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Multiple Medical Assessments in Your Car Accident Lawsuit > How Many is Too Much?

You are involved in a car accident in Ontario and then you start a tort lawsuit, suing for damages as a result of injury and loss that you have suffered.

Typically you are suing the other driver who you say caused the accident.

During the course of the lawsuit, the other driver’s insurance company (who is defending the lawsuit), wishes to evaluate your claims by having you assessed by medical doctors of their choosing.

Very often and responding to the claims that you are advancing, these are medical assessments by psychiatrists or psychologists, orthopaedic surgeons, physiatrists, neurologists, neuropsychologists and others.

But how many medical assessments, arranged by the opposing insurance company, must you attend?

How many medical assessments is too much?

In the Ontario Rules of Civil Procedure, Rule 33.02(2) sets out that unless by consent, a Court order is required for a second or further medical examination of the plaintiff.

In Ontario’s Courts of Justice Act, Section 105 sets out some conditions for physical or mental examinations.

In the recent 2010 Ontario Superior Court of Justice case of Girao v. Cunningham, the request by the defendant was for the plaintiff to be examined by three medical doctors, arising from this 2002 car accident.

Master Short reviewed in detail the implications of Rule 53.03 in relation to the test for allowing more than one defence medical assessment.  This includes the purpose of Rule 53.03, expressed as follows:

” …the rule advances the law that has been developing in recent years toward reining in the growing use of and reliance upon the evidence of experts at trial.”

In this case, the plaintiff had been seen by approximately 20 medical specialists, some of whom had provided expert reports in support of the plaintiff’s lawsuit.  To date, the defendant in this lawsuit had no defence medical expert reports in response.

As a result, all three medical assessments were ordered.

For background on medical assessments in the Accident Benefits regime, readers may wish to review our June 24, 2009 blog.
Gregory Chang
Toronto Insurance Lawyer