IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151019

Docket: M131505

Registry:
Vancouver

Between:

Pratna Ram

Plaintiff

And

Gurcharan Chhina
and Enterprise Rent-a-Car Canada Company

Defendants

Before:
Master Muir

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: This is an application for the plaintiff to attend an
independent medical examination with Dr. Medvedev, who is a neurologist,
on October 22, 2015 at 9:00 a.m.

[2]            
This application stems from a personal injury matter, a motor vehicle
accident which occurred on March 25, 2011 (the “motor vehicle accident”).

[3]            
The submissions of the defendants are similar to those in previous
decisions on this type of issue. The medical legal report sought is to be a
responsive report. The 84-day deadline has passed. The 42-day deadline is
coming up on November 4, 2015.

[4]            
In the pleadings, the plaintiff alleges concussion head injury, double
vision, memory difficulties and so forth. It is said in the evidence that at
her examination for discovery, when asked what doctors she had been referred to,
the plaintiff testified that the specialists that her family doctor had
referred her to were an optometrist and a chiropractor. Her last visit to the
optometrist was on June 21, 2013 and the chiropractor on August 13,
2013.

[5]            
Counsel for the defendants thus submits that when they received the expert
reports from Dr. Barton, who is a neuro-ophthalmologist, and Dr. Schmidt,
who is a neuro-psychologist, days prior to the 84-day deadline, they were
surprised at the opinions advanced as to the impact of the motor vehicle
accident on the plaintiff.

[6]            
As a result, they say they need an opinion from Dr. Medvedev in
order to level the playing field. They provide the affidavit of Dr. Medvedev
in which he says:

I have read the report of Dr. Jason
Barton dated July 24, 2015 and advise I will need to see the
plaintiff in order to record her history of past and current symptoms and
dysfunction and to confirm findings as noted in the report of Dr. Barton
and to assess her prognosis.

[7]            
He says essentially the same thing about Dr. Schmidt’s report and
he also adds that:

I advise that the treatment Dr. Barton
recommends may be appropriate, based upon his examination findings about this
and in addition her prognosis and current status need to be confirmed.

[8]            
In para. 6 of his affidavit, Dr. Medvedev says:

I also need to interview and
examine the plaintiff as patient evaluation is critical in evaluating her
claims of injury.

[9]            
Dr. Medvedev then sets out in para. 7 in his affidavit essentially
what is set out in para. 48 of the decision in Luedecke v. Hillman,
2010 BCSC 1538. In Luedecke, it was the evidence of Dr. Reebye as
to his understanding of what a responsive report is and that it was his
intention to provide a responsive report, but that he needed to physically
examine the plaintiff in order to ground his opinions.

[10]        
The plaintiff resists the application and says that the defendants
should have gotten a primary expert report and if the defendants were taken by
surprise, there is no reason that they should have been, firstly, because it is
set out in their pleadings as I have already noted, and secondly, because
the opinion of the defendants’ own expert, Dr. Boyle, an orthopaedic
surgeon, which was provided to them on August 11, 2015, has several
comments about headaches. For example, at page 3 of the report there is a section
entitled “Headaches”, and it says, “These are mainly left frontal. These are
not typically cervicogenic in site. Discussion beyond this is outside of my
area of expertise.”

[11]        
At page 4 of Dr. Boyle’s report, it notes:

She also discusses issues of
mentation. She did have recent tests by a psychologist and it would be of some
value to review these if only to counsel regarding the need for further
psychological assistance. Discussion of issues regarding a possible head injury
are for the most part outside of my area of expertise.

[12]        
Thus, the plaintiff argues that one of the important considerations in
an application of this kind being whether there is true surprise such that
there is some rationale for the 84-day deadline having passed without a primary
expert report having been obtained is explained.

[13]        
Here, counsel for the plaintiff also points out that the defendants had
scheduled an independent medical examination with Dr. Turnbull and argue
that – and Dr. Turnbull is a neurosurgeon?

[14]        
MR. GOLDBERG:  Yes.

[15]        
THE COURT:  And argue that the defendants’ decision not to proceed with Dr.
Turnbull’s independent medical examination was clearly a decision they made not
to pursue an expert report, but that they must have had knowledge of the
plaintiff having neurological issues or neurological problems in order to
schedule that independent medical examination in the first place.

[16]        
The defendants say that they require the opinion of a neurologist and
that the opinion of a neurosurgeon would not assist.

[17]        
With respect to their orthopaedic surgeon’s report and the indications
of headache and mentation issues found in it, the defendants submit that that
report was provided to them so late in the day that it would have been
impossible essentially for them to obtain a primary expert report before the
84-day deadline and that it does not answer the issue of surprise.

[18]        
With respect to the pleadings, the defendants point out that a similar
argument was made in Timar v. Barson, 2015 BCSC 340 where Mr. Justice
Smith at para. 23 says:

[23]      Pleadings in personal
injury actions frequently must be issued before a plaintiff’s injuries have
fully resolved and sometimes before the full extent of the injury is known.
Even when the specific injuries remain exactly as described in the pleadings,
much may depend on the severity and persistence of symptoms as at the time of
trial.

[19]        
At para. 25, after discussing the fact that of what the pleadings
disclosed in this case, Smith J. says:

[25]      The pleadings in this
case were issued days after the accident and the plaintiff could not have known
what the long term impact of the concussion might be.

And says, therefore, that simple disclosure on the pleadings
of a neurological problem is not sufficient to put the defendants on notice
that a neurological report might be required.

[20]        
On balance, I am satisfied with the defendant’s explanation.  I am
of the view that although it is perhaps not normally required to have an
independent medical examination in support of a rebuttal report, here, we do
have the evidence of Dr. Medvedev that he understands the nature of the
response report and that he requires an independent medical examination of the
plaintiff in order to properly prepare such a report.

[21]        
I am satisfied on the authority of Luedecke that the application
should be allowed.  The case before me is not really distinguishable from Luedecke,
and as a result, I will allow the application.

[22]        
MR. GOLDBERG:  Costs?

[23]        
THE COURT:  Liability is admitted?  No?

[24]        
MR. DEMPSEY:  It is denied.

[25]        
THE COURT:  Liability is denied, so costs in the cause to the defendant.

[26]        
MR. DEMPSEY:  Costs in the cause.

[27]        
THE COURT:  All right. Thank you both. I appreciate your
submissions.

“Master Muir”