Law Times

Law TiMes • March 11, 2013 T Page 7 COMMENT Time for legislature to start passing bills he last couple of sessions of the Ontario legislature have been more notable for what they didn't address than anything they really accomplished. That doesn't mean there weren't bills on the agenda. They just didn't go anywhere. The second session of the 40th parliament started Feb. 19th and already there are 20 bills either tabled or pending, four of which are housekeeping but the rest of which lend colour to what's going on at Queen's Park. More pointedly, the Progressive Conservatives have tabled 11 of them mostly in a ploy to paint Premier Kathleen Wynne and the NDP's Andrea Horwath into a corner on the left where PC Leader Tim Hudak can tar them with the same brush and further differentiate himself to voters. Rookie NDP MPP Catherine Fife, elected scant days before the government shut the legislature last fall, also got in on the bills party with a proposal to prevent abuse of prorogation. The Liberals also have a couple of bills on the table, including one banning teens from tanning beds. Another notable proposal is bill 11, the ambulance amendment act dealing with ORNGE. But even in trying to do the right thing, the government has stepped on some political landmines again. In the wake of the debacle exposed by some excellent and dogged investigative reporting by the Toronto Star, the Ombudsman Act to Marin's government intends to increase oversight of air ambulance proQueen's portfolio.hopes logical heads One viders, including giving "the Park will prevail at committee, but lieutenant governor in council the name of the game in this power to appoint provincial session is survival as Wynne representatives to sit on the stalls for time while distancing board of a designated air ambuherself from former premier lance service provider and for Dalton McGuinty's legacy and the minister to issue directives hoping voters will be kinder as to designated air ambulance memories fade. service providers." The Conservatives, meanIt goes on to provide protecIan Harvey while, have a plethora of bills tion for whistleblowers and for on the table. For example, bill 2 the appointment of special investigators. The big shocker was the criti- seeks to cancel the Planning Act in terms of cism from André Marin, the ombudsman schedules related to the Green Energy and who accused his political masters of rein- Green Economy Act's override of municipal opposition to wind farms. Bill 3 would venting the wheel. "Special investigators under bill 11 tinker with s. 116 of the Public Transporwould enjoy authority similar to that of my tation and Highway Improvement Act to office," he wrote in a letter to Minister of ensure fair treatment for transit in cities in Health Deb Matthews as well as opposition relation to highways in rural areas when critics Christine Elliott and Gélinas. "But it comes to gas-tax rebates. Bill 5 would they would report to the minister of health freeze public sector compensation for two and long-term care. They would not be in- years and bill 13 would change the Builddependent. Far from being watchdogs, they ing Code Act to allow wood-frame buildings up to six stories high. would operate on a ministerial dog leash." PC MPP and right-winger Randy Marin goes on to call his office "the gold standard in keeping maladministration at Hillier is also pushing a bill that would bay" and he's got a point. A cash-strapped allow employees to opt out of Workplace government has no business adding an- Safety and Insurance Board coverage and other layer of impotent bureaucracy when instead enrol in a private insurance plan as what it should do is add ORNGE and any long as it meets minimum standards. The bills make for interesting discussions, other agency not currently covered by the but the reality is it's the pending budget bill hanging over the legislature like the Sword of Damocles that really matters. Get it right and Wynne buys more time. If she slips, it's off to the polls and all those bills instantly become yesterday's headlines. And that's a shame, especially in the case of the Hawkins Gignac act that Conservative MPP Ernie Hardeman has tirelessly brought forward session after session only for the legislative clock to run out. The bill would amend the Fire Protection and Prevention Act to require carbon monoxide detectors in specific buildings and is named after Ontario Provincial Police officer Laurie Hawkins who died along with her husband and two children in 2008 when they were overcome by carbon monoxide. Similarly, Liberal MPP Mike Colle's Jayesh's law, which would protect gas station attendants from penalties by their bosses for drive-away thefts and suspend the driver's licences of offenders, is deserving of a decent discussion. Sadly, the odds of any of these bills running the gauntlet of process and coming into force in this current climate are slim to none. LT Ian Harvey has been a journalist for 35 years writing about a diverse range of issues including legal and political affairs. His e-mail address is ianharvey@rogers.com. An expert witness' friendly advice on information he needs from lawyers BY DR. MICHAEL FORD For Law Times A the family physician's notes, they're quite often totally and completely illegible. As a doctor, I can't even read this other physician's notes. We're supposed to be able to, but sometimes they're so bad you can't even get a single word or the gist. So instead of the expert having to ask to go back to the family physician and get them transcribed and typed, lawyers should look at the notes and if they can't read them, they should save everyone time and get them deciphered. When it comes to surveillance, it's typically useless information. Unless it's one of those rare circumstances where the surveillance shows the