Personal Injury Law: The downside of judge’s ruling on reviewing draft expert reports

Personal Injury Law

Monday, 27 January 2014 08:00 Written By Darcy Merkur

While a judge had commendable goals in declaring an end to lawyers’ practice of reviewing draft expert reports, her recent Superior Court decision may have the unwelcome consequence of affecting who counsel retain as experts.

According to Justice Janet Wilson’s conclusions in Moore v. Getahun on Jan. 14, counsel’s practice of reviewing draft expert reports must stop and meetings with experts to go over the reports are no longer acceptable.

In Moore, the plaintiff had developed compartment syndrome and claimed it was as a result of negligent medical treatment he received on his fractured wrist following a motorcycle accident.

Like many experts, the defence medical expert had prepared a draft report and had sent it to his counsel for comments.

In reviewing the expert’s file at trial, plaintiff’s counsel found the draft reports as well as the notes in relation to a 1-1/2 hour telephone conference with defence counsel.

While the defence expert suggested the amendments to the report were slight changes such as headings and punctuation, Wilson concluded the meeting between the expert and his counsel addressed more than simply superficial cosmetic changes. In fact, Wilson noted there were deletions or modifications to some content that was helpful to the plaintiff. Wilson found that while the expert’s opinion didn’t change as a result of the discussions, defence counsel’s suggestions certainly helped to shape it.

Wilson took great issue with the common approach by counsel towards reviewing draft reports. She stated: “For reasons that I will fully outline, the purpose of Rule 53.03 is to ensure expert witness’ independence and integrity. The expert’s primary duty is to assist the court. In light of this change in the role of the expert witness, I conclude that counsel’s prior practice of reviewing draft reports should stop. Discussions or meetings between counsel and an expert to review and shape a draft expert report are no longer acceptable.”

With respect to the issue of how counsel may be able to appropriately give feedback to an expert on a report, Wilson suggests it must be in writing with disclosure to the opposing party. “If after submitting the final expert report, counsel believes that there is need for clarification or amplification, any input whatsoever from counsel should be in writing and should be disclosed to opposing counsel,” she wrote.

Wilson expressed her view that Rule 53.03 precludes meetings between counsel and an expert in relation to a draft report since they lead to a perception of bias or actual bias and put lawyers in conflict as a potential witness. “The practice formerly may have been for counsel to meet with experts to review and shape expert reports and opinions. However, I conclude that the changes in Rule 53.03 preclude such a meeting to avoid perceptions of bias or actual bias.

Such a practice puts counsel in a position of conflict as a potential witness, and undermines the independence of the expert.”

To comply with Wilson’s comments, counsel will now have to receive the expert’s final report without having reviewed a draft and then, if necessary, request any clarification in writing while disclosing any such letter to opposing counsel as an attachment to any addendum report.

With the inability to review draft reports, counsel will only engage experts they know to be extremely familiar with expert report writing and the complexities that come along with it. Those complexities include an understanding of the various causation and legal tests.

While Wilson’s reasoning on this issue appears to have the commendable goal of ensuring experts can freely voice their unbiased opinions without interference or pressure from the retaining lawyer, her comments may have the unwelcome consequence of forcing counsel to rely only on experienced professional experts they know will use the correct lingo. As a result, it would perhaps be better to address the hazards of reviewing draft reports through effective cross-examination.

Darcy Merkur is a partner at Thomson Rogers practising plaintiff’s personal injury litigation, including plaintiff’s motor vehicle litigation. Darcy is a certified specialist in civil litigation and creator of the personal injury damages calculator.

Lobby group doing its job 0 The Insurance Bureau of Canada is an association representing private companies, not you

BY ALAN SHANOFF ,TORONTO SUN

FIRST POSTED: SATURDAY, JANUARY 25, 2014

 

Readers of this column might reasonably wonder if my keyboard is attached to the Insurance Bureau of Canada’s keyboard.

It seems every time I write a column on the insurance industry, a follow-up letter-to-the-editor or column appears from the desk of the IBC.

