The purpose of this article is to provide a brief “refresher” on the scope of the “medical and other reasons” that must be provided by an insurer to its insured when an insurer examination (“IE”) is being requested.
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. 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.
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Nguyen v Szot, 2017 ONSC 3705 (CanLII)
[25] While I do not entirely discount Dr. Mamelak’s evidence, he inappropriately crossed the line by vociferously advocating on behalf of the Plaintiff before the jury rather than acting as an independent impartial expert. His subjective advocacy greatly diminished his credibility. The gulf between Dr. Mamelak’s categorical assertions about Mr. Nguyen’s capabilities and Mr. Nguyen’s actual capabilities as revealed in the evidence undermines the weight that can be given by me to his testimony. In particular, I do not accept Dr. Mamelak’s evidence regarding Mr Nguyen’s permanent serious injury for the following reasons.
[26] First, Dr. Mamelak told the jury that they could rely upon the Ontario Disability Support Program’s (ODSP) decision that Mr. Nguyen was disabled as evidence that Mr. Nguyen is disabled. The jury are of course required to come to their own conclusions about Mr. Nguyen’s alleged impairment and should not be relying upon the finding of an administrative decision-maker in another context. By encouraging the jury to rely upon the ODSP finding, Dr. Mamelak adopted the role of advocate for Mr. Nguyen and stepped outside of his role as expert witness. As a very experienced psychiatrist and seasoned expert witness, he should know better than to make such a suggestion to the jury. It was completely inappropriate and I instructed the jury to disregard this comment in no uncertain terms.
[27] Second, Dr. Mamelak dismissed out of hand the reliability of the trial video surveillance evidence, while telling the jury that he was of the view that surveillance evidence should never be admissible in civil trials. His wholesale rejection of an entire category of evidence that is regularly and properly admitted into evidence colours his credibility. To be clear, it would have been entirely appropriate for Dr. Mamelak to confine his comments to testifying as to why Mr. Nguyen’s actions in the videos might be consistent with his diagnosis. Instead, Dr. Mamelak simply testified that the surveillance evidence had no value whatsoever and should be disregarded. This was indicative of his tendency to simply dismiss out of hand rather than to seriously engage head-on the evidence that the Defendant argued undermined Mr. Nguyen’s claims. I, again, had to tell the jury to disregard this intemperate remark.
[28] Third, Dr. Mamelak clearly has strong views about the statutory accident benefits regime in Ontario and the role of insurance companies. His repeated references to the actions of the insurance company were irrelevant to the evidence he was qualified to give, namely his observations and medical conclusions about Mr. Nguyen. As a doctor who has presumably dealt with many statutory accident benefits and tort claims in the past, it is understandable that Dr. Mamelak might have developed opinions about these regimes. The problem is that his evidence about Mr. Nguyen’s alleged impairment appeared to be strongly coloured by these opinions. He made several unprompted references to his disagreement with insurers and appeared to reflexively place much of the blame for Mr. Nguyen’s current situation on the insurance industry.
[29] Fourth, Dr. Mamelak was brusquely dismissive of the Defendant’s medical evidence and did not seriously challenge the findings of Dr. Stephens and Dr. Hoffman. He described Dr. Hoffman’s suggestion that Mr. Nguyen was still grieving for the death of his family members in Vietnam as “nonsense”. Against the backdrop of Dr. Mamelak’s claim of nonsense, it was ironic that Mr. Nguyen broke down on the stand when describing the deaths in his family. I agree with counsel for the Plaintiff that this does not indicate that the death of Mr. Nguyen’s family members caused his current complaints, but Dr. Mamelak’s curt dismissal indicates that he was not prepared to seriously engage with Dr. Hoffman’s opinion on this and other points. Similarly, his major critique of Dr. Stephens was that her results amounted to little given the invalidity in the scores, but he did not really address Dr. Stephen’s conclusion that Mr. Nguyen was not putting in a valid effort and was exaggerating his impairment. His superficial dismissal of both experts’ conclusions betrayed his subjectivity and damaged his credibility.
