Kohlendorfer v. Northcott, 2013 ABQB 145

Court of Queen ’ s Bench of Alberta Citation: Kohlendorfer v. Northcott , 2013 ABQB 145 Date: 20130308 Docket: 0303 24014, 0703 07865 Registry: Edmonton Between: Docket: 0303 24014 Stephan Kohlendorfer and Annie-Marie Kohlendorfer Plaintiffs - and - Adam Northcott and Yvette Marie Richard Defendants And Between: Docket: 0703 07865 Zuzanna Musial Plaintiff - and - Patrick Setiono Defendant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.C. Read

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Summary: The plaintiffs in two separate actions had videotaped, at their request, medical examinations they underwent by medical experts chosen by the defendants. The plaintiffs provided the videotapes of the examinations to counsel for the defendants but with restrictions as to their use. Notably, the plaintiffs sought to disable the defendants from permitting the examining experts to review the videotapes before finalizing their experts ’ reports.

Factual Background: [ 1 ] The plaintiffs, in actions for injuries in two separate motor vehicle accidents, raised issues related to the use of videotapes made of the medical examinations they underwent. Because of the similarity of the issues, the two applications were heard together by agreement. [ 2 ] In the first action, the plaintiffs, Stephan Kohlendorfer and Anne-Marie Kohlendorfer, were injured in a motor vehicle accident on January 5, 2002. The defendants, Adam Northcott and Yvette Marie Richard, required Ms.

Kohlendorfer to attend a medical examination by a health care professional of their choice pursuant to R. 5.41(4) of the Alberta Rules of Court , Alta Reg 124/2010 ( New Rules) . Such medical examinations are often termed independent medical examinations or IMEs. I prefer to use the term defendant medical examination or DME. The DME was conducted on July 23, 2012, by Dr. Marana Apel, a psychiatrist. [ 3 ] Ms. Kohlendorfer’s counsel arranged for the examination to be videotaped, as is permitted by R. 5.42(1) (

b) of the New Rules . After learning of this, Dr. Apel was initially reluctant to conduct the examination. After the defendants’ counsel advised her that the New Rules specifically provide that plaintiffs undergoing a DME could elect to video record the examination, Dr. Apel agreed to proceed with the examination. Defendants’ counsel told Dr. Apel that they would provide the videotape to her once they received it. [ 4 ] On August 28, 2012, plaintiffs’ counsel delivered the videotape to defendants’ counsel with a letter stipulating the videotape could not be provided to Dr. Apel “for any purpose”.

Specifically, plaintiffs’ counsel expressed a concern over the videotape being provided to Dr. Apel before she completed her report. Plaintiffs’ counsel also stipulated that the videotape should not be provided to any of the defendants’ other expert witnesses. [ 5 ] Defendants’ counsel indicated there was no intention to show the videotape of Dr. Apel’s assessment to any other expert. However, they wished to allow Dr. Apel to review the videotape before she produced her report. The defendants brought an application for an order directing that Dr.

Apel be provided with and permitted to review the videotaped recording of the examination before finalizing her written report. They also sought an order directing that the health care professionals chosen to conduct any future DMEs on either of the plaintiffs be permitted to review any videotapes made of examinations they conducted before finalizing their reports. [ 6 ] By cross application, plaintiffs’ counsel demanded production of the draft report of Dr.

Apel, arguing that the defendants had failed to provide the draft report in accordance with R. 5.44(3) which requires that the defendants deliver a copy of the written report “promptly” on request. [ 7 ] In the second action, the plaintiff Zuzanna Musial alleges she was injured in a motor vehicle accident which occurred on November 25, 2005. The defendant chose Dr. John Evans, a temporomandibular joint (TMJ) specialist, and Betty Wilson, an occupational therapist, to complete DMEs. Dr. Evans completed his examination on October 25, 2012. Ms. Wilson completed hers on October 26, 2012.

