In Court proceedings where a plaintiff claims damages for bodily injury, the defendant is entitled to request that the plaintiff submit to examinations by a medical expert or experts. Indeed, in almost every claim for personal injury, examination appointments will be arranged by both the plaintiff’s solicitors and the defendant’s solicitors in order that the plaintiff’s injuries can be properly assessed.
If the plaintiff refuses or neglects without reasonable cause to comply with the defendant’s request to attend a medical examination, the court may, if the request was on reasonable terms, stay the proceeding. So when does a request become unreasonable?
Medical examination can include requiring a plaintiff to undergo chemical, mechanical and other procedures or tests designed to assist a medical diagnosis. Whether a plaintiff’s refusal to submit to examination is reasonable depends on all the circumstances. In Stace v Commonwealth (1988) 49 SASR 492 at 495 Cox J found that “A test may be reasonable enough in itself, but a particular plaintiff may nevertheless be justified in declining to undergo it because of his own personality or circumstances.” The test is therefore essentially subjective, although an objective test of reasonableness also applies.
The issue was considered by the Supreme Court of Victoria in September 2010 in the matter of Jean May Dikschei v Epworth Foundation  VSC 435.
Mrs Dikschei brought a claim in medical negligence against the Epworth Hospital (“the Hospital”) relating to treatment she received when recovering from surgery. Mrs Dikschei alleged that she suffered a stroke as a result of a nurse squeezing a central venous catheter line that was inserted in her neck area – causing an embolism (air bubble) to enter her heart and then progress into her brain.
In the course of the proceeding the Hospital sought to have the plaintiff undergo a procedure known as a transoesophageal echocardiogram (“a TOE”). The procedure would enable the Hospital to view the plaintiff’s heart to determine whether she had a particular defect in the heart, sometime referred to as a “hole in the heart”, that would have allowed the embolism to cross from the right atrium into the left atrium and into the brain.
Mrs Dikschei refused to undergo the procedure and the Hospital therefore brought an application to have the proceeding stayed.
During a TOE procedure sedation is administered intravenously and a probe is passed down the throat and placed in the oesophagus immediately behind the heart atria giving visualisation of the interatrial septum.
In his judgement Mukhtar AsJ of the Supreme Court noted the following four points:
For the reasons set out above Mukhtar AsJ concluded that the plaintiff’s refusal to consent to the TOE was not without reasonable cause and the defendant’s application for a stay of the proceeding was refused.
His Honour Mukhtar AsJ referred to an earlier Supreme Court decision of Downing v Wein (2005) VSC 134, where an infant had refused to undergo an MRI brain scan. In that case Kaye J articulated that the Court must balance the plaintiff’s interests in preserving his or her health against the defendant’s interests in being better informed on an issue in the case. Kaye J ordered that the MRI should take place but that it could not involve the administration of general anaesthetic or a contrast dye.
In these applications the Court must balance the plaintiff's health interests, with the defendant's interests in gaining information relevant to the proceeding. It appears that a major issue will be whether the medical procedure is invasive, or involves a "technical assault", as well as the risks of the procedure to the plaintiff's health. Further, the plaintiff's individual circumstances, including age and any particular vulnerability can be taken into account.