Can a Claimant be penalized for not requesting Medical Results from their Doctor?

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Is it the responsibility of a patient to demand the results of a medical test from his/her doctor or, is it reasonable to assume that if they have not been contacted by their doctor, it means that nothing is wrong?

The answer to that question was at the core of a legal action between plaintiff, Brittany McMillan, and defendant, Obafemi Adeite.

Case example

On April 14, 2011, Mr. Adeite's vehicle rear-ended Ms. McMillan's car, which subsequently resulted in soft tissue injuries for the plaintiff. She eventually filed a personal injury claim against Mr. Adeite. In response, Mr. Adeite filed a motion for summary judgement on the basis that the plaintiff did not commence her action within two years of the accident.

A key factor in the timeline of the plaintiff's filing was due to the fact that she did not ask for or receive the results of an MRI she underwent a few months after the accident. Around the time of her MRI, the plaintiff had visited her family doctor, Dr. Tirmizi, multiple times and was referred by him to a physiatrist (a physical medicine and rehabilitation physician), Dr. Kachooie.

The plaintiff first had an EMG study done by Dr. Kachooie in July and an MRI on her cervical spine in September. She was never provided the results of that MRI, nor did the physiatrist discuss the results with her or ask her to act on the results. Similarly, her family doctor, whom she saw numerous times after her MRI, never discussed the results of this test with her. At no point was the plaintiff ever advised that her injuries were permanent and serious - not by the physiatrist, her family doctor, nor the practitioners providing her chiropractic treatment.

Finally, in early 2013, after experiencing continuous neck and back pain, headaches and other symptoms, and concerned she was no longer improving, the plaintiff consulted with her family doctor, who then referred her back to the physiatrist. At that point, in July 2013, referencing results from the 2011 MRI, the physiatrist informed the plaintiff she had two herniated discs in her neck, that she could not run anymore because it could cause significant damage to her spine. She was also told that while she was too young for surgery, she could consider it if her condition got worse. At that point, the doctor advised the plaintiff to consult with a lawyer.

In the 2016 trial, McMillan v Adeite and State Farm Mutual Automobile Insurance Company, the issue for Justice Corkery to resolve was whether or not the plaintiff met the onus of establishing that she exercised reasonable diligence in investigating the possibility that her injuries from the accident were permanent and serious. In other words, did the plaintiff err by not requesting the results of her September 2011 MRI and if so, is her claim statute-barred?

Justice Corkery disagreed with the defendant's argument that the plaintiff was lackadaisical and indifferent with respect to her treatment and accordingly, the judge sided with the plaintiff. The judge pointed out all the significant steps the plaintiff took in the aftermath of the accident, such as visiting her family doctor numerous times, following her doctor's advice, and diligently complying with all the medical referrals and recommended treatments she received.

Both the plaintiff's family doctor and chiropractor ensured her that her disability would only last a few weeks and her condition did, in fact, initially show signs of improvement to the extent that she felt well enough to return to work. Dr. Kachooie, who performed the MRI did not follow-up with the plaintiff and the family doctor who referred the plaintiff to the physiatrist also did not follow-up, either with the plaintiff or Dr. Kachooie.

The judge noted that the earliest the plaintiff could have known she had a permanent and serious injury was on or after the date of the MRI. However, the plaintiff assumed that had there been any injuries identified in the MRI, the physiatrist or her family doctor would contact her and the judge did not believe she was unreasonable in that assumption. He noted that when it comes to the diagnoses of injuries and the determination of the severity of such injuries, patients typically defer to the experts, i.e. medical practitioners.

And that is what the plaintiff did, according to the judge. She listened to the advice of her doctors, trusted their advice and relied on them to inform her of any concerns with her health.

The judge concluded that the plaintiff acted reasonably with regard to her injuries and treatment and dismissed the defendant's motion for summary judgement. The judge also added that even if he may have been wrong in his analysis of the plaintiff's actions, it must be noted that it is unlikely that that plaintiff would have received the full results of an MRI conducted on Sept 17, 2011, before Sept 30, 2011.

Further, if the plaintiff did not become aware that she had a claim against the defendant for permanent and serious injury until after Sept 30th and her Statement of Claim was commenced on September 30, 2013, it would mean that her claim did not miss the two-year limitation period and therefore was not statute-barred.

At Rastin Gluckstein Lawyers, we have witnessed the toll that pain and rehabilitation takes not only on an accident victim, but their loved ones as well. That is why we are committed to help injured persons and their families get the compensation they deserve.

Call or visit Rastin Gluckstein Lawyers today for a no-obligation consultation.


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