IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100304

Docket:
03-1039

Registry: Victoria

Between:

Robyn Mary Hamilton

Plaintiff

And:

Anastasia I. Pavlova and Gerald D’Avino

Defendants

Before: The Honourable Mr. Justice Bracken

Oral Reasons for Judgment

(In Chambers)

[1]            
THE COURT: This
is an application by the defendants for an order that the plaintiff attend for
an independent psychiatric examination by Dr. Roy O’Shaughnessy.  The
examination is currently scheduled for March 8, 2010, in Vancouver, and it is
not likely that another appointment could be made with Dr. O’Shaughnessy
between now and the time of trial.

[2]            
The background of the matter is that the
plaintiff alleges that she was injured in a motor vehicle accident on December
14, 2002.  The matter is currently scheduled for trial in March of 2011, and
the trial is estimated to consume 20 days.

[3]            
The plaintiff claims to have suffered extensive
and long-lasting injuries, including cognitive difficulties that are
consistent, in the opinion of Dr. Barale at least, with a mild traumatic brain
injury.  Dr. Barale consulted with the plaintiff on January 14, 2008, and
released his report shortly afterwards.  The plaintiff has seen a number of
doctors.  By my count, in the chambers material, there were some 14 doctors
listed as being involved with the plaintiff in some way after the motor vehicle
accident.  Included in that number is a psychologist, Dr. Frank Spellacy, as
well as a chiropractor and a physiotherapist.

[4]            
The plaintiff has already attended for two
independent medical exams, the first with Dr. Warren, who is an orthopaedic
consultant, and the second was with Dr. Moll, a neurologist.  Dr. Moll saw
the plaintiff on January 19, 2009, and concluded that there was no evidence to
support a diagnosis of brain injury.  He did note that the plaintiff suffered
from what he referred to as a mild depression.

[5]            
Dr. Moll issued a supplementary report on
February 4, 2010, to clarify and perhaps expand his earlier report.  In that
report, he said that psychological and psychiatric conditions can influence
neurological functioning.  He said that he considers himself competent to
assess her psychiatric symptoms and symptoms of anxiety and depression that
might impact neurological function, but he pointed out that if a definitive
opinion was needed on a psychiatric issue, that it should be obtained from a
properly qualified psychiatrist.

[6]            
The defendants say that they expect the
plaintiff to testify at trial that she has experienced and continues to
experience symptoms that may be symptoms of a brain injury.  If those symptoms
have a psychiatric or psychological origin, then the prognosis is generally
thought to be more optimistic than if the symptoms are the result of a brain
injury.  The defendants want to have an independent medical exam by a
psychiatrist to assess that issue.

[7]            
The plaintiff opposes the application on the
basis that the defendants have already had two independent medical exams and
there is no justifiable reason advanced by the defendants for a further
assessment.  The plaintiff says that Dr. Moll was well aware of the
symptoms alleged by the plaintiff for some six years post-accident, and he was
aware of all of the material as his examination was two years after the examination
by Dr. Spellacy, the psychologist.  That report was available to Dr. Moll and
considered by Dr. Moll, as was the report of Dr. Barale.

[8]            
The plaintiff says that Dr. Moll’s examination
was extensive and covered every aspect of the plaintiff’s health that is in
issue in the litigation, including her cognitive complaints.  It is also
submitted that Dr. Moll commented extensively on the report of Dr. Barale. 
After noting that one of the more common causes of cognitive complaints is the
presence of a mood disorder and administering a basic test for depression to
confirm a mild depression, Dr. Moll stated:

In conclusion, neither my examination and
assessment, nor the assessment of other physicians who have examined Ms.
Hamilton following this accident has shown any evidence to support the
diagnosis of brain injury.  Sensitive scanning using an MRI scan has also
failed to show the presence of any brain injury.  The pattern and evolution of
Ms. Hamilton’s cognitive symptoms is not consistent with the results of brain
injury sustained in the accident of December 2002.

