Ieraci v. Gallo, 2016 BCSC 1611 discusses the issue of whether a privately funded MRI ought to be paid as a special damage by the Defendant when a publicly-funded MRI was available to the Plaintiff.

There are some key strategic points that were successfully argued in this case.

Plaintiff’s counsel argued that a publicly-funded MRI was not an adequate substitute for a MRI at a private clinic in this particular case. MRIs at a private clinic are perhaps more reliable, which point of view is supported by an affidavit from Todd Cherniak of CMI. Plaintiff’s counsel also points to the importance of having an expert that they have worked with, or an expert who is experienced as an expert witness. Further, he says that a publicly-funded MRI would result in a report that was not privileged, and that the wait time for a publicly-funded MRI was often six months. This action was subject to Rule 15 – Fast Track and an MRI on a quick basis was necessary.

Privately-funded MRI’s may not be reimbursed by the insurer if it is determined that there is “no urgency”.

In this case, the court concluded, that due to the “strategic” reasons noted above re: Privilege and the fact that there was some urgency, the Defendant was responsible to pay for the privately-funded MRIs.  The analysis:

“Counsel for the defendants relies on Kumanan v. Achim, 2013 BCSC 1867 (CanLII); Perron v. Catalano, 2016 BCSC 1285 (CanLII); and Ali v. Fineblit, 2016 BCSC 566 (CanLII) for the proposition that a publicly-funded MRI should have been ordered in all of the circumstances of this case, given that there was never any urgency.

[17]        The facts of this case are sufficient to distinguish it from the cases relied upon by the defendants. The matter was in fast track. There was always the potential of an early trial date. Even though trial was not ultimately set until 2016, the threat was there.

[18]        What I must do is to put myself in the shoes of plaintiff’s counsel at the time that the MRIs were ordered. The threat of an early trial, combined with the other strategic reasons, satisfies me that counsel’s decision was justified.

[19]        I am satisfied that the MRIs were necessary and proper at the time and accordingly, the expenditure was reasonable.

[20]        Therefore, I allow the amounts for both the MRIs ($2,985) and Dr. Martin’s certification letter ($225).”

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