claimants doing something they allege they're totally unable to do, it's not pertinent. Lawyers should screen it first to see if it addresses their claim but should otherwise not include it in the package and waste time on the expert's end going through it to come to the same conclusion. There are a few things we don't need. For instance, correspondence from insurance companies is a total waste. The forms sent to the insurance company for approval of care and benefits aren't useful from a medical perspective, nor is any correspondence between them and counsel. Psychological reports don't help either except from the perspective of getting more insight into the individual. Finally, I have a few tips on how to present the information. I'll sometimes get a package that isn't indexed and is just a pile of materials. It's a waste of time and money because I spend more time than I should have to in order to generate a report. At the same time, if the individual is someone who has difficulties with English, an interpreter would help. By the same token, it's surprising how many times an interpreter shows up for no reason. Don't assume the need for one. It can also be helpful to provide police reports and photos of vehicle damage. Often, there's a discrepancy between the claimant's description of the event and reality. LT u SPEAKER'S CORNER s an expert witness in the area of orthopedic trauma surgery, lawyers often ask me what they should provide in order to get an objective and informed opinion. That begs the obvious question: Don't lawyers already know what to put in the box? In fact, they don't always know. What follows, then, is an expert witness checklist offered in the spirit of friendly medical advice. First, provide the decoded OHIP summary and family physician's notes. Claimants are not always reliable with respect to the description of their past medical history of neck or back pain and the family physician's notes are extremely telling. The OHIP summary comes from the Ministry of Health and is a listing by date of all health services provided by all professionals. We need both to arrive at an accurate picture. We also need the summary and notes to go back several years prior to the event whether it's a slip and fall or a motor vehicle accident. It's amazing how often I get notes that are from the time of the incident onward. I don't care about that. I want to see the notes predating the event. Why? Because some people are dishonest. In the notes, I will often find that there is a significant prior history of neck or back pain predating the event. They're not misleading about having the pain; they're being untruthful about their past medical history. I've had situations where I've asked for the notes and I've seen there have been 50 visits for neck and back pain and 100 treatments from a chiropractor even as the claimants maintain they've never had any problems before the event. Surprisingly, they don't know I'm going to see the records or that I'm going to look at them, which is incredibly naive. The difficulty is that I have to ask for those notes about 50 per cent of the time as they're not in the box. Second, we need imaging. The imaging, including X-rays and MRIs, are very rarely in the package and ideally it's best if the lawyers could actually send those on a CD-ROM. I'll see the reports arising from the imaging, but that's a description by an individual of a picture and not the same thing as seeing it. If the report mentions something with respect to potential pathology, I want to see that imaging to ensure that it is in fact significant. The issue is that radiologists will call things significant in a report that we don't agree with. That's because it's not their backyard; they don't get to see the imaging and then go do the surgery and see what's clinically significant. I get the imaging in less than 10 per cent of the files and in another 20 per cent I will have to ask for it. Why? I think lawyers for the most part assume the report is as good as seeing the picture. It's important that lawyers not assume. It's vital for me to deliver an opinion that is objective and accurate because I could potentially be up on the stand answering questions about whether I actually saw the pictures and I'll have to respond that I did not. That's not a situation any expert wants to be in. Ensure the materials are up to date. It's unbelievable how often I'll see someone and all of the records stop two years prior. I'll hear from claimants that they just had an MRI or surgery six months ago but I have no records. There's a lag time between my seeing them and the incident. The need for current records includes the family doctor's notes, other expert reports, imaging studies, and other tests. Why? Claimants may not offer up the fact that they've had surgery or additional investigations and I need that to know what to look for. To be objective, you can't take what the claimant says at face value. This is not a situation where you're seeing a patient who's there merely to seek your help with a cure or for treatment. This is, for the most part, an adversarial situation and the individuals are seeing me as a defence expert because the lawyer for the other side wants them to see me. It's a little different when I'm seeing them for plaintiff 's counsel but they're still not necessarily being completely honest with their lawyer either. So I need to have as much factual material as possible to come to an objective decision. In addition, the notes must be legible. When I get www.lawtimesnews.com Dr. Michael Ford is an orthopedic spine and trauma surgeon at Sunnybrook Health Sciences Centre who has more than 20 years of medical legal experience. He can be contacted at michael.ford@sunnybrook.ca or 416480-6775.

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