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LAw times • August 22, 2011 Campaign shifts into high gear again as Labour Day looms and the rhetoric gets louder. Oct. 6 is the offi cial elec- tion date, but the skirmishes have long been underway. Th e Liberals are positioning themselves as the party On- tarians can trust to do the right thing, while the Conservatives talk about change and fi scal re- straint. Th e NDP, meanwhile, is looking to surge up the mid- dle as disaff ected Grit support- ers shift to the left and into its camp. Th e party will perhaps ride the same sentiment that sent federal NDP Leader Jack Layton to head up the offi cial Opposition benches in Ottawa. Mindful of how the NDP T surge crushed the federal Lib- erals in May, Premier Dalton McGuinty will need to leverage every ounce of his political guile and experience. In a political version of threading the needle, he'll have to attack the Tories while continuing to undermine and raise questions about the NDP. Th e really tricky part will be to present his record of poli- cy decisions in a positive light. NDP Leader Andrea Hor- wath is a real threat because McGuinty and his party will have trouble swaying those vot- ers who chose the Liberals in the last election in reaction to then-Tory leader John Tory's gaff e over full funding for faith- based schools. Where the Liberals need gains is on the left wing of the party to shore up votes that may bleed away. McGuinty has already hammered at a wedge issue by noting David Suzuki's criticism of the Ontario NDP for abandoning its core values. "One of my biggest con- cerns, and this was voiced by David Suzuki, is they've jet- tisoned their principles rather than stand up for the environ- ment," McGuinty said recently. "Why would they not support our clean energy policies? Why would they not support our plan to shut down coal-fi red generation, clean up our air, and create new jobs through and in areas like solar-panel manufac- turing and wind-turbine instal- lations around the province? Leadership calls upon us to fi nd a way to move forward. And I just don't understand why they're not there with us on those kinds of fundamental is- sues which they have seemed to stand for in the past." Expect more of the same. McGuinty will likely attack Conservative Leader Tim Hudak more personally as someone who can't be trusted and under- mine the NDP's stance on the higher moral ground. It seems to be resonating, at least for now. A Nanos Re- search poll in mid-August sug- gested the NDP was stalled he long-running On- tario election cam- paign is shifting gears Inside Queen's Park By Ian Harvey while McGuinty's popularity had soared to put him close to Hudak. Still, polls at this stage are more of a guide than any trend since the summer doldrums are upon us. After Labour Day, the political sphere moves back to centre stage. With the glori- ous red and yellow colours of autumn falling from the trees, lawn signs will sprout and pam- phlets will proliferate in our mailboxes. In the meantime, polls at this stage mean little. In June, for example, just as the sum- mer hit, a Forum Research poll had the Grits at their lowest point with 26 per cent of vot- ers backing them to the Tories' 41 per cent. Th at latest Nanos poll has them at 37 per cent compared to 42 per cent for their main rivals. What does it all mean? Who knows? Th e Tories were running negative ads about McGuinty earlier on while more recently the Liberals have responded with their own scathing per- sonal attacks against Hudak. If anything, it all proves that ad- vertising works. What we know, however, is that in the 2007 general election, the standings went like this: the Liberals had 71 seats; the Tories 26; and the NDP 10. McGuinty scored just over 42 per cent of the vote against Tory's 31 per cent while the NDP took 16 per cent. Clearly, the Tories have a long way to go to close the gap and get the 54 seats needed for a ma- jority government. Still, they've targeted ridings where they think the Liberals are most vulnerable, especially those where the incum- bent isn't running again. In the latter case, there's a plethora of possibilities as 13 Liberals won't stand again ver- sus four Conservative MPPs and two for the NDP. In addition, there are 30 ridings where the margins of defeat in 2007 were between roughly one and 11 per cent, which means there are gains to be had for all parties. It all adds up to an all-out war. If you thought the attack ads were dirty so far, wait un- til the gloves come off and the knives really come out. It's going to make for an entertaining run up to Th anks- giving. Ian Harvey has been a journal- ist for 34 years writing about a diverse range of issues including legal and political aff airs. His e-mail address is ianharvey@ rogers.com. COMMENT PAGE 7 U.K. shows way forward on expert accountability BY DR. MICHAEL FORD For Law Times granting expert witnesses immunity from lawsuits (see "U.K. ruling spurs debate on ex- pert immunity," April 18). But on which side of the debate do the ex- A perts fall in the ensuing discussion over Jones v. Kaney? As an orthopedic spine and trauma surgeon who has been an expert medical wit- ness for both plaintiff s and defendants, I say bring it on. I agree with Victoria lawyer Erik Magraken, who told Law Times the decision "is a welcome develop- ment from the perspective of accountability. . . . Being an independent expert can be lu- crative and plays an important role in our system." In short, Britain has lifted the 400-year-old old rule decreeing that expert witnesses were free from the threat of liability if they made a mistake in their testimony. Now they can be liable. I like Britain's approach