Both of these examinations were videotaped at the plaintiff’s request. [ 8 ] When the Musial video recordings were provided to counsel for the defendant, it was under the following express conditions:

a. The defendant could not provide the recordings to either expert or permit either expert to view them; b. The defendant could not provide a transcript of the audio portion of the video to either expert; c. The defendant could not answer any questions related to the contents of the video disk posed by either expert; d. Conditions (

a) and (

b) would apply to any other expert retained by the defendant to assess the plaintiff. [ 9 ] Dr. Evans refused to provide a final report from his examination until he was permitted to review the video recording of the examination he conducted Issue: [ 10 ] Does R. 5.43 permit a plaintiff who has obtained video recording of a DME to disable the examining health professional from reviewing the video recording before finalizing their report?

The Applicable New Rules: [ 11 ] The New Rules specify that a plaintiff who is the subject of a defence medical examination, may request it be videotaped and such recording is to be permitted “unless otherwise ordered by the Court”. However, the Rules also require that the video recording be provided to counsel for the defence: Medical examinations 5.41(1) The parties may agree that the mental or physical condition of a person is at issue in an action and agree on a health care professional to conduct a medical examination.

Options during medical examination 5.42(1) Unless otherwise ordered by the Court, a person who is to be the subject of a medical examination by a health care professional may elect to do one or more of the following: (

a) nominate a health care professional to be present during the medical examination; (

b) videotape the medical examination; (

c) make a word-for-word recording of the medical examination. (2)... Payment of Costs of Medical Examinations 5.43(1)... (2)...

(3) The party arranging for the videotaping or recording must provide a copy of the videotape or recording to the other party as soon as practicable after the medical examination is completed.

(4) The videotape or recording (

a) may be shown or played at trial only with the Court's permission, and (

b) may only be used to verify events at the medical examination. [ 12 ] The New Rules also contain various foundational provisions, drafted to aid in their

interpretation. The stated purpose is "to provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost-effective way": R. 1.2(1). [ 13 ] Rule 1.2(2) states that the New Rules are intended to be used: (a) ... (

b) to facilitate the quickest means of resolving a claim at the least expense, (

c) to encourage the parties to resolve the claim themselves, by agreement, with or without assistance, as early in the process as practicable, (

d) to oblige the parties to communicate honestly, openly and in a timely way, and (

e) to provide an effective, efficient and credible system of remedies and sanctions to enforce these rules and orders and judgments. [ 14 ] Rule 1.7 specifies that the stated purpose and intention of the New Rules is key to their

interpretation: 1.7(1) The meaning of these rules is to be ascertained from their text, in light of the purpose and intention of these rules, and in the context in which a particular rule appears. [ 15 ] Rule 5.3(1) makes clear that the Court retains discretion to modify or waive provisions of the Rules where warranted: 5.3(1) The Court may modify or waive any right or power under a rule in this Part or make any order warranted in the circumstances if (

a) a person acts or threatens to act in a manner that is vexatious, evasive, abusive, oppressive, improper or tediously lengthy, or (

b) the expense, delay, danger or difficulty in complying with a rule would be grossly disproportionate to the likely benefit. Parties ’ Arguments: [ 16 ] The position of the plaintiffs in both actions is that R. 5.43(3) should be interpreted restrictively; none of the defendant, his counsel, or the defendant’s expert needs to review the video recording and to permit dissemination of the recording is to risk breach of privacy for the plaintiff who is the subject to such videotaping.

The plaintiffs argued that R. 5.43 was remedial in nature and plainly enacted for the benefit of plaintiffs only, so that when required to undergo defence medical examinations, they had a means to ensure the accuracy of the resulting expert’s report. They suggested that permitting the video recordings to be distributed to the experts could result in loss of control of the images and thus create a real risk of loss of privacy. Such an

interpretation they likened to a ‘poison pill’

embedded into the right to have such video recording making the right dangerous to use, practically speaking. [ 17 ] The position of the defendants Northcott and Richard is that it would be inherently unfair to disallow the examining health care professional from reviewing a video recording of their assessment if it exists, particularly as it would ensure accuracy because the plaintiff and her expert may make whatever use they wish of the recording, subject to the restrictions set out in R. 5.43(4). [ 18 ] The position of the defendant Setiono is that imposition of restrictions on defence medical examiners related to the requirement to permit video recording of examinations would further reduce the number of available experts prepared to complete medical reports for use in Court.

