Videotaping Medical Examinations A Case Law Review. Arbitrator Lawrence Blackman

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1 The Canadian Institute s Advanced Forum on Motor Vehicle Accident Litigation "Winning Strategies for Successfully Managing the AB File in Anticipation of Litigation" Toronto Marriott Bloor Yorkville Hotel, Toronto Ontario Wednesday, Videotaping Medical Examinations A Case Law Review The Ontario Court of Appeal in Bellamy v. Johnson et.al (1992) 90 D.L.R. (4 th ) 564 dealt with the issue of videotaping medical examinations in the context of defence medical examinations in an action for damages. The defendant brought a motion for an order, pursuant to Rule 33 of the Rules of Civil Procedure and (then) section 118 (now section 105) of the Courts of Justice Act, that the plaintiff undergo a medical assessment, as the plaintiff s physical or mental condition was in question. The Master ordered (in Bellamy v. Johnson [1989] O.J. No. 2502) the plaintiff to attend upon the doctor chosen by the defendant, but also ordered that the plaintiff could bring a tape recorder and record the examination. The Master was persuaded, based on the affidavit of plaintiff s counsel and cross-examination on that affidavit, that the proposed doctor demonstrated both a defence orientation and a lack of accuracy in his reports. The case made its way to the Ontario Court of Appeal. On the way, two judges held that the master had clearly erred in his decision to allow the examination to be taped. At the Court of Appeal, Brooke J.A. held that while the plaintiff did not have the right to determine how the examination was to be conducted, neither did the doctor have the final say. Rather, the court had jurisdiction to set terms and conditions relating to the examination, including a condition relating to the recording of the examination. Brooke J.A. concluded that the doctor in question was a highly qualified specialist and it was wrong to consider his opinion biased. While acknowledging there may be some disparity between the memory of the doctor and the plaintiff, Brooke J.A. dismissed the plaintiff s appeal with costs to the defendant throughout, in any event of the cause, on the basis that the system was working well, there was no suggestion that an injustice had occurred, to make an order in these circumstances would be almost to rewrite the rules, and the order sought would be unfair to the doctor. Finlayson J.A. concurred with Brooke J.A. Doherty J.A., in his concurring minority opinion, noted the defence medical as an integral part of the discovery process. He considered the discovery process to be the most effective procedural device for learning the case one has to meet.

2 The main argument in this case appeared to be the integrity of the doctor. What was important to Doherty J.A. was not the issue of the doctor s integrity (which should properly be addressed within the confines of the question of whether the doctor was the appropriate examiner) but whether the tape recording would affect the doctor s ability to conduct the examination. Three arguments were advanced by the defence doctor in his affidavit: 1. taping would interfere in the flow of the examination; 2. taping would be intimidating; and, 3. the examination does not take place in the court room but in an examining medical office. Taping would introduce the adversarial process in an independent medical examination. Doherty J.A. did not believe that the tape recording would impair an effective defence medical. He found that the doctor misapprehended his role, failing to understand that the defence medical examination takes place in the context of an ongoing legal dispute. Doherty J.A. appears to take it as a given that the court has the jurisdiction to set terms on the medical examination, including any tape recording. In determining whether to permit such taping, three things were to be considered: 1. most importantly, the opposing party s ability to learn the case it has to meet by obtaining an effective medical evaluation. The tape recording of conversations should not be allowed if that recording would detract from the examiner s ability to provide the information referred to in Rule 33.06; 2. the likelihood of achieving a reasonable pre-trial settlement (the recording being made available to all parties in a timely manner could enhance settlement prospects); and, 3. the fairness and effectiveness of the trial. Doherty J.A. states in Bellamy that [e]ach application to permit tape recording during the examination will depend on its own facts. The concern of Doherty J.A. in this case was that the plaintiff had not suggested any procedures that would ensure the accuracy of the recording or preserve its integrity pending trial; [w]ithout appropriate safeguards, merely permitting