Plaintiff's Delay in Moving an Action Forward and the Timing of Defence Medical Assessments

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A common frustration for defence counsel in a personal injury claim arises where the plaintiff, or counsel, allows an inordinate amount of time to pass notwithstanding the responsibility to move a matter towards trial in a timely manner.

When plaintiff’s counsel fails to obtain and serve timely expert medical reports with respect to the plaintiff’s alleged injuries and their prognosis, it heightens the difficulty for the defendant in knowing the case that must be met.  Logistically, it can render the scheduling of appropriate defence medical examinations problematic.

Such was the case for the defendant in Galea v Firkser, 2013 ONSC 1666

The case involved an injury claim arising from an incident which occurred on September 18, 2004.  No claim was issued until September 13, 2006, nearly two years later.  Further delays ensued such that discoveries were not held until October 2, 2009.  At one point, the matter was administratively dismissed and subsequently restored by consent order.  It was finally set down for trial with the trial date of May 13, 2013, almost nine years after the incident.

The plaintiff alleged soft tissue injuries involving the neck, shoulder, back and chest.  By 2011 no medical reports had been obtained or served by plaintiff’s counsel.  It is assumed that there were medical records that had been produced but no expert reports obtained with respect to diagnosis and/or prognosis.  At the request of the defendant, the plaintiff attended for a defence medical examination by a neurologist, which took place on March 9, 2011.  In response to this report, plaintiff’s counsel then obtained two reports, one from an orthopedic surgeon and one from a physiatrist.

The defendant brought a motion for the plaintiff to attend a further defence medical examination with a physiatrist, arguing that in order to respond to the plaintiff’s reports, a physiatrist was better able to speak to the issue of muscle and soft tissue pain than the neurologist and that the proposed expert’s speciality dealt with muscle pain which was an issue.  Plaintiff’s counsel objected arguing this was nothing other than a case of buyer’s remorse and that a further examination was both intrusive and unnecessary.

In a March 20, 2013 decision, Justice McDermot granted the defendant’s motion on the basis of trial fairness: as a defendant should have an adequate opportunity to meet the plaintiff’s case. 

A significant factor in this decision was the inordinate delay, for which the plaintiff was found responsible.  In this regard, Justice McDermot noted as follows:

“I can only speculate as to the reason why Mr. Searles’ predecessor elected to obtain the report prior to the plaintiff doing so, but one motivating factor may be the inordinate amount of time that this plaintiff took to move the matter towards trial.  It is the plaintiff’s responsibility to bring a matter to a conclusion, and where six years had elapsed between the accident and the date the report was requested, the defendant may be forgiven for acting pre-emptively in obtaining the Upton report.”
 

Further, as noted in his concluding remarks:

“The fact that there may be some regret at using the neurologist rather than a physiatrist does not mean that this is solely an issue of matching reports.  This is especially so where the matter had not been speedily prosecuted by the plaintiff … Even if the trial is delayed, I find that the defendants will be prejudiced by the inability to respond to the plaintiff’s expert report, only served on the defendants in January of this year after a hiatus of over eight years from the date of the accident.”
 

This appears to be a decision where the Court concluded that the defendant should not be prejudiced for taking the bull by the horns in circumstances where there had been inordinate delay by the plaintiff.