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.

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