I sometimes feel like Butch Cassidy when he asked the Sundance Kid about the posse tracking them, “They’re beginning to get on my nerves. Who are those guys?” So, who are those guys?

The name, Insurance Bureau of Canada, may sound as if the IBC is part of or affiliated with the government or some Crown agency, but that’s not the case.

The IBC is a creation of Canada’s private insurance companies. It’s an association that represents them. Basically, the IBC is a lobby group.

As lobbyists, they encourage governments to change laws to benefit their members and they donate money to politicians and political parties.

They gave $25,000 to the leadership campaign of Kathleen Wynne.

Last year, they gave the Ontario Liberal Party $30,250.

As lobbyists, they have an enviable record of furthering the agenda of insurance companies, having pushed the Ontario government to cut accident benefits in 2010.

They continue to push for “reform” which would reduce the number of accident victims who qualify for the highest level of accident benefits.

The IBC has been successful in framing the discussion of car insurance premiums by continuously focusing on the subject of insurance fraud.

Why are auto insurance premiums so high and why do Ontario drivers pay the highest premiums in Canada?

According to the IBC, it’s largely due to insurance fraud.

Never mind that the numbers it trots out for insurance fraud have barely budged in 20 years and are based on data provided by the insurance industry.

Now, the IBC appears to be shifting its approach by mounting an advertising campaign which seems to blame Ontario’s insurance regulator for the high premiums we face.

On January 16, IBC full-page ads in Toronto dailies, including the Toronto Sun, asked the question, “Ever wondered who decides what you pay for auto insurance?” The ads answer the question with “Ontario’s government-appointed regulator sets those rates.” The message seems to be don’t blame the insurance companies for the high premiums, blame the government regulator.

That’s a nice bit of spinning.

But here’s what the regulator, the Financial Services Commission of Ontario, says about the setting of premiums:

“Insurers must submit proposed changes to their rates to FSCO for approval along with supporting actuarial data. FSCO and its actuaries review this data and insurers’ assumptions regarding claims costs, expenses and investment income to ensure that, as required by law, the proposed rates are: just and reasonable, not excessive, and not going to impair a company’s long-term financial solvency. As a result of FSCO’s review, an insurance company may be required to amend its proposed rates before the rates are approved.”

FSCO also makes it clear it has no say in individual premiums; it only approves an insurance company’s average rate.

Each insurance company sets its own policies on how individual premiums are affected by factors such as the owners’/drivers’ history, the type and age of the car, the usage of the car, where the owner lives and other factors.

Market conditions are also factored into the mix. That’s why different insurance companies will quote and charge remarkably different premiums for the same owner and car.

While the IBC posts some educational information material on its site, it doesn’t hesitate to criticize accident victims as it does in a YouTube video, portraying them as snakes, with the narrator complaining about therapy going on and on after reasonable treatment goals have been met.

So the next time you see an IBC letter to the editor, column, ad or video, remember the IBC is a lobby group doing what it can to further the agenda of its members.

That’s its job. And it does it very well. 

INJURIES DRIVE COSTS

Re “Time to speak up about car insurance” (Alan Shanoff, Jan. 12): We agree but there are a few points to note. The 2010 reforms were designed to address auto insurance abuse by those who derive income providing services to people involved in collisions. In 2009, the average cost of a medical/rehab claim in Ontario was $55,343, compared to $6,135 in Atlantic Canada and $2,776 in Alberta. It was clear the cost of a medical/rehab claim in Ontario was excessive, especially as a majority of claims were for minor sprains and strains. The 2010 reforms helped limit abuse. In 2012, the average cost of a medical/rehab claim was $26,594. Opponents of independent medical examinations (IME) have their opinion, but insurers rely on IMEs to provide fair and balanced second opinions. It’s regrettable that insurers have to resort to IMEs so frequently — a cost to the system that insurers would like to avoid. However, they’re used because of the large number of claims seeking to skirt reforms by claiming to have more serious injuries. IMEs are conducted by regulated health professionals who are members of regulated health colleges. Medical assessors are expected to attend to the interests of the injured person before all else. Colleges will impose sanctions if conduct is suspect.

