The Ontario Trial Lawyers Association is calling for the provincial government to conduct a public inquiry into medical assessments of people injured in auto accidents.
The OTLA charges medico-legal experts distort evidence to satisfy insurance company clients.
It also cites concerns over reduced coverage and delays, as well as unfair denial of coverage.
“There have been several cases before the courts and the Financial Services Commission where judges and arbitrators have found that experts have failed to act as neutral, independent, and impartial witnesses, but rather have acted as hired-gun advocates. The judges and arbitrators have made it clear that they find this conduct unacceptable,” says Steve Rastin, of Barrie, Ont.-based Rastin and Associates and OTLA’s immediate past president. “The expert should give the same opinion whether he or she is hired by the insurance company or by the claimant. The opinion should be the same.”
Both the OTLA and the FAIR Association of Victims for Accident Insurance Reform have called for a public inquiry. The trial lawyers are pressing the Ontario government to establish a commission to examine the state of medical assessments of injured auto accident victims. The victims’ group wants the quality of medical evidence used in auto insurance claims explored through an inquiry.
David Marshall, former president and CEO of the Workplace Safety and Insurance Board, began his new role as adviser of auto insurance and pensions to Ontario Finance Minister Charles Sousa on Feb. 1, 2016, and the trial lawyers wasted no time in highlighting what they feel is a critical issue.
Rastin says medical experts are under pressure to act favourably on behalf of the insurance companies. Some, he adds, are doing just that, serving as advocates for the insurance companies.
Experts are meant to be neutral and impartial and serve the courts, not one side or the other. Rastin suggests medico-legal experts who have been found repeatedly to be an advocate for one side be disqualified from testifying.
“Experts have been found to be advocates to certain parties and that is a distortion of the system,” says Rastin, adding that wrongly keeps victims from accessing the benefits that they need.
But, counters David Festeryga, medical witnesses — those who make a living treating or assisting accident victims — advocate on behalf of victims as well.
Festeryga, a Hamilton lawyer with Sullivan Festeryga LLP, is also first vice president of the Canadian Defence Lawyers. While he says advocacy does occur, they are the court’s experts and are controlled by the courts.
“Certainly, anyone who is biased will be vetted out by the court system,” says Festeryga. “If a medical examiner is biased, they will not last very long.”
Rule 53 of the Rules of Civil Procedure clarify the expert’s role to highlight that it’s up to the trier of facts, be it a judge or adjudicator, to decide whether the information an expert witness presents is biased or neutral.
“I don’t think it’s a problem,” says Festeryga.
Peter Karageorgos, director of consumer and industry relations for the Insurance Bureau of Canada, says Ontario’s insurance industry has been under examination and that has resulted in many changes with more on the way.
“The system as it currently stands has been tweaked and tinkered with for quite some time,” says Karageorgos. “The challenge continues to be that cost pressures are impacting the premiums that people are paying.”
And he strikes back at the trial lawyers’ request, suggesting that one area that hasn’t been examined is the amount of money personal injury lawyers make on claims.
In a written response to the OTLA statement, Ontario’s Ministry of Finance says the government seeks to balance the needs of injured claimants while ensuring affordable auto insurance. Recent changes, it adds, will help identify and treat injuries from collisions so the injured can receive the treatment they need while minimizing disputes in the auto insurance system.
But auto accident victims have been facing more hurdles on their road to recovery, says Rastin. He says it has become more difficult for those seeking general damages for pain and suffering. There is also a statutory deduction removed from any damages awarded, which has increased in recent years.
Attendant care benefits were cut in half to $36,000 from $72,000 and caregiver benefits and housekeeping are gone. The maximum limit for rehabilitation was also cut.
The current medical assessment system, Rastin says, further stifles victims’ access to compensation by requiring letters from doctors and ongoing exams.
Rastin says he hopes his group will have a chance to meet with Marshall in his new role as auto insurance advisor as they seek an independent assessment of the current system.