ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: CV -08-0512-00
Date: 20130311
B E T W E E N:
IBRAHIM NASIR, a minor by his litigation guardian TAHIR NASIR and TAHIR NASIR, personally
J. King, for the Plaintiffs
Plaintiffs
- and -
AGGIE KOCHMANSKI
T. Hamilton, for the Defendant
Defendant
Heard: March 1, 2013
ENDORSEMENT
Thomas A. Bielby
[1] The Plaintiffs have before the Court a motion to compel the production of a medical report from Dr. Duane MacGregor regarding her assessment of the minor Plaintiff.
[2] Counsel for the defendant requested that the minor Plaintiff attend upon paediatric neurologist, Dr. Daune MacGregor, for the purpose of a neurological assessment. Counsel for the plaintiffs consented to this assessment and the child was examined by Dr. MacGregor on September 18, 2011. The infant plaintiff’s mother was interviewed by the doctor on February 13, 2012.
[3] The defendant has refused to produce a written report from Dr. MacGregor as a result of comments provided by Dr. MacGregor.
[4] The Plaintiff relies on Rule 33.06 of the Rules of Civil Procedure which states:
After conducting an examination, the examining health practitioner shall prepare a written report setting out his or her observations, the results of any tests made and his or her conclusions, diagnosis and prognosis and shall forthwith provide the report to the party who obtained the order.
[5] By its language, the requirement for the report is mandatory.
[6] Since the plaintiffs consented to the examination an order was not required.
[7] Dr. MacGregor takes the position that because of the nature and circumstances of the assessment the report would be incomplete and may present inaccurate findings. The doctor suggests that such a report would be significantly compromised.
[8] Counsel for the defendant echoes the comments of the doctor and submits that the doctor can no longer act as an expert witness in an unbiased and honest fashion as required by Rules 4.1.01 and 53. Accordingly ordering the doctor to provide the report would offend these rules.
[9] Rule 4.1.01 states:
It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules, (a) to provide opinion evidence that is fair, objective and non-partisan; (b) to provide opinion evidence that is related only to matter that are within the expert’s area of expertise; and (c) to provide such additional assistance as the court may reasonably require to determine a matter in issue.
[10] Rule 53.03 speaks to the requirement with respect to expert reports and the need for an expert to complete Form 53. The said form requires the expert to acknowledge that his or her opinion evidence is to be fair, objective and non-partisan. The form must be attached to every expert report.
[11] When the infant attended for examination he was accompanied by his speech pathologist. The infant’s mother was not in attendance. Counsel for the defendant knew this in advance and did not voice an objection.
[12] In a letter, dated September 19, 2011, to defence counsel Tracey Hamilton, Dr. MacGregor noted that at the examination she advised the speech pathologist that she required a parent to assist her in conducting the assessment.
[13] The doctor then states that she conducted a non-invasive physical examination and observed the child’s drawing and printing efforts.
[14] The doctor concludes that in order to complete a full neurological assessment on the child she would require the opportunity to interview the parents and conduct a semi-structural interview.
[15] Thereafter, it was agreed that the infant’s mother would attend before the doctor to be interviewed. It was also agreed that counsel for the mother would also be present at the interview.
[16] The interview of the mother was completed and no one suggested the infant or the mother attend for re-examination.
[17] In the summer of 2012 defence counsel brought a motion for the infant to be the subject of an assessment by Dr. Finegan, taking the position that the assessment with Dr. MacGregor was incomplete and that the motion was, in essence, requesting a first assessment.
[18] Justice Daley heard the motion and released his reasons on July 12, 2012. He determined the motion was for a further or second assessment and that what had been arranged in regards to Dr. MacGregor was with the agreement of both sides.
[19] Thereafter, counsel for the plaintiff requested a written report from Dr. MacGregor but was told none would be forthcoming as the doctor considered the assessment to be incomplete. There was a suggestion that the presence of the speech pathologist and counsel for the mother interfered with the examination and interview.
[20] In a letter dated January 22, 2013, Dr. MacGregor advised Ms. Hamilton that, “Any report produced from a non-invasive physical examination done for purposes of a fully comprehensive assessment would be considered incomplete without the benefit of a preceding detailed paediatric and neurological historical review.”
