The Independent Insurer Medical Examination IME/IE
‘FAIR – supporting auto accident victims through advocacy and education’
DUTY OF EXPERTRules 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. ________________________________________________________________________________
FAIR believes that our government can and should do a better job to ensure that all accident victims are treated fairly so that they have the best possible chance of reaching maximum recovery after an automobile accident.
Ontario’s accident victims are legislated to attend Independent Medical Examinations (IME or IE) when they make an insurance claim. Unlike any other visit to a doctor, claimants have no choice in who their assessor might be, that decision is made by their insurer.
During an IME, vulnerable and injured accident victims are no longer ‘patients’ but are now ‘clients’ to whom the physician owes no ‘duty of care’. Far too often the assessor provides an unqualified, biased or shoddy assessment that becomes part of a claimants’ medical file. Rehabilitation and benefits are often discontinued based on a flawed report and it can take years to have treatment and benefits reinstated.
Worse yet, our government now intends to fine claimants $500 for failing to appear at an assessment when ordered to do so. Accident victims should be very concerned when attending these assessments when there is no real and reliable oversight, no way of knowing whether that assessor has a multitude of complaints about the quality of their work that their College has kept secret and out of sight. A recent search of the FSCO Arbitration Unit Decisions found that the Arbitrators have described what they are asked to accept as ‘evidence’ as “inaccurate, failed, misleading, defective, incomplete, deficient, not correct and flawed” in only two of the more recent Decisions.
How is the vulnerable and sometimes brain-injured accident victim supposed to ferret out the information on secret College censures that have kept the public in the dark about the quality of the medical services provided to Ontarians? Are accident victims supposed to call the FSCO for passwords so that their Decisions are accessible for reading? Adverse comments about IME vendors are deeply buried in Decisions few accident victims ever read. So the accident victim is kept in the dark about the qualifications of the IME assessors and must attend at his/her own risk. For this reason alone, Ontario’s MVA victims shouldn’t attend assessments without a family member or friend to accompany them to keep notes and records.
This has worked out well for Ontario’s insurance industry and for those for-hire physicians who provide insurers with the medical reports used to decide whether or not an injured claimant is entitled to treatment and benefits. The lack of accountability has allowed a small group of pro-insurer physicians and assessors to operate without fear of consequences while providing insurers and our courts with flawed and substandard IME reports. Reports that are then used to disqualify legitimately injured auto accident victims.
Seriously injured claimants will never get fair treatment unless/until the quality of insurer assessments (IMEs) denying them policy benefits (including treatment benefits) finally improves.
Poor quality insurer assessments have been an enduring problem for Ontario auto accident victims. Some of the medical assessors and medical authorities who have been the key architects of our insurance compensation system have the opinion that many injured claimants exaggerate their impairments for opportunistic gain.
Some of these ‘experts’ have been sketchy characters. For example, when No-Fault insurance was first adopted, for several years Dr. James N. Sears http://www.torontosun.com/news/torontoandgta/2008/12/31/7891486.html passed himself off as the Ontario “medical authority” on opportunistic fraud in the auto insurance casualty context. Dr. Sears wrote many articles denigrating injured Ontario auto accident claimants by painting them as “fraudsters”. But as it turned out – the auto insurers’ “medical authority” on fraud, Dr. Sears, wasn’t even a licensed physician. His licence to practice medicine had been revoked a year before he became the industry’s most prolific “medical authority” on medical fraud. But Dr. Sears set a standard of claimant bashing and abuse that became acceptable and it continues to this day. Some physicians whose sole source of income is through insurer sponsored IMEs have, through their reports, disqualified many thousands of legitimate and vulnerable accident victims.
Sure, there are good and bad assessors, but that is the problem in a nutshell. Shouldn’t ALL IME reports be accurate when the quality of life for our most vulnerable citizens lays in the balance?
So FAIR will instead be looking to more credible voices. We will be looking to the impartial Judges and Arbitrators to see what they have had to say on the topic of the quality of the IME product in Ontario. Surely we can trust the Judges and triers of fact. They speak to us through their Decisions and so we will look to those Decisions and provide their commentary aimed at the assessments they wade through on a daily basis as they adjudicate cases.
FAIR believes all ‘rogue’ assessors ought to be purged from the system – whether providing (on a fee for service basis) substandard, unqualified or flawed assessments to insurers – or to plaintiff lawyers – or to both.
FAIR believes that any assessor who has been the subject of repeated adverse judicial commentary due to unqulaified, incomplete, or shoddy assessments – that assessor should be barred from participating in the system (a suggestion made in a recent Toronto Sun column).“If a judge or arbitrator has made critical or adverse comments concerning a health professional make the comments public rather than leave them buried in decisions that few read. Allow adverse comments made about a health professional to be used against the health professional in subsequent cases and disallow the use of any professional who has been the subject of three adverse comments. We can get rid of shoddy, biased independent medical examinations — but only if we want to.” (http://www.torontosun.com/2012/11/30/concern-for-professional-reps) Saturday December 01, 2012.
In the interests of ending the practice of tolerating substandard IMEs/IEs, here are links to cases with quotes from the triers of fact that speak to the quality of these (IME/IE) assessments. We’ve posted the links to columns and articles related to the decisions at the bottom of the excerpts.
What we are seeing is some very poor quality medical opinions at a very high price being paid for by Ontario’s car accident victims who have no say on how their recovery benefits are being used to line the pockets of insurer doctors. Treating physicians are compensated with far fewer dollars to clean up the harm done to their patients with their own much more reasonably priced medical reports. As you can see from some of the links below, some physicians are becoming very wealthy by overcharging for medical reports that are without value and when MVA victims cancel assessments with these same IME providers, they are again being overcharged.
The issue of whether a party must produce a lawyer’s ‘instructional letter’ when retaining an expert was considered by the Ontario Superior Court in Nikolakakos v. Hoque, 2015 ONSC 4738. This case involved an action for damages arising from personal injuries sustained in a motor vehicle accident in August 2012. Following examinations for discovery held in August 2014, the Defendants requested that the Plaintiff attend a defence medical examination with an orthopaedic surgeon. The Plaintiff agreed to attend the medical examination on the condition that the Defendant’s lawyer provide a copy of the letter of instruction to the orthopaedic surgeon in advance of the assessment.