Defence Medical Examinations

By January 18, 2016Articles

If you have retained a personal injury lawyer after sustaining injuries in an automobile accident, you may be required to attend a Defence Medical Examination (DME) at the request of the Defendant’s insurer at some stage during the litigation process. A DME is only available after a Statement of Claim and Statement of Defence is filed.

The purpose of a DME is to satisfy the Defendant’s insurer regarding the nature and condition of your injuries. If you have started litigation in seeking recovery for your injuries, the Defence is entitled to have you examined by a doctor of their choice.

In some instances, and depending on the nature of your claim, the Defendants, on applying to the Court, may request additional DMEs.

However, though not an exhaustive list, Alberta case law considers the following factors in determining whether to grant an Order for medical examinations[1]:

  1. The degree of competence of the proposed tester;
  2. The weight of the evidence of the reliability and usefulness of the test;
  3. The importance of the test for the diagnosis;
  4. The degree of relevance to the suit of that aspect of the diagnosis;
  5. The degree of intrusion into the privacy of the plaintiff;
  6. Any health risks involved in the test;
  7. The reasonableness, in terms of time and effort, of the demands the proposed test will make upon the examinee; and
  8. The balancing of the potential expense against the good achieved.

Other factors in determining whether to grant an Order for medical examinations include whether or not:

  1. A DME would provide sufficient time for a plaintiff’s expert to prepare a rebuttal report or provide a thorough review of a large number of medical reports within particular time constraints (paras 37 and 38 of Engman v. Cook 2009 ABQB 427));
  2. A DME would put pressure on a Plaintiff to accept an improvident settlement (para 41 of Engman v. Cook, 2009 ABQB 427);
  3. A DME would jeopardize an already scheduled trial date (Monastero v. Savage [2008 CanLII 35690 (ON SC));
  4. A DME would cause either party to experience significant prejudice (Ananthamoorthy v. Ellison 2013 ONSC 340);
  5. A DME is necessary in the interest of fairness and to create a level playing field (Paranitharan 2011 ONSC 3104);

Ultimately, subsequent DMEs are at the Court’s discretion (George v. Landles, 2012 ONT 6105, para 18).

The Personal Injury lawyers at Kubitz & Company have considerable experience in handling automobile accident claims, preparing plaintiffs required to undergo DMEs, and advising of plaintiff’s rights when confronted with DMEs. Our mandate is to ensure that your claim is handled fairly and that a level playing field is created for you.

Call us at 403-250-7100 for a consultation if you have suffered injuries after a car accident and are thinking of retaining a personal injury lawyer.

[1] Tat v. Ellis [1994], 155 A.R. 390 (Alta C.A.) as cited in Engman v. Cook, 2009 ABQB 427, para 22

Article by Peter Trieu, a personal injury lawyer in Calgary, Alberta.