Defence Application to Seek X-Rays Denied – “Intrusive Testing”

The Defendant in Tani v. Baker, 2017 BCSC 1684 applies to court to seek an Order that the Plaintiff attend to see a Radiologist to have various x-rays taken of her legs and right shoulder, in which the Plaintiff suffered fractures as a result of a motor vehicle collision.  The xrays were requested by defence expert Dr. Stone, orthopaedic surgeon, who stated:

“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.”

The Plaintiff’s argument  was that due to health concerns, she did not want to be subjected to further radiological exams which she defined as “intrusive investigations”.  She had been subjected to numerous x-rays and a CT scan during a short period of time during January 15, 2015 and October 26, 2015.

The Court referenced Rule 7-6 (1)

Order for medical examination

(1) If the physical or mental condition of a person is in issue in an action, the court may order that the person submit to examination by a medical practitioner or other qualified person, and if the court makes an order under this subrule, the court may also make

(a) an order respecting any expenses connected with the examination, and

(b) an order that the result of the examination be put in writing and that copies be made available to interested parties of record.

Rule 7-6(3) was also referenced by the Plaintiff

Questions by examiner

(3) 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.

In conclusion, the court states:

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.

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.

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.

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.

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.

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.

The plaintiff will have her costs in the cause.

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