Canadian Underwriter

What the court thinks of secretly recorded medical exams

January 5, 2018   by Canadian Underwriter

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A plaintiff in a motor vehicle bodily injury lawsuit should not have secretly recorded a medical exam conducted by a doctor hired by the defendant, an Ontario court ruled last week.

A perception of bias on the part of independent medical examiners does not justify recording such exams, Ontario Superior Court Justice Paul Sweeny wrote in a ruling released Dec. 28.

Antonio Jose Cruz and Lucia de Fatima Cruz are suing Catherin Saccucci over alleged injuries after a 2012 vehicle accident. The lawsuit has not been decided in court and Justice Sweeny’s pre-trial decision stipulated that Antonio Cruz must attend another IME exam and cannot tape it.

Antonio Cruz was examined by several medical doctors hired by the defendant. During mediation, the plaintiffs’ lawyer revealed that Cruz “surreptitiously recorded” some of those IME exams.

The plaintiffs claimed their recording of one IME examination “conflicts with the contents of the report prepared by the expert,” Justice Sweeny wrote. But the IME whose exam was secretly taped “may have conducted his examination a different way” had he known the exam was being recorded, Justice Sweeny found.

“He may have been clearer in the language used,” Justice Sweeny wrote. “He may have been more specific in instructions given to the plaintiff. Much of the communication that goes on is nonverbal. The doctor was denied an opportunity to ensure that his words and conduct were being accurately recorded.”

Ontario’s Courts of Justice Act gives judges the power to order parties in lawsuits to undergo physical or mental examinations. The Rules of Civil Procedure gives judges the power to order second examinations.

In opposing an order for the second examination, Cruz cited dissenting arguments written by Justice Susan Lang, then of the Court of Appeal for Ontario, in its 2010 ruling in Adams v. Cook. The purpose of an IME exam “is to provide the defendant with information to test the plaintiff’s allegation of physical or mental damage and not to propose treatment,” Justice Lang wrote in Adams, adding that plaintiff is in “an adversarial relationship” with a defendant’s IME.

In Adams, Justice Lang and four other Court of Appeal for Ontario judges were asked to reconsider the Court of Appeal for Ontario’s 1992 ruling in Bellamy v. Johnson, which “set the ground rules” for court orders letting plaintiffs tape-record defence medical exams.

Three of the five judges in Adams overturned a Divisional Court ruling allowing a personal injury plaintiff to make an audio recording of a defence medical exam.  The Divisional Court had “expressed concern about the ‘hired gun’ approach of defence examiners, particularly in personal injury cases,” Ontario Court of Appeal Justice Robert Armstrong wrote in 2010 on behalf of the majority in Adams.

The Adams v. Cook ruling “held that there is no right of the plaintiff to record defence medical examinations without leave,” Justice Sweeny wrote Dec. 28, 2017 in Cruz and Cruz v. Saccucci. “The mere perception by the plaintiff that there was some bias in previous examinations is not sufficient for leave to be granted.”