Court Compels Plaintiff To Sign Consent Form For Independent Medical Examination

There is conflicting legal precedent on the issue of whether or not a Plaintiff can be forced to sign a consent form with respect to an independent medical examination, when such attendance has been court-ordered.

 

In Wee v. Fowler, the Plaintiff was injured in a motor vehicle collision, and consequently sued for damages.

 

At one point in the litigation process, ICBC’S lawyer requested that the Plaintiff be examined by a physiatrist for the purposes of an independent medical examination. Although this was initially refused by Plaintiff’s counsel, it was later agreed to in the form of a consent order.

 

However, upon arriving for the examination, the Plaintiff refused to sign the consent form, and the physiatrist would not proceed with the examination as a result of this. The issue was brought before the Court for further consideration.

 

ICBC’S lawyer argued that the law was clear with respect to the Court’s authority to compel a Plaintiff to consent to a medical examination, and that, provided the consent form is reasonable, the Court can and should order that it be signed.

 

Counsel for the Plaintiff submitted that ICBC’S lawyer had not sought an order requiring the Plaintiff to sign the consent form. Further, counsel for the Plaintiff argued that the Court does not have the authority to force a consent form to be signed, and that the consent form in question went beyond what is required, submitting that all that is required is that the Plaintiff agree that the doctor is entitled to conduct the examination. The Plaintiff’s objections were on the basis that :

 

  • She must acknowledge that the doctor in question is independent of the parties
  • She is not in a doctor/patient relationship with him
  • She received an explanation as to the nature of the assessment
  • She was there voluntarily or pursuant to a court order under Rule 7-6 (1)

 

The Court would rule that the consent form in question was reasonable, and ordered that the client sign it.

 

[40]         With respect to the plaintiff’s first objection, the plaintiff suggests that Dr. Hirsch is not “independent” as he receives instructions and communicates with only one party. While it is true that Dr. Hirsch was retained by one party to the litigation, under Rule 11-2, an expert who is retained to provide an opinion, which includes physicians conducting IME’s like Dr. Hirsch, has a duty to assist the court and not be an advocate for any party. Dr. Hirsch is, therefore, to perform a role that is truly independent of the parties to the litigation. In that regard, I note that both parties refer to Dr. Hirsch conducting an “independent medical examination” in their correspondence, which is reflective of the generally accepted role of physicians conducting such examinations. I do not accept that the reference in the consent form to Dr. Hirsch being independent or to his conducting an independent medical examination to be unreasonable.

 

[41]         The plaintiff also objects to the requirement that the plaintiff confirm her understanding that there is no doctor‑patient relationship arising from the IME. In my view, the statement, read in its context, elucidates its meaning, that is, Dr. Hirsch, although conducting a medical assessment, is not her treating physician. I am not prepared to find, without any evidence, that this statement is ambiguous or outside the knowledge of the plaintiff who, I note from the materials included in the Application Record, is a registered nurse working in a hospital setting. In any event, this is a matter which the plaintiff could ask of Dr. Hirsch should she need any clarification.

 

[42]         The third objection is that the plaintiff is asked to confirm in advance that she has received an explanation as to the nature of the assessment. Again, I do not have evidence that suggests Dr. Hirsch did not or would not discuss the nature of the assessment prior to commencing the IME or prior to asking the plaintiff to complete the consent form. I find no basis for this objection.

 

[43]         The final objection to the proposed form of consent is that it requires the plaintiff to agree that her attendance is voluntary or pursuant to Rule 7-6(1). The plaintiff suggests that it is either one or the other. In my view, these are the two usual circumstances under which a party participates in an IME, and the reference is simply descriptive of the basis for the plaintiff’s participation. I do not accept there is merit to the plaintiff’s objection.

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