Medical experts, along with their reports, are major pieces of evidence in any serious personal injury case in Ontario.
The testimony of a Plaintiff, and that of a Defendant, will likely be self serving.
The Injured Accident Victim Plaintiff will take the stand and provide evidence that the accident was not their fault, and as a result of the accident; that they are seriously injured and can no longer lead a normal life.
The Defendant in a personal injury case will say the exact opposite. The accident was not their fault, and that the Plaintiff did not appear to be injured at all in the accident.
With testimony which is so diametrically opposed; how is a Judge or Jury supposed to decide who is telling the truth? Certainly the credibility and likeability of the parties comes in to play. But there is another major factor as well.
That’s where medical experts come enter the scene. These are often doctors, hired by the Plaintiff’s lawyer, or the Defendant’s lawyer to provide expert testimony or evidence in support of the case, one way of the other. The testimony of these experts, along with the evidence which they tender in to Court can be very persuasive. It’s often the difference between a successful or unsuccessful case. The battle of experts is very real, and it’s very important in a personal injury case.
Medico-legal experts in the context of personal injury cases have come under fire in recent months. A National Post story entitled “Hired Gun in a Lab Coat: How Medical Experts Help Car Insurers Fight Accident Claims” is a fantastic read which sheds some light on how the business of medico-legal experts plays out.
Even more interesting was a recent decision from the Ontario Superior Court, released February 3, 2017 Kushnir v. Macari, 2017 ONSC 307
In this case, the Defendant insurer sought an Order that the injured Plaintiff from a car accident see two doctors for the purpose of Defence Medical Examinations. The Defendant also sought an Order that the Plaintiff pay for the Defendant doctors’ cancellation fee in the amount of $3,107.50, but that’s a different story.
As an aside, if the doctor’s cancellation fee is $3,107.50; then how much is his/her fee for actually doing some work on the file….Think about that long and hard, and then ask yourself why insurers; who constantly complain about personal injury lawyers being the reason behind the rising costs of litigation and premium increases…yet those very same insurers retain doctors who charge a $3,107.50 cancellation fee. Talk about hypocrisy.
In any event, the injured Plaintiff didn’t really oppose attending the Defence Medical Examinations. What they sought was an order on the motion that three additional conditions of the medical examinations be imposed. The plaintiff sought an order that any independent medical examinations conducted on the plaintiff shall not be ghost written, including inter alia:
1. The written report will be drafted solely and entirely by the examining doctor;
2. The research and medical record review leading to the report will be conducted solely and entirely by the examining doctor; and
3. The records will not be shared with any third parties.
The Court acknowledged that “ghost writing” of medico-legal reports had become a problem in modern day personal injury litigation.
Essentially, what’s was being alleged was that the doctor who was being retained, and/or who saw the patient, was NOT actually the true author of the report. The report was being written by somebody OTHER than the doctor; and the doctor was merely signing off on the report.
What the Plaintiff in this case was seeking was that the doctor who saw him, actually prepare the report himself.
This seems like an entirely reasonable request. Here’s what the Court had to say:
The case goes on to highlight that ghost written reports are becoming a problem at para 13. Incredibly, an expert admitted at trial that much of her report was actually written by someone else. Another expert improperly expressed an opinion on credibility. Master MacLeod stated that, “Suffice to say that there is merit to the argument that greater rigour and predictability concerning the role and use of experts might save time at trial and promote settlements”.
 The issue of who actually wrote the report is of particular concern to the litigation bar as many cases are resolved prior to trial on the basis of the expert reports received which form the basis of counsel’s assessment of the case and subsequent offers to settle. The parties pay substantial fees to experts for their reports and they have a right to expect those reports to be written by the author of the report. If the parties cannot rely on the reports being actually written by the author of the report, it attacks the very foundation and purpose of the expert report in the first place, and frankly wreaks havoc with the litigation process. If reports cannot be relied upon, unnecessary litigation is promoted.
The real danger is what about the cases that were settled based on the expert’s opinion as stated in the report without ever going to trial? The parties, counsel or the court at a pre-trial would never know if it was solely written by the author of the report or not. Sadly, because of a few rogue experts who have admitted to using ghost writing when they were cross-examined at trial or in a voir dire as to their expert qualifications, the issue has become serious enough that the litigation bar is now requiring that it be put into conditions of these assessments.
The end result was that the Honourable Judge sided with the Plaintiff, and ordered that the report NOT be ghost written. It’s a sad state of affairs in our legal system that injured Plaintiffs need to get a Court Order to ensure that their sensitive medical information is not passed along to a ghostwriter, who may not be a medical doctor or who may have never met the person for whom they are writing the report about. It also shows you the ability of hired gun medical doctors to generate reports very quickly with minimal effort as those reports are being ghost written, potentially by a number of helpers. You can see how this practice can quickly become a big business for any medical doctor with a team of ghost writers to assist with the volume of work.