IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Tani v. Baker,

 

2017 BCSC 1684

Date: 20170818

Docket: M155379

Registry: Vancouver

Between:

Moshrefini Tani also known as Moshrefini Hossain

Plaintiff

And

Matthew Allan Baker

Defendant

Before: Master Muir

Oral Reasons for Judgment

In Chambers

Counsel for the Plaintiff:

W.H. Bucci

Appearing for the Defendant:

J. Lai, Articled Student

Place and Date of Hearing:

Vancouver, B.C.

August 18, 2017

Place and Date of Judgment:

Vancouver, B.C.

August 18, 2017


[1]             THE COURT:  This is an application by the defendant for an order that the plaintiff attend an appointment with a radiologist registered with the Royal College of Physicians and Surgeons of Canada of her choice to undergo an X-Ray examination of her legs and right shoulder and to provide the X-Ray reports to defence counsel by no later than 4 p.m. on September 8, 2017. The defendant says he will pay reasonable costs associated with the X-Ray appointment.

[2]             The underlying action stems from a motor vehicle accident. The plaintiff was a pedestrian who was allegedly struck by the defendant’s vehicle. The plaintiff consented to an independent medical examination (“IME”) by an orthopedic surgeon, Dr. Trevor Stone. That IME was scheduled for July 13 and was subsequently rescheduled to August 24, 2017. However, both of these appointments have since been cancelled.

[3]             The history of the injuries is that the plaintiff was seen at Royal Inland Hospital and had surgery to both a broken leg and a broken shoulder in 2015. As a result of that, the plaintiff has had four X-Rays taken of her right knee, two of her right shoulder, two of her right tibia and right fibula, two of her chest, and a CT scan during the period from January 15, 2015 to October 26, 2015. She has not had any X‑Rays since.

[4]             Dr. Stone has done an affidavit in support of the application and in that he says:

In order to conduct a useful IME report and to give an informed medical opinion with respect to the injuries suffered, the likely cause of the injuries, treatment recommendations and projections for further recovery, I require updated and thorough medical records, including x‑ray image of the relevant injured area taken at a date no earlier than six months before a given IME appointment.

[5]             The plaintiff objects to further X-Ray imaging. She does so on the basis of her health concerns. She says:

As a result of the accident I have had many x‑rays. I am very worried that more x‑rays will be harmful to my health.

[6]             She has also been through an emotionally difficult time due to unrelated medical issues.

[7]             The law with respect to medical appointments is not really an issue. Rule 7‑6(1) of the Supreme Court Civil Rules provides that the court can order an examination by a medical practitioner or other qualified person if the mental or physical condition of a person is at issue in an action.

[8]             The plaintiff notes, and I will not put it higher than that, that Rule 7‑6(3) provides specifically that a person who is making an examination under this rule may ask any relevant question concerning the medical condition or history of the person being examined. There is no equivalent particularization of other testing that might be performed.

[9]             I think I can assume that often physical tests are performed on plaintiffs, but that does not include what the plaintiff refers to as intrusive investigation or intrusive testing. The argument is that if the mere statement that an expert needs certain intrusive testing is taken at face value, then any such test could be ordered and I will add, regardless of the potential ill effects of such an examination or test.

[10]         It is common ground here that there is some danger to cumulative X-Ray examinations. That was not contested by the defendant. He acknowledged that there were health concerns but argued that the intrusive argument was simply not made out here and that the testing was required so that the defendant can be on an equal footing with the plaintiff in investigation of her ongoing injuries.

[11]         The plaintiff notes that they have no updated X-Rays, however. She argues that given the purpose of the rule, which is to put the parties on an equal footing, if the plaintiff does not have any evidence of diagnostic imaging and her existing expert’s and family physician’s reports do not lead to any necessity for further imaging, then there is no basis for an order for the defendant to have such imaging.

[12]         The plaintiff’s family physician apparently says that the breaks are healing properly and that there is no further requirement for treatment. The plaintiff submits that there is an onus on the defendant applicant to show that there is a specific need in this case.

[13]         I note that in his affidavit, Dr. Stone makes no specific reference to this plaintiff. He simply notes that in order to conduct a useful IME report and give an informed medical opinion, he would require “updated and thorough medical records, including x‑ray image of the relevant injured area taken at a date no earlier than six months before a given IME appointment”. He does not say why. He does not say that he has reviewed the other medical records of this plaintiff nor does he provide any basis for a need for updated X-Ray imaging.

[14]         Further, I take the plaintiff’s point that if the plaintiff chooses to go to trial without updated X-Ray imaging and proceed on the basis of expert reports produced without such imaging, then, in my view, there is no basis on which I should order that the defendant have the benefit of this intrusive testing. I will use the plaintiff’s word.

[15]         I should add that the parties were unable to point me to any specific case that deals with this kind of application for such intrusive tests. I am not saying that it would not be ordered if there was a proper basis for it, but on the circumstances before me today, I am not satisfied that there has been any proper basis shown or any need for the X-Rays and the application is dismissed.

[16]         The plaintiff will have her costs in the cause.

“Master Muir”