Law Times

Law Times • January 9, 2012 FOCUS Document fees pushing up claims costs Continued from page 12 "Th ey lobbied the government to reduce the minor injury cap to $3,500. We can no longer get medical assessments for more than $2,000. Th ere's legislation for that. Why not legislation for this? Why are they going after accident victims when hundreds of thousands of dollars are being paid in claim-handling costs?" But insurance bureau spokesman Steve Kee notes the organization hasn't taken a po- sition specifi cally on that issue. Th e organization has moved to obtain caps on treatment fees for physiotherapists, chiroprac- tors, and massage and occupa- tional therapists but it's much more concerned with the issue of service utilization, specifi - cally in relation to the number of hours and visits and the use of multiple treatment plans. Out of sheer frustration, Foisy has taken action him- self by registering a complaint with one of the major pharma- ceutical chains over diff ering fees among its franchises for prescription summaries when it charges far less to dispense medication. "Th e response was that they are comfortable with each individual store charging a fee for this service at their own discretion and in this particular case $100 for a one- page summary was acceptable." If the lack of interest in the is- sue among industry bodies con- tinues, Foisy believes the govern- ment should review the matter itself. "Why are they allowing a free market on record produc- tion? In cases of claims adjudi- cation and litigation, this cost is eventually borne by the insured, which is another reason why claims costs are so high. Instead of reducing claims costs, they have moved to reduce accident victim benefi ts, as has been seen in the latest changes to the statu- tory accident benefi ts." Medical experts policy needs more work: college Continued from page 9 it of the issues." Another issue highlighted by the OBA is the dif- ference between fact and opinion evidence. "Where a doctor in the course of treatment makes notes in- cluding diagnosis and prognosis, those are facts but to some degree opinion as well," says Stevenson. "However, that is not what we lawyers call an opin- ion. An opinion of a doctor in legal terms is what a doctor gives when he or she professes an opinion for a litigation process. Any doctor can testify as to facts but they are only qualifi ed to give an opinion in a specifi c area. Doctors need direction where the line is drawn because it has to satisfy not only the legal rules but their own ethical rules as well." Another complex area is access to and retention of records. "It's a very interesting and diffi cult topic," says Stevenson. "I completely understand their need to question it because it is not cut and dry in the le- gal community either. For example, if I'm acting for a plaintiff in a medical malpractice case where a doctor is negligent in some sort of surgery, there are two pos- sibilities. Th e most likely is that the expert I retain for use at trial will go through several drafts of their report. Th ere is debate over whether they should keep the for- mer drafts to show how their opinion developed and then be cross-examined on them or alternatively, that the drafts could be shredded in favour of the fi nal prod- uct. If the fi rst theory applied, all documents would have to be retained. "Another contentious scenario is where I retain a doctor and then, as I am permitted to do under the rules, I decide I'm not going to use him. Do I shred his evidence because it is not going to be used? Th e [col- lege's] policy says he has to retain it." E.V. Litigation & Financial Services Inc. Elaine G.Vegotsky, CMA, CFE, CFI Assisting you in Litigation & Forensic Accounting, Financial Investigations Suit e 900 4 5 Sheppar d Avenu e East, Willowdale, Ontario M2N 5W9 Toronto, Ontario M2N 5W9 Telephon e o r Fax (416 ) 930-1370 (905) 731-5812 evlitigation@rogers.com It's issues like this that make it diffi cult for the legal profession to give clear guidance to its medical coun- terparts. "Some aspects are subject to considerable de- bate in the legal profession," says Stevenson. "Privilege is not under dispute. It is sacrosanct in the legal profes- sions and there would be little debate amongst lawyers of the need to protect it, but even lawyers debate about the retention of records." For the moment, Clarkson notes that the medical experts policy needs further work. "All feedback we have received will be considered in fi nalizing that draft, and we will issue a revised draft for further discussion." Stevenson is confi dent that the fi nal guidelines will be of meaningful assistance. "Th e lawyers at the [col- lege] are really top-notch. It is really a question of refi n- ing what they've come up with in a collaborative eff ort to make sure all areas are covered." PAGE 13 TRUST you're putting your reputation on the line. It's all about trust well placed. Vlit_LT_Jan9_12.indd 1 12-01-03 11:38 PM STACEY STEVENS | DAVID MACDONALD | MICHAEL BENNETT Since 1936 Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. As a law firm specializing in civil litigation, we have a record of accomplishment second to none. With a group of 30 litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. Moreover, we are exceptionally fair when it comes to referral fees. We welcome the chance to speak or meet with you about any potential referral. We look forward to creating a solid relationship with you that will benefit the clients we serve. YOUR ADVANTAGE, in and out of the courtroom. TF: 1.888.223.0448 T: 416.868.3100 W: www.thomsonrogers.com ThomsonRogers_LT_Jan9_12.indd 1 www.lawtimesnews.com 12-01-04 2:56 PM

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