RALPH PALUMBO

Vice-President,

Ontario

Insurance Bureau of Canada

(The issue isn’t one of “opinion”. The reality is that genuine accident victims are constantly being assessed by biased individuals who have a vested interest in keeping costs to the insurance companies low. That’s entirely different from reducing fraud)

DROWNING IN FINE PRINT

Re: “Time to speak up about car insurance” (Alan Shanoff, Jan. 12) Insurance companies are in business to make money and they have a very powerful lobby. To expect thems to “play fair” with the insured is like hoping a bully will return the lunch money they took from you. For hundreds of years, these companies have been operating on one principle — drown the victims with “fine print” and let them die a slow and often painful death. It’s been called the biggest legalized racket in the world because governments are in partnership with insurance companies by making laws requiring us to have auto insurance coverage. The big health insurance mess in the U.S. is another glaring example of these powerful insurance companies doing their best to make life difficult for the hapless public.

ALFRED TSANG

MARKHAM

(There are certainly many examples of it happening)

Ontario Moving Closer to a New Treatment Protocol for Minor Injuries

On a recent snowy morning, a group of auto insurance stakeholders got together at Lakeridge Health in Oshawa for an all-day information session on some of the research findings of the Minor Injury Treatment Protocol Project (MITPP).  This was the first public presentation (although it was by invitation only) of the research team's work.

The MITPP originated in FSCO's Report on the Five Year Review of Automobile Insurance which recommended that examining the feasibility of expanding the PAF Guidelines to provide a more extensive continuum of care and to include the treatment and assessment of other soft tissue injuries (Recommendation #23).  Following an open competitive Request for Proposal process, a two-year contract was awarded to team of researchers led by Dr. Pierre Côté from the University of Ontario Institute of Technology and the Canadian Memorial Chiropractic College in the spring of 2012. 

The project team will be delivering a report to the Superintendent later this year that provides:

•  Recommendations regarding a treatment protocol for minor injuries and

•  Recommendations regarding a clinical predictive rules to screen for patients who may be a risk of developing chronic pain.

There have been significant progress made by the project team and to date have completed the following tasks:

•  The project team has developed a methodology for developing a new tasks including a process for identifying relevant studies for consideration.

The project team has updated the research carried out by the World Health Organization's Neck Pain Task Force (NPTF) study which was released in February 2008.

The project team has also now finished reviewing research on the treatment of neck pain.

There are some significant tasks that still need to be completed before the final report is submitted to the Superintendent.  Those tasks include:

The project team will need to complete the review of research on the treatment of other minor injuries, not related to neck pain (for example, headaches, low back pain, injuries to extremities, temporomandibular disorders, minor brain traumatic brain injuries).

Make recommendations regarding a treatment protocol for minor injuries.

Make recommendations regarding a clinical predictive rules to screen for patients who may be a risk of developing chronic pain.

The project team developed some rigorous standards which were used to decide whether to consider a study for the project.  Their literature search produced over 100,000 papers.  Only published studies that underwent peer review and followed appropriate research protocols were considered.  For example, opinion papers and unpublished documents were not included.  A team of graduate students reviewed the papers to determine if they met the standards.   Many studies were inadmissible because of small sample sizes or possible bias.  In the end fewer than 200 papers made the cut. 

The day was filled by research associates presenting on topics related to the treatment of neck pain.  Unfortunately, I cannot report on any of the findings.  The information is being embargoed until it is published as a series of papers in a scientific journal later this year.  A similar approach was taken by the NPTF which published its finding in aspecial supplement of Spine Journal on April 28, 2008.

The final report of the MITPP will be considered by the government later this year.  Implementation will not only require the release of a new Minor Injury Guideline by FSCO but will likely require regulation changes and an extensive education campaign directed at health care providers, insurance adjusters and the public.