IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130612

Docket: M101301

Registry:
Vancouver

Between:

Tin Wing Wu aka
Rachel Wu

Plaintiff

And

Helson Ly, Mui
Thuy Lo and Helena Jun
an infant by her Litigation Guardian, Su Yong Jun

Defendants

Before:
District Registrar Cameron

Oral Reasons for
Decision

[1]            
This is an assessment of the costs of the Plaintiff, Tin Wing Wu, following
settlement of her personal injury claim arising out of a motor vehicle accident
that occurred on April 6th, 2008.  As a term of the settlement the Plaintiff
was entitled to her assessed costs and disbursements payable by the Defendant, Helson
Ly.

[2]            
Counsel have settled all of the tariff items and all of the disbursements
save for a medical report prepared by Dr. John le Nobel claimed in the amount of
$4,083, and an MRI imaging examination commissioned by Dr. le Nobel in the
amount of $1,595.

[3]            
An Affidavit of Dr. le Nobel was relied upon in support of both
disbursements.  In respect of the invoice for the MRI, Dr. le Nobel testified as
follows:

Because of my continuing concern
about Ms. Wu’s injuries from the motor vehicle accident, I referred her for a
private MRI at North Shore Medical Imaging.  I was concerned about the ongoing
pain in her lumbar spine and SI joints.  I did not refer her for an MRI through
the medical system because it is my recollection that it would take
approximately six months or longer to have the MRI, and I was of the opinion
that she needed to have the MRI done sooner.  Attached hereto and marked as
exhibit C to this, my affidavit, is a copy of the MRI report dated May 29th,
2012.

[4]            
I pause to note that Mr. Wiseman was involved at the relevant time as he
had requested a medical report from Dr. le Nobel and had been in touch with him
from time to time as he was a treating physician for the Plaintiff.  At the
time that Dr. le Nobel recommended that the MRI examination be done there was a
trial date approximately nine months hence in February of 2013.

[5]            
The objection that Mr. Chalcraft takes with respect to the MRI invoice
is that it should have been claimed as an item of special damage by the Plaintiff
rather than as a disbursement to be assessed following the settlement of the
litigation.  He takes that position based on the fact that Dr. le Nobel has
testified that from a treatment perspective he felt the MRI was necessary for
the Plaintiff and that the MRI was not predicated on an evaluation of the Plaintiff’s
medical condition and ongoing disability as it might assist in assessing the
value of her claim.

[6]            
In McCreight v. Currie, 2008 BCSC 1751, Master Young had occasion
to consider a claim for MRI scans, and as it happens, one of the physicians
involved in that case was Dr. le Nobel.  I refer to paragraph 10 of Her
Honour’s decision:

The plaintiff’s counsel says that Dr. le Nobel and Dr. Craig
could not come up with a clear diagnosis for the plaintiff’s hip pain, which is
why an MRI was obtained.  Neither the MRI nor the report was used at trial
because the MRI was inconclusive.

On cross-examination plaintiff’s
counsel says that the MRI was conducted because it was recommended by the
expert.  He was concerned about causation and therefore followed through with
obtaining their report.  He thought it was reasonable at the time he authorized
the MRI.  The results were inconclusive, and that is why Mr. Napora did not
refer to them at the trial, but this is not the test.  The legal test for
reasonableness of a disbursement when involving an expert report is whether it
was reasonable at the time the report was ordered.

In allowing the
disbursement, at paragraph 14 of her reasons, Her Honour says:

I believe the case before me can
be distinguished from the Ward, Phelan, Parrotta decisions. 
Dr. le Nobel clearly did recommend an MRI to try to assess the cause for Ms.
McCreight’s ongoing problems.  He did so because diagnosis was uncertain, and
he was hopeful at the time that the MRI would clear up some of that
uncertainty.  Unfortunately, it did not, but neither Dr. le Nobel nor
Mr. Napora knew that at the time the MRIs were ordered.  I will therefore allow
this disbursement.

