourful language, the court said:

[91]      The expert medical evidence presented at this trial brought into focus a difficulty that not infrequently arises when a defendant pursues the strategy of tendering the opinion of an orthopaedic surgeon to rebut allegations of soft tissue injury. Of course, there may be situations in which such a specialist feels able to offer opinion evidence that sheds light on the nature and scope of such complaints. But it is also the case that a clash between experts pitting an orthopaedic surgeon against a physiatrist, specializing in rehabilitation medicine – or even, as in the present case, against a family physician – can possibly leave counsel in the position of the hoodlum in the film The Untouchables, at the point when he realizes too late that he has brought a knife to a gunfight.

[92]      There is a tendency common to many orthopaedic surgeons who provide expert opinion reports in soft tissue injury cases before this court to express their opinions without qualification – specifically, without acknowledging the extent to which their opinions are shaped by or restricted to the narrow field of their own expertise. In the result, many such reports come before this court that, in substance, say “I have examined this patient, and nothing is wrong with them,” when what is really meant is, “I have examined this patient, and I am unable to diagnose any orthopaedic injury”. Expert witnesses who provide opinions in such stark terms without explicitly stating the limitations of their opinion may, if their opinions contrast with complaints of pain and suffering that are found to be genuine, and are at odds with contrary opinion evidence from another medical expert, risk creating confusion. They may also leave themselves vulnerable to a finding of bias if the unstated limitations of their opinions are not drawn out at trial.

The full text of the decision can be found here: http://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc1886/2016bcsc1886.html

Court denies ICBC's request for Independent Medical Examination with Physiatrist

In the recent decision of Dippel v. Kraus, 2016 BCSC 2238, the court denied ICBC’s request for an Independent Medical Examination with a Physiatrist on the basis that the plaintiff had already been examined by an ICBC appointed Orthopaedic Surgeon.  The court said:

[1]            THE COURT:  This is an application by the defendant for the plaintiff to attend at the defendant's medical examination with Dr. Gabriel Hirsch, a physiatrist, on Monday next week.

[9]            Dr. Richardson, as an orthopedic surgeon, is a different speciality from Dr. Hirsch, who is a physiatrist; however, it is established by case law and not disputed that there is significant overlap between these two specialties.

[13]        In the absence of any evidence that Dr. Richardson would not be able to provide the evidence as to the plaintiff's rehabilitation, or alternatively any evidence from Dr. Hirsch as to what he could bring to the analysis, or that he could opine on something that Dr. Richardson could not, I am unable to conclude that the defendant has established on the evidence that a second medical examination with Dr. Hirsch is required in these circumstances.

The full text of the decision can be found here: http://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc2238/2016bcsc2238.html?resultIndex=1