The purpose of this article is to provide a brief “refresher” on the scope of the “medical and other reasons” that must be provided by an insurer to its insured when an insurer examination (“IE”) is being requested.
IME
Nguyen v Szot, 2017 ONSC 3705 (CanLII)
[25] While I do not entirely discount Dr. Mamelak’s evidence, he inappropriately crossed the line by vociferously advocating on behalf of the Plaintiff before the jury rather than acting as an independent impartial expert. His subjective advocacy greatly diminished his credibility. The gulf between Dr. Mamelak’s categorical assertions about Mr. Nguyen’s capabilities and Mr. Nguyen’s actual capabilities as revealed in the evidence undermines the weight that can be given by me to his testimony. In particular, I do not accept Dr. Mamelak’s evidence regarding Mr Nguyen’s permanent serious injury for the following reasons.
[26] First, Dr. Mamelak told the jury that they could rely upon the Ontario Disability Support Program’s (ODSP) decision that Mr. Nguyen was disabled as evidence that Mr. Nguyen is disabled. The jury are of course required to come to their own conclusions about Mr. Nguyen’s alleged impairment and should not be relying upon the finding of an administrative decision-maker in another context. By encouraging the jury to rely upon the ODSP finding, Dr. Mamelak adopted the role of advocate for Mr. Nguyen and stepped outside of his role as expert witness. As a very experienced psychiatrist and seasoned expert witness, he should know better than to make such a suggestion to the jury. It was completely inappropriate and I instructed the jury to disregard this comment in no uncertain terms.
[27] Second, Dr. Mamelak dismissed out of hand the reliability of the trial video surveillance evidence, while telling the jury that he was of the view that surveillance evidence should never be admissible in civil trials. His wholesale rejection of an entire category of evidence that is regularly and properly admitted into evidence colours his credibility. To be clear, it would have been entirely appropriate for Dr. Mamelak to confine his comments to testifying as to why Mr. Nguyen’s actions in the videos might be consistent with his diagnosis. Instead, Dr. Mamelak simply testified that the surveillance evidence had no value whatsoever and should be disregarded. This was indicative of his tendency to simply dismiss out of hand rather than to seriously engage head-on the evidence that the Defendant argued undermined Mr. Nguyen’s claims. I, again, had to tell the jury to disregard this intemperate remark.
[28] Third, Dr. Mamelak clearly has strong views about the statutory accident benefits regime in Ontario and the role of insurance companies. His repeated references to the actions of the insurance company were irrelevant to the evidence he was qualified to give, namely his observations and medical conclusions about Mr. Nguyen. As a doctor who has presumably dealt with many statutory accident benefits and tort claims in the past, it is understandable that Dr. Mamelak might have developed opinions about these regimes. The problem is that his evidence about Mr. Nguyen’s alleged impairment appeared to be strongly coloured by these opinions. He made several unprompted references to his disagreement with insurers and appeared to reflexively place much of the blame for Mr. Nguyen’s current situation on the insurance industry.
[29] Fourth, Dr. Mamelak was brusquely dismissive of the Defendant’s medical evidence and did not seriously challenge the findings of Dr. Stephens and Dr. Hoffman. He described Dr. Hoffman’s suggestion that Mr. Nguyen was still grieving for the death of his family members in Vietnam as “nonsense”. Against the backdrop of Dr. Mamelak’s claim of nonsense, it was ironic that Mr. Nguyen broke down on the stand when describing the deaths in his family. I agree with counsel for the Plaintiff that this does not indicate that the death of Mr. Nguyen’s family members caused his current complaints, but Dr. Mamelak’s curt dismissal indicates that he was not prepared to seriously engage with Dr. Hoffman’s opinion on this and other points. Similarly, his major critique of Dr. Stephens was that her results amounted to little given the invalidity in the scores, but he did not really address Dr. Stephen’s conclusion that Mr. Nguyen was not putting in a valid effort and was exaggerating his impairment. His superficial dismissal of both experts’ conclusions betrayed his subjectivity and damaged his credibility.
[30] Fifth, as mentioned, Dr. Mamelak at times acted as an advocate for Mr. Nguyen rather than as an independent and impartial expert to assist the court. The gulf between Mr. Nguyen’s claimed level of near-total disability and his apparent level of actual ability was stark. Dr. Mamelak testified that Mr. Nguyen was completely incapable of living alone, caring for himself, and working in any permanent employment. The evidence indicated that Mr. Nguyen had helped a friend move, has lived by himself for several years, and made several independent multi-month trips to Vietnam. Dr. Mamelak could have revised his opinion to state that perhaps Mr. Nguyen was capable of part-time employment, or was something less than completely disabled, but he remained steadfast and obdurate in his views in the face of this diametrically opposed evidence
Anti-SLAPP law to be tested at Ontario Court of Appeal
The court will hear arguments tomorrow in a case where a Toronto doctor is appealing a Superior Court decision that dismissed his libel action against a former head of the Ontario Trial Lawyers Association and ordered him to pay more than $310,000 in costs. Dr. Howard Platnick has also filed a Charter challenge against the Protection of Public Participation Act, in part on the grounds that it favours freedom of expression over damage to reputation.