[7]            
In Colasimone v. Ng and Mo, 2007 BCSC 1179, Madam Justice Gropper
was dealing with an appeal of a decision of District Registrar Blok (as he then
was) that allowed the cost of MRI scans as a taxable disbursement.  Her
Ladyship notes:

In his reasons for judgment
Registrar Blok describes MRI scans as presenting a "special problem in
considering party and party bill of costs."  He notes that MRI scans can
be used for either or both treatment and litigation and sometimes the line is
blurred. The Registrar concludes:

I am satisfied that a sufficient litigation purpose was
shown on the evidence before me such that the disbursement was reasonably
incurred, necessary and proper in a litigation purpose.  Specifically the
purpose here was for Mr. Maryn to make a decision about the impending trial.

Registrar Blok has considered the
"special problem" that MRI scans present in his decision of Ward
v. W.S. Lessing Ltd., 2007 BCSC 877.  He comments that the cost of MRI
scans have been allowed and disallowed as a disbursement.  There are cases
which support either position, but as the Registrar notes, each turns on its
facts.  The Registrar continues:

If an MRI was performed for the purposes of treatment, then
it may be claimed as an item of special damages.  If it is used as an aid in
the litigation process, then it is properly claimed as a disbursement on a
party and party bill of costs.  Those are the typical questions that are dealt
with when MRIs are at issue.

[T]here must be some judgment applied, perhaps with medical
input, in considering the necessity for the procedure in a litigation context,
given the injuries involved, the likely damages, what the MRI is expected to
achieve from a litigation standpoint and so on.

[8]            
In paragraph 22 of her decision, Her Ladyship concludes by saying,
having reviewed all of the evidence:

Thus the scans were for two
purposes:  to determine the extent of the plaintiff’s injuries and for
treatment purposes.

[9]            
In the result Madam Justice Gropper upheld the Registrar’s decision,
finding he did not clearly err in finding that the disbursement related to MRI
scans was reasonably, necessarily and properly incurred for the purposes of the
litigation.

[10]        
In this case there is evidence before me that the impetus for the MRI
was from Dr. le Nobel, who was a treating physician for the Plaintiff and who
was continuing to suffer ongoing pain and discomfort some four years following
the motor vehicle accident.  Because of Dr. le Nobel’s concern about her
continuing symptoms and to better assess them, he recommended that an MRI
examination be done.

[11]        
Mr. Wiseman was involved as counsel in the process and pointed out that
the cost for the MRI examination was one that was paid directly by him.  He was
concerned to have the best evidence available to serve as a foundation to most
reliably assess the Plaintiff’s claim for damages. I am satisfied that this is
one of those cases where the MRI was obtained for two purposes being  for
diagnosis and also to assist the Plaintiff and her counsel in better evaluate
and present her claim for damages.

[12]        
Mr. Chalcraft did not take any issue with the cost of the MRI other than
to object to the claim for interest.  Mr. Wiseman abandoned the claim for
interest, and as a result the MRI disbursement is allowed as claimed in the sum
of $1,595.

[13]        
As for the medical report authored by Dr. le Nobel claimed for in the
sum of $4,083, Mr. Chalcraft did not take any issue with the decision to obtain
it from Dr. le Nobel, who is a specialist in physical medicine and rehabilitation.

[14]        
Mr. Chalcraft submitted that because Dr. le Nobel was a treating
physician and that he had been paid by the Medical Services Plan for the
medical services he provided to the Plaintiff including advice to her family
physician that he would be overcompensated if he were to be paid again for
reviewing all of his own clinical records in preparing the medical report.  I
do not agree.  Any physician, whether a treating physician or a physician
consulted solely for the purposes of providing an independent opinion would be
expected to review carefully all of the available medical evidence in providing
that opinion.  The time that is spent to review the medical records whether
they be those of the author or other caregivers may be challenged as being
excessive but that is another matter.

[15]        
In his affidavit Dr. le Nobel testifies that he spent six hours
reviewing the entire medical record for the Plaintiff and another three to four
hours preparing and his medical report, in both cases at an hourly rate of
$381.  There was no challenge that the time spent by Dr. le Nobel was excessive
or that his hourly rate was not justified.

[16]        
Accordingly, this disbursement is allowed as claimed.

[17]        
The Plaintiff was successful in respect of both matters that were
contested and will have her costs of this assessment, which I will fix
inclusive of disbursements and taxes at $450.

“District Registrar Cameron”