3. Is the impairment serious?
[18] The court heard from the defence expert medical witness, Dr. Michael Ford, a spine and trauma surgeon at Sunnybrook dealing with serious fracture cases. He is still active as a surgeon and does a significant amount of medico-legal assessments. He does not practice in the area of chronic pain but he is experienced in assessing it as an orthopedic surgeon. He categorically dismisses chronic pain complaints unless, as he said, he can see or understand the mechanism causing the complaint. He dismissed Dr. Alpert’s opinion as supposition.
[19] Dr. Ford gave this plaintiff a very cursory examination. It was his last appointment of the day. He took Ms. Maxwell’s history in ten to fifteen minutes and the physical examination consisted of Dr. Ford watching her walk, do a neck extension and neck rotation. He never palpated her so he could not have found what Dr. Alpert says he found as his own objective findings during his examination. He found that:
• she had a decreased range of motion doing different movements -he saw these as significant and in the 40% to 70% range;
• she had muscle tightness and tenderness to the touch in the cervical area from C2 to C6 – he could feel the tautness and ropiness in the muscles and ligaments there;
• she had tenderness to palpation over the occipital nerves.
[20] These findings were dismissed by Dr. Ford. He saw this case as simple and uncomplicated, where there were no objective mechanisms causing pain, therefore there could be no valid complaint. He understood that she had stopped working because of her pregnancy and that her complaints from the car accident in 2007 had long since resolved.
[21] If he had asked a few questions about these answers, he probably would have learned that she could not do the strenuous dances that success at her job demanded, being very dependent on tips; she could no longer do the one recreational activity she loved, horse-riding, though she did try and was hit in the head once and fell off a second time. Dr. Ford simply dismissed Ms. Maxwell and wrote a report concluding without even a full examination of the patient, that any complaints she had now must come from her prior or other medical history without any analysis as to what exactly in her past would have caused them but the 2007 collision; all other previous traumas were reported and the treating doctor or chiropractor could see no reason to follow up other than to suggest some rest. I do not accept Dr. Ford’s opinion nor do I sense that Dr. Ford has an understanding of the fundamental aspect of those chronic pain cases, which lack objective proof. Nevertheless they are very real to the patient. In finding as I do, I am not to be taken to take away from Dr. Ford as an excellent spinal surgeon who works with serious trauma patients often derived from serious fractures, and displacement and other severe physical trauma. But I question his expertise in the area of chronic pain due to his offhand examination, his failure to test by palpation or to observe a variety of movements, and his very brief approach to her medical history which is by no means a simple one to understand, both orally and through the many records from the treating practitioners.
Speaker’s Corner: An expert witness’ friendly advice on information he needs from lawyers
As an expert witness in the area of orthopedic trauma surgery, lawyers often ask me what they should provide in order to get an objective and informed opinion. That begs the obvious question: Don’t lawyers already know what to put in the box? In fact, they don’t always know.
What follows, then, is an expert witness checklist offered in the spirit of friendly medical advice.
First, provide the decoded OHIP summary and family physician’s notes. Claimants are not always reliable with respect to the description of their past medical history of neck or back pain and the family physician’s notes are extremely telling. The OHIP summary comes from the Ministry of Health and is a listing by date of all health services provided by all professionals. We need both to arrive at an accurate picture.
We also need the summary and notes to go back several years prior to the event whether it’s a slip and fall or a motor vehicle accident. It’s amazing how often I get notes that are from the time of the incident onward. I don’t care about that. I want to see the notes predating the event. Why? Because some people are dishonest.
In the notes, I will often find that there is a significant prior history of neck or back pain predating the event. They’re not misleading about having the pain; they’re being untruthful about their past medical history. I’ve had situations where I’ve asked for the notes and I’ve seen there have been 50 visits for neck and back pain and 100 treatments from a chiropractor even as the claimants maintain they’ve never had any problems before the event. Surprisingly, they don’t know I’m going to see the records or that I’m going to look at them, which is incredibly naive.
The difficulty is that I have to ask for those notes about 50 per cent of the time as they’re not in the box.
Second, we need imaging. The imaging, including X-rays and MRIs, are very rarely in the package and ideally it’s best if the lawyers could actually send those on a CD-ROM. I’ll see the reports arising from the imaging, but that’s a description by an individual of a picture and not the same thing as seeing it. If the report mentions something with respect to potential pathology, I want to see that imaging to ensure that it is in fact significant.
The issue is that radiologists will call things significant in a report that we don’t agree with. That’s because it’s not their backyard; they don’t get to see the imaging and then go do the surgery and see what’s clinically significant.
I get the imaging in less than 10 per cent of the files and in another 20 per cent I will have to ask for it. Why? I think lawyers for the most part assume the report is as good as seeing the picture. It’s important that lawyers not assume. It’s vital for me to deliver an opinion that is objective and accurate because I could potentially be up on the stand answering questions about whether I actually saw the pictures and I’ll have to respond that I did not. That’s not a situation any expert wants to be in.
Ensure the materials are up to date. It’s unbelievable how often I’ll see someone and all of the records stop two years prior. I’ll hear from claimants that they just had an MRI or surgery six months ago but I have no records. There’s a lag time between my seeing them and the incident.
The need for current records includes the family doctor’s notes, other expert reports, imaging studies, and other tests. Why? Claimants may not offer up the fact that they’ve had surgery or additional investigations and I need that to know what to look for. To be objective, you can’t take what the claimant says at face value.
This is not a situation where you’re seeing a patient who’s there merely to seek your help with a cure or for treatment. This is, for the most part, an adversarial situation and the individuals are seeing me as a defence expert because the lawyer for the other side wants them to see me. It’s a little different when I’m seeing them for plaintiff’s counsel but they’re still not necessarily being completely honest with their lawyer either. So I need to have as much factual material as possible to come to an objective decision.
In addition, the notes must be legible. When I get the family physician’s notes, they’re quite often totally and completely illegible. As a doctor, I can’t even read this other physician’s notes. We’re supposed to be able to, but sometimes they’re so bad you can’t even get a single word or the gist.
So instead of the expert having to ask to go back to the family physician and get them transcribed and typed, lawyers should look at the notes and if they can’t read them, they should save everyone time and get them deciphered.
When it comes to surveillance, it’s typically useless information. Unless it’s one of those rare circumstances where the surveillance shows the claimants doing something they allege they’re totally unable to do, it’s not pertinent. Lawyers should screen it first to see if it addresses their claim but should otherwise not include it in the package and waste time on the expert’s end going through it to come to the same conclusion.
There are a few things we don’t need. For instance, correspondence from insurance companies is a total waste. The forms sent to the insurance company for approval of care and benefits aren’t useful from a medical perspective, nor is any correspondence between them and counsel.
Psychological reports don’t help either except from the perspective of getting more insight into the individual.
Finally, I have a few tips on how to present the information. I’ll sometimes get a package that isn’t indexed and is just a pile of materials. It’s a waste of time and money because I spend more time than I should have to in order to generate a report. At the same time, if the individual is someone who has difficulties with English, an interpreter would help. By the same token, it’s surprising how many times an interpreter shows up for no reason. Don’t assume the need for one.
It can also be helpful to provide police reports and photos of vehicle damage. Often, there’s a discrepancy between the claimant’s description of the event and reality.