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Videotaping the Medical Expert Who Is Examining You (on Behalf of the Opposing Insurance Company) – Part 2

If you are hurt in an Ontario car accident, you may decide to sue for damages arising from your injury and loss.

During your lawsuit, the insurance company defending your claim may wish to evaluate you by requiring you to attend for one or more medical assessments by medical doctors of their choosing.

Are you allowed to audiotape or videotape this medical assessment?  As background, readers may wish to review our September 15, 2010 blog.

A recent and important analysis of this issue is found in Adams v. Cook (2010 Ontario Court of Appeal), regarding the proposed of audio recording a defence medical, on the basis of a concern of bias on the part of the medical assessor.

In this split 3-2 decision, the Court of Appeal also reviewed the 1992 Ontario Court of Appeal decision of Bellamy v. Johnson.

The Court of Appeal found on the facts of this case that the issue of bias had not been properly supported by the evidence.  The sole evidence presented at the original motion was the plaintiff’s solicitor opinion of bias on the part of the proposed medical assessor, wherein there are four cases cited dealing with inappropriate conduct; none of the cited cases related to the proposed medical assessor.

In dealing with the overall issue of audiotaping defence medical assessments, Mr. Justice Armstrong stated:

[24] ….I note that the Honourable Mr. Osborne did not recommend the routine recording of defence medical examinations.

[28] That said, I recognize that this court constituted as a panel of five judges is in a position to broaden the application of Bellamy and, in effect, make the recording of defence medicals a more or less routine practice.  No doubt a case can be made for doing so.  Arguably, the litigation landscape has changed in the 18 years since Bellamy was decided.  Legitimate concerns have been expressed by the Honourable Coulter Osborne and others in respect of the role of experts in the civil litigation process.  The findings and recommendations of my colleague, Justice Goudge in his report, Inquiry into Pediatric Forensic Pathology in Ontario: Report (Toronto: Ontario Ministry of the Attorney General, 2008) suggest similar concerns arise in criminal cases.  Some contend that the routine recording of defence medicals and the transparency it produces would improve the discovery process.  Given the electronic world in which we now live, it is perhaps at least questionable whether the presence of a small recording device is likely to have any adverse affect on a medical specialist’s examination.

[29] However, in my view, the record in this case is insufficient to broaden and set new parameters for the making of orders requiring the recording of defence medical examinations, which would take into account all of the complexities and nuances that go with the conduct of such examinations.  First of all, I do not accept that the evidence of alleged systemic bias, as testified to by the plaintiff’s lawyer in this case, is sufficient to draw any general conclusions.  The evidence here provides the lawyer’s opinion of systemic bias in one area of the province and gives four specific examples.  The lawyer was not cross-examined on his affidavit because counsel for the defendant was of the view that little would be accomplished given the likely limits that would be placed on such cross-examination by the deemed undertaking rule and solicitor/client privilege.  In my view, a number of other questions arise should the court attempt to define the expanded parameters of an order for the recording of defence medicals:

1. If such an order is made on a more or less routine basis, should the court order that subsequent medical examinations by expert doctors retained by the plain-tiff be subject to the same requirement?

2. What else can be done to “level the playing field” for the defendant in respect of medical examinations by plaintiff’s experts?

3. What about unrecorded medical examinations that have been done by the plaintiffs’ experts prior to the defence seeking an order for a medical?  The concern here is that routine recording of the defence medical will give the plaintiff an unfair tactical advantage.

4. What obstacles, if any, are there to the conduct of an effective medical examination if all examinations are routinely recorded?  Is it possible to generalize or are we driven back to the position of Doherty J.A. that what is involved is a case specific analysis?

5. Why did the Honourable Coulter Osborne not make a recommendation that defence medicals be routinely recorded?

6. Will the reforms related to expert witnesses recom-mended by Coulter Osborne and implemented by amendments to the Rules of Civil Procedure be sufficient to deal with the perceived problems concerning defence medical experts?

7. How can the views of the medical profession be comprehensively canvassed together with the views of The Advocates’ Society, the Ontario Trial Lawyers Association, the American College of Trial Lawyers, the Canadian Medical Protective Association, the Medico-Legal Society and other interested organiza-tions?

[30] A case such as this is not the best place to address these issues.  This is a matter that is best studied by the Civil Rules Committee, which has just spent more than a year considering the Osborne recommendations.  The Rules Committee is better able to canvass the views of the interested groups province-wide and make reasonable recom-mendations, if so advised.

Here is the 2008 Ontario Superior Court of Justice decision of Adams v. Cook, from which this appeal is based.

Counsel should note the strong dissent by Madam Justice Lang in Adams v. Cook (2010 Court of Appeal).

In particular, Madam Justice Lang writes:

[35] In my view, the record in this case, together with increased awareness about the partisan nature of expert evidence, supports the conclusion that a plaintiff should be allowed to audio record a defence medical if that recording would advance the interests of justice.  Generally, a recording advances the interests of justice by providing the parties with a reliable record of the examination, which will serve to enhance their settlement discussions as well as the effectiveness of trial.  However, the interests of justice are not enhanced if the recording would compromise the examiner’s ability to conduct an effective medical examination.

Revisiting Bellamy

[50] The Chief Justice constituted this five-judge panel specifically so that it could reconsider the principles in Bellamy.  In light of the developments since Bellamy was decided 18 years ago, that reconsideration should take place.

[51] As I have said, it appears that the majority in Bellamy concluded that a case-specific reason or bias on the part of the proposed examiner is required.  In my view, any requirement for a case-specific bias on the part of a defence examiner is overly-restrictive for three reasons.

[52] First, it is unreasonable to expect that an individual plaintiff or a plaintiff’s lawyer could amass the data necessary to support such an allegation.  Such an undertaking would be inordinately difficult, expensive and time-consuming.

[53] Second, in Bellamy at p. 593, Brooke J.A. quoted the Divisional Court’s statement that a defence orientation “is immaterial short of misconduct that should be subject to a report to the College of Physicians and Surgeons”.  If it is necessary to prove a defence orientation to the level of professional misconduct, rarely would a court impose a recording condition when ordering a defence medical.

[54] Finally, the inevitably personal nature of an attack alleging actual bias, if unsuccessful, could put the plaintiff at risk of alienating the examiner who will pronounce on his or her medical condition.  The plaintiff may unnecessarily be left with an increased concern about the examiner’s ability to report objectively.

The relevant considerations for a recording condition

[55] In any event, in my view, the nature of the relationship between the plaintiff and the examiner, the changes in approach to expert reports, the advances in technology, and the advantages to be gained by an accurate record all lead inevitably to the conclusion that a recording condition to a defence medical is generally in the interests of justice, absent any adverse impact on the examiner’s ability to conduct an effective examination.

Gregory Chang
Toronto Insurance Lawyer