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Letter: Doctor's comments about experts challenged

In his recent article in Law Times, Dr. Michael Ford applauds the Ontario Court of Appeal on its decision in Moore v. Getahun and the finding that counsel indeed is entitled to discuss with an expert the contents of the expert’s report. During the trial, the judge had ruled that such contact was improper and experts really should be left to their own devices based on submitted material information to come to their opinions. In his article, Ford suggests an independent medical examiner can come to a fair and unbiased opinion even after conversing with referring counsel.

To understand what Ford means by an independent medical examiner, readers can look at an earlier submission by him on March 11, 2013 (see “An expert witness’ friendly advice on information he needs from lawyers”). In it, Ford went through a litany of data, tests, information, photographs, and so on he would require to help him discredit a plaintiff he was called on to examine on behalf of an insurer. He goes to great lengths to describe how clinical notes and records prior to the motor vehicle accident are a godsend in finding a plaintiff misrepresented the symptoms emanating from the accident. A very telling comment in the earlier article is where Ford stated that it is amazing how often he gets notes from the time of the accident and onward and he really does not care about that. What he wants are the notes predating the event. Why? Because some people are dishonest, he said.

Over the years, I have seen reports from many orthepedic doctors who are favoured by insurance companies. In all of them, there is a certain consistency of casting doubt on the honesty and integrity of accident victims. These doctors simply believe that when complaints are subjective, they are plainly false or exaggerated. I remember a case from many years ago where I acted for an elderly lady who was knocked down by a streetcar. Counsel for the TTC asked her to list all of her injuries. He then asked her, “Do they cause you pain?”

She stared at him for a moment and replied, “You should have such pain.”

Perhaps if defence doctors use that criteria, they might come to a more balanced opinion and not one clearly intended for the benefit of their insurance masters.
Bert Raphael,
Raphael Barristers,
Toronto

Comments   

0 # Michael Ford 2015-06-29 15:50
Mr. Raphael has misquoted me in the previous article that I had written that he cites. I did not say that I need material to" discredit" the plaintiff. I need all of the material that I have in order to generate an objective opinion. As an officer of the court, I'm sure he is well aware of the fact that objective factual information is extremely important. Regardless of whether it is a criminal or civil matter. I can only cast doubt on the honesty of a plaintiff if that factual information does not corroborate their statements. By the same token, their honesty and integrity can be confirmed by the information that I have. Does he really expect the court to accept, at face value, everything the plaintiff says? Surely he doesn't believe that every plaintiff is completely and totally honest. In his last paragraph
Mr. Raphael talks about using" that criteria". What criteria is he referring to? Perhaps he can clarify what he means.
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0 # brian francis 2015-06-29 10:50
RE: "These doctors simply believe that when complaints are subjective, they are plainly false or exaggerated."

Dr. Michael Ford - Orthopaedic Surgeon Maxwell v. Luck
[18] The court heard from the defence expert medical witness, Dr. Michael Ford, a spine and trauma surgeon at Sunnybrook dealing with serious fracture cases.
... He categorically dismisses chronic pain complaints unless, as he said, he can see or understand the mechanism causing the complaint.... Dr. Ford simply dismissed Ms. Maxwell and wrote a report concluding without even a full examination of the patient, that any complaints she had now must come from her prior or other medical history ... I do not accept Dr. Ford’s opinion nor do I sense that Dr. Ford has an understanding of the fundamental aspect of those chronic pain cases, which lack objective proof.
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