According to a recent Law Times story, Canadian lawyers are split over a British ruling that abolished the rule granting expert witnesses immunity from lawsuits (see “
U.K. ruling spurs debate on expert immunity,” April 18).
But on which side of the debate do the experts fall in the ensuing discussion over Jones v. Kaney? As an orthopedic spine and trauma surgeon who has been an expert medical witness for both plaintiffs and defendants, I say bring it on.
I agree with Victoria lawyer Erik Magraken, who told Law Times the decision “is a welcome development from the perspective of accountability. . . . Being an independent expert can be lucrative 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 everyone, including expert witnesses, should be responsible for their actions.
That may seem simplistic, but if Canada adopted this approach, I would have no problem. 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 development within this area as part of the revised Rules of Civil Procedure enacted Jan. 1, 2010, related to advocacy and bias. The changes deal with Form 53, something every medical expert witness has to sign before proceeding.
Think of the form as a mental jog to remind 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.
The form reinforces the fact that we are being non-partisan and objective. In my opinion, 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 specific 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 action 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 objectivity were willfully doing it. They 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 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 expert investigates a claimant alleging symptoms and finds nothing, what could be the source of the complaint? Studies show that the number of complaints often varies with the potential for compensation.
One study, for example, revealed that when one province changed to no-fault insurance in the 1990s, there was a significant reduction in the number of claims, presumably because the money wasn’t there.
The 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. They don’t result in fractures.
They don’t lead to things you can see on an X-ray. The most common scenario is the hit-from-behind car accident that generates the so-called whiplash associated disorder — basically a sore neck.
In the search for objective findings, the medical expert has to look for the mechanism of the injury. In every hit-from-behind accident, it takes two to tango. The hitter typically never gets hurt. If it’s a low-velocity frontal 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.
They’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 fit an organic complex. If I tap you on the head with a feather and you complain that you’re having terrible and disabling headaches, I’m not going to accept that at face value.
That’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 experts will say they do.
So as cases involving Form 53 start making their way through the system, I’m hoping 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.
The bottom line is that while having experts sign Form 53 is a solid start, we now must follow up and ensure there are repercussions. 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 [email protected] or 416-480-6775.
