IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | De Corde v. De Corde, |
| 2011 BCSC 1719 |
Date: 20111215
Docket: 09 1245
Registry:
Victoria
Between:
Joanna Elzbieta De
Corde
Plaintiff
And:
Boleslaw De Corde
Defendant
Before:
Master Bouck
Reasons for Judgment
Counsel for the Plaintiff: | B. J. Kitzke |
Counsel for the Defendant: | E. C. Thomas |
Place and Date of Hearing: | Victoria, B.C. October 26, 2011 |
Place and Date of Judgment: | Victoria, B.C. December 15, 2011 |
[1]
On October 26, 2011, I dismissed the defendants application for an
order that the plaintiff attend an independent medical examination with
Dr. Kevin Solomons. The appointment with Dr. Solomons was scheduled
to take place in Vancouver the day after the application was brought. The
application was brought on short notice to the plaintiff.
[2]
These are my reasons for making that order.
The Facts
[3]
The plaintiff alleges that she was injured in a motor vehicle accident
which occurred on April 1, 2007. In her statement of claim, the plaintiff particularizes
her complaints to include neck and back pain as well as a head injury and
emotional distress. The plaintiff is a child care worker and has been off work
since the accident.
[4]
The action was expected to proceed to trial on February 27, 2012, before
a judge alone.
[5]
The defendant describes the plaintiffs injuries and complaints as
complex.
[6]
The medical evidence discloses that in addition to ongoing physical
complaints, the plaintiff suffers from depression and anxiety. These conditions
are categorized as mild by some medical professionals and severe by others.
There is a suggestion by some of the medical professionals that the anxiety and
depression negatively impact the plaintiffs cognitive functioning.
[7]
The plaintiff was examined for discovery on March 24, 2010, with a
continuation of that examination held the following October.
[8]
At her examination for discovery, the plaintiff acknowledged suffering
from ongoing depression and anxiety. The plaintiff also expressed her
reluctance to use medication to control these conditions.
[9]
The chronology of the medical investigations conducted on the plaintiff is
highly relevant to the application.
[10]
The plaintiff was examined by Dr. S.M. Gershman in November 2008, at the
request of the defendants insurer. Dr. Gershman is a general practitioner with
a diploma in sports medicine.
[11]
In his medical-legal report issued later that month, Dr. Gershman
suggests that the plaintiff requires psychological assessment and psychometric
testing with a clinical psychologist and:
The purpose of this
recommendation is to determine Ms. De Cordes personality style and its
relationship to coping with pain, to clarify the presence or absence of
clinical relevant depression and anxiety, and to determine if further
neuropsychological testing is required for the presence or absence of a
traumatic brain injury.
[12]
However, Dr. Gershman also opines that the plaintiff had likely not sustained
a brain injury in the accident.
[13]
On June 7, 2010, the plaintiff attended another independent medical examination,
this time with Dr. A. E. Wahl, an orthopaedic surgeon.
[14]
At the time of this assessment, Dr. Wahl had in his possession a medical
legal report from Dr. J.A.Laing, the plaintiffs family physician. Dr. Laing
notes the plaintiffs significant mood change with depression symptoms
secondary to the accident. Despite Dr. Laings encouragement, the plaintiff
was resistant to starting antidepressant treatment. The plaintiff is described
by Dr. Laing as seriously depressed.
[15]
Dr. Laing referred the plaintiff to a psychologist, Nancy Reeves. The
plaintiff attended counselling sessions with Dr. Reeves between May and
November 2009. Ms. De Corde was apparently questioned about this
counselling at her examination for discovery.
[16]
Dr. Wahl also had in his possession a March 2010 report from
Dr. I. Schultz. That report resulted from a neuropsychological
assessment of the plaintiff.
[17]
In Dr. Schultzs opinion, the plaintiff was suffering from post
traumatic stress disorder traced to the accident. Dr. Schultz suggests that in
the absence of treatment, the plaintiff was at risk of developing generalized
anxiety disorder and/or panic disorder.
