After being injured in an accident, be it a slip and fall or a car accident, you likely sought medical attention, either from your family doctor or a hospital. Depending on the injuries sustained, ongoing medical treatment may be required. You may also need to seek compensation for the losses caused by the injuries sustained.
When bringing a personal injury claim against the person who caused your accident, it is likely to be necessary to prove the nature of your injuries and that these were caused by the accident. While you may be able to support your claim using the evidence of medical practitioners that treated you, the defendant may wish to obtain their own evidence on your injuries, with a view to challenging their severity or impact or the fact they were caused by the accident.
This article looks at the ability of a defendant to require the plaintiff to attend an independent medical examination in Alberta.
What is an independent medical exam?
An independent medical examination is performed by a medical professional who has not assessed or treated the plaintiff. Your lawyer might suggest that you attend one for evidence-gathering purposes, but this article focuses on exams conducted at the defendant’s insistence. This type of exam is often referred to as a defence medical exam.
The defence may wish to have the plaintiff seen by an independent doctor for various reasons. For example, the defendant may intend to dispute that the plaintiff has suffered injuries or argue that they are not as serious as the plaintiff suggests. The defendant may be seeking medical evidence to support a claim that the injuries were not caused by the accident. The defence may also use evidence from an exam for issues relating to the appropriate amount of compensation, for example, on the level of future care that the plaintiff requires.
Reports from independent medical exams may also be used in settlement negotiations and may narrow down the issues the parties disagree upon.
If you have an upcoming independent medical exam, check out our tips for attending the exam.
In what circumstances does the plaintiff need to attend an independent medical exam?
As a general rule, where the mental or physical condition of the plaintiff is at issue in an action and the plaintiff has been examined by a healthcare professional, the defendant is able to request the plaintiff to attend an exam by a professional of their choice.
This is designed to put the parties on an equal footing when assessing the plaintiff’s injuries. An independent medical exam allows the defendant also to assess the plaintiff’s condition, allowing it to challenge the evidence put forward by the plaintiff, as presented by its doctor.
Can the court order attendance at an exam?
Only some kinds of independent exam are appropriate in the circumstances, and the parties may not agree on whether the defence should be allowed to request an exam by a particular doctor. If the parties are unable to agree, the court can order a person to submit to an examination.
The Alberta Rules of Court provide that:
“If the plaintiff has been the subject of a medical examination by a health care professional of the plaintiff’s choice who will or may be proffered as an expert, the Court may order that the plaintiff be the subject of a medical examination by one or more health care professionals of the defendant’s choice.”
The court may decline to order an independent exam, for example, if it is unlikely to produce relevant evidence, unnecessarily prolongs the process or prejudices the plaintiff.
Furthermore, the Rules normally only allow one expert to give opinion evidence on any subject for a party. Therefore, while it is possible to have examinations by different doctors on different issues, it generally won’t be possible for the defendant to have multiple doctors of the same specialism examine the plaintiff.
What can the independent medical exam cover?
Depending on the plaintiff’s condition, the independent medical exam may involve an interview about the plaintiff’s symptoms and medical history and an examination and testing phase.
The Rules require the plaintiff to answer the questions posed by the healthcare professional on their mental and physical condition and medical history. The professional can also take and analyze samples and perform tests, provided the person agrees or the court orders.
Unless the court orders otherwise, the plaintiff can attend the exam accompanied by another healthcare professional, videotape and make a recording of the exam.
Who pays for the exam and sees the results?
Under the Rules, unless the court orders otherwise, the party applying for the order for the medical examination (the defendant) needs to pay the associated cost. Often, examinations requested by the defence are paid directly by the defendant’s insurance company.
The results of exams need to be shared. According to the Rules, on request, the party that sought the independent exam needs to deliver a copy of the detailed written report of the healthcare professional’s findings and conclusions to the other parties.
But the party seeking the exam is also entitled to a report of every examination of the plaintiff’s physical or mental condition resulting from the injuries sustained or the condition at issue in the action.
Contact Calgary Personal Injury Lawyers for Advice on Personal Injury Claims
If you have been injured in an accident, let the experienced personal injury lawyers at Cuming & Gillespie in Calgary guide you through the entire process of your compensation claim. We will help you understand your legal rights, give realistic advice on your prospects and assist you through the process of attending medical exams, if necessary. Call us today at 403-571-0555 or contact us online to book an appointment for a free consultation to discuss your matter.