Law Times

Page 10 June 25, 2018 • Law Times www.lawtimesnews.com End use of ghostwriters in medical reports: lawyers BY MARG. BRUINEMAN For Law Times L awyers who act for plain- tiffs in personal injury cases are calling for the end of the use of ghost- writers in the creation of expert medical reports. And although the issue hasn't often been directly addressed in Ontario courts, there is indica- tion that the judiciary has found problems with the approach. "It's critical that the expert write their own report," says Ste- phen Birman, a personal injury lawyer and partner with Thom- son Rogers in Toronto. "I think it's kind of obvious that you would expect the medi- cal expert is going to prepare their own report in its entirety and the rules pretty much say that explicitly — that the exam- ining health practitioner shall prepare the report." Expert evidence is manda- tory in personal injury cases to prove injury and damages on both sides, says Birman. And it is necessary for them to be objec- tive and transparent. In the statutory accident ben- efits regime, there is a $2,000 cap on what insurance companies can pay for assessments. Some, such as neuropsychological as- sessments, can be comprehen- sive and involve collecting and reviewing a great deal of infor- mation. "I can see how it might have developed whereby some of these assessors outsourced part of the report-writing function," says Birman. "When an expert gets a re- quest to write an expert report, it doesn't just come with a letter; sometimes, it comes with a box of documents." That could involve having someone other than the expert reviewing and summarizing the documents. But if that does oc- cur, there has to be transparency that the person who is doing the document review is someone other than the person who is conducting the medical assess- ment, and they have to be pre- pared to be cross-examined on it, he says. There are concerns that the involvement of third par- ties — or ghostwriters — in the creation of these expert reports can completely change and alter their tone. In weighing in on the is- sue last year, Justice Helen Ma- cLeod-Beliveau of the Superior Court of Justice noted in Kush- nir v. Macari that litigation counsel deal with these kinds of conditions involving examina- tions regularly, but that they're rarely litigated. Among the concerns that she identified was that expert re- ports form the basis of counsels' assessment of the case and factor into their offers to settle. So, of- ten, those reports are not tested in court. She concluded that "the ex- pert report must be that of the expert and not a report written partly by administrative staff or other individuals employed by the agency through which the doctor provides expert ser- vices." Insurance defence lawyer Jennifer Hunter, a partner with Lerners LLP in Toronto, says the third-party companies handling the expert retainer on the law- yer's behalf become the middle man in the process. They retain the expert for the lawyer, handle the scheduling [and] the f low of medical records and deliver the report. Plaintiff lawyers concerned that the f low of information im- pinges on their client's privacy will request a condition that the expert medical report be written by the expert, she says. She sees potential for the judge's comments in Kushnir v. Macari to be applied to the use of experts beyond the medical field, such as engineers, because her ruling says the fact that the report is not written by the ex- pert affects the reliability of the opinion. "Kushnir could be interpret- ed very narrowly and I would ar- gue that it should be, but it could be argued or counsel could argue it more broadly," says Hunter. She suggests the best ap- proach for lawyers is to find out if others were involved in any ex- pert report, talk with the expert directly and have them disclose any third-party involvement in the report. In her own practice, Hunter says, she tries to avoid using companies that offer the ser- vices of medical experts so that she can maintain direct contact with the expert throughout to "understand their approach and how they're going to conduct the independent medical examina- tion, who's going to be involved [and] how the report is going to be prepared. Those things are important." Toronto personal injury law- yer Charles Gluckstein says he is concerned that the involvement of third-party providers may steer the reports to a particular bias. He says the court's obser- vation in Kushnir that few of these experts are tested because of the trend toward negotiation and avoiding trial is particularly noteworthy. The truth of the reports, their credibility and how they are as- sembled is not subject to the kind of scrutiny that's available had the case gone to trial, Gluck- stein says. "I thought that that was a particularly important decision, so now the plaintiff bar can use this as a weapon to ensure that defence assessments, whether it's done in the context of a tort claim or an accident benefit claim, have to be held to task, and these experts should not be able to get away with the ghost- writing and collaboration that goes on so that they can skew the outcome to a favourable result to the insurance company that's either defending the tort claim or the accident benefit claim," he says. Robert Deutschmann, prin- cipal of Deutschmann Law PC in FOCUS Stephen Birman says it's very important medical experts write their own reports to be used in personal injury cases. See Creation, page 12 W e live in a transi- tional time where new technology is radically changing our economies and lives at a seemingly breakneck speed. The legal industry is not immune to these changes, from the automation of our offices and practices, to the revolutionary evolution of transport technology and the legal and insurance regimes that underlay it. In particular the innovations that are steadily leading to self-driving vehicles will vastly change the way we move from place to place, receive goods, and transport products, as well as the way in which we perceive ownership and liability. Naysayers will point to recent self-driving vehicle tests that have resulted in human injury and use these to state that the technology will never work. The better question would be: what percentage of injuries or death have resulted from self-driving cars to date, given the thousands of kilometers of testing done as a whole, and how does this compare to people driven vehicles throughout the same time frame? Whether the technology becomes safe enough and broadly ad- opted in 5, 10, or 20 years, major auto manufactures, tech giants, and ride sharing companies are investing vast sums to adopt and perfect this technology because they are betting it will be revolutionary and lead to vast profits. The number one concern will be safety for humans, and whether we can truly trust an inte- grated driverless network of vehicles. How will insurance and the law adapt? Companies like Uber have already secured insurance policies for their drivers for example, but this is just the first step in a company like Uber's likely journey to fleets of driverless vehicles picking up people and transporting goods. How will the law change when a network of vehicles without human operation is in existence and a person's negligence is no longer responsible for an accident? Insurance, governments and the law histor- ically have been reactionary to technological change. Accidents in the future will likely be governed more by products liability in terms of software or hardware malfunction, and this will vastly change the scope of personal lawsuits for damages. Another factor to con- sider is that when vehicles operate on a vast integrated network, the incidence of accidents may drop consid- erably. This may be a major boon to society with more efficient transportation, lower health care costs, and hopefully much reduced insurance premiums, which may benefit many, but will inevitably cost some their jobs. Indeed, the Industrial Revolution in Europe and North America two centuries ago created socie- tal upheaval and in one of many examples of change cost many guildsmen, seamstresses, and tailors their livelihoods. One such worker would previously spend days producing a single garment, but within a few years of the revolution, a worker with the help of ma- chines could now produce dozens of garments in far less time. The result: retail clothing and the fashion industry, and a vast numbers of jobs that never existed previously. In other words, the next automation revo- lution is already happening, and with great change will likely come great upheaval, and as lawyers we had best be ready to be nimble and adapt. By Daniel Michaelson Self Driving Cars Sponsored by Neinstein_LT_June25_18.indd 1 2018-06-21 10:48 AM

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