National Post (National Edition)
You have good experts, you have bad experts … and you have a system that is working very hard to try to end the use of experts who are biased in one way or another.
HOW MEDICAL EXPERTS HELP CAR INSURERS FIGHT ACCIDENT VICTIMS
— LAWYER ERIC GROSSMAN ON THE ISSUE OF EXPERT TESTIMONY IN INSURANCE CASES
YOU HAVE GOOD EXPERTS, YOU HAVE BAD EXPERTS … AND YOU HAVE A SYSTEM THAT IS WORKING VERY HARD TO TRY TO END THE USE OF EXPERTS WHO ARE BIASED IN ONE WAY OR ANOTHER. — ERIC GROSSMAN, LAWYER THIS WORK IS SO ADVERSARIAL, I DON’T EVEN LIKE DOING IT.
In the years after being rear-ended in a car accident, Liese Bruff-McArthur saw a small army of medical professionals. Most agreed the crash had left her with chronic pain, depression, PTSD and other troubles, making a return to work untenable.
Then she met Dr. Monte Bail.
Hired by the insurance company she was suing, the psychiatrist spent an hour and a quarter with the Ottawa-area woman — the kind of work that earned Bail as much as $77,000 a month — and concluded Bruff-McArthur was essentially faking it.
After listening to the doctor’s testimony late last year, a jury awarded the motorist nominal compensation, which meant she would actually get nothing.
But then a judge did something unusual, castigating Bail for biased, invented evidence in the “guise” of being a medical expert. A few months later, a different judge cited that case and others and refused to even let the psychiatrist examine another accident victim.
“Dr. Bail … fell far short of his obligation to be fair, objective and non-partisan,” wrote Justice Paul Kane at the Bruff-McArthur trial. “(He) was not a credible witness.”
In personal-injury lawsuits that are by nature adversarial, “independent medical examiners” like him are supposed to be above the fray — highly regarded professionals who assess patients impartially.
But the decisions critiquing Bail were among a series in recent years to paint many of those doctors and other experts as “hired guns” whose appraisals inevitably give insurers what they want — a reason to deny the injured benefits.
Most of the cases have escaped public attention. But the issue came to the fore this month when a judge tossed out the libel suit filed by another doctor/assessor, siding with the lawyer who accused the physician of massaging the facts to help his insurance-company client.
A string of written judgments suggests the doctor’s alleged bias was anything but unique in the insurance world.
Ontario physiatrist Dr. Rajka Soric — an expert in physical medicine and rehabilitation — was repeatedly criticized as recently as this year for acting as an “advocate” for insurers; a fellow member of the specialty, Dr. Stanley Debow, was accused by a judge this January of stepping “way outside of his area of expertise” to help the company that hired him.
A judge in Calgary last year flatly rejected the testimony of a neuropsychologist testifying for an insurance company.
“Dr. (Paul) Green is blatantly biased against plaintiffs,” said Court of Queen’s Bench Justice Kristine Eidsvik. “This bias taints and discredits everything Dr. Green had to offer to the court.”
And such cases are likely just the tip of the iceberg, say lawyers representing accident victims, the plaintiffs. Judicial criticisms arise only in the five per cent or so of cases that get to trial, they note, so most instances of bias stay under wraps as lawsuits are settled out of court.
“It’s clear from the (reported) cases that it is far too prevalent,” says Adam Wagman, a plaintiff lawyer and president of the Ontario Trial Lawyers Association. “That attacks the very foundation of our system of justice.”
For claimants like BruffMcArthur, there are more than just principles of justice at stake.
If an expert concludes an injury doesn’t exist, that motorist can be denied funding for rehabilitation or lost income, often essential to resuming a normal life, says Rhona DesRoches, who runs Ontario’s Association of Victims for Accident Insurance Reform.
A biased expert witness raises “the potential for a miscarriage of justice,” said the judge who refused to let Bail examine a patient.
But the psychiatrist himself says he’s been unjustifiably attacked by the courts, arguing he does assessments almost exclusively for insurers simply because lawyers for the other side don’t take him on.
If his opinions usually align with the insurance company that employed him, Bail said, it’s only because he’s asked to examine a minority of cases that have already raised suspicions.
