Koerner v. Capital Health Authority, 2010 ABQB 761

Court of Queen ’ s Bench of Alberta Citation: Koerner v. Capital Health Authority, 2010 ABQB 761 Date: 20101203 Docket: 0803 01510 Registry: Edmonton Between: Lisa Koerner Applicant - and - Capital Health Authority, Royal Alexander Hospital, University of Alberta Hospital, Grey Nuns Community Hospital, Misericordia Community Hospital, Dr. Walter Yakimets, Dr. Todd McMullen, Dr. Doug Davey, Dr. D. San Agustin, Dr. Kata Matic, Dr. G. Sandha Respondents _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice D.L.

Shelley _______________________________________________________ 1 . Background [2] This application is one of several that I have heard in the course of case management. Many of the background facts have been set out in written reasons related to some of those earlier applications, and therefore I will not repeat them here. [3] This is a continuation of an earlier application in which Ms. Koerner sought the following:

“1. Order dismissed on allowing the defence to courier the Plaintiff documents while being hospitalized out of Country; 2 . Dismissing the order to provide irrelevance reports to the Defence; 3 . Ordering that all assessments be videotaped to prevent any potential bias; 4 . Change order of psychological testing.” [4] This application refers to several earlier orders. The application to “dismiss” the service order was dismissed, because I cannot reverse my own order (although the service order was not as Ms. Koerner indicated in any event). Similarly, I had also ordered Ms.

Koerner to provide the Defendants with complete copies of the reports, records, and materials from a number of psychiatrists and psychologists with whom she had attended. I cannot set aside that order, although the Defendants agreed at the hearing of the application that it be varied to permit this Court to review reports which reference her children and to supervise the redaction of her children’s personal information. [5] Under Rule 217 I granted the Defendants’ application to require Ms.

Koerner to attend for an independent medical examination with a psychiatrist and then with a psychologist to undergo the MMPI (Minnesota Multiphasic Personality Inventory), the WAIS III, the McGill Pain Inventory, and the Pain Disability Index tests. I then granted Ms. Koerner’s application to have the interview with the psychiatrist, Dr. Urness, video-taped , provided that Ms.

Koerner was responsible for making the appropriate arrangements for the video, including payment. [6] I sought further submissions on the question of whether the testing with the psychologist should be video-taped and on whether she be permitted to answer the questions in the tests orally to expand or explain her answers. Issues [7] The issues are: (

a) whether the psychologist’s tests can be administered orally; (

b) whether Ms. Koerner’s answers to the tests can be expanded upon (by interview or otherwise); (

c) whether the tests can be video-taped; and (

d) whether the test raw data can be released to Ms. Koerner. Ms. Koerner’s submissions [8] Ms. Koerner submitted an affidavit that essentially consists of argument, not statements of facts known to her personally. Attached to the affidavit are a number of documents that are not appropriately sourced, are incomplete, and are aimed at challenging the validity of the MMPI test. As I noted in an earlier decision, questions regarding the validity and weight to be given to the tests are a question for trial.

[9] Ms. Koerner argues that the MMPI is not reliable, has been proven to have “high fake bad scores”, and is evaluated by the“norm”. She suggests that the norm will fluctuate according to personal views and economic status, and that two Florida judges havebarred the test. She further argues that the courts are obligated to “go by proven facts, not scientific opinion.” She suggests that manypeople are wrongfully diagnosed because psychologists can evaluate any way they want to. She indicates that she was illegally andunethically diagnosed by a psychiatrist who never met her. She relies on an internet blog

article by Linda Nee, entitled “The Truth aboutNeuropsychological Tests”. [10] Relying on the Psychologists Association of Alberta website, Ms. Koerner says that psychologists are required to obtainconsent before disclosing any personal information to external parties and to be accurate in recording personal information. She suggeststhat unless there is video-taping, errors will be made, because no psychologist will remember every answer perfectly and that this couldcolour his report.

She argues that every Canadian citizen is entitled to all their reports under the Privacy and Information Act, includingactual tests. She further argues that it is a violation for the courts to “just expect an expert witness’s word, without Proven facts.” [11] Ms. Koerner then refers to an article, entitled Challenging Expert Evidence by Bill McNally and Barb Cotton, an on-linearticle published by a legal research and communications business, and which discusses the Supreme Court of Canada decision in R. v.Mohan, (SCC), [1994] 2 S.C.R. 9.

She cites a portion of a sentence from that decision, suggesting that the decision inMohan rejected “general acceptance.” [12] Ms. Koerner continues, submitting that the courts are to protect people’s privacy, and that only relevant information shouldever be disclosed. She asserts that “it is illegal for the defence to use another doctor’s report as evidence unless that doctor is going to betheir expert witness.” Allowing expert witnesses to view other experts’ reports, she says, creates bias.

