COVID-19 Update: How We Are Serving and Protecting Our Clients

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Tone Deaf Courts Not Helping Curb COVID

Lawyers are held to a higher standard. We are. Because the profession demands it. The general public demands it. Our Rules of Professional Conduct command it.

So, when the COVID-19 Pandemic hit, the legal profession adapted. A general acceptance of Zoom for Trials, Pre-Trials, Examinations for Discovery, Mediation, Hearings etc. Acceptance of more emails, electronically executed documents and a large pivot towards accepting new technology.

Courts on the other hand were a bit backwards. In person hearings and jury trials were off; then they were on; then the Courts took a wait and see approach. Important and urgent criminal matter trucked ahead. Compelling jurors to leave their homes in the midst of a Pandemic; risking their health to hear a civil matter about money seemed then; and still seems today like a huge ask. But the Courts continued to make that ask of the public irrespective of the health of jurors or others they would come in contact with.

What’s particularly troubling is that lawyers, and the Courts have the opportunity to be part of the solution instead of being part of the problem.

Here is an example of the Court taking a backwards approach towards the Pandemic. The case is Mierzejewski v. Brook 2021 ONSC 2295

It’s a car accident case. The Defendants brought a motion before a Master to compel her attendance with a neuropsychologist for the purpose of a Defence Medical Examination.

The issue is the form that examination will take.  The plaintiff did not consent to attending that examination in person, given the pandemic and what she describes as her compromised health situation.  The plaintiff had a heart attack and underwent heart surgery in 2016, had had breast cancer in 2017 and underwent a lumpectomy in 2018.  She generally does not leave her home unless necessary. 

I think that we’ve all learned by now that COVID is real, and that it is very devastating for people with underlying health issues. It sounds like the Plaintiff in this case has some underlying health issues. It also sounds like she doesn’t leave her home during the Pandemic; unless absolutely necessary.

The Defence Medical Examination is NOT an OHIP Funded examination for the health or well being of the Plaintiff. It’s paid entirely by a large, deep pocketed insurance company in order to bolster their position at trial.

There is nothing “medical” about a Defence Medical Examination with a neuropsychologist. For starters, neuropsychologists are NOT medical doctors. They are not MDs. They have their PHD (doctorate) in the field of psychology or neuropsychology. This means that they do not bill OHIP for their time, they cannot initiate any medical referrals via OHIP, they cannot prescribe medication, nor can they order any diagnostic tests through the OHIP system. In contrast, your run of the mill family doctor or a nurse practitioner can do all of these things.

A neuropsychologist is running a for profit enterprise in private practice. If they wanted to do work in the community, they would. But working on behalf of insurance companies for the purpose of litigation is hardly community work. They are paid well for their time and services. The in person examination is to take place at AssessMed in Mississauga, which is another for profit clinic which largely does for profit work on behalf of insurers.

Let me be clear. There is nothing wrong with making a profit on the work you do. The neuropsychologist is allowed to make as much money as they can.

But there is something wrong and tone deaf about the Court compelling an innocent accident victim with serious pre-existing health issues to leave her home in the midst of a global pandemic so that she can participate in a non medical examination strictly for the purpose of litigation. Would the Judge or Master have compelled his or her own child to do the same? Would the Judge or Master had volunteered to participate for a lengthy in person examination which could have otherwise been done virtually? How do you think the Plaintiff is going to get to the examination? Taxi? Uber? While the Defendant offered to arrange for transportation; isn’t this the opposite of what our political leaders and doctors have been recommending that we do? Aren’t we supposed to be staying home? Maybe we were supposed to be home a week ago; but not this week.

There lies the problem.

The Court had the opportunity to show some understanding of the global Pandemic and take the lead to curb the spread of COVID. But this decision shows a profound lack of understanding; a profound lack of caring for the health of the general public and lack of progressive thinking to find a creative solution.

The neuropsychologist’s evidence to the Court was that they could not conduct a virtual assessment. I find that hard to believe. Are you telling me that the neuropsychologist has only been doing in person assessments during the Pandemic and not pumping out reports? If that’s the case; they why isn’t the Ministry of Health looking in to this? Why does a for profit Assessment Centre get to stay open for business; when thousands of their businesses have needed to shut their doors? Why does a non medical neuropsychologist get to see people in person, but a hair stylist does not? Is it because the hair stylist doesn’t have a PHD? What happened if the hair stylist had a PHD, and instead of teaching; is choosing to style hair? The hypocrisy doesn’t not escape me; nor should it escape the Court.linkedin-2-300x300

I’m wondering whether or not the neuropsychologist was cross examined on his Affidavit. It may have come up on cross examination that the neuropsychologist has pivoted (as did the rest of the world) to get assessments done virtually as oppose to in person.

This decision was released on March 22, 2021. The defence medical examination was ordered to take place on March 31, 2021. The Provincial Government announced a stay at home order effective April 8, 2021; just 8 days after the defence medical examination in this case. COVID numbers were out of control March 22, 2021 when this decision was released. Doctors all over social media raising awareness about COVID variants, poor vaccination roll out and lack of ICU capacity. Doctors urging people to stay at home unless absolutely necessary. Yet, here is a Master compelling someone with poor health to do the exact opposite. I thought Courts were suppose to protect the people. I thought the legal profession was meant to protect the public.  Guess not.

We can be better than this. We have to. The health of our community depends on it. 



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