• FAIR – supporting auto accident victims through advocacy and education
  • FAIR – supporting auto accident victims through advocacy and education
  • FAIR – supporting auto accident victims through advocacy and education
  • FAIR – supporting auto accident victims through advocacy and education

IME

Can a insurer Doctor certify and admit a plaintiff to hospital against their will?

They could try and if nothing else they can intimidate innocent and sometimes brain injured car accident survivors into believing it may happen. Medical examination consent forms used in personal injury cases raises some serious questions about how car accident victims are intimidated by their insure’s choice of medical assessor and by the consent forms they are pressured into signing. How would you feel if you were faced with this form after being injured?

Consent form IME psychiatric 2018

Lipovetsky v. Sun Life Assurance Company of Canada, 2018 ONSC 1664 (CanLII), <http://canlii.ca/t/hqxs0

[1]               The defendant brings this motion for an order compelling the plaintiff to attend an independent medical examination with Dr. Bentley or another doctor with a specialty in physiatry and an independent psychiatry examination with Dr. Siu without conditions attached to those attendances.   The defendant also seeks its costs thrown away as a result of the plaintiff’s failure to attend the IME that had been scheduled with Dr. Bentley on 31 January 2018.

[2]               The plaintiff is prepared to attend those IMEs but on conditions, namely that she be allowed to bring a companion with her to each IME as a support person to her and that she be allowed to audio record the examinations.

[3]               In the negotiation of these IMEs, counsel for the defendant took no position on the plaintiff’s request that she attend with a support person.  Counsel indicated that it would advise the doctors that the plaintiff may bring someone with her but that it would be up to the doctor whether he allowed the friend into the examination room.  In response to the plaintiff’s position, Dr. Bentley has advised that he does not allow for individuals to be present during an examination.

[4]               Defence counsel objects to the audio recording of the IME.  At the conclusion of the motion, I was advised that Dr. Siu has withdrawn as the potential psychiatry IME doctor.  As a result, the plaintiff has also withdrawn her request to audio record the psychiatric examination, given it is no longer being carried out by Dr. Siu.  Only the audio recording of Dr. Bentley is in issue.

[5]               Both the recording and the attendance of a companion are in the discretion of the court.  Rule 33.03 provides that the court may, on motion, determine any dispute relating to the scope of an examination.  That has included whether an examination may be recorded.  On the issue of a companion attending the examination, the starting point, as set out in Rule 33.05, is that no other person can be present at the IME, unless the court orders otherwise.  The cases are clear that these orders and terms are fact specific.

Miscellaneous

[21]           There was evidence in the record of consent forms that where required by either Dr. Siu or Dr. Bentley that contained terms outlining at least what Dr. Siu saw his professional obligation and to which he required the plaintiff’s consent.  While the plaintiff viewed those forms as consents, what they are are acknowledgements of the limitations on confidentiality in the circumstances of the examination.  For instance, one term particularly troubling to the plaintiff was that Dr. Siu could certify and admit the plaintiff to hospital against her will for psychiatric treatment if he felt she was a danger to herself.  The plaintiff is not prepared to sign such a form as a condition of the defendant’s chosen doctor conducting an IME.

[22]           As cited in Tanguay v. Brouse (2002) 20 C.P.C. (5th) 376 (S.C.J.):

In Bellamy v. Johnson, the court made the distinction in roles between that of a doctor conducting a defence medical assessment under s. 105 of the Courts of Justice Act and a doctor examining a patient within the bounds of the traditional doctor-patient relationship. That distinction lies at the core of this decision. In my view, a medical examination conducted under s. 105 of the Courts of Justice Act and Rule 33 enables a health practitioner in Ontario to (a) carry out the examination and (b) report his/her findings to the adversary of the party examined without fear of successful prosecution for professional misconduct based on the absence of written consent to do either or both of (a) and (b).

[23]           I adopt the dicta of Valin, J. in Tanguay, as follows:

I am of the view that s. 105 of the Courts of Justice Act and Rule 33 contain a complete code and procedure for court ordered medical examinations in Ontario. Neither s. 105 of the Act nor Rule 33 contain a requirement that the party being examined execute any consent, authorization or agreement presented by an examining health practitioner in advance of or during an examination.

[24]           I hold that the plaintiff is not required to sign a release, consent or agreement as a condition of undergoing the IMEs.

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