The defendant insurance company wished the plaintiff victim of a motor vehicle accident to attend for a so called independent medical examination (in reality a defence medical examination) pursuant to Rule 5.41 of the Alberta Rules of Court as Rule 5.41 does not refer to an “independent“ medical examination, but a medical examination “on application” by a party.
In any event, an issue arose because the physician chosen by the defendant insurance company to conduct the defendant medical examination wished the plaintiff to sign a consent form. The plaintiff refused to sign a consent form stating that the examination was done under the Rules of Court and a consent form was not necessary. A hearing was held concerning this issue.
The court held that the civil justice system sought the assistance of the medical profession to accurately evaluate injury claims. If a member of the medical profession requested a consent form to be signed and the request was reasonable, it should be accommodated in a way which was not contrary to the Rules. Given that the plaintiff and plaintiff’s counsel consented to the examination verbally it seemed appropriate that, when the plaintiff attended for examination, the plaintiff would sign an acknowledgement that he/she continued to consent to the physician touching him/her for the purpose of conducting that examination.
Alternatively, examination might take place under a court order issued pursuant to Rule 5.41(2) and the order should expressly state that the physician was entitled to touch the plaintiff for the purpose of conducting the examination. However, such examination would typically take place weeks or perhaps months after the court order had been issued. Therefore it was reasonable for the physician conducting the defence medical exam to obtain acknowledgement, on day of examination, confirming that the plaintiff consented to the physician touching him/her for the purpose of conducting that examination.
Veckenstedt v. Woussef (2011), 2011 Carswell Alta. 2327, 2011 ABQB 735, J.T. Prowse Master (Alta QB).