Draoui v. McLintock

2022 BCSC 1760 Draoui v. McLintock

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Draoui v. McLintock, 2022 BCSC 1760 Date: 20221007 Docket: M225776 Registry: New Westminster Between: Saida Draoui, an infant by her litigation guardian, Zouheir Draoui Plaintiff And Peter B. McLintock Defendant Before: Master Bilawich Reasons for Judgment Counsel for the Plaintiff: A. Shee Counsel for the Defendant: E. Barff Place and Dates of Hearing: New Westminster, B.C. September 22-23, 2022 Place and Date of Judgment: New Westminster, B.C. October 7, 2022 Introduction [1] The defendant applied for an order that the plaintiff attend a medical examination ("IME") with a psychiatrist, Dr. Derrick Smith, on October 11, 2022 in Vancouver, BC, and related relief. This would be the defendant's second IME of the plaintiff. [2] The plaintiff opposed the relief sought. [3] The deadline to cancel the appointment with Dr. Smith without incurring a penalty was September 23, 2022 at 4:00 p.m. The parties were not able to complete the application on September 22, so it was continued on the afternoon of September 23. The parties requested an immediate decision. I dismissed the application, with reasons to follow. These are my reasons. Background [4] The plaintiff claims damages for alleged injury and loss arising from a motor vehicle accident of March 17, 2018 (the "Accident"). The defendant has admitted liability. [5] The plaintiff was

15 years of age at the time of the Accident. She recently turned 19 and is now an adult. [6] The action was started on March 18, 2020. The defendant filed his response to civil claim on August 14, 2020. Trial is scheduled for January 30, 2023, for five days. The 84-day deadline for delivery of expert reports is November 7, 2022. [7] In the notice of civil claim. the plaintiff has alleged that she had suffered injuries to her neck, shoulders, and lower back, shock, bruises and contusions, headaches, dizziness and nausea. Relief sought includes non-pecuniary damages, loss of income, loss of earning capacity, cost of future care and special damages. [8] At an examination for discovery held December 14, 2021, the plaintiff testified she had also suffered injury to her knees, as well as stomach / abdominal pain. [9] The defendant has denied that the plaintiff's alleged injuries were caused by the Accident and says they are attributable to other accidents, injuries or conditions. [10] Tendered in evidence are records from BC Children's Hospital from the date of the Accident which indicate that the plaintiff reported hitting the console of the vehicle in which she was a passenger with both knees and her left arm. X-rays taken of her knees were reported as normal. [11] Shortly after the Accident, the plaintiff was able to return to normal physical activities, including physical

education classes and karate. For reasons which are not clear, in or about November 2018, the plaintiff's left knee pain became progressively worse. [12] On February 4, 2019, the plaintiff was assessed by Dr. Lau, a pediatric orthopedic surgeon, for left knee pain. He noted that it appeared the November 2018 increase in left knee pain had not occurred due to a repeat incident or fall. The plaintiff reported that the pain had reached the point where she could no longer attend school and was having constant pain and decreased ability to sleep. On her own initiative, she began using crutches and wearing a brace. Since November she had been doing her school courses online from home. This was a big stressor to her family, because her single parent mother had to leave work to stay home and care for the plaintiff. [13] Dr. Lau stated that, based on a clinical and radiographic exam, he did not see any structural reason for why the plaintiff was presenting with so much discomfort. He expressed concern that a lot of what was going on with her knee was a "complex pain problem" and referred her to the Complex Pain Clinic at BC Children's Hospital. [14] The plaintiff subsequently received treatment at the clinic. Plaintiff's counsel says the knee improved substantially over a period of several months. The plaintiff has since returned to normal daily activities, but continues to report

