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Letters - questions and answers

Ontario’s car accident victims have plenty of questions and very few answers about why the insurance system in Ontario punishes them for making a claim.

One of the most pressing questions is about how to fix the abusive and unfair Insurer Medical Examinations (IMEs) that cause so much harm and stand in the way of recovery for many victims. Why is the abuse of victims tolerated and why does our government and the regulatory Colleges such as CPSO continue to let this happen? What can we do to change this?

The recent National Post article Hired gun in a lab coat: How medical experts help car insurers fight accident claims spells out some of the possible solutions and is a good starting point:

How to solve the hired gun problem

The law already says doctors and other health workers should never become “hired guns” for insurance companies or patients in personal-injury cases. But it still happens, judges say. Here are some ideas being proposed to address the problem:

Transparency: Track and make public experts’ histories as insurance witnesses: how often they’ve done assessments, for which side and what judges said about them. At least then, they could be properly assessed themselves.

Videotaping: Require medical assessments to be recorded, ensuring the expert’s final report reflects what happened in the interview.

Hot-tubbing: Adopt this colourfully named system where experts from both sides meet and produce a joint report, outlining areas of agreement and disagreement. Developed in Australia, it’s received good reviews in the U.K. recently.

Three strikes, you’re out: Bar from the witness stand experts who are repeatedly exposed as partisans for the side that hired them.

Discipline: Regulatory colleges should be more aggressive and proactive in policing members who are criticized for biased assessment work.

Less outside assessing: Accident victims’ claims should be based largely on their own doctors’ opinions, as happens when someone applies for coverage under workplace health insurance.

Consumer sends a second letter to Ontario’s Civil Rules Committee Feb 22 2018

…Judges have been refusing to allow plaintiff lawyers in the personal injury (auto insurance) context to adduce prior adverse judicial findings of bias as a means to challenge insurer medico-legal defence experts. The consequent complete failure in terms of oversight and accountability as it relates to expert evidence in this context has recently been chronicled in a series of investigative reports in the mainstream press (The Globe & Mail and National Post, for example; see below). It is ironic that when investigative reporters want to get a handle on this or that expert’s propensity for bias, they matter-of-factly look to prior judicial findings of partisanship as their barometer. Yet, stunningly, judges are refusing to take the same common sense approach to this issue. It beggars belief that what the Committee describes as “good practice” is seen by the judiciary as so utterly improper that “seeking to introduce” prior judicial findings of bias can now attract punishment in the form of extra costs for wasting the courts’ time:

“Second, there was the fact that Plaintiff’s counsel sought to cross-examine Dr. Rezneck on findings made about his reports in previous cases. I ruled that cross-examining an expert about judicial findings in previous cases where that expert had testified was not within the scope of proper cross-examination.  The argument on this ruling, and the consideration of the cases that counsel for the Plaintiff filed consumed a couple of hours of court time.  Raising this issue unnecessarily lengthened the trial time, and it should also be considered in a minor way in assessing the costs.” (Sharma v Stewart, 2017, ONSC)

When judges refuse to allow prior adverse judicial comments to be adduced as a means to challenge expert impartiality, they are conflating a judicial expectation of impartiality (in accordance with the Form 53) with a judicial presumption of impartiality. But as Master Short pointed out, without enforcement of the Form 53 promise such a presumption is unsafe. Taking for granted that long-time partisan experts will honour their Form 53 promise to be impartial is judicial folly of the worst sort.

Consumer Letter To Rules Committee Feb 22 2018

 

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FAIR letter to Civil Rules Committee and AG Feb 2 2018

UPDATE: The response to our third letter to the Civil Rules Committee in respect to the poor quality of the medical ‘expert’ evidence used in Ontario courts to deny auto insurance claims. Civil Rules Committee letter to R DesRoches – Feb 12 2018

February 2, 2018

To the attention of the Civil Rules Committee,

On September 5, 2017 and November 5, 2107 FAIR sent your office letters via email and regular post in respect to the poor quality of the medical evidence used in personal injury civil suits in Ontario. We have not yet received an acknowledgement of your receipt of our correspondence.

Assuming that the Rules Committee takes an interest in the over 58,000 auto insurance related cases on the docket in Ontario courts and thousands more at the Financial Services and the Licensed Appeal Tribunal I thought it important that you be aware of how ineffective rules or rules broken without consequences is playing out in our courts and in the media.

Insurer’s father-daughter psychology team blasted for dodgy testing of severely hurt motorcyclist http://nationalpost.com/news/canada/insurers-father-daughter-psychology-team-blasted-for-dodgy-testing-of-severely-hurt-motorcyclist

Licensed to bill: How doctors profit from injury assessments that benefit insurers https://www.theglobeandmail.com/news/investigations/doctors-insurance-independent-medical-examinations/article37141790/

Insurance assessment firms altered, ghostwrote accident victim reports https://www.theglobeandmail.com/news/investigations/insurance-assessment-firms-altered-ghostwrote-accident-victim-reports/article37193127/

Attached is a list of some of the medical ‘experts’ associated with these articles and the comments we have on our website in respect to the adverse comments made by past triers-of-fact. Surely these experts shouldn’t be welcomed in our courts after such demonstrations of bias and or incompetence while ‘assisting’ the court.

We look forward to hearing back from your office about what action you might take to protect the integrity of Ontario’s courts.

