Condition imposed on examining doctors to author own reports and conduct own research

Ontario civil | Civil Practice and Procedure | Discovery | Medical examination

Conditions. Plaintiff brought action for damages for injuries arising out of motor vehicle accident. Defendants requested that plaintiff undergo two independent medical examinations by orthopedic surgeon and neuropsychologist. Parties agreed on seven conditions for examinations but plaintiff asked that research for, and preparation of report be prepared only by examining doctor, and that records not be shared with third parties. Defendants claimed plaintiff failed to attend examination, resulting in cancellation fee of $3,107. Defendants brought motion to compel plaintiff to attend medical examinations. Motion judge granted motion in part and ordered plaintiff to submit to examinations. Condition was imposed that examining doctors were to author own reports, which included that doctors conduct own research and review. Condition was imposed that doctors could not disclose plaintiff’s health records and information to third parties. Plaintiff was ordered to pay cancellation fee of $776. Parties made additional submissions for clarification on use of questionnaire and non-disclosure by expert. Order was made. Condition that doctors not use questionnaire in advance of assessment did not preclude use of psychometric testing forms or tests. Condition that health records and information of plaintiff shall not be disclosed by expert to any other person or entity other than defence counsel did not preclude expert from using administrative staff or using psychometrist for purpose of completing psychometric testing.

Kushnir v. Macari (2017), 2017 CarswellOnt 8516, 2017 ONSC 3382, Helen MacLeod-Beliveau J. (Ont. S.C.J.); additional reasons (2017), 2017 CarswellOnt 1178, 2017 ONSC 307, Helen MacLeod-Beliveau J. (Ont. S.C.J.).

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