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.
Source: otlablog.com/the-not-so-independent-medical-examination/
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