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Audio Tape Recording Independent Medical Examinations

In the recently published decision of Colby v. Stopforth, 2011 BCSC 1560, Madam Justice Dardi considered an application to have various independent medical examinations to be audio recorded.  In this particular case, the court had previously ordered that the plaintiff’s litigation guardian attend her independent medical examinations and answer questions respecting the plaintiff’s medical history.


Audio Tape of Medical Examinations in Injury Case


In declining the plaintiff’s application to audio tape the medical examinations, Justice Dardi noted that such an order would be made rarely and only in circumstances in which the interests of justice demanded it (see paragraph 6).  In her reasons Justice Dardi said the following:


[4]  It is common ground that the leading authority in this province with respect to the recording of independent medical examinations is Wong v. Wong, 2006 BCCA 540.  In that decision, the court concluded that the court has the discretion to permit or prohibit audiotape recording of an independent medical examination.  The court reviewed the jurisprudence and considered the factors that inform the exercise of the court’s discretion.  Chief Justice Finch summarized the jurisprudence as follows:


[32] In the British Columbia cases where an audio tape recording was allowed, the judge or master found that following factors to be important:


(a)  the absence of evidence that an audio tape recording would inhibit or impair the examination;
(b)  evidence that the plaintiff had a poor memory or was forgetful;
(c)  the absence of evidence that the examining doctor objected to the use of a tape recorder;
(d)  evidence that the plaintiff had difficulty communicating and understanding, perhaps related to the lack of fluency in English or the language of the examining doctor;
(e)  the likelihood that a tape recording might lead to settlement short of trial; and
(f)   the likelihood that an audio tape recording would contribute to the fairness of the trial.


[34]  the British Columbia cases where an audiotape recording was prohibited appear to have considered the following factors to be important:


(a)  use of an audio tape recorder would inhibit the examination;
(b)  the defendant would be disadvantaged if the independent medical examination were tape recorded, because the plaintiff’s examinations by his own doctors would not be tape recorded, and there would be an “unlevel” playing field; and
(c)  insufficient evidence of difficulty in understanding or remembering information.
Justice Dardi held that the fact that the potential for an “evidentiary conflict” between the plaintiff’s litigation guardian and the examiner was not enough to show that an order requiring the taping of the medical examinations would “advance the interests of justice.”  In doing so, Justice Dardi noted the following:


[21]  As I mentioned in my earlier ruling, I am not persuaded that the potential for an evidentiary conflict between Mr. Rogers and the examiners is, in itself, a cogent reason for ordering an audio recording.  Plaintiff’s routinely answer questions at independent medical examinations, as they are required to do under the Rule, when their credibility is at issue.

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