Preparing for an Independent Medical Examination

What it is, and what the name means

An independent medical examination is an assessment of you by a health practitioner who is not treating you, arranged and paid for by the other side. In a lawsuit that is the defendant or its insurer. In an accident benefits or disability claim it is your own insurer.

The word independent describes the absence of a treating relationship. It does not mean the assessor is neutral in the ordinary sense, and plaintiff lawyers generally call these defence medicals for that reason. What is true is that an assessor who gives expert evidence owes a duty to the court to be fair, objective and non-partisan, and that duty overrides any obligation to the party who retained them. Good assessors take it seriously. Not every report reads as though they did.

Three different regimes, with three different consequences

Clients treat all of these as the same thing. They are not, and the difference matters most when you are deciding whether you have to go.

In your lawsuit

Where your physical or mental condition is in issue, the court can order you to be examined by a health practitioner. In practice the defence is entitled to one examination without a fight, and needs to justify any further ones. Where several defendants are separately represented, each may be entitled to its own.

If you refuse to attend without proper grounds, the court can dismiss your action.

Courts of Justice Act, s. 105; Rules of Civil Procedure, rules 33.02 and 33.07.

In your accident benefits claim

Your own auto insurer can require an examination, but not more often than is reasonable and necessary, and it must give you written notice setting out the medical and any other reasons for it.

The consequence of not attending is severe and catches people out. If the insurer gave proper notice and you did not comply, you are barred from disputing that benefit at the Licence Appeal Tribunal at all. Not weakened. Barred.

Statutory Accident Benefits Schedule, ss. 44 and 55(1)2.

If you think a notice is defective, the safer course is almost always to attend and object rather than to refuse. Refusing on the strength of a bad notice is a live argument, but it is a risky one, and the tribunal has closed files over it.

In your disability claim

Here the right comes from your policy rather than a statute. Most policies require you to submit to examination as a condition of continuing to receive benefits, and an insurer will often terminate benefits if you decline.

What is being assessed depends on your case

In a motor vehicle, slip and fall or disability claim, expect an orthopaedic surgeon, a physiatrist, a psychiatrist or psychologist, or an occupational therapist conducting a functional abilities evaluation, depending on what you have claimed.

In a medical malpractice case the most common defence assessment is a future cost of care assessment, looking at what care, equipment, housing and support you will need over your lifetime and what it should cost. You may also be assessed by a specialist in whatever field is relevant to your injury, exactly as in any other injury claim.

One thing worth understanding in a malpractice case: the defence expert who will say the care met the standard is a different person entirely. That expert reviews the chart and never meets you. The assessors who examine you are almost always damages experts.

What happens on the day

You will usually complete intake paperwork, then meet the assessor. Expect a history: the incident, your symptoms, your treatment, your work, your daily activities, and your health before. Then, depending on the specialty, a physical examination, range of motion testing, psychological or cognitive testing, or a functional evaluation involving lifting, carrying and other tasks.

Length varies wildly. Some take twenty minutes. A functional abilities evaluation can run several hours. You may be observed arriving and leaving, including in the parking lot and waiting room, and that observation can end up in the report.

Can you bring someone, or record it?

Not as of right in Ontario. Unlike some other provinces, you generally have to persuade the court that there is a real concern justifying an observer or a recording, rather than simply asking. Assessors frequently refuse both.

Raise it with your lawyer well before the appointment. Interpreters and, where genuinely needed, support for a disability are a different matter and should be arranged in advance rather than sprung on the day.

How to conduct yourself

The single most useful instruction is the same one that applies at discovery: be accurate. Not brave, not dramatic. Accurate.

• Do not minimize. Most people instinctively say they are fine. If you are asked how you are and you say "not bad", that can appear in a report as your own description of your condition.
• Do not exaggerate either. Functional and psychological assessments include validity and effort testing designed to detect overstatement, and a finding of inconsistent effort is far more damaging than any symptom.
• Describe the variation. Good days and bad days, and what an activity costs you afterward.
• Stop when something hurts. Do not push through a movement to prove you can. That becomes a recorded range of motion.
• Answer, do not campaign. The assessor is not going to be persuaded, and arguing shows up in the report as attitude.
• Say if you do not understand a question. Particularly on written questionnaires, which are often long and get rushed.

Make notes immediately afterward

Before you drive home, write down what happened: the time you arrived, the time you were taken in, the time you left, how long the assessor was actually in the room with you, what tests were done, what was said, and whether anyone else was present.

This matters more than clients expect. Where a report describes a thorough examination and the plaintiff can establish the assessor spent twelve minutes in the room, that gap becomes a serious problem for the report at trial. Nobody can reconstruct it months later. Send your notes to your lawyer the same day.

Surveillance, and what the assessor was given

Defence assessors are sometimes provided with surveillance video before they write. Where that happens in a lawsuit, the material given to the assessor generally has to be disclosed to you, because providing it to an expert who must produce a report waives the privilege that would otherwise protect it.

Your lawyer will pursue what the assessor was sent, what they read, and what they were asked. Those instructions often reveal a good deal about the report.

Getting the report

In a lawsuit, the practitioner must prepare a written report setting out their observations, test results, conclusions, diagnosis and prognosis, and the party who obtained the examination must serve it on everyone else. That is unusual, and it favours you: unlike most expert reports, an unhelpful defence medical cannot simply be buried.

Rules of Civil Procedure, rule 33.06.

In accident benefits and disability claims the route is different and your lawyer will deal with obtaining it. Ask to read it when it arrives. If it records something you did not say or describes an examination that did not happen, tell your lawyer in writing while your memory is fresh.

Common questions

Do I have to go?

In almost every case, yes, and the consequences of refusing differ by claim type. In a lawsuit your action can be dismissed. In an accident benefits claim you can be barred from the Licence Appeal Tribunal for that benefit. Under a disability policy your benefits can be terminated. Never simply decline without speaking to your lawyer first.

Is the assessor going to treat me or give me advice?

No. There is no treating relationship and they will not usually tell you their findings. If something urgent were identified you would expect it to be raised, but this is not an appointment for your benefit.

Who pays, and what about my travel?

The party requesting the examination pays for it. Reasonable travel expenses are usually addressed as well. Raise cost, distance and childcare with your lawyer in advance rather than absorbing them.

Can I refuse a particular test?

Discuss it with your lawyer beforehand if you have a concern. Refusing on the spot tends to appear in the report as non-cooperation, which is a poor trade for most objections.

What if the report is wrong?

That is a normal and expected part of litigation. Your lawyer can respond with your own expert evidence and can cross-examine the assessor at trial. Your contemporaneous notes are what make that cross-examination effective.

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