Two IMEs, one doctor: Retaining the same medical expert to examine an insured individual involved in two accidents
The recent decision of the Nova Scotia Supreme Court in Saccary v Vonhammerstein1 presents an interesting issue on independent medical examinations (IMEs) at the request of Section A insurers. Should a doctor be disqualified from performing an IME at the behest of a Section A insurer if the doctor had performed an IME on the same insured at the behest of a Section B insurer for a prior accident?
In Saccary v Vonhammerstein, the plaintiff was involved in two separate motor vehicle accidents, the first in 2009 and the second in 2011. The plaintiff commenced separate legal proceedings with respect to each accident. The actions were eventually consolidated in 2017. As a result of the first accident, and at the behest of her Section B insurer, the plaintiff underwent an IME performed by Dr. Koshi, a physiatrist. Shortly after the IME, the plaintiff was involved in the second motor vehicle accident. The plaintiff had obtained three medical expert reports to support her claims. A key issue in the consolidated proceeding was the extent to which the second accident contributed to the plaintiff’s current condition.
The defendant’s counsel retained Dr. Koshi in order to perform an IME of the plaintiff to determine the cause and effect of her current medical condition, particularly as between the first and second accidents. There was no argument over the defendant’s right to obtain an IME where the plaintiff had put her medical condition in issue, nor any objection to the professional qualifications of Dr. Koshi. The plaintiff refused to attend the IME on the grounds that Dr. Koshi was no longer an independent medical examiner in the circumstances. The plaintiff’s concern was about the independence, objectivity, and bias of Dr. Koshi due to the prior IME of the plaintiff performed by Dr. Koshi at the behest of the Section B insurer. The plaintiff submitted that a different medical practitioner should be chosen to perform the IME.
The defendant brought a motion for an order pursuant to Rule 21 of the Nova Scotia Civil Procedure Rules, compelling the plaintiff to attend a medical examination with Dr. Koshi.
The court relied on the principles contained in Rule 21.02(2) and Rule 55.04. Rule 21.02(2) charges the party who puts their own physical condition in issue, with a burden to satisfy the judge that the party should not be examined. Rule 55.04 requires that an expert give an objective opinion for the assistance of the court and apply independent judgment in giving that assistance.
The court reviewed the relevant case law and determined that a defendant contesting a personal injury claim has a prima facie right (a presumed right unless proven otherwise) to have the plaintiff examined by a properly qualified medical expert of the defendant’s own choosing. Given the defendant’s prima facie right, the plaintiff has the burden to demonstrate that the defendant’s choice of expert was unreasonable.
The court was not persuaded by the plaintiff’s argument challenging Dr. Koshi’s ability to provide an objective opinion and to apply independent judgment in assistance of the court. The court was not satisfied that there was sufficient evidence to show that the defendant’s choice of expert was unreasonable and required more evidence to supplant the defendant’s prima facie right.
Furthermore, the court observed that Dr. Koshi may be in a better position to provide an opinion on the extent to which the plaintiff’s current medical condition should be attributed to each accident.
The defendant’s motion for an order compelling the plaintiff to attend the IME with Dr. Koshi was granted. However, the court noted that the granting of the motion did not prevent the plaintiff from making submissions at trial regarding the weight given to Dr. Koshi’s opinion.
Lessons for Insurers
Insured individuals may be involved in multiple accidents from time to time. In the event an IME has been performed by a duly qualified physician, this decision suggests that the same physician can conduct an IME on the insured with respect to the second accident.
If you are an insurer in one of these situations it may be worth considering the use of the same medical expert for subsequent IMEs. It may reduce the amount of time and money spent on procuring a satisfactory doctor.
1Saccary v Vonhammerstein, 2018 NSSC 135.