Setiono also submitted that permission for the examining medical expert to verify his notes respecting his observations made at the medical examination by review of the video recording is completely consistent with the proper

interpretation of R. 5.43 and with the general purpose and intention of the New Rules . He argued, as well, that video recordings were no different from physician’s charts and medical reports and, subject to the general litigation restriction on use of disclosure only for the purpose of that litigation, should be permitted to be provided to defendants and their insurers as well as to the medical experts checking for accuracy during the preparation of their final reports.

Discussion and Decision: [ 19 ] The New Rules explicit allowance of video recording of defence medical examinations marks a change from the former Rules which were silent as to whether a defendant’s medical examination could be video recorded. Under the former Rules, plaintiffs who wished to video record defence medical examinations, in cases such as where a medical nominee could or would not attend, had to bring a specific application to permit this.

These applications were usually dismissed: see for example Crone v Blue Cross Insurance Co of Canada , 2001 ABQB 787 , and Feniak v Backhouse , 2010 ABQB 332 . [ 20 ] However, beyond providing that the plaintiff must provide a copy of the video recording to counsel for the defendant, the rule is silent about what use the defendant may make of the video once received.

Further, none of counsel involved has been able to find any case law interpreting the New Rules which is directly on the point at issue here. [ 21 ] It is helpful to note however, that despite the significant change in respect to the availability of video recording, the remainder of New Rules 5.41, 5.42 and 5.43 are similar in language to R. 217 of the former Rules. Some of the case law which interprets the former Rules, therefore, may still be applicable.

As stated by Master Schlosser, "the new Rules may have expanded what used to be an independent medical examination under old R. 217 but the considerations applicable to the court's overriding discretion remain the same": Nystrom v Ranson , 2011 ABQB 116 at para 9 . [ 22 ] A further difference in the New Rules is the guide to

interpretation found in the Foundational Rules in

Part 1, Division 1. Several of these Foundational Rules seem to be particularly applicable to the proper

interpretation of R. 5.43. Rule 1.7(1) provides generally that the meaning is to be ascertained from the text “in light of the purpose and intention” of the Rules. The purposes and intention are found in R. 1.2(2): the New Rules are to be interpreted so as to encourage the parties to settle and to facilitate resolution of claims as quickly and inexpensively as possible. In order to do so, R. 1.2(2)(

d) provides that the parties are obliged to communicate honestly and openly. [ 23 ] Having considered these Foundational Rules, I have concluded that they suggest an

interpretation of R. 5.43 which permits the defendant’s expert to review the video recording before completing his or her report and which permits, as well, defendant’s counsel to review the recording. [ 24 ] My reasons are as follows. [ 25 ] The parties can best be aided to resolve their disputes quickly and inexpensively if they have accurate information. Indeed, the underlying purpose of having a medical nominee attend is to ensure that the examination is properly conducted and accurately reported: Guitierrez v Jeske , 2004 ABQB 105 at para 5 . Video recording of the DME serves the same purpose and is an alternative to the presence of a medical nominee.

[26] Doubtless, a medical expert examining a plaintiff will take notes of the examination he or she conducts. However, these notesmay be incomplete and there may be delay between the examination and preparation of the report. Memories quickly fade and notes canbecome more cryptic, even to their author, as time goes on. However, the video recording provides an accurate and complete depictionof the examination. The examiner could greatly benefit from a review of this recording.

Allowing her to do so will enable her to refreshher memory about what occurred at the examination and to ensure that her report is accurate. [27] The elimination of disputes about the findings of the expert will also aid in more timely and cost effective resolution of thisclaim. Better expert evidence could result if the examiner has the opportunity to review the video recording. The examiner should beable to review it when compiling a report to ensure the most accurate evidence is relied upon and put forward.

There is no principledreason to deny the examiner that opportunity. [28] Enabling the examiner to review the video recording will also result in a more efficient process with less delay. The examinerwill require less time to watch the video than he would reviewing his notes and searching his memory.

He or she will not have to taketime to "get up to speed" about the factual information upon which the report is predicated and will be able as well to summarize thismore quickly in the report. [29] Further, because counsel for the plaintiff and the examiner will both have reviewed the video recording, disputes about whatactually occurred at the examination should be almost eliminated.

