Veckenstedt v. Youssef, 2011 ABQB 735

Court of Queen ’ s Bench of Alberta Citation: Veckenstedt v. Youssef, 2011 ABQB 735 Date: 20111125 Docket: 0701 09086 Registry: Calgary Between: Herb Veckenstedt Plaintiff - and - Emad Youssef Defendant _______________________________________________________ Reasons for Judgment of J.T. Prowse, Master in Chambers _______________________________________________________ Disagreement over an Independent Medical Examination [ 1 ] The Defendant wishes the Plaintiff, Herb Veckenstedt, to attend an independent medical examination (“IME”) pursuant to Rule 5.41 of the Rules of Court. Mr.

Veckenstedt is willing to do so. [ 2 ] An issue has arisen because the physician nominated to conduct the IME wishes Mr. Veckenstedt to sign a consent form. [ 3 ] Counsel for Mr. Veckenstedt does not point to anything objectionable about the wording of the consent form. Counsel’s position is that since Mr. Veckenstedt is not required by the Rules of Court to sign a consent form, then he declines to do so. His counsel submits that any order granted compelling Mr. Veckenstedt to attend for a medical examination should state that Mr. Veckenstedt is not required

to sign or execute any further authorization, consent or release. [ 4 ] Is this a tempest in a teapot? In other words, are the parties failing to fulfill their responsibility under Rule 1.2 (3) to identify the real issues in dispute and facilitate the quickest means of resolving Mr. Veckenstedt’s claim at the least expense? Discussion [ 5 ] Physicians are trained not to touch their patients without informed consent. Here the physician conducting the IME is a ‘non-treating physician’ who will be touching someone who is not his patient.

The physician is understandably concerned to have something in writing confirming that the person being examined consents to that touching. [ 6 ] The civil justice system seeks the assistance of the medical profession to accurately evaluate injury claims.

If a reasonable request from a member of the medical profession can be accommodated in a way which is not contrary to the Rules of Court , then I think that accommodation should be provided. [ 7 ] Honouring the reasonable requests of the IME physician, so long as those requests are not contrary to the Rules of Court, is consistent with the policy reasons espoused by this court in Crone v Blue Cross Life Insurance Co. of Canada , 2001 CarswellAlta 1338, 2001 ABQB 787 , 14 C.P.C. (5 th ) 103, 297 A.R. 351, at paragraph 26 , where it stated: First, it seems eminently reasonable that defence medical examiners, indeed all medical professionals, should be left to conduct their medical examinations as they see fit unless there is a compelling reason for the court to interfere or the rules permit it, as for example the rule allowing the presence of a medical nominee chosen by the plaintiff.

The court cannot, in any event, compel a doctor to conduct an examination under circumstances which the doctor objects to, so if the courts begin to place constraints on how particular plaintiffs are examined, the predictable effect is that the number of doctors willing to perform defence medical examinations will decline, raising both the price and length of time to complete the discovery process in personal injury actions. [ 8 ] In correspondence exchanged between counsel prior to this application, counsel for Mr. Veckenstedt referred to

section 14 of the College of Physicians and Surgeons of Alberta Health Professions Act Standards of Practice Consolidation in support of his assertion that a consent form is not required for a Non-Treating Medical Examination (“NTME”). Those provisions state:

(4) The physician undertaking the NTME must obtain informed consent from the person for the examination, diagnostic interventions and release of the physician’s report.

(5) Notwithstanding subsection (4), the physician is not legally required to obtain consent if a person has been ordered by a court order or statutory direction to undergo a NTME; however, the physician is not required to: (

a) enforce the terms of a court order or statutory direction, or (

b) proceed with an NTME if the person refuses to cooperate with the physician undertaking the NTME [emphasis added] [ 9 ] The above quotation, in my view, simply confirms what common sense dictates. If the plaintiff at the time of the examination says to the physician “don’t touch me” then that direction would be honoured. The consequences of that refusal could be dealt with later by the court, but nobody would expect the physician to engage in a wrestling match to complete the IME.

In my view, it is reasonable that the independent physician would want to confirm ongoing consent on the day of the examination. [ 10 ] This is not a situation, as occurred in Nistor v. Kankolongo , 2007 ABQB 684 , 431 A.R. 367, 2007 CarswellAlta 1547, where

the independent physician was seeking to conduct the independent examination in a manner contrary to the express provisions of the Rules of Court . [ 11 ] This issue has not been determined by the transcribed reasons for judgment in Morgan v. Mykytyshyn , [2010] A.J. No. 1422 . A review of that transcription indicates that, at the outset of the application, counsel for the defendant withdrew his position that a consent form was required. Consequently any observations on that topic were obiter.

What documentation of consent is appropriate [ 12 ] When an IME is sought, counsel might agree, under Rule 5.41, that the plaintiff will attend at the examination. In such a case it seems to me appropriate that, when the plaintiff attends for the examination, the plaintiff sign an acknowledgement that he/she continues to consent to the physician touching him/her for the purpose of conducting that examination. [ 13 ] Alternatively, the examination might take place under a court order issued pursuant to Rule 5.41(2).

The court order should expressly state that the physician is entitled to touch the plaintiff for the purpose of conducting the examination. However, the examination will typically take place weeks or perhaps months after the court order has been issued. It strikes me as reasonable for the physician conducting the IME to obtain an acknowledgement, on the day of the examination, confirming that the plaintiff consents to the physician touching him/her for the purpose of conducting that examination.

Costs [ 14 ] If the parties cannot agree on the costs of this application, they may approach me for a ruling in that regard. Heard on the 26 th day of September, 2011. Dated at the City of Calgary, Alberta this 25 th day of November, 2011. J.T. Prowse M.C.C.Q.B.A. Appearances: Brian W. Conway Taylor Conway

for the Plaintiff Anne E. Wallis Field LLP for the Defendant