In his recent article in Law Times, Dr. Michael Ford applauds the Ontario Court of Appeal on its decision in Moore v. Getahun and the finding that counsel indeed is entitled to discuss with an expert the contents of the expert’s report. During the trial, the judge had ruled that such contact was improper and experts really should be left to their own devices based on submitted material information to come to their opinions. In his article, Ford suggests an independent medical examiner can come to a fair and unbiased opinion even after conversing with referring counsel.
To understand what Ford means by an independent medical examiner, readers can look at an earlier submission by him on March 11, 2013 (see “An expert witness’ friendly advice on information he needs from lawyers”). In it, Ford went through a litany of data, tests, information, photographs, and so on he would require to help him discredit a plaintiff he was called on to examine on behalf of an insurer. He goes to great lengths to describe how clinical notes and records prior to the motor vehicle accident are a godsend in finding a plaintiff misrepresented the symptoms emanating from the accident. A very telling comment in the earlier article is where Ford stated that it is amazing how often he gets notes from the time of the accident and onward and he really does not care about that. What he wants are the notes predating the event. Why? Because some people are dishonest, he said.
Over the years, I have seen reports from many orthepedic doctors who are favoured by insurance companies. In all of them, there is a certain consistency of casting doubt on the honesty and integrity of accident victims. These doctors simply believe that when complaints are subjective, they are plainly false or exaggerated. I remember a case from many years ago where I acted for an elderly lady who was knocked down by a streetcar. Counsel for the TTC asked her to list all of her injuries. He then asked her, “Do they cause you pain?”
She stared at him for a moment and replied, “You should have such pain.”
Perhaps if defence doctors use that criteria, they might come to a more balanced opinion and not one clearly intended for the benefit of their insurance masters.