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.
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 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.
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.
In June, a B.C. Supreme Court judge rejected the testimony of psychiatrist Alexander Levin in a motor-vehicle insurance case. The plaintiff’s car had been rear-ended in Port Coquitlam nearly five years earlier, and she reported debilitating headaches. Dr. Levin was an expert witness for the defence. He argued that the woman did not have a concussion.
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.
FAIR, Board Chair
Lawson, Kerry, Psychologist http://www.fairassociation.ca/wp-content/uploads/2017/11/Lawson-Kerry-Psychologist1.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.
(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.