Toronto doctor loses libel bid
Judge ruled email warning lawyers about altered reports was ‘fair and reasonable’
A Toronto doctor has lost his bid to sue the past president of the Ontario Trial Lawyers Association for libel over an email she sent to other lawyers, warning that he altered medical reports on victims of car accidents to thwart their insurance claims.
In a 44-page judgment, Justice Sean Dunphy dismissed the libel suit, writing that lawyer Maia Bent’s concerns about Dr. Howard Platnick have merit and that there is a “public interest” in not stifling debate about reports from medical experts.
“There is credible and compelling evidence before me that the defences of justification and qualified privilege . . . are reasonably likely to succeed,” Dunphy wrote, adding that Bent’s comments about Platnick “appear to have been substantially true and correct or are fair and reasonable comment upon those facts.”
Platnick’s lawyer, Tim Danson, said he and his client are disappointed by the decision and plan to appeal.
Platnick, a family physician, has worked almost exclusively over the last decade as a “medical expert” for insurance companies or assessment companies hired by insurers to evaluate claims.
Bent expressed concerns about his reports in an email to 670 lawyers on the Ontario Trial Lawyers Association listserve in November 2014, a week after dealing with him at an arbitration hearing over an insurance claim at the Financial Services Commission of Ontario.
Bent, then president-elect of the Ontario Trial Lawyers Association, was representing a client who had been in a car accident and whose claim for catastrophic injury had initially been denied by TD Insurance.
In assessing the claim, TD retained assessment company Sibley SLR to obtain independent medical assessments from specialists. Sibley asked Platnick to sum up the specialists’ reports in an “executive summary report.”
Platnick wrote that the “consensus conclusion” of specialists in this case was that the accident claim was not serious enough to warrant a catastrophic impairment rating.
But a neurologist who had assessed the accident victim had testified at the hearing that he had no input into this conclusion and that important sections of the report he had prepared for Sibley had been removed without his knowledge, Bent wrote in her email to colleagues.
Platnick’s report formed part of the basis for the insurance company’s initial denial of the accident victim’s claim, the decision states.
But following the neurologist’s testimony at the arbitration hearing, TD Insurance suddenly changed its tune.
“(TD’s lawyer) must have received instructions from the insurance company to shut (the case) down at all costs . . . because it offered an obscene amount of money to settle, which our client accepted,” Bent wrote in her email.
Bent’s email stated that other reports from Sibley had also been altered:
“We obtained copies of all the doctor’s (files) and drafts and there was a paper trail from Sibley where they rewrote the doctors’ reports to change their conclusion from our client having a catastrophic impairment to our client not having a catastrophic impairment.”
Bent wrote that she had dealt with another case in which Platnick had changed a doctor’s decision from “a marked to a moderate impairment.”
That case related to Platnick phoning a specialist and persuading her to change her report so that it “corresponded with the economic interest of his client,” the decision states.
Bent advised fellow lawyers that, in similar cases, they should always get files from assessors and Sibley.
The email was leaked to the FAIR Association of Victims for Accident Insurance Reform, which commented upon it in an insurance industry newsletter.
Platnick sued Bent, charging that he was dropped as a service provider by many insurance companies as a result of her words.
Danson said that Platnick’s charter rights have been violated under Ontario’s new anti-SLAPP legislation, which is aimed at enabling public discussion without fear of retribution through “strategic lawsuits against public participation.”
Sebley vice-president Bikram Daulay said he had no comment. Phone calls to TD Insurance were not returned.
In his decision, which was released on Dec. 1, Dunphy wrote that the public interest is better served by dismissing the suit.
“(Platnick’s) suit has in fact had a substantial chilling effect on discussion and debate about the proper use and utility of this type of derivative expert’s report in the accident benefit claims process,” he wrote.
Dunphy said Platnick’s finding in the case “was most certainly false and misleading.”
Bent declined to comment on the case, but her lawyer, Howard Winkler said:
“I believe that Ms. Bent was a hero for exposing what she learned. The case also represents an important opportunity to reconsider the role of executive summary reports commissioned by insurers in the determination of catastrophic injury claims in Ontario. In my view, it is a practice that should be immediately abandoned.”