because ev- eryone, including expert witnesses, should be responsible for their actions. Th at may seem simplistic, but if Canada adopted this approach, I would have no prob- lem. It's only fair. For example, if I assault someone on the street, I should pay the price. By the same token, if I make an error or I provide care that's below standard, I should be held responsible and I am. I don't see why that responsibility should disappear because I'm now acting as an expert on the witness stand in court. Having said that, there has been a develop- ment within this area as part of the revised Rules of Civil Procedure enacted Jan. 1, 2010, related to advocacy and bias. Th e changes deal with Form 53, something every medical ex- pert witness has to sign before proceeding. Th ink of the form as a mental jog to re- mind the expert to be objective. As we now have to put that down on paper, witnesses are starting to realign themselves and recognize that they need to be more objective. Th e form reinforces the fact that we are be- ing non-partisan and objective. In my opin- ion, it came about because too many experts were taking the side of the plaintiff or the defence. It was obvious from reading their reports. Some, in fact, were making diagnoses based on supposition rather than on what was objectively there with respect to specifi c musculoskeletal pathology. As well, I'm sure some were deliberately being advocates so they could get more business. But I think the issue was more often at the subliminal level where they somehow felt an obligation to be a little bit more on one side of the fence than on the other. Everybody wants to please others, especially the person who has hired them. On the surface, you would think it's a basic concept that the expert witness' duty is to the court. It shouldn't have come to having to do this, but the government needed to take ac- tion because some people do need reminders about objectivity. Let's be clear, however. I'm not saying that the vast majority of experts who lacked ob- jectivity were willfully doing it. Th ey weren't lying. But some of them did slide into the habit of making a diagnosis in the absence of anything objective. You shouldn't do that, of course, because when you are dealing with cases involving compensation issues, you can't www.lawtimesnews.com ccording to a recent Law Times sto- ry, Canadian lawyers are split over a British ruling that abolished the rule Speaker's Corner accept everything at face value. Obviously, if a patient complains about having terrible symptoms, the expert can't take that to conclude that the person has a very bad impairment or disability. I would go as far as saying that all medical experts have dealt with people claiming a disability but then went on to see them on surveillance tapes performing in a manner that should not be possible. I certainly have. In one case, a claimant said he was so severely impaired that he could hardly make his bed or get dressed, but a surveillance video showed him working as a male stripper and throwing a woman who was easily 160 pounds into the air as though she weighed nothing. When a medical ex- pert investigates a claim- ant alleging symptoms and fi nds nothing, what could be the source of the complaint? Studies show that the number of complaints often varies with the potential for compensa- tion. One study, for example, revealed that when one province changed to no-fault insur- ance in the 1990s, there was a signifi cant re- duction in the number of claims, presumably because the money wasn't there. Th e fact of the matter is the majority of car accidents are relatively minor. It's only a minority that result in an individual being maimed. Th ey don't result in fractures. Th ey don't lead to things you can see on an X-ray. Th e most common scenario is the hit-from- behind car accident that generates the so- called whiplash associated disorder — basi- cally a sore neck. In the search for objective fi ndings, the medical expert has to look for the mechanism of the injury. In every hit-from-behind acci- dent, it takes two to tango. Th e hitter typi- cally never gets hurt. If it's a low-velocity fron- tal impact, the occupants of the car that hits from behind do not get hurt. In addition, those involved in high-energy impacts, even when they've ended up with fractures, do not complain of neck and back pain later on. Th ey'll only complain of their broken femur, injured pelvis, and smashed tibias or feet. It doesn't make any sense that someone involved in a low-energy accident that doesn't result in any fractures complains of neck and back pain. But still, the system is churning to the brim with cases just like this. I don't care what people's symptoms are; they have to fi t an organic complex. If I tap you on the head with a feather and you com- plain that you're having terrible and disabling headaches, I'm not going to accept that at face value. Th at's ridiculous. It's the same thing with claimants who have been involved in a low-speed frontal impact. I know they do not have terrible neck and back pain. Yet some ex- perts will say they do. So as cases involving Form 53 start mak- ing their way through the system, I'm hop- ing we're going to see a decline in advocacy reports. Sadly, if there are no consequences, Form 53 probably won't stop the advocacy reports. What they are doing in Britain means there is a price to be paid for making a mistake. You can be sued now. It's a good direction. Th e bottom line is that while having ex- perts sign Form 53 is a solid start, we now must follow up and ensure there are repercus- sions. It's the cost of doing business. 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 416-480-6775.