Law Times

Law Times • January 9, 2012 Focus On INSURANCE LAW Lawyers helping doctors with expert evidence standards Policy aims to address issues raised by Goudge inquiry BY JUDY VAN RHIJN For Law Times to create a professional stan- dard of expert evidence even while they struggle with many uncertainties themselves. Their submissions on the draft policy for third-party processes pre- pared by the College of Physi- cians and Surgeons of Ontario are helping to refine the guide- lines to cover all eventualities. The effort by the medical L profession arose from concerns about the devastating effect of the testimony of disgraced pediatric forensic pathologist Charles Smith. In mid-2010, the college approved a policy that was so well received by the Ontario Medical Association and external stakeholders that when a draft medical expert policy was tabled six months later, its council directed that it be incorporated into the third- party document. The goal was to have one policy document applicable to treating physi- cians, independent examiners, and medical experts who pro- vide information and opinions to third parties. The council wanted to avoid drawing dis- tinctions between the three roles to avoid confusion and overlap between them. The re- sulting draft was subject to a consultation period that closed in August 2011. Colin Stevenson, chair- man of the Ontario Bar Asso- ciation's civil litigation section, applauds the effort. "They are responding to the issues around the possible negative impact of medical testimony as highlighted by the Goudge report. It's a very good attempt to solve the problem, but there is a bit of a struggle with the legal principles." Stevenson notes it's always difficult to define general poli- cies to apply across the board. In fact, the college has now abandoned its attempt to have an all-inclusive document. Kathryn Clarke, senior com- munications co-ordinator for the college, says that at the No- vember council meeting, there was a decision to retain the awyers are attempting to guide the medical pro- fession in its endeavour "The main point raised by the OBA was with respect to legal privilege," says Stevenson. "The draft guidelines focused on one aspect of the medi- cal profession where privilege is not so important, namely where a doctor is appointed to provide an independent medi- cal assessment in a personal injury/motor vehicle accident- type situation and there is no privilege." Another legal principle 'They are responding to the issues around the possible nega- tive impact of medical testimony as highlighted by the Goudge report,' says Colin Stevenson. existing third-party process re- port and proceed with the de- velopment of a separate medi- cal experts policy. "We thought initially that we could combine them," says Clarke. "When we embarked on that initiative, we received feedback from stake- holders arising from the con- sultation that convinced us to keep them separate." Specifically, there were con- cerns that while general expec- tations regarding professional and ethical conduct are uni- versally applicable to all three physician roles, requirements and expectations will differ depending on the context in which the doctor is acting and the circumstances of the case. The council accepted that one document could only contain universal expectations but also that the profession finds de- tailed expectations more use- ful. The Medico-Legal Society of Toronto submitted that "much of the policy is framed in generalizations or ambigu- ous or undefined words which could be of more assistance to members in regulating their conduct if they were more precise." It suggested that the guidelines should provide spe- cific examples of circumstanc- es that take into account the realities of the legal process. raised by both the society and the OBA was the issue of con- flict. The draft guidelines in- clude repeated statements that members who are unsure about their obligations in complex matters should consult the Canadian Medical Protective Association (CMPA), a body that gives advice but is also a mutual defence union. The society argued that relying on its advice could present a seri- ous appearance of impropriety where it represents a party in the dispute. "Effectively, the CMPA is an insurance company," says Stevenson. "The draft policy suggests that where a doctor has a question about whether they have the requisite experi- ence or a conflict or an obliga- tion to inform the client of a suspicious finding, they should seek advice from the CMPA. That would be all right in an [independent medical asses- sor] situation. However, in the more normal situation where I retain Dr. A in a medical malpractice case and he has a question about his experience, the last thing I want is for him to go running to the CMPA, alerting it to the fact that a claim is coming, and informing See Medical, page 13 PAGE 9 ONTARIO LAWYER'S PHONE BOOK 2012 YOUR MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES AND COURTS With more than 1,400 pages of essential legal references, Ontario Lawyer's Phone Book is your best connection to legal services in Ontario. Subscribers can depend on the credibility, accuracy and currency of this directory year after year. 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• IP Scam
• Grain Francas
• Focus on Insurance Law