Introduction
On February 12, 2018, Regional Senior Justice Thomas, released a decision which grappled with issues arising from a culmination of defence errors that resulted in a disabled minor plaintiff having to spend a day travelling back and forth to an unauthorized defence medical with little to eat. The plaintiff was authorized to see an O.T. for a defence exam, but ended up at an unauthorized neuropsychological assessment instead. Justice Thomas grappled with what became of the neuropsychological assessment that should not have happened, and whether the defence lost out on its right to the O.T. assessment given the errors.
Facts
The defendant brought a motion under Rule 33 of The Rules of Civil Procedure to compel Gregory Rintjema, the plaintiff to attend an occupational therapy in-home assessment to address the issue of attendant care.
Gregory Rintjema was involved in a motor vehicle accident when he was 9 years old. He suffered a skull fracture, a brain bleed and a brain injury. Through his Guardian, he commenced a claim on May 8, 2008.
On April 29, 2015, the plaintiff underwent a defence neuropsychological assessment by Dr. Lawrence Tuff. His report found Gregory Rintjema’s neuropsychological difficulties resulted from his Down Syndrome and were not a result of the collision.
Shortly before pre-trial, on January 11, 2017, the plaintiff served an In-Home Occupational Therapy Assessment Report and Assessment of Attendant Care Needs Report in Form 1, which sought $3,020.84 in monthly attendant care benefits. The defendant took the position that at no time prior had the issue of attendant care benefits been raised and requested a second examination by Dr. Tuff and a defence In-Home Occupational Therapy Assessment.
The plaintiff agreed to an assessment with an occupational therapist but refused to allow Gregory Rintjema to attend a second assessment with Dr. Tuff, who was free to do a paper review. In an unusual twist of events, the position of plaintiff counsel was never articulated by the defendant to Direct IME who was arranging the appointments for defence counsel. Plans were made and executed to deliver Gregory Rintjema to Dr. Tuff’s office where he completed his follow up assessment.
It is important to note that Gregory Rintjema did not reside with his Guardian and mother, Sylvia Rintjema. He could therefore not consent to Dr. Huff’s second assessment and no efforts were made to obtain the consent.
Plaintiff counsel, Jerry O’Brian, on learning of the second assessment with Dr. Tuff, obtained an order to cross examine Dr. Tuff and Susan Brown, an IME co-ordinator at Direct IME under Rule 39.03. Dr. Tuff gave evidence that he terminated the assessment early because of concern of lack of consent. Although he had not completed a report, he stated the assessment did not change his initial findings. It was also revealed during the examination that Dr. Tuff’s assistant, psychologist, Dr. Bird had had his license revoked in 1994 for abusing a patient by entering into an intimate relationship.
Defence Position
The defendant took the position that although the assessment before Dr. Tuff was unfortunate, they were entitled to an O.T. assessment.
Plaintiff Position
Mr. O’Brien took the position that by obtaining a second assessment by Dr. Tuff without consent of counsel or the litigation guardian, along with the extraneous circumstances of the day (Gregory Rintjema had nothing to eat all day, save for a bag of chips) the defendant is disentitled to an O.T. assessment.
Mr. O’Brian argued:
1. The misconduct and circumstances of the second assessment by Dr. Tuff run contrary to the interests of trial fairness and justice;
2. The unauthorized medical assessment violated the plaintiff’s litigation guardianship;
3. The defendant cannot obtain a discretionary remedy as it comes to court without “clean hands”;
4. And, there is no evidence that the O.T assessment is necessary.
Ruling
Despite Regional Senior Justice Thomas finding the conduct of the defendant and its agent, Direct IME was “inept in the extreme”, particularly with a “vulnerable insured” he concludes that their actions were neither nefarious or taken to obtain an upper hand. While the reaction of Gregory Rintjema, his guardian and counsel were understandable, they could not be said to be determinative of the right of defence counsel to an O.T. assessment. The O.T. report was the appropriate way for the defendant to respond to the monthly costs for attendant care.
Using the inherent jurisdiction of the court to compel a physical or mental examination of a party to an action by someone, not a health practitioner, to further trial fairness and justice, the test for an order directing the plaintiff to attend for an Occupational Therapy In-Home Assessment had been met. Regional Senior Justice Thomas even stated, “In addition, I think it is in the plaintiff’s best interests so that the parties can work to reolve the issue of attendant care benefits prospectively.”
Conclusion
The practice of engaging third parties to arrange defence medicals is becoming more and more common as insurers strive to streamline their litigation files. This decision serves to remind insurers and defence counsel not only to be aware of who acts as their agent but clear communication lines must be established where a lawyer is not speaking directly with their expert witness.
Perhaps more importantly, it is a message to everyone involved in law suits from guardians to counsel to Judges to be more mindful of the right of disabled litigants to be accommodated in whatever reasonable ways necessary throughout the litigation process.
Shanti Barclay is the author of this blog, as well as a seasoned trial lawyer and a disability advocate. If you have a question about this blog or a similar file, please contact Shanti.