Moreover, she argues the defencehas no right to view her personal reports; “that is why they hired an expert witness to do an ‘independent evaluation’.” [13] She concludes that the MMPI is not reliable and should not be used as evidence. She says that, by law, the defence is notentitled to any previous reports, and that they are not legally allowed to share personal information without her consent. She furtherasserts that “All Albertans are allowed all Psychologists reports, accrual test by law,” and that a psychologist cannot prove informationon hearsay.

If she is not given copies of the tests, she will obtain them through the Privacy Commissioner. [14] Ms. Koerner argued that Dr. Mrazik was “fraudulent” when he said that the test was copyrighted because she has found it onthe internet. The Defendants’ submissions [15] Counsel for the Defendant hospitals filed an affidavit by Dr. Martin Mrazik, a clinical neuropsycholgist, who has beenretained to administer the psychological testing ordered by this Court under R. 217.

He deposes that the tests he will administer, theWeschler Adult Intelligence Scale (WAIS -3), the Minnesota Multiphasic Personality Inventory (MMPI), Pain Disability Index, andMcGill Pain Inventory, are standardized ways to measure a person’s level of functioning. He indicates that these tests provide importantclinical data and allow psychologists to compare that person’s results to other groups. [16] Dr.

Mrazik further indicates that the ethics of test administration require that the integrity of the test procedures be followed,and that deviating from standard procedures (by, for example, administering the test orally) undermines the validity of the test. However, he indicates that an interview in addition to the standardized tests would have clinical value and would allow Ms. Koerner toprovide further context for her answers. He estimates that such an interview would require an additional hour. [17] Video-taping the administration of the tests is not permitted, Dr.

Mrazik affirms, noting that the tests are protected bycopyright and are not to be distributed to the lay public. If he permitted the administration of the tests to be recorded, he would beviolating copyright agreements. He does not object to having the interview portion video-taped. [18] Dr. Mrazik indicates that he is not permitted to release copies of the test protocols and raw data to laypersons, but only toanother Registered Neuropsychologist or Registered Psychologist, because of both copyright restrictions and ethical guidelines.

If Ms.Koerner wishes, he can release them to a Registered Neuropsychologist or Registered Psychologist of her choice. Further, he says that heis permitted to provide her with a

summary of her test scores.

Analysis [19] Ms. Koerner’s concerns regarding the validity of the MMPI tests are not relevant at this stage. The order requiring her to undergo the tests has not been appealed and remains in effect. [20] As to whether she can videotape the administration of the test, receive the actual results of the tests, or take the test orally, Dr. Mrazik’s evidence is uncontradicted. The test procedures must be followed to ensure validity. Therefore, the administration of the tests cannot be videotaped and the tests must be administered according to the appropriate protocol. [21] However, Dr.

Mrazik has indicated that an additional interview would be helpful and Ms. Koerner may expand upon and explain her answers in that interview. She has asked that the interview take place before the tests are administered. In my view, this is not sensible, since she will not know the questions and her answers beforehand (I note that Ms. Koerner has indicated that she found the test questions for the MMPI on the internet, but it may be that these are not accurate. Furthermore, copyright does not cease to exist if copyright was breached by posting on the internet).

In any event, if she wishes the interview to take place before the test, and Dr. Mrazik has no objection, the interview may take place first. That interview may be video-taped, with all such arrangements to be made, and cost to be borne, by Ms. Koerner. [22] Dr. Mrazik’s evidence was clear that the test protocols, professional ethics, and copyright only permit him to release the raw data and test protocols to a Registered Neuropsychologist or Registered Psychologist. Ms. Koerner may retain a Registered Neuropsychologist or Registered Psychologist to whom these results can be released. Dr.

Mrazik has also indicated that he would be prepared to provide her with a

summary of her test scores. [23] Ms. Koerner’s assertion of a right to all her raw data is not supported by the law, and therefore the tests themselves will not be released to Ms. Koerner. Conclusion [24] Ms. Koerner will not be permitted to video-tape the administration of the test, and the tests must be administered according to the appropriate protocols. She may video-tape a supplementary interview with Dr. Mrazik to clarify and expand upon her answers. The raw data and the test protocols will not be provided to Ms. Koerner, although she may retain a Registered Neuropsychologist or Registered Psychologist to receive that information. Dr. Mrazik may provide her with a

summary of her test scores. Heard on the 25 th day of November, 2010. Dated at Edmonton, Alberta this 2nd day of December, 2010.

D.L. Shelley J.C.Q.B.A. Appearances: Lisa Koerner Appeared on her own behalf Jennifer Janz Field LLP for the Respondent Hospitals Sharon Roberts Bennett Jones LLP for the Respondent Doctors