Insurer's request for plaintiff to undergo further medical examination by different specialist to overcome uncoperative attitude of existing doctor not unreasonable or unnecessarily repetitious.

In Issue

  • Whether unreasonable for insurer to require plaintiff to undergo further examination by a different orthopaedic surgeon in circumstances where the initial specialist was unresponsive and provided incomplete information

The Background

The plaintiff was involved in a motor vehicle accident and sustained serious injuries including a burst fracture of the C5 vertebrae which resulted in incomplete tetraplegia, bilateral disruption of the AC joints and post-traumatic stress disorder.

The plaintiff had been the subject of 21 medico-legal reports. The experts included urologists, orthopaedic specialists and surgeons, a psychiatrist, an occupational therapist and a rehabilitation physician. It is unclear how many times the plaintiff was required to be examined as he was a German tourist and had gone back to Germany one month after the accident.

The plaintiff’s expert orthopaedic specialist indicated that the plaintiff would require extensive future surgery (including shoulder, elbow, hip and knee joint replacement procedures, joint preserving procedures and spinal column multi-segmental operations). It was estimated the plaintiff’s future treatment would cost between €7,112,889 and €10,688,128.

The Transport Accident Commission (the insurer) obtained a report from an expert orthopaedic surgeon in Germany, but was dissatisfied with the quality of the report. The insurer had requested that the expert comment upon the plaintiff’s future hospitalisation/medical/pharmaceutical needs. The expert failed to do so. He also failed to comment on the opinions which had been expressed by the plaintiff’s expert, or provide his own estimate of the plaintiff’s likely future medical expenses. The insurer attempted to seek further clarification from the expert, but no such clarification was forthcoming.

Accordingly, the insurer requested that the plaintiff undergo a further medical examination by a neuro-urologist and consultant spinal surgeon. Pursuant to section 46A(3) of the Motor Accident Insurance Act 1994 (Qld) (the Act), the plaintiff refused to undergo a further examination on the basis that it would be unreasonable or unnecessarily repetitious. The insurer subsequently submitted a panel of experts to the plaintiff and indicated that each of the experts would be willing to examine the plaintiff at his home in Germany, or that the insurer would fund the plaintiff’s reasonable expenses for him and his carers to attend any one of them in the United Kingdom (where they all resided).

The plaintiff maintained his refusal to undergo a further examination. Accordingly, the insurer brought an application pursuant to section 50 of the Act to compel the plaintiff to undergo a further examination. The insurer contended that it was unable to reliably estimate the future care component of the plaintiff’s damages on the basis of the expert evidence it had to hand. The insurer also indicated that it would not rely on any of the opinions previously expressed by the original expert, and that any further evidence obtained would replace, and not supplement the original incomplete evidence.

The Decision

The court found that a further examination of the plaintiff would not be unreasonable or unnecessarily repetitious. The court noted that this was not a case where the insurer had received an unfavourable medical opinion and was seeking to overcome it with another opinion.

The court agreed that the report provided by the insurer’s original expert had not contained a proper assessment of the plaintiff’s future medical needs and it was appropriate for an alternate opinion to be obtained. An order was made in favour of the insurer requiring the plaintiff to comply with its request to undergo a further medical examination.

Implications for you

This decision illustrates that it is not unreasonable for an insurer to request a further examination of a plaintiff in circumstances where the expert it engages fails or refuses to answer the questions put to him or her. This decision also shows that there is no hard and fast rule barring an insurer from having a plaintiff examined on more than one occasion by a particular specialist, or by more than one specialist within a certain area of speciality.

However, the court did note that each case will turn on its own facts and that much will depend on the complexity of the medical issue/s involved and the extent to which the plaintiff has already been examined at the request of the insurer. The potential quantum of damages must also be taken into account: what might be considered to be unreasonable and unnecessarily repetitious in the context of a modest claim might not be so in the context of a large claim.

Behrens v Nguyen & Anor [2017] QSC 14