When an individual is injured in a motor vehicle accident the defendant, more specifically the defendant’s insurance company, has the right to have the plaintiff victim submit to a medical exam by a doctor chosen by the insurance company.
Recently the Alberta Rules of Court were amended to allow the plaintiff to have a third party present to video tape the medical exam. This is done under rule 5.42 (1)(b). Recently there was a case where the defendant insurance company’s doctor refused to perform the medical examination with the videographer videotaping the entire examination.
Therefore the defendant insurance company applied to the Alberta Court of Queen’s Bench for an order requiring the plaintiff innocent victim to submit to the proposed examination with the defendant’s doctor without the videographer present.
The defendant insurance company’s application was dismissed. The court held that the plaintiff, pursuant to rule 5.42(1)(b), was entitled to have the medical examination videotaped.
The court dealt with some studies raised by the defendant insurance company dealing with the effect of involved and uninvolved third parties being present during psychological evaluations. The defendant suggested that having the recording hardware present (even if the videographer wasn’t there) and the tape just running was similar to an uninvolved third party.
The court said that may be true but the defendant doctor can address that part in his report through a notation and those matters really go to argument as to the weight and value of the report at trial and not to dismiss the right of the plaintiff to have the medical exam video recorded under the Alberta Rules of Court.
Finally the defendant insurance company argued that they knew of no other expert doctors willing to perform the medical test with the video monitor present. The courts said there was not sufficient evidence before it to make that determination and that the defendants had to make reasonable inquiries as to availabilities of others. As a result the court dismissed the defendant insurance company’s application.
So this was a victory for plaintiff innocent victims, it is astonishing that a medical doctor would refuse to conduct an examination simply because a video tape is recording the proceedings. It makes one wonder what the good doctor is trying to hide? Fortunately the court decided in favor of the innocent victim and if you are asked to submit to a medical examination at the hands of a doctor chosen by the insurance company, then you have the right to have the entire examination videotaped.