occasional knee pain. [15] On December 6, 2018, the plaintiff had an MRI of her left knee. There was an incidental finding of an insignificant loss of cartilage over the lateral femoral condyle. [16] On October 13, 2020, plaintiff's counsel sent defendant's counsel a copy of the BC Children's Hospital records. [17] On May 16, 2022, defendant's counsel scheduled their IME of the plaintiff with Dr. Kendall, an orthopedic surgeon. His report is dated June 21, 2022. He opines that the lesion in the cartilage of the left knee is inconsequential and unlikely to be related to the Accident, due to the lack of significant knee symptoms immediately after the Accident, as well as the lack of evidence of recent trauma to the bony area, as indicated in the MRI report. The symptoms the plaintiff reported did not correlate to the nature of this finding. There was no objective finding in the knees at the time of his exam. [18] Dr. Kendall says the plaintiff may have suffered mild contusions to her knees from the Accident. He highlighted the lack of significant bruising and swelling and the fact that the symptoms improved rapidly as indicating any such injury was mild. The plaintiff was able to return to physical education and karate classes shortly after the accident. He stated at page 5 of his report: Her subsequent presentation in the fall of 2018 with severe knee pain requiring crutches and

brace is very unusual and likely represents a reactive phenomenon rather than a response to an actual injury. It does not appear that crutches and a brace were recommended by either her treating physicians or her physiotherapist. It is most likely that this represents an atypical pain response or perhaps this behavior provided her with some secondary gain. I would draw your attention to comments regarding the fact that she felt the knee needed to be casted at the time of the injury. There is no indication in the records that this was, indeed, anyone's opinion. [19] Dr. Kendall agrees with Dr. Lau's view that there was no structural reason for why she was presenting with so much discomfort and he shared Dr. Lau's view that a lot of what is going on in her knee is a complex pain problem. He said that her left knee pain of uncertain etiology was best treated by a complex pain program rather than orthopedic surgery. He said the prognosis for the knees remains good and he did not anticipate any significant deterioration in the immediate future. The small cartilage lesion placed her at slightly higher risk for degenerative change in the future. He did not recommend any ongoing physiotherapy, massage therapy or other specific treatments. She can return to sports as she can tolerate. She does not require a knee brace, orthotics or other orthopedic devices. [20] Both Dr. Lau and Dr.

Kendall noted that the plaintiff had told them about personal issues she had experienced, including difficult times with relationships and friends, loss of contact with friends, feeling isolated from everyone at school, her parents being separated, her mother no longer working and her family being on welfare. Dr. Lau had expressed concern that some of the plaintiff's external stressors were contributing to her presentation with her left knee. [21] On September 13, 2022, defendant's counsel wrote plaintiff's counsel advising that an IME had been scheduled with Dr. Smith for October 11, 2022. Plaintiff's counsel replied that the plaintiff would not attend. [22] On September 20, 2022, defendant's counsel obtained a letter from Dr. Kendall commenting on the plaintiff's unusual pain presentation. He refers to the initial mild knee injury and her swift return to physical activities post-accident. Regarding the later onset of increased knee pain, he states: Much later, in the absence of additional apparent injury, her knee pain became unexpectedly worse. This is a very unusual feature in the absence of additional injury. Ms. Draoui at that time adopted a very atypical pain behavior, including use of crutches. This crutch use was a decision that she made in the absence of a direction from any treating professional. Following this there appears to be a rather dramatic deterioration of

her condition. However, she was not felt to have an organic source for the apparently worsening symptoms and a diagnosis of chronic pain rather than acute structural injury was entertained by her treating professionals. She was treated successfully by the chronic pain team. Over the ensuing months there were dramatic changes to her life including withdrawal from school. This raises the distinct possibility that there were other emotional, social or psychological factors at play with her apparent worsening of symptoms. This, of course, is outside my area of expertise. However, I would agree that assessment by a psychiatrist or psychologist would likely shed some light on her clinical presentation during this time. I would support the assessment of Ms. Draoui by an appropriate professional with knowledge and expertise in psychological issues. [underlining added] [23] This application was brought on with short leave, with the plaintiff's cooperation. It came before me on September 22, 2022, but did not complete that day, so it continued the following afternoon. [24] As noted, the deadline for cancelling the appointment with Dr. Smith without incurring a financial penalty was September 23, 2022, so the parties requested an immediate decision. Defendant's Position [25] The defendant argues that because neither Dr. Lau nor Dr. Kendall was able to identify a cause for the plaintiff's