This should make settlement more easily obtained and, if the matterdoes proceed to trial, should make cross examinations of experts briefer. [30] As well, the fact that the New Rules obligate the plaintiff to provide the defendant with a copy of the videotape “as soon aspracticable” is indicative that the defendant be permitted to make some use of the recording. Otherwise, why provide it? The plaintiffsdo not argue that the videotape is irrelevant, nor that it is privileged.

They argue that the purpose of providing it to defence is merely forstorage: to ensure an accurate copy is maintained in the event it is required for trial. If that was the case, however, there are many othermethods that could have been chosen, such as requiring the video recording to be done by a court reporter or other official and, as withtranscripts of questioning, requiring that they maintain an accurate record.

That the New Rules require the video recording to beprovided to the defendant is consistent, instead, with the Foundational Rules which require open and honest communication between theparties to encourage settlement. Such a goal will be fostered by early disclosure rather than by disabling access and later “trial byambush”. [31] Permitting the use of the video recording also promotes fairness. A fair trial, for all litigants, is a fundamental principle ofjustice: M(

A) v Ryan, (SCC), [1997] 1 SCR 157 at para 84. "Fairness requires that a defendant be able to make fullanswer and defence by being given the opportunity to challenge the plaintiff's evidence": Stirling v Mangembulude (2000), (AB KB), 272 AR 184 (ABQB) at para 19. [32] The purpose of a DME is to allow a defendant to obtain evidence of a plaintiff's physical condition so as to be able to present afull answer and defence: Lyons v Khamsanevongsy (1997), (AB KB), 207 AR 385 (ABQB) at para 22.

A DME ismeant to "put the parties on a basis of equality, as nearly as may be, and to make available to the Court the fullest appraisal of theinjuries complained of, and the consequence of such injuries": Lyons v Khamsanevongsy at para 5, following Grayson v Demers, 1974ALTASCAD 81 , [1975] 2 WWR 289 (ABCA). [33] As stated in Petersen v Shepard (1985), (AB KB), 58 AR 240 (ABQB) at para 7: It is well to consider the reason for the existence of R. 217. The procedure which formerly governed regarded evidence of an expertmedical witness of the party as privileged.

The nature of that evidence, though it dealt with the issue in the law suit, was or could be kepthidden until the medical examiner was called as witness in the trial. The other party to the litigation might have little or no knowledge ofthe evidence that a medical examiner on the other side might or would give and have little or no opportunity to adduce evidence thatwould assist the court in assessing the issue.

This procedure of keeping evidence hidden from the other party until trial has beenfrequently referred to as "trial by ambush". [34] "Trial by ambush" is eliminated by having fair and honest disclosure between the parties. Disclosure permits both parties todirectly confront the matter that is in issue and allows the parties to present the best evidence to the courts if the case does go to trial:

Petersen v Shepard at paras 8 and 18 . Trial by ambush and surprise are precisely what the former rules were meant to avoid: Andre v Wiebe , 2000 ABQB 946 at para 11 . That goal is even more evident in the New Rules . [ 35 ] The plaintiffs urge that the defence should be disabled from access because of privacy concerns. However, it is difficult to understand why privacy concerns should disable the examiner, who was present in person at the examination, from reviewing the subsequent video recording.

Further the rationale behind the change to the New Rules to permit video recording found in the Alberta Law Reform Institute, Consultation Memorandum No 12.3: Expert Evidence and "Independent" Medical Examinations shows that the Rules Project General Rewrite Committee carefully considered the legitimate privacy concerns a plaintiff might have before opting to permit video recording at the option of a plaintiff in order to lessen expense and increase efficiency.

A plaintiff always has the option not to have the examination videotaped: [129] As noted above, it is expensive to have a party attend the medical examination with a nominee. Further, it is often difficult to

schedule a nominee's attendance. It would be much less expensive to have the examination videotaped. Permitting the examinee to videotape the examination would also dispense with scheduling issues currently encountered with the nominee procedure.

Videotaping the examination would also address other concerns about the partial nature of MEs, including the concerns regarding the questions that the examining doctor may ask. [130] While videotaping a medical examination could be an invasion of privacy, particularly where the videotape is used as evidence in a trial, it nevertheless seems to be a better option for many parties than the expense and time required to have the party's nominee attend to observe an ME.