[30] Fifth, as mentioned, Dr. Mamelak at times acted as an advocate for Mr. Nguyen rather than as an independent and impartial expert to assist the court. The gulf between Mr. Nguyen’s claimed level of near-total disability and his apparent level of actual ability was stark. Dr. Mamelak testified that Mr. Nguyen was completely incapable of living alone, caring for himself, and working in any permanent employment. The evidence indicated that Mr. Nguyen had helped a friend move, has lived by himself for several years, and made several independent multi-month trips to Vietnam. Dr. Mamelak could have revised his opinion to state that perhaps Mr. Nguyen was capable of part-time employment, or was something less than completely disabled, but he remained steadfast and obdurate in his views in the face of this diametrically opposed evidence
Anti-SLAPP law to be tested at Ontario Court of Appeal
The court will hear arguments tomorrow in a case where a Toronto doctor is appealing a Superior Court decision that dismissed his libel action against a former head of the Ontario Trial Lawyers Association and ordered him to pay more than $310,000 in costs. Dr. Howard Platnick has also filed a Charter challenge against the Protection of Public Participation Act, in part on the grounds that it favours freedom of expression over damage to reputation.
Bruff-Murphy v. Gunawardena, 2017 ONCA 502, DATE: 20170616, DOCKET: C61576
[1] The law regarding expert witnesses has evolved considerably over the last 20 years. Gone are the days when an expert served as a hired gun or advocate for the party that retained her. Today, expert witnesses are required to be independent, and their function is to provide the trier of fact with expert opinion evidence that is fair, objective and non-partisan.
[2] The role of the trial judge in relation to expert witnesses has also evolved. Appellate courts have repeatedly instructed trial judges that they serve as gatekeepers when it comes to the admissibility of expert opinion evidence. They are required to carefully scrutinize, among other things, an expert witness’s training and professional experience, along with the necessity of their testimony in assisting the trier of fact, before the expert is qualified to give evidence in our courts. This gatekeeper role is especially important in cases, such as this one, where there is a jury who may inappropriately defer to the expert’s opinion rather than evaluate the expert evidence on their own.
[3] In the present case, the trial judge qualified an expert to testify on behalf of the defence despite some very serious reservations about the expert’s methodology and independence. It became apparent to the trial judge during the expert’s testimony that he crossed the line from an objective witness to an advocate for the defence. Despite his concerns, the trial judge did nothing to exclude the opinion evidence or alert the jury about the problems with the expert’s testimony.
[4] On appeal, the appellants advance several arguments to the effect that trial fairness was breached, such that a new trial is necessitated. All of these arguments focus on the impugned expert.
[5] In my view, the appeal must be allowed and a new trial ordered. I reach this conclusion because the trial judge failed to properly discharge his gatekeeper duty at the qualification stage. Had he done so, he would have concluded that the risks of permitting the expert to testify far outweighed any potential benefit from the proposed testimony.
[6] In addition, the trial judge’s concerns about the expert’s testimony were substantially correct; the witness crossed the boundary of acceptable conduct and descended into the fray as a partisan advocate. In these circumstances, the trial judge was required to fulfill his ongoing gatekeeper function and exclude in whole or in part the expert’s unacceptable testimony. Instead, the trial judge did nothing, resulting in trial fairness being irreparably compromised.
Negligence claims in paper-only independent medical examinations: Rubens v Sansome, 2017 NLCA 32
The Court of Appeal’s decision is an important warning to physicians conducting paper-only IMEs.
Such paper-based reviews will still attract a duty of care to the patient. Justice Hoegg reinforced that the doctor-patient relationship gives rise to a duty of care when the doctor’s actions have the “potential” to affect the patient’s interests. Paper-only IMEs conducted for the purpose of evaluating insurance claims will inherently affect the interests of the claimant patient.
Insurers and consulting physicians will undoubtedly have to consider the potential liabilities associated with paper-based IMEs in light of this decision.
Rubens v Sansome, 2017 NLCA 32 (CanLII),