Court Compels Plaintiff To Attend For Independent Medical Examination With Neurologist Of Defendant’s Choosing

In Wohlleben v. Dernisky, the Plaintiff was injured in a motor vehicle accident, and subsequently brought an ICBC claim for damages for pain an suffering, as well as various other types of damages.


Prior to trial, ICBC’S lawyer brought an application to compel the Plaintiff to attend an independent medical examination with a neurologist of the Defendant’s choosing. Counsel for the Plaintiff had agreed that an examination by a neurologist was justified, but objected to the Plaintiff being examined by the neurologist chosen by ICBC’S lawyer.


The main reason for the objection by Plaintiff’s counsel was that there had been previous case law that had rejected the neurologist’s expert opinion. This included the neurologist making errors in recording what the Plaintiff had reported to him about the accident ; not making reference to a concussion diagnosis in other medical documentation ; stating that the Plaintiff’s post-accident gap in memory was extremely brief, when the Court had ruled this not to be the case ; and, a ruling by a previous judge that the neurologist in question was more of an advocate than an independent expert.


The Court in the present case noted, however, that previous cases cited in the Plaintiff’s Affidavit did not include other cases where the expert evidence of the neurologist in question was actually accepted by the Court.


The Court would go on to grant the Defendant’s application to have the Plaintiff be examined by a neurologist of their choosing, commenting that :


[10]         Here, the plaintiff, in my view, has not demonstrated by a preponderance of evidence that there are sufficient grounds to justify that I should not exercise my discretion in favour of the order that Dr. Dost conduct the examination.


[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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