the plaintiff to take a tape recorder into the medical examination would not promote the likelihood of reasonable pre-trial settlements, or enhance the fairness or effectiveness of the trial. Nor had the plaintiff suggested that the tape recordings or transcripts would be made available to the defence in a timely manner. Thus, Doherty J.A. found that no case for videotaping had been established in this particular proceeding, and agreed that the appeal by the plaintiff should be dismissed. Bellamy has been referred to in subsequent cases. The decision of Petrushko v. Great-West Life Assurance [2001] O.J. No was decided by Browne J. In Bellamy v. Johnson [1989] O.J. No. 2502, Master Browne had also decided the first level decision that the proposed defence doctor demonstrated a defence orientation and a demonstrated lack of accuracy in his reports such as to satisfy the plaintiffs onus that they be at liberty to attend the examinations with a tape recorder and to record the examination. 2

3 In Petrushko, Browne J. stated that he had been effectively and persuasively overruled by the Court of Appeal in Bellamy, and that he would like to think that he had moved forward. In Petrushko, Browne, J. set out, at length, the arguments of the proposed defence doctor against having the psychiatric defence medical examination tape recorded. These included that the existence of a tape recorder was adversarial and that taping was a personal affront to the doctor. Browne J. was persuaded, on the facts of this case and specifically on a hearsay basis from the proposed defence doctor, using the reasoning by the Court of Appeal in Bellamy, that the proposed psychiatric defence medical examination should not be recorded. Willits v. Johnston [2003] O.J. No (Ontario Superior Court of Justice) involved plaintiffs who had sustained soft tissue injuries in a motor vehicle accident. Both plaintiffs claimed to have developed chronic pain. The defence wished to have a psychiatric defence medical examination. The plaintiffs wanted to have the examinations videotaped. The psychiatrist chosen by the defence refused to conduct an examination if it was recorded. The defendants brought a motion for an order requiring both plaintiffs to undergo the examinations without, inter alia, the examinations being videotaped. Quigley J. quotes extensively from the decision of Doherty J.A. He also cites a Supreme Court of Florida decision, U.S. Security Insurance Co. v. Cimino [2000] FL-QL 1310, that videorecording levels the playing field between an unsophisticated plaintiff and a highly trained professional with years of courtroom experience, and that it is the privacy of the plaintiff that is involved, not that of the examiner. If the plaintiff wants to be certain that this compelled, although admittedly reasonable, intrusion into her privacy be accurately preserved, then she should be so entitled. Quigley J. allowed the tape recording for the following reasons: 1. the evidence indicated that the doctor s refusal to allow the tape recording was his preference and not a requirement to conduct a proper medical examination; 2. he was satisfied that a video-recording would not adversely impact on the doctor s ability to conduct the medical examination; 3. the medical evidence filed overwhelmingly supported the efficacy and usefulness of a video-recording of psychiatric examinations, to wit: these examinations appeared to be highly subjective in nature, including the examiner s evaluation and interpretation of the emotional demeanour, speech characteristics, varying voice tones, volumes and loudness, eye contact and facial expressions in addition to questions, answers and dialogue; and, the concern that while the examiner could record the events in his own notes, the plaintiffs would be restricted from recording what happened during the examination. Thus, the plaintiffs would be at a distinct disadvantage to support an alternate version of the events occurring at a defence medical in the event of any dispute or for purposes of crossexamination; 4. the fairness of such a procedure; 3

4 5. the preponderance of medical evidence that the court s discretion should be exercised in favour of permitting the use of video-recording; 6. the refusal of the doctor to allow the video-recording was unreasonable; and, 7. the defendants would have no difficulty in retaining a competent psychiatrist to undertake a video-recorded psychiatric assessment. Quigley J. set the following conditions to ensure the accuracy of the recording: 1. The camera was to be set up by a professional videographer in an unobtrusive manner before the commencing of the examination; 2. There was to be no editing of the video-recording; 3. The operator was not to be present in the examination room; 4. The tape was to be of sufficient time