“To have your reputation impugned in that way … it’s not right, it’s a major unfairness in my mind,” he said about Kane’s comments. “I’m not partial to the insurance side … If I find that what the patient is saying is true, I really go to bat for them, and I don’t care if that lawyer will ever hire me again.”
While almost all the judicial criticism has been levelled at doctors retained by insurance companies, even lawyers who represent victims admit there is a roster – though smaller – eager to help their side, too.
A 2011 court ruling in Ontario, for instance, concluded Dr. Darrell Ogilvie-Harris, an orthopedic surgeon, was acting not as an impartial expert but as an advocate for the injured plaintiff in the case.
As for experts testifying for insurers, their alleged bias for the company signing the pay cheque is often just a perception, based on the fact they do most of their assessments for the defence, argues Eric Grossman, an insurance-side lawyer.
“You have good experts, you have bad experts … and you have a system that is working very hard to try to end the use of experts who are biased in one way or another,” he said.
Regardless of who’s paying or how that might influence opinions, there is certainly lots of work, with insurance companies handling 364,000 auto claims and dispensing $2.3 billion in accident benefits in 2013, the most recent year reported, according to the Insurance Bureau of Canada (IBC).
And IBC statistics for one province, Ontario, suggest insurers can spend more on medical assessments than actual injury compensation: $10,700 vs. $9,700 per average claimant in 2011.
Companies typically demand an independent exam in two scenarios: where people sue their own insurer to obtain no-fault benefits they’ve been denied, or sue the at-fault driver’s company for more damages.
The experts’ remuneration can be generous.
Dr. Soric made $450,000 in 2015, mostly from assessments for insurance companies, and yet “incredibly” still believed she could be seen as neutral, a judge commented at a trial this June. Dr. Lawrence Reznek, another psychiatrist, revealed in a 2013 case he spends 25% of his time on assessments — mostly for insurers — but the income is double what he earns from his clinical practice the rest of the time.
“There are no shortage of doctors who are looking for sources to augment their income, and this has been a very lucrative one,” said Grossman.
The industry says it has good reason to have experts scrutinize injury claims. Companies estimate that auto-insurance fraud costs hundreds of millions of dollars a year, some of it involving elaborate staged collisions that trigger phoney health-care claims, with networks of health providers in on the scams.
And the cases where expert opinions become critical typically involve chronic pain, soft-tissue injuries like whiplash, or psychological problems — issues that can’t be decided with an X-ray or other physical evidence.
But Brenda Hollingworth, Bruff-McArthur’s lawyer, argues fraud is rare among those who actually sue, saying that drawn-out, stressful litigation makes for a lousy get-rich-quick scheme.
“The benefits for a standard policy are so low, why would you give up a job, even if you’re only earning $35,000, to earn $19,000?” asks Jokelee Vanderkop, who described her own auto-insurance travails in a book, So You Think You’re Covered — the Insurance Industry Rip-off.
Bail did 5,500 assessments during his 25 years in the business, charging as much as $5,000 each and performing seven to 14 a month, he testified at BruffMcArthur’s trial last year. All but “a few dozen” were for insurers.
And for almost two decades, some adjudicators have accused him of having a pro-insurance bias. Judges in 1999, 2004, 2007 and 2014 called him an advocate or partisan for his insurance clients.
None of that prevented Bail from testifying last December about Bruff-McArthur, saying he did not believe the car crash had caused her any psychological problems, and that the woman’s account of her injuries was not credible.
The judge devoted nine pages to explain why he was rejecting Bail’s evidence, then concluded the plaintiff’s claims were “strongly supported” by several other witnesses.
Bail notes bitterly that the assessment work has dried up since. He complained about the judge to the Canadian Judicial Council, only to be told Kane had a right to his opinion.
“This work is so adversarial, I don’t even like doing it, really,” says the psychiatrist. “Maybe it’s a blessing in disguise. Maybe it’s a relief not to do these any more, because it’s just not worth the aggravation.”
Meanwhile, the judge’s comments — made in response to a legal motion — were little more than a moral victory for BruffMcArthur, pregnant at the time of the crash. The jury had already delivered its verdict: a $23,000 award that fell below the minimum threshold for damages in such cases.
Bruff-McArthur would get nothing— and be on the hook for the insurer’s likely massive legal costs, too.
An appeal is under way.