knee complaints, which are ongoing, albeit to a substantially lesser degree, a further IME by a psychiatrist is reasonable and necessary. [26] Counsel points to the fact that the plaintiff was prescribed amitriptyline (an antidepressant) on one occasion (March 11, 2019) as supporting a psychological connection. She says both Dr. Lau and Dr. Kendall's reports provide sufficient evidentiary basis to put causation of the plaintiff's left knee symptoms in issue. Dr. Kendall's letter of September 20, 2022 also supports assessment by a psychiatrist or psychologist. [27] Counsel argues that without the further IME, the court at trial will not have the psychiatric evidence required to assess whether the plaintiff's left knee symptoms were and are causally linked to factors unrelated to the Accident. Plaintiff's Position [28] The plaintiff argues that she is not alleging in her notice of civil claim that she sustained a psychological or psychiatric injury as a result of the Accident. There is no allegation of neurological or cognitive impairment. The defendant likewise does not allege the plaintiff suffered psychological or psychiatric injury in his response to civil claim. The plaintiff's psychological state is thus not in issue in this action. [29] Counsel notes Dr. Kendall's original report did not raise the issue of the plaintiff's psychological state, nor did he initially recommend

the plaintiff be assessed by a psychiatrist or psychologist. Defendant's counsel first raised this issue by email on September 14, 2022, just over one month before the 84-day deadline for service of expert reports. Dr. Kendall's second letter of September 20, 2022 suggests such an examination would likely shed some light on the plaintiff's historical (2018-2019) knee pain issue, but he does not say it would assist regarding the plaintiff's subsequent or current presentation. [30] Counsel directs me to authorities which suggest a psychiatric examination is a particularly invasive form of IME and the court should be reluctant to order one absent a clear indication it is necessary. Such an examination is also not proportional given the nature of the injuries alleged and the limited time remaining before the 84-day deadline. Applicable Law [31] The court‑ordered medical examinations are governed by R. 7‑6(1) and (2) of the Supreme Court Civil Rules: Rule 7‑6 -- Physical Examination and Inspection Order for medical examination (1) If the physical or mental condition of a person is in issue in an action, the court may order that the person submit to examination by a medical practitioner or other qualified person, and if the court makes an order under this subrule, the court may also make. (a) an order respecting any expenses connected with the examination, and (b) an order that the

result of the examination be put in writing and that copies be made available to interested parties of record. Subsequent examinations (2) The court may order a further examination under this rule. [32] This rule is intended to help balance a plaintiff's advantage in obtaining expert evidence by affording the defendant a reasonable opportunity to arrange expert assessment and evidence. In Gennings v. Lum, 2020 BCSC 1196 at paras. 9-14, Justice Gomery summarized the relevant considerations as follows: Legal framework [9] Supreme Court Civil Rule 7‑6(1) authorizes the court to order an independent medical examination of a plaintiff in a personal injury action. The purpose of an IME is to put the parties on an equal footing with respect to the medical evidence; Tran v. Abbott, 2018 BCCA 365 at para. 32 [Tran]; Wright v. Sun Life Assurance Company of Canada, 2014 BCCA 309 at para.

31. While an assessment of what steps are necessary to achieve the goal of putting the parties on an equal footing is discretionary, the court must consider the effect of refusing an IME on the conduct of the trial; Tran at para. 40. [10] The goal of putting the parties on an equal footing does not necessarily require matching expert for expert or report for report; Hamilton v. Pavlova, 2010 BCSC 493 [Hamilton] at para. 12, Gray‑Verboonen v. Mandurah, 2019 BCSC 1697 [Gray‑Verboonen] at para. 15. [11] The applicant bears the burden of showing that the IME is necessary; Stocker v. Osei‑Appiah, 2015 BCSC 2312 [Stocker] at para. 19; Rong v. Yelland, 2019 BCSC 2071 [Rong] at paras. 9‑12. It is not the law that a second or subsequent IME is only justified in exceptional circumstances; a dictum to this effect in Hamilton at para. 16 was repudiated in Tran at paras. 27‑28. However, it is the case that a further IME is not necessary if it would only serve to bolster an opinion already obtained by the defendant; Gray‑Verboonen at para.

