The Independent Insurer Medical Examination IME/IE
‘FAIR – supporting auto accident victims through advocacy and education’
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.
(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 unqualified, 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.
They could try and if nothing else they can intimidate innocent and sometimes brain injured car accident survivors into believing it may happen. Medical examination consent forms used in personal injury cases raises some serious questions about how car accident victims are intimidated by their insure’s choice of medical assessor and by the consent forms they are pressured into signing. How would you feel if you were faced with this form after being injured?
Consent form IME psychiatric 2018
 The defendant brings this motion for an order compelling the plaintiff to attend an independent medical examination with Dr. Bentley or another doctor with a specialty in physiatry and an independent psychiatry examination with Dr. Siu without conditions attached to those attendances. The defendant also seeks its costs thrown away as a result of the plaintiff’s failure to attend the IME that had been scheduled with Dr. Bentley on 31 January 2018.
 The plaintiff is prepared to attend those IMEs but on conditions, namely that she be allowed to bring a companion with her to each IME as a support person to her and that she be allowed to audio record the examinations.
 In the negotiation of these IMEs, counsel for the defendant took no position on the plaintiff’s request that she attend with a support person. Counsel indicated that it would advise the doctors that the plaintiff may bring someone with her but that it would be up to the doctor whether he allowed the friend into the examination room. In response to the plaintiff’s position, Dr. Bentley has advised that he does not allow for individuals to be present during an examination.
 Defence counsel objects to the audio recording of the IME. At the conclusion of the motion, I was advised that Dr. Siu has withdrawn as the potential psychiatry IME doctor. As a result, the plaintiff has also withdrawn her request to audio record the psychiatric examination, given it is no longer being carried out by Dr. Siu. Only the audio recording of Dr. Bentley is in issue.
 Both the recording and the attendance of a companion are in the discretion of the court. Rule 33.03 provides that the court may, on motion, determine any dispute relating to the scope of an examination. That has included whether an examination may be recorded. On the issue of a companion attending the examination, the starting point, as set out in Rule 33.05, is that no other person can be present at the IME, unless the court orders otherwise. The cases are clear that these orders and terms are fact specific.
 There was evidence in the record of consent forms that where required by either Dr. Siu or Dr. Bentley that contained terms outlining at least what Dr. Siu saw his professional obligation and to which he required the plaintiff’s consent. While the plaintiff viewed those forms as consents, what they are are acknowledgements of the limitations on confidentiality in the circumstances of the examination. For instance, one term particularly troubling to the plaintiff was that Dr. Siu could certify and admit the plaintiff to hospital against her will for psychiatric treatment if he felt she was a danger to herself. The plaintiff is not prepared to sign such a form as a condition of the defendant’s chosen doctor conducting an IME.
 As cited in Tanguay v. Brouse (2002) 20 C.P.C. (5th) 376 (S.C.J.):
In Bellamy v. Johnson, the court made the distinction in roles between that of a doctor conducting a defence medical assessment under s. 105 of the Courts of Justice Act and a doctor examining a patient within the bounds of the traditional doctor-patient relationship. That distinction lies at the core of this decision. In my view, a medical examination conducted under s. 105 of the Courts of Justice Act and Rule 33 enables a health practitioner in Ontario to (a) carry out the examination and (b) report his/her findings to the adversary of the party examined without fear of successful prosecution for professional misconduct based on the absence of written consent to do either or both of (a) and (b).
 I adopt the dicta of Valin, J. in Tanguay, as follows:
I am of the view that s. 105 of the Courts of Justice Act and Rule 33 contain a complete code and procedure for court ordered medical examinations in Ontario. Neither s. 105 of the Act nor Rule 33 contain a requirement that the party being examined execute any consent, authorization or agreement presented by an examining health practitioner in advance of or during an examination.
 I hold that the plaintiff is not required to sign a release, consent or agreement as a condition of undergoing the IMEs.
With scientific research relating to minor motor vehicle accidents more definitive than ever before, medical experts have a duty to be informed of the latest literature in order to make unbiased assessments in matters that are before the courts, says Toronto orthopaedic spine and trauma surgeon Dr. Michael Ford.
While retaining experts is commonplace in civil litigation, counsel are not always aware of who the expert has worked with, behind the scenes, to compile research or prepare analyses that contribute to the written report. We are also not always aware when the report itself was written not by the signatory, but someone else who worked on the file.
A recent trial raised the issue of whether there are limitations on the number of medical expert witnesses that can be called in a trial. The civil action, Davies v. The Corporation of the Municipality of Clarington, involved a man who was injured while he was a passenger of a VIA Rail train that derailed in November 1999. The action addressed only the amount of appropriate damages that should be awarded, as liability was not an issue for this case.