capacity to eliminate the need to interrupt the examination; and, 5. The tape was to record and display the passage of time in seconds on a continuous basis and the frame time codes sequentially. The motions judge further ordered that if the defendants wished to rely on the medical examination at trial, they must, amongst other things, serve a copy of the tape as an addendum to the report. It should be noted that in this case, the plaintiffs had agreed to permit a video-recording of a medical examination by their own expert. It should also be noted that in the reasons provided, there was no finding of bias regarding the proposed doctor nor was there evidence of prior lack of accuracy on his part. The defendants sought leave to appeal to the Divisional Court pursuant to Rule 62.02(4) of the Rules of Civil Procedure. In Willits v. Johnston [2003] O.J. No (Ontario Superior Court of Justice), Belch J. held that the proceeding before him was of importance to the litigants on the particular facts of this case, but not a matter of general importance, and that the Court of Appeal in Bellamy had already established the legal principles in this area of the law. Accordingly, the application for leave was dismissed. In Otote and Shenouda [2005] O.J. No. 6298, Master Dash, following the case-by-case approach in Bellamy, was persuaded that justice required an audio recording requested by the plaintiff, of apparently a neurological and an orthopaedic examination, for the following reasons: 1. as the plaintiff had clearly documented medical evidence of severe ongoing memory problems, he would be handicapped in testing the evidence of the defence doctors without a recording to refresh his memory; 2. the audio tape would be a full, reliable and unbiased account which would facilitate the search for the truth and the fairness of the trial; 3. there was uncontradicted evidence of the plaintiff s counsel that the recording would enhance the possibility of settlement; 4. there was no evidence that the tape recording would interfere with the integrity of 4

5 the examination, the recording being challenged only because it was the preference of the doctors; 5. there was no evidence that the audio recording would impair the doctors ability to conduct the examination; 6. the plaintiff offered to supply a second concurrent tape or a second copy of the single recording to eliminate any concern of alteration; and, 7. the defendant s ability to learn the case it must meet by an effective defence medical examination would not be compromised. Gutierrez Jr. (Litigation Guardian of) v. Jaffer [2006] O.J. No. 650 (Ontario Superior Court of Justice) (January 12, 2006) was a matter heard by Master Sproat. It was clear from the medical evidence that the plaintiff s memory had been adversely affected by a near drowning. The parties agreed the plaintiff would attend a defence medical examination. In dispute was whether the clinical interview of the examination (but not the administration of tests) should be recorded, either by video or by audio. Master Sproat does not refer to Bellamy. Rather, he specifically follows Quigley J. in Willits, finding that a recording would not adversely impact an expert s ability to conduct a medical examination. Equally, Master Sproat was persuaded by Quigley J. s remarks as to the highly subjective nature of the examiner s evaluation. Master Sproat found that the inability of the plaintiff to recount what transpired at or during the examination would render it virtually impossible for plaintiff s counsel to rebut the defence medical report and that the plaintiff would be disadvantaged in responding to the defence medical report. Master Sproat imposed the terms and conditions of the videotape recording as in Willits. Sousa v. Akulu [2006] O.J. No (Ontario Superior Court of Justice) (July 26, 2006) arose out of a 2003 motor vehicle accident. As the plaintiff s physical and mental health were in issue, the defendants sought to have the plaintiff submit to a psychiatric assessment. The plaintiff was not opposed to that request, but insisted that the assessment be video recorded. The defendants agreed, subject to the agreement of the assessing psychiatrist. The defendants consulted four psychiatrists and four medical centres. All refused to conduct a video-recorded psychiatric examination. The defendants brought a motion to compel the plaintiff to attend at a psychiatric defence medical examination that was not video-recorded. The plaintiff argued that for the defence medical to provide a full, reliable and unbiased account of what transpired during the defence medical examination, it was necessary to have it videotaped. The defendants relied on the opinions of several medical experts that videorecording would adversely affect the behaviour and the performance of the doctor and the plaintiff, it would interfere with the process and would not permit the doctor to omit personal, non-relevant information. Master Brott referred to the decision of Crone v. Blue Cross Life Insurance Co. of Canada [2001] A.J. No that it seemed incongruous, without compelling reasons, to order that the plaintiff may videotape a defence medical examination, which would be ruthlessly scrutinized by the plaintiff s experts, while there would be no equivalent tape of the plaintiff s medical 5

