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Gail J. Cohen

The great divide

In the July 2011 issue of Canadian Lawyer, we wrote about “hot tubbing” — the term was coined in Australia to describe the procedure of organizing all experts in a case into a panel and hearing their evidence concurrently. As the story reported, judges and many experts liked the idea of it but the jury was still out with the lawyers.

In Canada, there is some usage of expert “panels” in tribunals and other administrative law bodies, where there is often very technical and complex evidence and the triers of fact most certainly don’t have the necessary levels of knowledge or expertise to weigh the value of one expert against another. Thus, it makes perfect sense for all sides to agree on experts and have them testify in a more collaborative way.

This is definitely not what happens with medico-legal expert witnesses in the auto insurance industry — at least not in Ontario. What has been going on in that province for years now has been a system that increasingly doesn’t work for individuals seeking accident benefits, and it is tipped in favour of insurance companies looking to reduce payouts whenever they can. According to this month’s personal injury legal report, there are numerous decisions showing medical experts are not acting as impartially as they should.

Personal injury lawyer Loretta Merritt notes that even though a 2014 review of the alternative dispute resolution system by Justice Douglas Cunningham did not have the review of independent medical experts within its mandate, the judge was compelled to note that many stakeholders he spoke to brought up the issue of skewed experts: Essentially, if you were an expert who supported claimants, you’d never again be retained by insurance companies. In other words, anyone who earns any part of his or her living as an expert could not be relied on to give an unbiased assessment, say lawyers from the personal injury bar. As a result, the Ontario Trial Lawyers Association, which represents many of those plaintiffs' counsel, has called for an inquiry into the system of expert witnesses.

There are claims that a system of medico-legal experts distorts evidence, including court reports, to satisfy insurance companies. There is also the issue of assessment clinics allegedly changing reports sent to them by doctors, who are often shocked when they see those altered reports if and when they do testify in court. And while some lawyers say there have been some improvements in the last few years with some rule changes, the playing field between insurance companies and those they insure is wholly uneven.

Maybe hot tubbing is the way to go with personal injury claims. Have the expert reports prepared by a panel of approved medico-legal practitioners who are approved by both sides. You’ll need fewer experts, which will save all sides money and definitely make it easier in terms of the time demanded of claimants to attend medical evaluations.

Perhaps an inquiry is in order, but what is clear is that the system is broken — in Ontario at least — and changes have to be made to bring fairness back into a process that affects many members of the public every year.

  • What About the Claimant!

    Jokelee Vanderkop
    The playing field is so uneven it is laughable. The seriously injured become the "walking wounded", still treated as fraudsters, fighting years for what they're owed while their health deteriorates even further.
    It is refreshing to hear Cohen talk about claims of distorted evidence although these are more than claims. Do the experts even want to truly understand what a legitimate claimant undergoes in their fight for benefits. "So You Think You're Covered! The Insurance Industry Rip-Off" gives that perspective. Claimants are thrilled to have a voice but many 'experts' benefit financially from a system that ensures their livelihood and don't want to hear that perspective. What would MVA victims know!
    We have lost sight of what is important--injured claimants who pay premiums on a contract they expect will be honoured. Claimants have become a means to keep a lot of people in and surrounding the insurance industry lucratively employed and nothing more.
  • FAIR, Board Chair

    Rhona DesRoches
    Excellent article. The biased or bogus IME and the reports stemming from them is undermining claims and costing taxpayers who pick up the tab for unpaid victims. The mere volume of the denials and the 36,750 requests for hearings at FSCO last year speak to how broken the system is and how insurers are routinely using these IMEs as a tool to evade paying claims. Only a full public inquiry will pull back the curtain and expose the underhanded tactics some insurers use to harm their own customers. You have to look at the problem before you can fix it and that's what an inquiry would accomplish. Long past due.
  • Senior Partner, Howie, Sacks & Henry

    Adam Wagman
    Hot tubbing is a great idea, in the right case (and I have actually used it successfully in a pre trial environment involving a very complicated medical causation issue). But hot tubbing is not going to solve the pervasive problem of “opinions for hire”. Only a full blown inquiry is going to pull back the curtain on these so-called experts, and certain assessment clinics, whose only goal seems to be to provide an opinion that will please whoever is paying their bill, medical science be damned. We still see reports from these so-called experts claiming that, without an “objective injury”, the victim must be faking; or without a loss of consciousness, the victim cannot possibly have a brain injury. As long as “experts” continue to ignore medical science, and litigants continue to rely upon those reports, our system will continue to be broken.

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