However, as videotaping an ME could be a significant invasion of privacy and could be embarrassing or prejudicial to a party, it should be offered only as an alternative to having a nominee attend rather than being a mandatory procedure. Further, it should solely be at the option of the party being examined and not the party requesting the examination. [131] As a result of the above considerations, the Committee proposes that the examinee in an ME should have the option of either providing a nominee to attend the ME or having the examination videotaped.

The cost of the videotaping, as with the nominee's attendance, would be that of the examinee. These costs could be recovered at trial if the party is ultimately successful. [ 36 ] A further reason for permitting disclosure to the examining physician is exemplified both in Dr. Evans’ refusal to provide a medical report unless he is permitted to review the video recording and in Dr. Apel’s letter to defence counsel dated September 19, 2012.

She expressed concern and dissatisfaction about not being able to have a copy of the videotape stating: As we discussed on booking said appointment, a condition of me agreeing to videotape the encounter was the ability to obtain and review the tape within a week of said encounter, so its accuracy can be ascertained when my memory is still fresh.

I appreciate the legal difficulties you have explained to me, nevertheless if that, indeed, is the case, it appears that I agreed to said assessment too expeditiously and I would rather remove myself from the case meaning my inability to provide a final copy of the report or subsequently testify. [ 37 ] In the litigation process, often the physical or mental health of a party is placed in issue. The Courts depend upon medical practitioners to provide expert opinions and rely upon these opinions. The New Rules now specify that a party undergoing a medical examination can require that the examination be recorded.

If, as well, the party undergoing such an examination can disable the medical examiner from viewing this recording, even for the purposes of satisfying themselves of its accuracy, many experts could simply refuse to undertake such examinations. The judicial system could thereby be deprived of valuable evidence. The examiners’ request to review the video recording is reasonable.

If a reasonable request from a member of the medical profession can be accommodated in a way which is not contrary to the New Rules , that accommodation should be provided: Veckenstedt v Youssef , 2011 ABQB 735 at para 6 . [ 38 ] In conclusion, the defendants in both these actions seek to permit the examiner who completed the DME to review the video recording of that DME before completing their report. There is no valid reason for disabling them from doing so and many reasons to permit it.

There is also no valid reason to disable defence counsel from reviewing such video recordings and many good reasons to permit it, as outlined above. Any other defence examiner whose examination is videotaped in these actions, should be permitted the same opportunity to review the video recordings of their examinations before completing their reports. [ 39 ] Medical professionals are well used to treating information confidentially and are bound by their professional rules from

misusing it. Legal counsel are also bound by their professional rules and by the general rule that information obtained in the course of litigation may be used only for the purposes of that litigation. I do agree with the plaintiffs, however, that some limits are appropriate for video recordings. They are, or may be, sensitive in nature, and unlike other information which may potentially be used in court, the New Rules do not require that they be filed or otherwise made public. Generally, there will be no reason to permit or require the defendant personally to view these recordings.

Often, as well, in personal injury claims, the defendant’s insurers will also be involved. As a general rule, there seems to be no reason to permit an insurance adjuster to view the recordings. While the defendant Setiono requests permission for the insurers involved to view the recordings, counsel for that defendant have not explained why it is necessary or helpful in this proceeding to permit this.

I do not foreclose the possibility such disclosure will be necessary in another case but here, I will disable them from doing so. [ 40 ] As well, no one sought the ability to permit any other of the defendants’ experts to view the video recordings made during the examination of another of the defendant’s experts so I will leave that question to another day. [ 41 ] In respect to the Plaintiff’s application for release of Dr.

Apel’s draft report, as I have found that she is permitted to review the video recording before completing her report, this application is dismissed. [ 42 ] If further submissions in respect to costs are necessary, I invite counsel to make an application to do so. Otherwise, the defendants are entitled to their costs, payable in any event but not forthwith. Heard on the 1 st day of March, 2013. Dated at the City of Edmonton, Alberta this 7 th day of March, 2013. D.C. Read J.C.Q.B.A.

Appearances: Tanya Frizzell Gowling Lafleur Henderson LLP for Adam Northcott and Yvette Marie Richard Helmut Berndt Helmut Berndt Professional Corporation for Stephen and Anne-Marie Kohlendorfer and Zuzanna Musial

Corinne S. Petersen Chomicki Baril Mah LLP for Patrick Setiono