Prothero v. Togeretz
- Citation
- 2015 BCSC 764
- Status
- Judgment
- Jurisdiction
- Canada
- Court
- Supreme Court of British Columbia
- Decision
- 8 May 2015
- Posture
- Motor Vehicle Tort Personal Injury / Application for Production of Documents (in Chambers)
- Language
- English
More details
- Court
- Supreme Court of British Columbia
- Decision
- 8 May 2015
- Posture
- Motor Vehicle Tort Personal Injury / Application for Production of Documents (in Chambers)
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The MRI disk must be produced because it was created at the instance of the treating physician for diagnostic and treatment purposes prior to any retention of the specialist as an expert, so neither litigation privilege nor solicitor's brief privilege applies.
Court disposition
Application granted in part: privilege claim dismissed and MRI disk ordered produced; costs in the cause.
Orders
- Produce MRI disk identified as privileged document #4.1
- Costs in the cause
02
Material facts
Parties
Adam Prothero
Plaintiff Counsel: J.S. VossCameron Togeretz
Defendant Counsel: R.F. ShirreffWalter-Joseph Togeretz
Defendant Counsel: R.F. ShirreffAmounts and remedies
- Judgment Year: 2,015
03
Procedural history
Posture
Motor Vehicle Tort Personal Injury / Application for Production of Documents (in Chambers)
04
Questions and positions
Legal issues
- 01
Whether the MRI disk is producible
- 02
Whether litigation privilege or solicitor's brief privilege applies to the MRI disk
- 03
Whether the MRI was created for litigation or for diagnostic/treatment purposes
- 04
Whether a treating physician who later becomes an expert affects privilege
- 05
How the cost of the MRI should be characterized for recovery
Party arguments
- Applicant
- Defendants sought production of the MRI disk on the basis that it was created for diagnostic and treatment purposes at the request of the treating physician and therefore is not subject to litigation or solicitor's brief privilege.
- Respondent
- Plaintiff asserted litigation privilege and solicitor's brief privilege over the MRI disk, contending it was privileged and not producible in the litigation.
05
Court’s reasoning
Legal principles
- 01
Common law on litigation privilege
Litigation privilege protects materials created for the dominant purpose of litigation and does not extend to documents created for diagnostic or treatment purposes.
- 02
Common law on solicitor's brief privilege
Solicitor's brief privilege does not shield documents prepared or obtained for medical diagnosis and treatment prior to their use in litigation.
- 03
Common law principle distinguishing treating physician and expert witness
Materials prepared for treatment by a treating physician are generally not privileged even if the treating physician is later retained as an expert.
06
Ratio, limits and disposition
Ratio decidendi
The MRI disk must be produced because it was created at the instance of the treating physician for diagnostic and treatment purposes prior to any retention of the specialist as an expert, so neither litigation privilege nor solicitor's brief privilege applies.
Obiter and limits
- A letter from ICBC marked 'Without Prejudice' was present in the materials but was not read by the Master.
- The cost of the private MRI appears likely to be recoverable as special damages for medically necessary investigation and treatment rather than as a litigation disbursement, but that issue is to be determined at trial or a later stage.
- Other orders regarding the plaintiff's attendance at a defence medical examination were dealt with at the hearing.
Court disposition
Application granted in part: privilege claim dismissed and MRI disk ordered produced; costs in the cause.
- Produce MRI disk identified as privileged document #4.1
- Costs in the cause
Source and reliance status
Supreme Court of British Columbia · 8 May 2015
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Supreme Court of British Columbia
Judgment· 8 May 2015
2015 BCSC 764 Prothero v. Togeretz
IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Prothero v. Togeretz, 2015 BCSC 764 Date: 20150508 Docket: M146349 Registry: New Westminster Between: Adam Prothero Plaintiff And Cameron Togeretz and Walter-Joseph Togeretz Defendants Corrected Judgment: The front page of the judgment was corrected on May 12, 2015 Before: Master Caldwell In Chambers Reasons for Judgment Counsel for the Plaintiff: J.S. Voss Counsel for the Defendants: R.F. Shirreff Place and Date of Hearing: New Westminster, B.C. April 30, 2015 Place and Date of Judgment: New Westminster, B.C. May 8, 2015 [1] This is an application by the defendants for production of an MRI disk listed as privileged document #4.1 on the plaintiff's List of Documents. Other orders relating to the plaintiff's attendance at a defence medical examination with Dr. Winston Gittens were dealt with at the time this matter came on for hearing. [2] The plaintiff was involved in a motor vehicle accident in November of 2010. Liability for the accident has been admitted but the cause and quantum of damages are contested. [3] The plaintiff has been under the care of his GP Dr. Fernandes since the accident. In August of 2011 Dr. Fernandes, as the plaintiff's treating physician, wrote to plaintiff's counsel indicating that the plaintiff needed to have an MRI done. The stated reasons for that procedure related to investigation and referral to a
specialist for assessment, rehabilitation and ongoing management of symptoms. [4] A private MRI service was retained to perform the MRI due to Dr. Fernandes' concern that a two year wait could be expected in the public system. [5] Plaintiff's counsel requested of the ICBC adjuster that the corporation pay for the private MRI. I was told that that request was refused. There is correspondence attached to the affidavit of Lisa Gauthier which appears, from its date, to relate to this refusal but that letter is marked "Without Prejudice" and as no argument was presented to me regarding that letter I have not read it. [6] The MRI exam was performed on October 11, 2011. The resulting reports were provided to Dr. Fernandes and have been produced; the actual disk of the exam was provided to plaintiff's counsel. [7] On October 21, 2011 Dr. Fernandes wrote to Dr. A. Mutat, a neurosurgeon, requesting that he see the plaintiff. On that same date Dr. Mutat wrote back to Dr. Fernandes with an appointment for the plaintiff to attend his office on November 3, 2011. In that letter, Dr. Mutat specified that "Patients whom have had private MRI's are to bring their CD of the imaging to their appointment." [8] On November 3, 2011 Dr. Mutat reported back to Dr. Fernandes regarding the plaintiff's attendance in his office that day. In that letter Dr. Mutat refers to the imaging and uses additional
language to that found in the MRI reports themselves. From this I conclude that Dr. Mutat did in fact view the contents of the MRI disk and used those contents in coming to his conclusion as communicated to Dr. Fernandes. [9] Sometime later, I believe in December of 2011, plaintiff's counsel contacted Dr. Mutat in order to retain him as an expert to assist in the prosecution of the plaintiff's case. [10] On the material before me I am unable to agree with plaintiff counsel's assertion of litigation privilege or solicitor's brief privilege. It appears clear on the material that the MRI was requested by Dr. Fernandes as part of his course of investigation and treatment of the plaintiff for injuries resulting from the motor vehicle accident; he then obtained the results and referred the plaintiff to a specialist for further assistance in diagnosis and treatment. Dr. Mutat was a treating doctor at the time this took place and only took on the role of expert at a later date when approached by plaintiff's counsel. [11] In the result, the MRI disk is producible and is ordered produced; it came into existence for diagnostic and treatment purposes at the request of Dr. Fernandes, not for litigation purposes at the instance of plaintiff's counsel. In this regard it would seem that the cost of the MRI will be addressable as a special damage matter relating to medically necessary investigation and treatment rather than as a disbursement in the litigation however that will remain to be determined in the fullness of time. [12] Costs will be in the cause. Master Caldwell
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