Doctors and other medical professionals play a critical role in an injured person’s insurance and legal cases. For the most part, doctors and medical professionals play a positive and helpful role, treating the injured person’s injuries and disabilities. Doctors and other medical professionals are also called upon to perform examinations that can greatly influence and even determine:

whether an insurer will pay for recommended treatment

payment of income replacement benefits

the quantum and duration of accident benefits

whether an injured person will be compensated for her injuries

The doctors and medical professionals who perform these examinations are supposed to be fair and unbiased. These examinations are commonly referred to as an independent medical examinations, or IMEs. Unfortunately, the more accurate definition for IME is insurer medical examination. Too often doctors and medical professionals performing these examinations are skewed and even biased against the injured victim in favour of the defendant and/or insurance company. The result is that an already vulnerable person is victimized again in her pursuit of justice.

One of the most difficult problems with the current system is that there is usually no way for an injured victim to know the history of the doctor who is performing the examination.  For example, if a particular doctor has been the subject of multiple complaints, the injured victim has no way to know about these previous complaints. All complaints are kept secret by the College of Physicians and Surgeons of Ontario, the body that regulates doctors in Ontario, unless and until there is a formal finding of misconduct by College against the doctor. Increasing transparency will result in greater fairness to all injured victims.

But doctors are fighting to keep all investigations and complaints secret from the public. Alan Shanoff describes the efforts being made by doctors to maintain secrecy in his column in the November 30, 2013 Toronto Sun.

The lack of transparency is not limited to complaints made against doctors to the College. The civil legal system in Ontario also protects doctors and other experts from past judicial findings or commentary that a particular doctor or expert was an advocate for one side, provided misleading evidence or was acting as an independent expert.  For example, there is one particular expert who has had the following written about him by judges and arbitrators in past cases:

“Dr. X went further to suggest that Mr. Gordon was malingering. But when he was challenged on cross-examination, he did not have a foundation for such an opinion.”

“These answers [by Dr. X] appear to me to be given by an expert who has become an advocate for the party calling him as a witness. That is not the role of an expert witness who is allowed to provide expert opinion evidence.”

“I also give little weight to the psychiatric reports of Dr. X who was more concerned with attributing Mr. Rocca’s ongoing symptoms to renewed narcotics abuse, than with addressing the disabling effects of Mr. Rocca’s symptoms.”

“In his testimony, Dr. X downplayed the likelihood of suicide as the result of motor vehicle accidents, stating that he had never seen a similar situation in his examination of some 4,000 motor vehicle accident cases. Dr. X’s observations, while perhaps literally correct, is at the very least, somewhat misleading.”

“Dr. X testified at the hearing that he discounted much of Mr. Sohi’s stated concerns because of perceived inconsistencies in the materials provided to him as well as his presentation during the interview…Indeed, Dr. X presented as a notably partisan witness…Likewise, Dr. X’s partisan approach and his focus on inconsistencies are troubling and seriously weaken the credibility and weight of his testimony.”

All of the above commentary are about one expert retained by insurance companies and defendants in a legal action involving an injured person. Notwithstanding that these judicial findings are public, in any subsequent case, the doctor cannot be confronted with these past judicial findings. These past findings are kept secret from the jury/judge/arbitrator hearing the new case. That is not fair.

To protect injured persons in Ontario, the law should allow an expert to be questioned about College investigations and past negative judicial findings. We agree with Mr. Shanoff that there should be more transparency. Injured victims should know the history of the doctors who are examining them. More transparency will only strengthen the integrity of the insurance and judicial systems in Ontario.

Contributed by Kristian Bonn, an OTLA Director and a lawyer practising with Bonn Law Office in Trenton, Ont.

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