[18]
Dr. Schultz recommends that the plaintiff attend a partial
neuropsychologist reassessment in two years upon completion of intensive
psychological treatment.
[19]
Thus, both Dr. Wahl and the defendant were alive to the plaintiffs
mental health issues in advance of the June 2010 independent medical
examination.
[20]
In his report, Dr. Wahl opines that:
The accident-related symptoms
improved with time and therapy as would be expected; however, the onset of an
anxiety/depression with associated symptoms of somatic pain resulted in a
persistent variable clinical pattern of neck and low back pain. The character
and clinical pattern of her spine symptoms are more compatible with her
naturally occurring degenerative spine disorder, amplified by her significant
clinical psychological problems. The combination has a propensity to develop into
a chronic pain syndrome. Such a syndrome would lead to a less favourable
prognosis.
[21]
Dr. Wahl recommends medical management of the plaintiffs emotional
difficulties (anxiety depression). There is no suggestion of psychiatric
intervention or assessment. Indeed, no further medical investigations are
deemed warranted.
[22]
Of some importance, Dr. Wahl notes that all of the neurological
examinations of the plaintiff conducted to that date showed normal results.
[23]
Dr. Wahls report was delivered to plaintiffs counsel on October 11,
2011.
[24]
For reasons not explained in the affidavit material, the defence next
chose to have the plaintiff assessed by a neurologist.
[25]
The plaintiff voluntarily attended this (arguably third) independent
medical examination which was conducted by Dr. Alexander Moll. Dr. Moll assessed
the plaintiff on January 17, 2011.
[26]
It is Dr. Molls opinion that the plaintiff did not suffer a
neurological injury in the accident but may have sustained a mild concussion
which would have resolved within three months.
[27]
Dr. Moll concludes that the plaintiffs ongoing cognitive complaints are
related to anxiety, mild depression and sleep issues. Dr. Moll further notes
that there is a recorded pre-accident history of anxiety and mild depression.
[28]
Dr. Moll largely agrees with Dr. Schultzs medical opinion, except for
the suggested period of recovery from what might have been a mild concussion.
The plaintiffs ongoing cognitive complaints are attributed to psychological
factors which should be addressed with appropriate rehabilitation and
reassurance. Again, there is no recommendation for psychiatric intervention or
assessment.
[29]
The evidence does not address the impetus for this application, other
than counsels opinion that such an examination is necessary to:
a. confirm whether or not the
plaintiff has a psychiatric disorder;
b. determine whether that disorder
have affected and continue to affect the plaintiffs ability to work; and
c. to more specifically provide a
prognosis and opinion concerning treatment.
[30]
The defendant acknowledges that opinions have already been offered to
the effect that the plaintiff may be suffering from various mental health
conditions, ranging from post-traumatic stress disorder to depression to
adjustment reaction.
[31]
On September 29 of this year, defence counsel advised plaintiffs
counsel of the appointment with Dr. Solomons.
[32]
On October 12, Mr. Kitzke advised that the plaintiff would not be
willing to attend this independent medical examination. Mr. Kitzke also
confirmed that the plaintiff had not undergone any psychiatric evaluation, nor
was the plaintiff claiming that she had suffered a psychiatric injury as a
result of the accident.
[33]
In mid-October, the defendant delivered the expert reports that were to
be relied on at trial. These reports included those of Drs. Gershman, Wahl and
Moll.
[34]
To meet the 84-day deadline for delivery of expert reports, the defence
would have been required to serve Dr. Solomons report by no later than
December 5, 2011: Rule 11-6 (3) of the Supreme Court Civil Rules. Any
rebuttal report from the plaintiff would need to be delivered by January 16,
2012: Rule 11-6 (4).
[35]
The plaintiff suggests that there is a limited pool of psychiatrists — both
locally and on the Lower Mainland — who might be available to assist the
plaintiff and prepare a report (even only in rebuttal) in the time frames
required. Thus, it is possible that the plaintiff would seek an adjournment of
the trial in order to address the defences psychiatric opinion evidence.
