Doctors and Ethics in the Personal Injury World

February 06, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Both personal injury lawyers and insurance companies rely on the expertise of medical professionals in building their cases. For personal injury lawyers the focus is on accessing the benefits that their clients are entitled to after an accident to make certain they recover fully from their injuries, and to allow them to live a normal life. The focus of insurance companies is obviously different. Their focus is to pay out what they perceive to be the appropriate settlement under their policies.

Conducting IEs can be very lucrative business for medical professionals. The Globe and Mail reported that in BC the ICBC paid more than $1 million to two individuals doctors in a 15-month period. Many others earned between $250,000 - $500,000 working for the insurer.

Recently Courts and tribunals across the country have begun to question the impartiality of hired medical professionals. It isn’t hard to understand that professional opinions can be swayed inadvertently by the prospect of repeated work from particular clients.  However, there have been some particularly egregious examples have surfaced lately.

In June a British Columbia judge rejected the expert testimony of a psychiatrist in a car accident case. In this case, a woman was rear ended in a car accident. Five years later she continued to report of debilitating headaches. The psychiatrist argued that the woman did not have a concussion. The Judge, Justice Sewell said in his ruling that the psychiatrist was adamant in his approach that the woman was in no distress at all. He barely acknowledged their existence in his assessment and did not offer any explanation for why they would occur. The doctor was found to be both argumentative and adversarial under cross-examination. He lacked impartiality and objectivity.

The judge noted that impartiality and objectivity are required attributes of an expert witness. Their ability to be reasonable is required. In this particular case the Justice ultimately decided to give no weight to the physician’s testimony. This wasn’t’ the first time that this particular physician had been criticized for his demeanor.  Judges have noted the income this doctor has generated over the years by producing his IEs for the ICBC.

At a certain point it becomes difficult to ignore the source and percentage of yearly income gained by any expert witness for any one party or sector.

The Globe and Mail did an investigation on the concerns about independent medical evaluations that doctors complete for Insurance companies. Many reports throughout Canada have been found to be inaccurate or unfairly biased. In response to the Globe and Mail’s article the Ontario government indicated that it would establish independent assessment centres which would assess peoples’ injuries.

It does not occur often that courts or tribunals rebuke expert witness testimony. As it is happening more often we are left to wonder whether the testimony is in fact more biased than in the past, or whether the courts have seen enough and begun to call out specific blatant abuses of privilege.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.