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.
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
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
As regulator, what is the CPSO going to do about the behavior of some of your members who have become the biggest obstacle to recovery for car accident victims in Ontario?
It’s clear that many of the IME physicians in Ontario have not acted “with the same high level of integrity and professionalism as they would when delivering health care”. The attached Decisions document a multitude of violations of all 4 of the Principles listed on the CPSO Policy Statement #2-12. The flawed IME is routine and systemic and needs investigation and a resolution by the CPSO to ensure that ‘do no harm’ actually means something to ALL of Ontario’s patients, including car accident victims.
The failure of CPSO to enforce standards means this is playing out publicly in our courts after innocent and often seriously impaired victims have been abused by your members. From coercive ‘quality’ forms, bogus and biased medical opinion reports and testimony, to victims who are impoverished and go without recovery resources, to our overloaded social nets and taxpayers who must pay when insurers do not, to our courts having to deal with the ‘experts’, it is all in your house.
FAIR Letter to CPSO Jan 12 2017 re IMEs and Forms
Sent to: Ms. Alison Warner, Senior Legal Officer and Secretary to the Civil Justice Rules Committee
Court of Appeal for Ontario
130 Queen Street West, Toronto ON, M5H 2N5
“There is a long-standing expectation in both criminal and civil law that an expert’s duty is not to interested parties but to the court. Expert testimony and evidence is expected to be both truthful and to be proffered by someone possessed of sufficient skill, training and knowledge as to be qualified to give opinion evidence on a matter that is relevant to the issues before the court. This underlying expectation has been made explicit in the 2010 changes to Ontario’s Rules of Civil Procedure.
I will argue that these changes, together with pre-existing safeguards, are inadequate given that the provision of expert evidence has become a growth industry. The competition in this industry is intense and incentives to be less than truthful often overtake professional obligations and standards. It is not enough to expect someone with vested interests to be truthful about their willingness to be truthful. In addition to these changes, then, the courts must listen to what prior triers of fact have to say about the quality of experts that have made submissions to them.”
“After due consideration of your proposal, the Civil Rules Committee has decided not to amend the Rules with respect to expert witnesses. The Committee’s role is to consider whether a change to the Rules of Civil Procedure would assist in redressing the problems referred to in your letters. After careful consideration of the issue, the Committee has concluded that a change to the Rules of Civil procedure is not well-suited to achieving the desired ends identified in your letters.
The existing Rules establish that the duty of an expert is to the court and not to the parties: see rule 4.1.01. Form 53 (Acknowledgement of Expert’s Duty) requires any expert to sign an acknowledgement of the matters set out in rule 4.1.01. It is clearly good practice for counsel to assess their own expert witness in the light of any adverse judicial comments about a particular expert, and to seek to introduce any prior adverse judicial comments about an opposing expert witness. A judge has the authority to disqualify an expert, to limit the scope of the expert’s evidence, or to refuse to admit any evidence that is found to be impartial.”
January 13 2017 consumer response to Senior Legal Officer and Secretary for the Rules Committee
In its reply to me I had hoped the Rules Committee would have addressed the substance of my concern, that is, making revisions to the rules that would make “good practice” more likely to occur. Your dismissive reply to my letter suggests an indifference to the expert witness nightmare, and a willingness to protect “hired guns”.