This motion in Maria-Antony v. Ivaschenko, 2019 ONSC 4731 was brought by the defendants for leave to conduct a second psychiatric assessment of the plaintiff, Bridget Maria-Antony, who had been injured in two car accidents in 2009 and 2010. The moving defendants were involved in the second accident.
As a result of the accidents, the plaintiff developed debilitating psychological impairments including a chronic Major Depressive Disorder and severe Pain Disorder. The plaintiff set the matter down for trial on September 30, 2015. A pre-trial conference was scheduled for September 12, 2018, and 4-week trial was set for November 26, 2018.
Following the second collision, the plaintiff was treated and assessed by Drs. Hoff and Manohar, psychologist and psychiatrist respectively. Dr. Hoff delivered 5 reports to plaintiff’s counsel over the course of the lawsuit, between March2013 and July 2018. His diagnoses included a Major Depressive Disorder, Generalized Anxiety Disorder and Pain Disorder associated with psychological factors.
Dr. Manohar also delivered 5 reports, most recently two opinion letters in June and July 2018. In the June Letter, he advised that the plaintiff’s depressive symptoms escalated in the summer of 2017. He expressed the opinion that she was permanently disabled with a poor prognosis. In response to new defendant reports concerning causation, he added the following in the July Letter:
As I mentioned earlier I am unable to separate the impact of accidents on June 05, 2009 and January 18, 2010 as she became my patient only on November 16, 2011. Reviewing my notes it is clear that the cumulative effect of both accidents has led to her permanent unemployability state. It is clear however that she had experienced symptoms after the MVA on June 05, 2009
The moving defendants retained Dr. Waisman, a psychiatrist. He performed an assessment of the plaintiff on October 7, 2015 and diagnosed her with a Somatic Symptom Disorder and Major Depressive Disorder. He noted in the assessment that her first depressive episode pre-dated the second collision, and that she was pre-disposed to a recurrence regardless of the second collision.
Dr. Waisman also delivered a series of responding reports leading up to pre-trial. In his final opinion Letter, dated August 8, 2018, following a review of updated medical records and the two Manohar Letters. He wrote:
I am experiencing difficulty in commenting on the reports of Dr. Manohar, as they are dated in 2018. I last assessed Ms. Maria-Antony in 2015 and therefore, my opinions are based on my assessments at that time. In order for me to comment on his recent reports, I would need to re-assess Ms. Maria-Antony.
At the pre-trial conference, two months after the second Letter, the parties were granted an adjournment of trial until November 9, 2020 because they agreed that 4 weeks was insufficient. The defendants did not raise the possibility of an additional psychiatric assessment at that time or reserve their right to request one. They brought this motion seeking the assessment on May 21, 2019.
Because of the late stage of the proceedings, it was undisputed that the defendants required leave of the court to bring the motion. Master McGraw explained that the court was required to balance factors including trial fairness, procedural certainty and potential prejudice to the parties. He noted that two divergent approaches had been applied by the court. The more common approach required the moving party to demonstrate the occurrence of a “substantial or unexpected change in circumstances”. However, a broader, more flexible approach had also been used, in which leave was granted where it was just in the circumstances, and the proposed additional steps were necessary in the interests of justice.
Master McGraw felt that it was appropriate to grant leave to bring the motion using either approach. Plaintiff’s counsel argued that the delay in bringing the motion was unreasonable and prejudicial to her interest. The Master was cognizant of this delay, including the defendants’ failure to reserve a right of re-assessment at assignment court in 2016, and even more glaringly at the pre-trial conference. However, it was like to cause no actual prejudice since trial was still 15 months away. He held that it would be unfair and unavoidably prejudicial to the defendants to proceed to trial without the opportunity to respond to the June and July 2018 Letters. Dr. Waisman’s assessment took place in 2015, and he had had no direct opportunity to evaluate the progress of her condition. Additionally, since this assessment, Dr. Manohar had opined that the plaintiff was permanently disabled and unable to work as a result of escalating psychiatric impairment. Master McGraw accurately described these opinions as a “substantial and unexpected change in circumstances” warranting a re-assessment.
Turning to the grounds for granting the re-assessment request, Master McGraw canvassed the applicable legal principles from Bonello v. Taylor, 2010 ONSC 5723 at paragraph 15:
- The party seeking the order for a further examination must demonstrate that the assessment is warranted and legitimate, and not made with a view to delaying trial, causing prejudice to the other party, or simply corroborating an existing medical opinion;
- A request may be legitimate where there is evidence that (i) the party’s condition has changed or deteriorated since the date of a previous examination, (ii) a more current assessment of the plaintiff’s condition is required for trial, (iii) the plaintiff served specialist reports from new assessors after the defendants had conducted their medical assessments, or (iv) some of the party’s injuries fall outside the expertise of the first examining health practitioner;
- Some cases take the view that the need for a “matching report” – i.e. a report from a defence expert witness in the same specialty as a plaintiff’s expert – is not, in and of itself, a sufficient reason to order a further defence medical. In the circumstances of the present case I need not wade deeply into that question. That said, I would venture that trial fairness should operate as the guiding principle in this area, so if the plaintiff has decided that expert evidence from one specialty based on an examination of the plaintiff is relevant to the adjudication of her claim at trial, courts should be loathe to deny the defence a fair opportunity to respond with expert evidence from the same specialty based on an assessment of the plaintiff. Ordering further examinations may be just where they are necessary to enable the defendant fairly to investigate and call reasonable responding evidence at trial;
- Where the request is for the examination of the plaintiff by a person who is not a health practitioner, such as a rehabilitation expert, the defendant must demonstrate that the proposed examination is necessary as a diagnostic aid to the health practitioner who is conducting the defence medical examination;
- A request for a second examination must be supported by sufficient evidence to persuade a court of the need for the further examination. What constitutes sufficient evidence will vary from case to case. Some cases have suggested that need must be established by filing medical evidence, such as an affidavit from the first examining physician recommending a further examination by a health practitioner competent in another specialty. In other instances an affidavit from a lawyer or law clerk attaching medical reports has been utilized by the court. But, at the end of the day, determining whether the nature of the evidence filed is sufficient remains essentially an exercise of judicial discretion;
- While fairness, or “creating a level playing field”, may constitute a legitimate reason for ordering a second examination, someone with knowledge of the evidence in the case must provide evidence of unfairness for the court to consider; and,
- A court should consider whether the request for a further examination would impose an undue burden on the plaintiff in light of the number of examinations already conducted of her by the defence.
Having applied these factors to the facts before him, Master McGraw found that it was just and necessary for the plaintiff to attend a limited, second psychiatric examination limited to one hour with Dr. Waisman as part of a combined in-person, in-writing assessment.
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