15. In Stocker at para. 33, Justice Pearlman stated: [33] A second examination will not be permitted for the purpose of attempting to bolster an earlier opinion of another defence expert. In meeting the higher threshold for a further examination, the defendant must show that there is some question or matter that could not have been dealt with at the earlier examination. [12] Where the defendant has already obtained an IME or IMEs and the question is whether a further IME should be ordered, the court must assess the questions already addressed, the differing specialities of the assessors, and the often uncertain path taken in the development of a differential diagnosis in a difficult case; Kim v. Lin, 2010 BCSC 1386 [Kim] at paras. 21‑27. [13] In every case, the court must consider whether the IME sought is proportionate having regard to the magnitude of the plaintiff's claims and complexity of the medical issues; Kim at paras. 33‑35. [14] The court must also consider whether the application is brought in time to permit admissible evidence to be adduced by the defendant at trial without undue prejudice to the plaintiff; Vermuelen‑Miller v. Sanders, 2007 BCSC 1258 at paras. 47‑48; Hamilton at para.

15. It is common ground that timeliness is not a concern in this case. Analysis [33] Plaintiff's counsel points to the pleadings and the absence of any allegation in the notice of civil claim and response to civil claim that the plaintiff suffered psychological or psychiatric injury as indicating this category of injury is not in issue in this action. He relies on Jones v. Donaghey, 2011 BCCA 6 as support for the proposition that whether a plaintiff's mental condition is in issue in an action must be assessed by reference to the pleadings. [34] I agree that neither of the parties expressly mentions the plaintiff's mental condition in their pleadings. That said, the plaintiff's original notice of civil claim also does not expressly mention that the plaintiff suffered injury to her knees in particular. Part 1, para. 4 of the notice of civil claim describes her injuries as follows: 4. As a result of the Collision and the negligence of the Defendant, the Plaintiff sustained physical injuries and other loss and damage and, in particular, sustained: a. Shock, bruises, and contusions; b. Injury to neck, shoulders, and lower back; c. Headaches; d. Dizziness and nausea; and e. Such other injuries as shall become apparent over time which said injuries have caused and continue to cause the Plaintiff pain, suffering, loss of enjoyment of life and loss of wages, both past and prospective,

all of which said injuries, loss and damage were caused or contributed to by the negligence of the Defendant. [35] The notice of civil claim was filed in March 2020, well after the plaintiff's November 2018 increase in knee pain, her attendance on Dr. Lau and her treatment at the Complex Pain Clinic. Presumably, this aspect of the plaintiff's injuries was well known when the notice of civil claim was prepared and filed. One could argue that the general reference to "bruises and contusions" is broad enough to cover the knee injury, but this seems less than adequate considering the relative significance of knee issues as argued during this application. The reference to "such other injuries as shall become apparent over time" is also inadequate notice of the knee issues as described on this application. [36] Assuming for purposes of this application that the reference to bruises and contusions is intended to include the plaintiff's knee injury, the question is whether the plaintiff's mental condition is also at issue, such that an IME by a psychiatrist is reasonable, proportionate and necessary to ensure reasonable equality between the parties in their preparation for trial. [37] Defendant's counsel argues that the conclusions reached by Dr. Lau and Dr. Kendall that the plaintiff's knee pain complaints starting in November 2018 were not caused by objective injury to her knee and