Ms. Hamilton’s
complaints of anxiety and the indications that she has mild depression, as well
as the stress related to repeated medical examinations, the stressful nature of
her work, and the stress of the medical/legal process are sufficient reasons to
account for the difficulties that she describes with cognitive function.  I
believe that her complaints are not related to any injury and are fully
reversible.  I do not believe that these complaints would interfere
significantly with her ability to perform her job as a realtor, working
full-time, either currently or at any time in the future.

[9]            
The plaintiff submits that Dr. Moll’s
conclusions, in that segment of his report and elsewhere in his summary, are
clearly that the mild depression, anxiety, and mood disorder are reversible,
and not related to a brain injury.  The plaintiff takes the position that the
defendants have chosen their specialist and already have a report from an
independent medical examiner that is on the very issue that the defendants want
another opinion from Dr. O’Shaughnessy.

[10]        
Rule 30(1) provides discretion to the court to
order an independent medical examination, and under Rule 30(2), more than one
examination may be ordered.  Counsel, in their helpful submissions, have
thoroughly canvassed the relative authorities on this point.  From those
authorities, certain principles emerge.  The case law is against a background
of the rules of court, and in particular, the principle that the rules are
designed to secure a just determination of every proceeding on the merits and
to ensure full disclosure, so the rules should be given a fair and liberal
interpretation to meet those objectives: Wildemann v. Webster, [1990]
B.C.J. No. 2304 (B.C.C.A.) at pp. 2-3.

[11]        
Rule 30(2) is a discretionary rule, and the
discretion must be exercised judicially.  An independent examination is granted
to ensure a “reasonable equality between the parties in the preparation of a
case for trial”: Wildemann v. Webster at p. 11 from the separate
concurring reasons of Chief Justice McEachern.

[12]        
Reasonable equality does not mean that the
defendant should be able to match expert for expert or report for report: McKay
v. Passmore, 2005 BCSC 570 at para. 17, and Christopherson v. Krahn,
2002 BCSC 1356 at para. 9.

[13]        
 A second exam will not be allowed for the
purpose of attempting to bolster an earlier opinion of another expert.  That
is, there must be some question or matter that could not have been dealt with
at the earlier examination: Trahan v. West Coast Amusements Ltd., 2000
BCSC 691 at para. 48, and Norsworthy v. Greene, 2009 BCSC 173 at para.
18.

[14]        
There is a higher standard required where the
defendant seeks a second or subsequent medical exam of the plaintiff: McKay
v. Passmore, supra, at para. 17 and para. 29.

[15]        
The application must be timely.  That is, the
proposed examination should be complete and a report available in sufficient
time to comply with the rules of admissibility and to allow enough time for the
plaintiff to assess and respond if necessary: Vermeulen-Miller v. Sanders,
2007 BCSC 1258 at paras. 47-48, relying in part on Goss v. Harder, 2001
BCSC 1823.

[16]        
Finally, subsequent independent medical examinations
should be reserved for cases where there are some exceptional circumstances: Wildemann
v. Webster, supra, at p. 3.

[17]        
In this case, the plaintiff submits that there
is no new issue, question, or matter that has arisen since Dr. Moll’s report in
January of 2009.  Dr. Moll had Dr. Barale’s notes and report of his
psychiatric consultation and Dr. Spellacy’s psychological report and test
results.  Mr. Selly points to the various portions of Dr. Moll’s report
where he reviewed and critiqued the reports of Dr. Barale and Dr. Spellacy. 
Indeed, some portions of Dr. Moll’s report directly challenged the conclusions
of Dr. Spellacy.  For example, at p. 4 for Dr. Moll’s report, he says:

Dr. Barale (Psychiatry)
in his report concluded that Ms. Hamilton had sustained a brain injury and
attributed her cognitive complaints and mood disorder to brain injury as well
as chronic pain.  Dr. Barale’s report however does not appear to seek to
specifically establish the diagnosis of brain injury through history or
examination.  Rather, Dr. Barale appears to conclude that brain injury is
present based on an uncritical acceptance of neuropsychological assessment by
Dr. Spellacy.