6 examinations. In Crone, it was felt that the parties should have an equal opportunity to attack one another s reports and medical examiners in cross-examination. Master Brott held that to maximize fairness, the parties should be granted equivalent tactical and strategic advantages. The plaintiff had the onus to show substantial and compelling reasons why a court should permit a recording of a defence medical examination. In exercising its discretion, the court must balance the interests of all of the parties and the interests of the physician. In this case, Master Brott did not, evidently, find compelling the plaintiff s alleged poor memory and limited knowledge of English. The main apparent deciding factor in this case appears to be that, unlike the situation in Willits, the plaintiff s examination by her expert was not videotaped. The purpose of the defence medical was to balance the parties rights to attack one another s reports. Implicitly, that balance would be lost by allowing the defence medical examination alone to be videotaped. Likewise, in Flory v. Black [2006] O.J. No. 5272, Master Hawkins was not persuaded that videotaping or other recording was required as a condition of a defence medical examination. Such a condition, in the view of Master Hawkins, would not keep the parties on an equal basis at a pre-trial or at trial. Firstly, it would give the impression that the defence doctor, unlike the plaintiff s experts, was not to be trusted, when there was no evidence of same. Secondly, it would give the plaintiff s counsel an advantage when cross-examining the defence doctor. In Byczko v. Hamilton [2006] O.J. No (Ontario Superior Court of Justice), Pitt J. provided that the state of the law was that it was the general practice that defence medicals are not to be recorded. Nevertheless, while a plaintiff has no free-standing right to record a defence medical, the court has jurisdiction to order that a plaintiff may record a defence medical in an appropriate case. The party requesting the recording bears the burden of proof. Pitt J. quotes extensively from Doherty J.A., and then sets the following criteria: 1. Would the recording impair the defendant s ability to obtain an effective medical evaluation? 2. How would recording the defence medical affect the likelihood of settlement? 3. Will the recording impair the examiner s ability to conduct an effective examination and report the results? 4. Has the plaintiff suggested a recording method and terms that would provide both parties with a full record in a timely fashion? 5. Has the plaintiff demonstrated a potential bona fide concern as to reliability? In this case, Pitt J. was not persuaded that the plaintiff s memory problems, by themselves, were an adequate reason for granting this unusual request. Pitt J. concludes that: While it is clear that court practice is to be determined by justice considerations rather than concerns for the sentiment of any profession or group, it is useful to bear in mind that there may well be widespread reluctance to engage in this 6

7 practice among members of the medical profession; that sentiment, if it is widespread, could result in delay, other discovery difficulties, and additional costs in bringing cases to trial. That consideration would support, at least at this time, a restrictive use of such orders to cases that clearly meet the criteria set out by the Court of Appeal. The recent decision of Dempsey v. Wax [2007] O.J. No arose out of a 2003 motor vehicle accident. The issue before Quigley J. was whether the defence neuropsychological medical examination should be video recorded. In this case, there was evidence that the plaintiff suffered from memory, amongst other cognitive deficits. The defence presented no evidence that a video recording would adversely affect the integrity of the examination, although there was evidence that the proposed defence doctor was not prepared to conduct a video recorded examination. Quigley J. held that any further independent medical examination of the plaintiff was to be videotaped, being of the view that video recording would: 1. enhance, rather than detract, an examiner s ability to confidently express his or her observations, conclusions, diagnosis and prognosis; 2. a full and accurate recording might well enhance