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Injury Claimant Not Required to Attend Medical Exam or Pay Unreasonable Cancellation Fees


In this medical examination court application ( Minhas v. Virk, 2011 BCSC 191) the insured wanted the injury claimant to attend multiple medical examinations. The claimant agreed to attend several examinations but the lawyers could not agree on a number of terms for further exams.
The claimant was involved in a motor vehicle accident and was a minor at the time and later started a lawsuit  by his litigation guardian alleging, among other things, a brain injury which he said affects his memory. The claimant had turned 19 years old at the time of the application and was attending college and maintaining an average or better standing.
With respect to ICBC and other insurance companies forcing injury claimants to attend medical exams, Rule 7-6  of our BC Civil Rules of Court provide as follows:

“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.

Subsequent examinations

(2)  The court may order a further examination under this rule.

 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.”

The defence doctor, Dr. Wong, stated that his policy is to charge a cancellation fee of $1650 plus HST unless he is given 2 months notice of the cancellation. The request that the claimant  be required to pay the cancellation fee was dismissed by the court as there was  no evidence which indicated what, if any, efforts the doctor made to fill that appointment slot or to otherwise mitigate his loss.  In addition, the court found that, “Dr. Wong’s requirement of 2 months notice to be unreasonable, particularly in the absence of any explanation.”
With respect to the request that the claimant attend yet another medical examination the court pointed out, “The new rules move toward a focusing and limiting of experts and expert opinion; in my view to accede to the defence application regarding Dr. Smith in addition to the three IMEs, which the defence has or will receive as a result of this order runs counter to that initiative.” The application for an order that the injury claimant  attend for a medical examination with another doctor was therefore dismissed.  Check out another conflicting decision which allowed multiple medical examinations. Posted by Mr. Renn A. Holness
Issue: How many medical examinations should ICBC and other insurance companies in British Columbia be permitted in personal injury cases?

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"Renn A. Holness is a gifted lawyer and author to over 1000 legal blog articles. Married father of two daughters, son of a neurosurgeon and founder of Holness Law Group."

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