[21] This motion was filed on February 12, 2013 and a copy of it was delivered to Dr. MacGregor resulting in the doctor providing another letter, to defence counsel, dated February 22, 2013. In this letter, Dr. MacGregor set out her concerns regarding the circumstances. She noted that during an examination of a child the presence of a parent is necessary to complete a thorough examination. The parent can provide support to the child which allows a more intrusive examination. The doctor states that her examination was incomplete.
[22] With respect to her later interview with the infant’s mother, Dr. MacGregor advised that the presence of the lawyer was intrusive and made her feel uncomfortable.
[23] At the end of the second page of her letter, Dr. MacGregor states:
I have indicated to you that I can construct a report based on this very unusual and unorthodox assessment but am very concerned about the completeness and accuracy of my evaluation. I have, however, the elements of a report in that I have a medical history, incomplete medical examination and health records which would allow me to construct such a report. I would note to you that I always conduct my work in a highly professional manner and feel that production of a report based on what I have described above, would be of poor quality and would present a risk of presenting inaccurate and incomplete findings.
[24] Dr. MacGregor concluded by saying that she wished to withdraw from the case.
[25] I note, as indicated above, that the examination of the infant in the presence of the speech pathologist and the interview of the mother with her lawyer attending where known in advance and no objection taken. Further, the doctor’s detailed concerns were not expressed until after the fact. The last letter was produced after this motion was served.
[26] The letters of Dr. MacGregor were attached to the affidavit of James Schacter, sworn, February 25, 2013, and are therefore hearsay evidence. The letters ought to have been produced in an affidavit executed by Dr. MacGregor. Regardless, I have considered the contents of the letters.
[27] There is no doubt that an expert has a duty to be unbiased, fair and objective. The duty of an expert has been made quite clear in the recent amendments to the Rules.
[28] Rule 33.06 relates more specifically to what I call “defence medicals”; where the defence requests an injured plaintiff attend a doctor of the defendants’ choosing.
[29] In Aherne v. Chang 2011 ONSC 3846, [2011] O.J. No. 2797 Superior Court Justice Perrell stated at paragraph 34, when discussing Rule 33.06:
Pausing here, it is to be observed that unlike the situation for other expert’s reports, the health practitioner report must be disclosed to all parties. There is no prospect of the defendant undertaking not to call the expert as a witness at trial as a means to keep the report confidential. No privilege is attached to the report. It, therefore, is arguable that no privilege is attached to the information that has been provided to the health practitioner to prepare the report.
[30] Dr. MacGregor acknowledged in her letters that she examined the infant and interviewed the mother and that she also has in her possession certain medical information. She acknowledged that she could produce a report.
[31] I conclude that because an examination was conducted a report is mandated pursuant to Rule 33.06. The report is to set out Dr. MacGregor’s observations, the results of any test made and her conclusions, diagnosis and prognosis.
[32] The report is to be provided forthwith.
[33] Having said that, in producing the report, Dr. MacGregor is entitled to qualify her report as her professional and legal ethics dictates. Under the Rules she is required to be objective and unbiased and in my opinion, keeping in mind the circumstances of the examination and interview were known in advance without objection, if she expresses her concerns and qualifications in a forthright manner, objectively and without bias, she will have complied with her duties as set out in the Rules.
[34] It may be that Dr. MacGregor may be able to provide very little opinion in regards to issues related to diagnosis and prognosis. Her report may be more factual in nature. For example, the results of the examination of the infant or the information provided by the mother. Rules 4.1.01 and 53.03 are applicable to expert reports providing opinion evidence.
[35] I order that Dr. MacGregor must produce a report in compliance with Rule 33.06. Her report must be produced within 30 days.
[36] With respect to the issues of costs, I will receive written submissions no more than 3 pages in length, within 21 days.
Bielby J.
Released: March 11, 2013
COURT FILE NO.: CV -08-0512-00
DATE: 20130311
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
IBRAHIM NASIR, a minor by his litigation guardian TAHIR NASIR and TAHIR NASIR, personally
Plaintiffs
- and –
AGGIE KOCHMANSKI
Defendant
REASONS FOR JUDGMENT
Bielby J.
Released: March 11, 2013