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.
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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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http://canlii.ca/t/1gkwm
[323] Dr. Shah’s health problems, his difficulties with the College of Psychologists and the program ‘Prove It If You Can’ all impacted his work and business. Prior to July of 1997, AssessMed kept no computer records of the number of assessments performed by Dr. Shah. From July to December of 1997, when computer records are available, Dr. Shah performed 94 assessments at AssessMed.
[324] In 1998, he did 204 assessments. In 1999, his assessments dropped to 87. Following 1999, he performed the following number of assessments:
2000 – 132 assessments
2001 – 121 assessments
2002 – 96 assessments
[325] Dr. Shah’s income tax returns reveal he earned the following annual income from 1997 to 2001:
1997 – $117,399
1998 – 137,015
1999 – 44,431
2000 – 26,342
2001 – 48,085
[326] Dr. Shah estimated his net income for 2002 at between $40,000 and $50,000. All of his income was from assessments he performed at AssessMed. He testified the decline in his income was due to the reduction of referrals from AssessMed. Dr. Shah believes he had a potential to earn as much as $175,000 per year at AssessMed. Had his health not deteriorated, it was his plan to work until 2008.
http://canlii.ca/t/1gw2g
[14] The plaintiffs’ only evidence of a possible breach of the defendants’ standard of care is that of Dr. Richman dated July 26, 2001. Dr. Richman graduated in medicine in 1967 and has practiced occupational medicine and pain management. Between 1968 and 1977 he also practiced family medicine. His practice includes evaluation, management and treatment of pain in the context of occupational medicine. He is neither an obstetrician nor an anaesthetist. He has no expertise in these areas of medicine or in the treatment of pain in an obstetrical ward.
[15] Dr. Richman’s report indicates that he did not have before him the clinical notes of the obstetrician, Dr. Livingstone, or the Hospital’s records respecting Mrs. Reid’s labour, delivery and post delivery treatment and care.
[16] Dr. Richman’s report is stated to be an independent medical evaluation and functional abilities evaluation.
[17] His conclusion was based on information provided to him, including statements by Mrs. Reid. He lacked two critical pieces of information, the obstetrician’s notes and the Hospital’s records. He concluded that Mrs. Reid’s complaints of injury are related to the treatment during her pregnancy and delivery. He states that “based on the information provided” that “best medical practices did not seem to be followed”.
[18] This report is highly qualified and does not address the critical issue of whether the defendants met the standards of care applicable to their treatment of Mrs. Reid.
[19] Furthermore, Dr. Richman did not give an affidavit confirming his opinion and whether it remains the same. Accordingly, his report was not admissible in evidence on this motion. See Ewaskiw v. Zellers 1998 CanLII 14866 (ON SC), (1998), 40 O.R. (3d) 795; Beland v. Kieffer, [2002] O.J. No. 709 paras. 5-10.
http://www.fairassociation.ca/wp-content/uploads/2013/02/Oppedisano-and-Zurich-Insurance-1999-07-06-FSCO-A97%E2%80%93001443.pdf
Dr. Paul H. Grant’s Report and Qualifications:
At Zurich’s request, on October 19, 1995, a work capacity evaluation was conducted at AssessMed Inc. by Dr. Paul H. Grant, with the assistance of an Italian interpreter. [See note 16 below.] I attach very little weight to Dr. Grant’s report for the reasons outlined in the following paragraphs:
Note 16: Exhibit 2, Tab 16 (Evaluation/Report)
Although Dr. Grant has a resume which describes him as a specialist in sports and orthopaedic medicine, Mr. Oppedisano’s counsel challenged Dr. Grant’s credentials at the hearing. As a consequence, Zurich’s counsel telephoned Dr. Grant during a recess. Dr. Grantconfirmed that he is not an orthopaedic specialist and has no specialist certification. A certificate of status of registration from the College of Physicians and Surgeons lists Dr. Grant as having no specialty qualifications. In the context of individual medical assessment, this can be misleading. Dr. Grant would have self described himself more properly as a general practitioner with an interest and experience in sports medicine.
http://www.fairassociation.ca/wp-content/uploads/2013/02/Mrs.-S-and-Lloyds-Non-Marine-Underwriters-2004-08-03-FSCO-2304.pdf
Lloyd’s retained Dr. Paul H. Grant, a general practitioner, to assess the Applicant. In a number of documents, including Explanations of Benefits Payable by Insurance Company, correspondence, and Lloyd’s counsel’s written submissions, Dr. Grant’s reports are referred to as orthopaedic assessments. On Dr. Grant’s reports, under his signature is “Orthopaedics & Sports Medicine” and he entitles supplementary reports as “Orthopaedic Addendum.” The Applicant’s counsel submitted, and I accept, that this is misleading since Dr. Grant is not an orthopaedic surgeon. Dr. D.J. Ogilvie-Harris, an orthopaedic surgeon, confirms this in his July 19, 2002 report. I therefore regard Dr. Grant as a general practitioner and do not accept Dr. Grant’s opinions as orthopaedic opinions.
http://canlii.ca/t/1ms0r
[20] It is also important to closely examine the allegations made in the Statement of Claim. The allegations of wrongdoing are extremely broad. There are allegations of bad faith; bias; misrepresentation; carelessness; intentional interference with contractual relationships; intention to injure; inducing or attempting to induce a breach of contract; interference with performance of a contract; production of a misleading report; failure to review all relevant materials; production of a blatant falsehood; and other professional misconduct. These allegations involve very serious allegations of misconduct on the part of the defendants. Therefore, the plaintiff’s complaints are not simply based on the medical-legal report of Dr. Grant. The plaintiff’s complaints, in this case, relate to the role played by both AssessMed Inc., its employees, and Dr. Grant with respect to the manner in which the medical examination was conducted, the preparation of the report, and the resulting report.
[28] I am very mindful of the ramifications of limiting the doctrine of privilege and/or immunity with respect to medical reports and of extending the duty of care to physicians who deliver reports concerning non-patients. However, it seems to me that the plaintiff should be given an opportunity to prove that some malfeasance was in place from the very beginning. This is the tenor of Ms. Worthman’s complaint. As aforesaid, her complaint goes far beyond a mere allegation of negligence. If her allegations are proven, surely it would be contrary to public policy to clothe the defendants with an absolute privilege or immunity.
Dr. Jack Richman, the fourth recipient of the “Michel Lacerte Award of Excellence” https://m360.csme.org/event.aspx?eventID=87110&instance=0
Read: http://www.lawtimesnews.com/20060424530/Headline-News/Worthman-could-induce-expert-chill