appeared to be a complex pain issue support the need for further inquiry into causation. She argues the defendant should be allowed to explore his hypothesis regarding the etiology of the plaintiff's knee complaint being unrelated to the Accident. [38] Plaintiff's counsel notes neither Dr. Lau nor Dr. Kendall recommended that the plaintiff be referred to a psychiatrist or psychologist in their initial reports. Counsel says that an IME by a psychiatrist is a particularly invasive form of examination. In Wocknitz v. Donaldson, 2010 BCSC 1991 at para. 20, Justice Pearlman stated as follows: [20] With respect to the application of the defendants for an order for an independent medical examination by a psychiatrist, again this is not a case where such an examination is required in order to level the playing field. This is not a case where the plaintiff has obtained or intends to obtain a psychiatric report. An independent medical examination by a psychiatrist is a particularly invasive form of examination and, in the circumstances of this case, it is not one that I would be prepared to order. [39] Wocknitz pre-dates the court of appeal's decision in Tran v. Abbott, 2018 BCCA 365. Tran clarified it is not necessary to meet a higher standard to qualify for a second or subsequent IME. At para. 27, Justice Savage found as follows: [27] In my view, there is nothing in the language of the

Supreme Court Civil Rules, or in logic or reason, that would mandate exceptional circumstances as a requirement for a second IME. As noted by Blok J. in Kenny, a plaintiff displaying multifactorial injuries may appropriately be required to attend IMEs by a number of specialists (at para. 62). There is nothing exceptional in that. [40] In McNeill v. Saunders, 2019 BCSC 520 at para. 19, Master McDiarmid found that Justice Pearlman's comment regarding invasiveness of a psychiatric exam was not affected by Tran: [20] That comment about an IME by a psychiatrist being particularly invasive has been cited in subsequent cases dealing with this sort of application. Pearlman J.'s observation about invasiveness is not, in my view, affected by the ratio of Tran. It is a factor I must consider. However, the actual decision in that case is somewhat at odds with the subsequent decision of our Court of Appeal in Tran. [41] In Shannon v. Harrison, 2017 BCSC 2272 at paras. 29-31, Master McDiarmid declined to order an IME with a psychiatrist based on his view that it was disproportionate considering the relatively minor nature of the relevant injuries: [29] There is no evidence of any psychiatric injury sustained in the motor vehicle accident. The onus of proof of such an injury rests with the plaintiff. [30] I reiterate what Pearlman J. writes "An independent medical examination by a

psychiatrist is a particularly invasive form of examination ": para.20. [31] Based on the materials I have seen, the probative value of such an examination would be slight. It is not needed, based on the evidence before me, to "level the playing field". Weighing all of the factors, I am satisfied that reasonable equality between the parties does not result in subjecting the plaintiff to what Pearlman J. correctly, in my view, describes as an "invasive psychiatric examination". [42] In the present case, Dr. Kendall's September 20, 2022 letter indicates that the treatment the plaintiff received from the Complex Pain Clinic was successful. Plaintiff's counsel advised that her November 2018 knee pain issues largely resolved within several months, and her complaints thereafter were less significant. Dr. Kendall does say that assessment by a psychiatrist or psychologist would likely shed some light on the plaintiff's clinical presentation "during this time". I understand this to refer to the period from November 2018 to when she was successfully treated at the Complex Pain Clinic. He does not say that assessment by a psychiatrist or psychologist would shed light on the plaintiff's post- Pain Clinic or current knee complaints. [43] As it appears the proposed IME would shed light on a relatively brief and somewhat limited phase of the plaintiff's knee complaints, and considering its

invasive nature, I am not persuaded that the proposed psychiatric IME is necessary or proportionate in the circumstances before me. Conclusion [44] The defendant's application for an order that the plaintiff attend an IME with Dr. Smith on October 11, 2022 is dismissed. [45] As the plaintiff is claiming for injury to her knee(s), it would be prudent for her to amend the notice of civil claim to clearly plead this. [46] The plaintiff is entitled to costs of this application from the defendant. "Master Bilawich"