Discussion
[36]
The principles to be considered in the courts exercise of discretion
under Rule 7-6 are summarized in Hamilton v. Pavlova, 2010 BCSC 493 at
paras. 10 to 16. All of these factors were considered in my deliberations.
[37]
The overriding principle is that an independent medical examination
ought to be permitted if necessary to ensure reasonable equality between the
parties in their preparations for trial.
[38]
In this case, there are at least two considerations that compelled the
dismissal of the application.
[39]
First, there is no basis to suggest that the defendant is at a disadvantage
in terms of evidence.
[40]
Second, the application is brought so close to trial that the plaintiff
might be prejudiced (by the adjournment of the trial) if the order was granted.
[41]
This is not a case where a new diagnosis or symptom has arisen since the
last independent medical examination. Indeed, much of the information that is
relied on by defence in this application was in that partys possession before
the plaintiff attended the examinations by Drs. Wahl and Moll.
[42]
The plaintiffs mental health is commented upon in all of the reports
presented to the court. None of the various medical professionals have
recommended psychiatric treatment or diagnosis. It is appreciated that the diagnosis
of the plaintiffs symptoms differs as between these medical professionals.
However, regardless of the diagnosis, all of these professionals suggest a
treatment plan. That plan ranges from simple reassurance to medication to
counselling to future neuropsychological reassessments.
[43]
What a psychiatrist could offer in terms of a diagnosis or
treatment plan is not explained in the evidence. This is not a case, for
example, where the plaintiff might be consuming a myriad of medications whose
effect might be best assessed by such an expert.
[44]
The experts differ on the label for the plaintiffs mental health
condition and the suggested treatment but that difference exists even between
the defences own experts. It is not a difference that pits the plaintiff
against the defendant.
[45]
In short, there is simply no basis to suggest that the evidence
presented to date requires a psychiatric opinion in order to level the playing
field. Experts on both side of this case make certain treatment
recommendations that will probably lead to some resolution of the plaintiffs mental
health symptoms. Whether the plaintiff follows those recommendations goes to
the question of mitigation.
[46]
Another important factor to consider is the timeliness of the
defendants request, particularly when the opinions of the three defence
experts (let alone those of the plaintiff) have been known for several months.
[47]
I accept the submission that given the type of specialist involved, the
plaintiff would have been hard pressed to answer Dr. Solomons opinion in time
for trial. Thus, the plaintiff may be compelled to seek an adjournment of the
trial which is scheduled to occur nearly five years after the accident. Such a
result would hardly be in keeping with a speedy resolution to the claim: Rule
1-3.
[48]
In considering the question of prejudice, I presumed that Dr. Solomons would
be able to comply with the 84-day deadline. But that deadline is not really the
issue. It is the deadlines that the plaintiff must meet that leads to the
possible prejudice.
[49]
The plaintiff need only demonstrate that an adjournment of the trial is
a possibility: Critchley v. McDiarmid, 2009 BCSC 134 at paras. 21 and
22.
[50]
In answer to this submission, the defence relies on Zagar v. Winvan
Paving Ltd (1996), C.P.C. (4th) 318 (S.C.) (Zagar). The
case is relied on for the proposition that any prejudice resulting from the
delivery of a report from a new expert could be addressed by the trial judge. As
well, the defendant says that the courts analysis in Zagar, which
resulted in an order for an independent psychiatric assessment, should be followed.
[51]
Admittedly, the facts described in Zagar are somewhat similar to
the case at bar. The defence application came on the eve of trial and was based
on medical reports that had earlier [raised] a psychiatric or psychological
component. More specifically, the medical experts were at odds as to whether
or not the plaintiff had a psychiatric or psychological disorder which
contributed to or caused the plaintiffs ongoing complaints.
