Here is an important tip for personal injury lawyers in BC- If the family doctor ordered or requested your client to have a private MRI and the advice was followed, this cost should be claimed as a special damage, not a disbursement (Uppal v. Judge, 2016 BCSC 642, para 107). The following is a case in point in which the cost of a private MRI was refused as a disbursement for being unreasonable despite being properly incurred!
This was an assessment of a personal injury claimants case expenses (called “disbursements”)” in a personal injury action which settled 10 days prior to the scheduled trial date. The onus is always on the claimant to prove the case on a balance of probabilities. However, Master Scarth ruled, regarding the costs of a private MRI, “while the disbursement may have been properly incurred, I cannot conclude that the amount is reasonable” (Perron v. Catalano, 2016 BCSC 1285).
The claimant’s personal injury lawyer arranged an MRI done of the claimant at a private MRI provider. The claimant was off work and was unable to get any indication from Kelowna General Hospital as to when the MRI appointment might be available to him. The disbursement claimed was $1,135, the cost of a private MRI.
ICBC took the position that there was no evidence of urgency to support the disbursement for a private MRI. The master applied the principles to require the claimant to prove the delayed MRI in the public healthcare system, which a claimant cannot prove. However this small point was finessed over in denying this disbursement to the claimant and it is therefore disallowed.
The court appears to be ambivalent about how to properly compensate claimants for private care costs such as an MRI. The dilemma starts with a fundamental misunderstanding of the concept of our universal healthcare system. The court assumes a claimant is able to access information about the “delay” from the “healthcare system”. Best to avoid the illogical conundrum created by the court when claiming this expenses as a disbursement.
Issue: Should a victim of personal injury be compensated for a private MRI or other tests recommended by treating doctors?