[18]        
He goes on to state that Dr. Spellacy’s report
appeared to contain some contradictions and that he disagreed with the
conclusion that Dr. Spellacy reached.  In fact, at p. 10, Dr. Spellacy stated
that “she showed no significant evidence of anxiety, depression, or unusual
emotional distress.”

[19]        
At p. 9 of Dr. Moll’s report, he concluded that:

My opinion, as
noted above, is that Ms. Hamilton presently has mild mood disorder and no
significant anxiety and does not require continuing psychiatric or
psychological diagnosis support at this time, family physician monitoring being
the most appropriate.

[20]        
It appears from those passages that there is
some consistency in the views of Dr. Spellacy, Dr. Barale, and Dr. Moll that
the plaintiff has no significant mood disorder or depression and does not
require or at least did not in January of 2009 any further monitoring or
treatment by a psychiatrist or a psychologist.

[21]        
In his supplementary report, Dr. Moll stated, at
p. 2:

In the penultimate paragraph on page 9 of my
report I indicated that Ms. Hamilton might require some future assessment
and management recommendations regarding anxiety and mood disorder and
recommended that this be performed by a Psychiatrist, as and when this was felt
indicated by her family physician.

My role as a Neurologist
providing the court with an Independent Medical Opinion, is not to make
specific treatment recommendations since I am not seeing the person in a
treating capacity.  With regards to psychiatric diagnosis and management, my
recommendation was that this be provided by a psychiatrically trained physician,
at the discretion of her treating family physician.  Should a definitive
opinion be required regarding Ms. Hamilton’s mood disorder or anxiety for
medical/legal purposes, this should be obtained from an appropriately qualified
and experienced Psychiatrist.

[22]        
The difficulty that emerges from the various
reports is that at this point in time, none of the physicians either for the
plaintiff or for the defence have indicated that there is any need for any
psychiatric treatment or assessment.  Until that time, it seems to me that
there is nothing further that Dr. O’Shaughnessy or any other psychiatrist could
add to the picture that has already been painted by Dr. Moll and the other
physicians.

[23]        
The defendants submit that a report of a
psychiatrist is necessary as the psychological or psychiatric symptoms may be
the root cause of cognitive symptoms of the plaintiff rather than a true brain
injury.  At p. 6 of Dr. Moll’s first report, he clearly gave an opinion that it
was his opinion that the symptoms were as a result of stress, anxiety, or mild
depression and not a brain injury.  The defendants were well aware of all of
the symptoms and injuries alleged by the plaintiff, including cognitive
difficulties.  They chose to seek an opinion of a neurologist, and an opinion
on the critical issue of cognitive defects has already been given.  In my view,
they are not entitled to another at the current moment.

[24]        
In my view, there is nothing new, no new
question or matter within the material that would require the assessment of a
psychiatrist or psychologist.  However, I leave open the possibility that if
something emerges in addition or further reports that will or may be presented
by the plaintiff, then the defence is at liberty to renew its application
provided it can establish that it falls within the principles required to
succeed on an application of this nature.

[25]        
In summary, it is my view that the application
is at this point, at least, timely, and given the number of medical experts and
the plaintiff’s complicated history, it is, in my view, an exceptional case, as
that term was used in Wildemann v. Webster.  However, I cannot find that
there is any new question or matter that should be the subject of an inquiry or
an independent medical examination.  It seems to me that on the material
presented, the defence seeks only to bolster the opinion of Dr. Moll by
providing a similar opinion from someone with perhaps a more appropriate
specialty.  At this time, I cannot find a further examination is necessary to
ensure reasonable equality of the parties in the preparation for the trial, and
the application for an independent medical examination is dismissed.

[26]        
Costs, in my view, should remain in the cause.

               “J.
K. Bracken, J.”                

The Honourable Mr. Justice Bracken