Respectfully,

Rhona DesRoches

FAIR, Board Chair

Lawson, Kerry, Psychologist http://www.fairassociation.ca/wp-content/uploads/2017/11/Lawson-Kerry-Psychologist1.pdf

Dr. Howard Platnick http://www.fairassociation.ca/wp-content/uploads/2017/09/Platnick-Howard-A.-Family-Physician.pdf

Dr. Lawrence Reznek http://www.fairassociation.ca/wp-content/uploads/2017/12/Reznek-Lawrence-Raphael-Psychiatrist.pdf

Dr. Rajka Soric http://www.fairassociation.ca/wp-content/uploads/2016/12/Soric-Rajka-Physiatrist.pdf

Dr. Richard Hershberg http://www.fairassociation.ca/wp-content/uploads/2017/04/Hershberg-Richard-Ian-Psychiatry.pdf

Dr. Alborz Oshidari http://www.fairassociation.ca/wp-content/uploads/2017/11/Oshidari-Alborz-Physiatrist.pdf

Dr. Monte Bail http://www.fairassociation.ca/wp-content/uploads/2016/01/Bail-Monte-Psychiatrist.pdf

Dr. Stanley Debow http://www.fairassociation.ca/wp-content/uploads/2017/11/Debow-Stanley-Lawrence-Psychiatrist.pdf

Dr. Katherine Isles http://www.fairassociation.ca/wp-content/uploads/2018/02/Isles-Katherine-Occupational-Medicine.pdf

Dr. Leslie Kiraly http://www.fairassociation.ca/wp-content/uploads/2018/02/Kiraly-Leslie-Tamas-Psychiatrist.pdf

Dr. Adrian Upton http://www.fairassociation.ca/wp-content/uploads/2018/02/Upton-Adrian-Richard-Mainwaring-Neurologist.pdf

Dr. Anthony Graham

DUTY OF EXPERT 

Rules of Civil Procedure 4.1.01  (1)  It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules,

(a) to provide opinion evidence that is fair, objective and non-partisan;

(b) to provide opinion evidence that is related only to matters that are within the expert’s area of expertise; and

(c) to provide such additional assistance as the court may reasonably require to determine a matter in issue.

Duty Prevails 

(2)  The duty in subrule (1) prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged.

http://www.fairassociation.ca/ime-providers-adverse-comments/

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FAIR Letter to Civil Rules Committee +AG Feb 2 2018

NOTE to Committee and AG re Letter to Civil Rules Committee September 5 2017

Letter to Civil Rules Committee September 5 2017

 

 

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FAIR letters to Colleges regarding insurer medical (IME) assessors Dec 2017

FAIR letter to CPSO re investigating Drs Dec 14 17

FAIR letter to CPO re investigating Dr Lawson

FAIR letter to COTO re investigating OTs Jan 18 2018 and additional info: Transcripts of Hadassah Lebovic

On behalf of our members and the public we requested that CPSO, the CPO and the COTO investigate the medical assessors who were the focus of recent media attention.

Licensed to bill: How doctors profit from injury assessments that benefit insurers

Insurance assessment firms altered, ghostwrote accident victim reports

Hired gun in a lab coat: How medical experts help car insurers fight accident claims

We are asking Colleges to be pro-active before more harm takes place.

The list of insurer physicians and assessors mentioned in these articles is extensive and it appears most, if not all, of these doctors have been in front of their regulatory College on more than one occasion. Every judicial criticism is a reflection of harm to victims and a statement on the lack of regulatory authority; it is a failure to be pro-active then and now as Ontario’s accident victims are attending medical exams today.

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FAIR letter about medical evidence to the Civil Rules Committee

The insurers and their legal representatives are obviously unafraid of any consequences when they parade the partisan ‘expert’ in front of the court. The experts themselves have no fear since they are self-regulated at their Colleges and are rarely sanctioned in any meaningful way when they harm innocent accident victims. It’s clear to victims that it is only they who are expected to be truthful in their duty to the court while the behavior of the insurer ‘hired gun’ medical expert is given the free pass to cause harm over and over again.

What will you do to restore confidence in our justice system when the proliferation of “hired gun” experts tainting cases continues to worsen despite the Form 53.03 promise to be impartial? Will the Committee help judges improve their gatekeeping of experts by setting out the appropriate time to allow lawyers to challenge medico-legal experts with prior judicial warnings of bias and unacceptable testimony?

Shouldn’t the Committee correct the belief that seeking to adduce prior judicial rebukes for bias is a waste of the court’s time and establish that this is something that deserves punishment in the form of costs and make an effort to block the future testimony of the unacceptable expert? Not doing so has made the Ontario Civil Justice system a place where juries are misled and an unsafe place for vulnerable litigants while it has become a reliable and very profitable adventure for insurers and their medical experts.

Letter to Civil Rules Committee September 5 2017

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Who is Dr. T and why did FSCO protect an ‘expert’ witness

Not a solution to protect Ontario’s auto insurance medical assessors by anonomizing them by way of reducing the name of the professional paid ‘expert’ to mere initials.

Letter to Director of Arbitrations FSCO re Dr. T. Feb 23 2017

Response from Tom Golfetto, Executive Director, Automobile Insurance Div., FSCO

D.F. and Wawanesa corrected

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