settlement prospects at a pretrial by reducing the potential for any ambiguity arising from the examination; and, 3. a full and reliable record of the plaintiff s statements during the examination would facilitate the fact finding process (for trial or pre-trial) providing context and avoiding potential ambiguity and grist for dispute. The Financial Services Commission of Ontario first considered the issue of recording a medical examination in the decision of Arbitrator Joachim in Peters and Guarantee Company of North America (FSCO A , May 13, 1999). In that case, the Insurer arranged for an additional insurer s medical examination ( IME ) under the first-party Schedule of accident benefits. At first, the Applicant wished to have her rehabilitation consultant attend to observe the examination. The Insurer considered this to be unreasonable. The Applicant then sought to be able to use a tape recorder, on the basis that the doctor had been intentionally rude and intimidating. The Insurer s counsel urged the doctor to continue with the examination. The doctor refused to continue with the tape recorder running. The Applicant was given the option of allowing her husband to attend. She refused. Arbitrator Joachim reviewed the Court of Appeal decision in Bellamy. She also compared thirdparty defence medicals with IMEs, noting that while the primary purpose of an IME is to assist in the insurer s adjusting of the claim, it can also be used to serve the ends of procedural fairness within the adjudication process, which include ensuring adequate disclosure, enhancing the likelihood of settlement and promoting a fair, informed hearing. Arbitrator Joachim also noted what should be the non-adversarial nature of adjusting cases, 7

8 which is the basis for IMEs. She also noted that IMEs should be as open and as transparent as possible, and that the need for accountability and openness would justify imposing a less stringent standard on applicants who seek to tape record such examinations. Arbitrator Joachim held that the onus is on the applicant to demonstrate that the refusal to submit to an examination unless the proceeding is recorded is reasonable. The applicant must demonstrate that the proposed method of tape recording the examination will not interfere with (1) the medical examination (2) the likelihood of achieving a settlement or (3) the fairness and effectiveness of the arbitration hearing. Arbitrator Joachim concluded that without procedural safeguards to ensure the accuracy and reliability of the tape recording, the resulting recording would be no more reliable than any account that the Applicant herself might give. Arbitrator Joachim was not taken with the Applicant s suggestion that the doctor could make his own recording, which, in her view, would simply add another contentious layer to the proceedings. Thus, the Arbitrator concluded that the Applicant s failure to attend the IME was unreasonable. This issue was further considered by Arbitrator Killoran in Cameron and Pilot Insurance Company (FSCO A , August 13, 2004). Mr. Cameron had been injured in a 1999 motor vehicle accident. The Insurer had arranged for a multidisciplinary caregiver Designated Assessment Centre (DAC) assessment. Mr. Cameron attended the first assessment with a friend and with a video camera. The DAC psychologist objected to the session being videotaped, but provided no reasons. Arbitrator Killoran notes the decisions in Bellamy and Willits. She also notes the distinctions between the DAC process and both IMEs and defence medicals, and specifically that an insurer does not choose the DAC assessor. In reaching her conclusion, however, Arbitrator Killoran did not see the issue before her as whether or not Mr. Cameron s insistence on videotaping the DAC assessment was reasonable. Rather, the question was whether Mr. Cameron had failed to make himself reasonably available for the assessment. In this case, the DAC had failed to provide reasons for its refusal to allow the assessment to be videotaped and had failed to try to resolve this issue, notwithstanding the best efforts of the Applicant s counsel. Arbitrator Killoran, therefore, held that it was not in the spirit of consumer protection legislation that Mr. Cameron be deprived of his substantive rights as a result of the DAC s refusal to proceed with the assessment, and concluded that the Applicant had reasonably made himself available for the DAC assessment. More recently, the decision of Vasina and ING Insurance Company of Canada (FSCO A , May 31, 2007) dealt with this issue, but in the context of a section 42 examination under the Schedule. The Applicant, Ms. Vasina, had been injured in a 2004 motor vehicle accident and submitted she had sustained a catastrophic impairment. ING sought the Applicant s attendance at a multidisciplinary IME. The Applicant required that the assessments be video recorded. ING initially agreed; however, the medical centre chosen to conduct the assessments objected. The 8