Bruff-Murphy v. Gunawardena, 2017 ONCA 502, DATE: 20170616, DOCKET: C61576
[1] The law regarding expert witnesses has evolved considerably over the last 20 years. Gone are the days when an expert served as a hired gun or advocate for the party that retained her. Today, expert witnesses are required to be independent, and their function is to provide the trier of fact with expert opinion evidence that is fair, objective and non-partisan.
[2] The role of the trial judge in relation to expert witnesses has also evolved. Appellate courts have repeatedly instructed trial judges that they serve as gatekeepers when it comes to the admissibility of expert opinion evidence. They are required to carefully scrutinize, among other things, an expert witness’s training and professional experience, along with the necessity of their testimony in assisting the trier of fact, before the expert is qualified to give evidence in our courts. This gatekeeper role is especially important in cases, such as this one, where there is a jury who may inappropriately defer to the expert’s opinion rather than evaluate the expert evidence on their own.
[3] In the present case, the trial judge qualified an expert to testify on behalf of the defence despite some very serious reservations about the expert’s methodology and independence. It became apparent to the trial judge during the expert’s testimony that he crossed the line from an objective witness to an advocate for the defence. Despite his concerns, the trial judge did nothing to exclude the opinion evidence or alert the jury about the problems with the expert’s testimony.
[4] On appeal, the appellants advance several arguments to the effect that trial fairness was breached, such that a new trial is necessitated. All of these arguments focus on the impugned expert.
[5] In my view, the appeal must be allowed and a new trial ordered. I reach this conclusion because the trial judge failed to properly discharge his gatekeeper duty at the qualification stage. Had he done so, he would have concluded that the risks of permitting the expert to testify far outweighed any potential benefit from the proposed testimony.
[6] In addition, the trial judge’s concerns about the expert’s testimony were substantially correct; the witness crossed the boundary of acceptable conduct and descended into the fray as a partisan advocate. In these circumstances, the trial judge was required to fulfill his ongoing gatekeeper function and exclude in whole or in part the expert’s unacceptable testimony. Instead, the trial judge did nothing, resulting in trial fairness being irreparably compromised.
Negligence claims in paper-only independent medical examinations: Rubens v Sansome, 2017 NLCA 32
The Court of Appeal’s decision is an important warning to physicians conducting paper-only IMEs.
Such paper-based reviews will still attract a duty of care to the patient. Justice Hoegg reinforced that the doctor-patient relationship gives rise to a duty of care when the doctor’s actions have the “potential” to affect the patient’s interests. Paper-only IMEs conducted for the purpose of evaluating insurance claims will inherently affect the interests of the claimant patient.
Insurers and consulting physicians will undoubtedly have to consider the potential liabilities associated with paper-based IMEs in light of this decision.
Rubens v Sansome, 2017 NLCA 32 (CanLII),
Examinations for Discovery for Personal Injury Claims in Ontario
This is an opportunity for your personal injury lawyer to ask the Defendant at fault driver, or insurance adjuster a series of questions which are answered under oath. Your lawyer will ask the at fault party some very simple questions, along with some more pointed questions in order to get more evidence about the case at hand.
Major banks face finance committee over alleged insurance forgery
Former CIBC and TD Bank employees are testifying to the House of Commons finance committee about forging signatures on insurance documents today (Monday).
According to an ex-employee at CIBC, who spoke anonymously to CBC News, 85% of the sales staff signed up clients for insurance they didn’t ask for using the client’s initials – only to cancel the coverage a week later.
Medical file manipulation at the hands of TD assessor
Communication, conflict concerns for independent health assessors
A recent matter before the Health Professions Appeal and Review Board (the Board) exemplifies the importance of open communication and having clear reimbursement processes when patients are referred to independent health assessors by third party insurers. This decision is a reminder that independent assessors need to take steps to demonstrate impartiality and avoid conflicts of interest, in order to avoid complaints and to be in a position to respond when complaints arise.
What happens when someone on ODSP gets a medical review date
This month’s On the Radar talks about the process that the Ontario Disability Support Program (ODSP) uses when they do a medical review.
There’s more detailed information on the Steps to Justice website.
Assessments ruled not reasonable nor necessary for hearing to proceed on CAT determination
G.P., a 72-year-old Polish woman, was in a car accident on November 9, 2013 and sought benefits pursuant to the SABs. She applied for several automobile accident benefits which were denied by Cumis. As a result, she filed an Application with the LAT to dispute these of benefits. G.P. also claimed that she had been catastrophically impaired as a result of the accident. She submitted two assessments in support of this claim, one by a general practitioner, Dr. ZM, and one by a psychiatrist, Dr. M.