When a person is injured and claims damages for that injury, they will be required to undergo a medical examination. The findings of that medical examination are very important to form the basis of a case and will serve as evidence in a Trial. But how invasive can these examinations be? Who conducts the examinations? And at what point will a Court consider a medical examination to be unreasonable? In this article, we talk about the role of medical examinations and provide examples of where the Court drew the line on what was 'reasonable'.
The purpose of an independent medical examination is to obtain an impartial opinion from an appropriately qualified expert on the various aspects of the Plaintiff's injury. This can include the effect on earning capacity, the impact on activities of daily living, and permanent impairment.
The examination will include a clinical examination (in the case of a physical injury) and a mental state examination (in the case of psychiatric injuries). The expert also takes a full history from the Plaintiff, as well as addressing various questions included in the letter from the party who arranged the examination. Generally, an examination will take between one to two hours. The resulting report will serve as evidence at Trial.
In the case of Slaughter v Harvey, Mr Harvey (the Plaintiff) was seeking damages for an injury allegedly caused by Dr Slaughter’s (the Defendant's) medical treatment.
Dr Slaughter was entitled to have Mr Harvey medically examined for the purpose of his legal claim.
Dr Slaughter requested Mr Harvey undergo a medical examination by a psychiatrist selected by Mr Harvey from a panel provided by Dr Slaughter. Mr Harvey refused to submit to an examination unless the following conditions were imposed:
None of the doctors on the panel accepted all five of these conditions.
Mr Harvey argued the examination was unreasonable because the proposed doctors would not comply with his conditions. Dr Slaughter asked the Court to determine whether Mr Harvey's conditions were reasonable.
Mr Harvey argued, in determining whether a proposed examination is reasonable, the parties and the Court must consider his personal circumstances. While a particular method of examination may be reasonable in some (even most) cases, it may be unreasonable to carry out an examination in the normal manner if his personal history and current needs require special consideration.
Of the five conditions, the Court responded as follows:
Overall, the Court found that it was unreasonable to insist a photograph be taken of Mr Harvey and for the session to last more than two hours without a break, or Mr Harvey's consent to continuing. However, the remaining grounds (which had been refused by Dr Chalk) were not considered unreasonable by the Court.
The Court Application was ultimately adjourned for Dr Slaughter to make further enquiries with the remaining psychiatrists on the panel as to the first two conditions and whether the experts would agree to them. If they did not, and Dr Slaughter was unable to locate any alternative psychiatrists, Mr Harvey would not be obliged to attend the examination.
The key takeaway from this case is, while it is rare, it is not unheard of for the Court to determine what is (or what is not) a reasonable condition to impose during an independent medical examination.
It is important to keep in mind the Plaintiff's rights to a reasonable examination, especially when dealing with particularly vulnerable Plaintiffs, whilst balancing the right for the Defendant to obtain forensically competent independent medical evidence.
Article written by Cameron Seymour (Partner) and Anna-Britt Kjellgren (Associate).
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