9 Insurer offered to allow the Applicant to attend with another person, such as a family member. The Applicant continued to require that the assessments be videotaped. The issue before Arbitrator Muir was whether Ms. Vasina had failed to make herself reasonably available for an insurer s assessment by refusing to attend unless she was able to record it by videotape. The basis for the Applicant s request for video recording was that she had been injured in a prior IME, that she wished to have an objective record of the assessment and that she suffered from cognitive and memory deficits such that she would be unable to challenge effectively the conclusions of the IME without having an objective record. The Insurer argued that the onus was on the Applicant to establish that there were exceptional circumstances that would justify her request. It further submitted that many, if not all, of its assessors refused to participate in a recorded examination, the doctors noting, amongst other concerns, that video recording would be defocusing and disorienting for the practitioner and the applicant and that few doctors have had the experience of conducting assessments while being videotaped for posterity. ING also submitted that to require the IMEs to be recorded, but not Ms. Vasina s own assessments, would create an imbalance between the parties in presenting their cases at the arbitration hearing. The Applicant suggested a protocol for the video recording similar to that set by Quigley J. in Willits. Arbitrator Muir held that Ms. Vasina had not unreasonably refused to attend the section 42 assessment, subject to the parties agreeing on the necessary safeguards to ensure that the video taping was as objective as possible and did not unduly distort the insurer s adjusting process or the efficient, just and expeditious progress of the dispute resolution process. Arbitrator Muir found the reasons of Doherty J.A. in Bellamy particularly apt, although they arose in the different context of defence medicals. Nonetheless, as in Peters and Cameron, Arbitrator Muir was of the view that there were important distinctions between defence medicals and section 42 IMEs such that the latter might require a higher level of openness and transparency than might be required in a traditional tort case. Arbitrator Muir was also of the view that video recording requests should not be routine, as they added to the complexity and expense of the IMEs. It should be noted that Ms. Vasina had undertaken to pay the cost of videotaping and to provide a copy of the tape to the Insurer. In the specific circumstances of this case, Arbitrator Muir was not persuaded that videotaping would in any significant way impair the assessors in conducting proper assessments. Further, he was of the view that videotaping might improve settlement prospects as same might enhance the Applicant s confidence in the conclusions of the assessments. Regarding the argument of evidential imbalance in only IMEs being recorded, Arbitrator Muir stated that the argument could be made that a party whose experts assessments have been recorded in some objective way... ought to be preferred because the accuracy, completeness etc. of the assessors conclusions can be tested against an objective record of what was said and done, while there is 9

10 no such record of the other side s expert opinions. ING appealed Arbitrator Muir s decision. By letter decision dated August 9, 2007, Delegate Evans rejected the appeal on the basis of Rule 51.2(c) of the Dispute Resolution Practice Code (Fourth Edition, Updated October 2003) that it was a preliminary or interim order that did not finally decide the issues in dispute. Chronological List of Case Law: Bellamy v. Johnson [1989] O.J. No Bellamy v. Johnson (1992) 90 D.L.R. (4 th ) 564 Peters and Guarantee Company of North America (FSCO A , May 13, 1999) U.S. Security Insurance Co. v. Cimino, [2000] FL-QL 1310 Crone v. Blue Cross Life Insurance Co. of Canada [2001] A.J. No Petrushko v. Great-West Life Assurance [2001] O.J. No Willits v. Johnston [2003] O.J. No (Ontario Superior Court of Justice) Willits v. Johnston [2003] O.J. No (Ontario Superior Court of Justice) Cameron and Pilot Insurance Company (FSCO A , August 13, 2004) Otote and Shenouda [2005] O.J. No Byczko v. Hamilton [2006] O.J. No (Ontario Superior Court of Justice) Flory v. Black [2006] O.J. No Gutierrez Jr. (Litigation Guardian of) v. Jaffer [2006] O.J. No. 650 (Ontario Superior Court of Justice) Sousa v. Akulu [2006] O.J. No (Ontario Superior Court of Justice) Dempsey v. Wax [2007] O.J. No Vasina and ING Insurance Company of Canada (FSCO A , May 31, 2007) 10