[52]
In granting the order, the court observes that the plaintiff had been
aware of the defendants request for a psychiatric evaluation for several
months and could have arranged for the plaintiff to see a psychiatrist over
that period.
[53]
Despite these apparent similarities, there are several reasons why this
decision should not be followed in this instance.
[54]
Here, the experts are not at odds over whether the plaintiff is
suffering from a psychiatric or psychological condition. All of the experts
agree that such a condition exists. To reiterate, the differences of opinion on
the proper label or diagnosis and corresponding treatment exists as between the
defences own experts.
[55]
In addition, Zagar was decided at a time when rebuttal evidence
could be presented at trial without any advance notice to the opposing party: Pederson
v. Degelder (1985), 62 B.C.L.R. 253 at para. 24 (S.C.). Hence, the courts
comment that any prejudice could be addressed by the trial judge. While the
plaintiff raised the issue of an adjournment, the court declined to give that
factor any weight whatsoever. In any event, the plaintiff had already obtained the
opinion of a mental health professional (a psychotherapist) who denied the
existence of a psychiatric disorder.
[56]
Finally, I note that Zagar was decided before all but one of the
now leading authorities cited in Hamilton v. Pavlova, supra. Not all of
the principles discussed in these subsequent authorities are considered by the
court in Zagar.
[57]
The only leading decision that comes before Zagar is Wildemann
v. Webster (1990), 50 B.C.L.R. (2d) 244 (C.A.). Wildemann v. Webster
confirms the overriding principle that evidentiary equality between the parties
should be ensured. However, the circumstances in that case involved a proposed
independent assessment by an inter-disciplinary medical team. Only in
exceptional cases would such an assessment be ordered.
[58]
In my view, the analysis found in the more recent decision of Vermeulen‑Miller
v. Sanders, 2007 BCSC 1258, is more applicable to the facts of this case.
[59]
This decision also addresses an application by the defence for an independent
psychiatric assessment.
[60]
Following receipt of a psychiatric opinion from the plaintiff, the
defence chose to have the defendant attend an independent medical examination
with a neurologist. The application for the psychiatric evaluation came before
the court six weeks before trial.
[61]
The court found that the neurologist had squarely addressed the
plaintiffs psychiatric opinion-or at least had the opportunity to do so.
Furthermore, the court notes that:
The defendants have had ample time to consider how best to
respond [to the psychiatric opinion] and having chosen a particular kind of
specialist to respond … they must have taken to have addressed the matters
arising in the report upon which they wished a considered expert response:
At
para. 48.
[62]
Given the timelines that must be met under SCCR together with the
common acknowledgment that psychiatric assessments are not so easily obtained
on short notice, there appeared to be a real possibility that the trial would
be adjourned to allow the plaintiff to address the defence s new expert evidence.
[63]
Thus, an order requiring the plaintiffs attendance at a psychiatric
independent examination would result in an inequality of evidence favouring the
defence. I have already made the same finding in the case at bar.
[64]
Before concluding these reasons, there is one practice point that might
be conveniently mentioned.
[65]
The defence took exception to plaintiffs counsel relying on authorities
that were not cited in the response to the notice of application. In fact, the
plaintiff makes no reference to any case law in her response. In contrast, the
defendants prepared a comprehensive notice of application including a synopsis
of the legal basis for the application with reference to all of the authorities
presented in oral argument.
[66]
The defence position is not without merit. Both the notice of application
and response under the SCCR invite a party to provide a thoughtful written
synopsis of legal argument. A properly prepared notice of application or response
ensures that the opposing party knows the argument to be met. Thus, there
should be no longer be occasion for chambers by ambush.
[67]
Indeed, in my view, it should be only in the rare instance that a party will
surprise the other by citing in oral argument authorities not mentioned in these
forms.
[68]
Nonetheless, an application brought on short notice would seem to me to
be one of those rare instances. Plaintiffs counsel should not be faulted for
any apparent omission in a response necessarily prepared on the eve of the
application.
C.
P. Bouck
Master
C. P. Bouck