The practice of having an expert summarize the reports of all the other experts in a personal injury case may be on the way out, after a recent court decision slammed their misuse. The selective quoting of expert findings to present an outcome more favourable to one side has brought the practice into disrepute.
Platnick v. Bent, 2016 ONSC 7340 involved a libel claim against the Ontario Trial Lawyers Association’s immediate past president, Maia Bent, by a Toronto physician about whom she had posted warnings on the confidential OTLA chatline. While Listserve is accessible only to OTLA members, the posting was subsequently leaked, resulting in a decrease in the doctor’s work.
Adam Wagman, president of the OTLA, says most of the executive summary reports are used in an accident benefits context.
“To some degree, they have become routine,” he says. “Through important decisions like this, we can break the routine and shine a light on the problem that has existed for a long time.”
Bent had referred to two cases, in the first of which Dr. Platnick prepared a report that he said presented the “consensus conclusion” of a team of doctors, namely that Bent’s client did not achieve the catastrophic impairment rating as outlined in the Statutory Accident Benefits Schedule, when in fact the doctors had not participated or endorsed the report.
In Platnick, Justice Sean Dunphy said, “[T]he reports are not an objective summary of the underlying medical reports themselves so much as a summary of the conclusions reached by Dr. Platnick himself, applying their expert observations to his own understanding of the operation of the SABS regulations and the criteria incorporated therein.”
He also said, “The characterization of Dr. Platnick’s personal conclusion as a ‘consensus conclusion’ in the ESR was most certainly false and misleading.”
In the second case mentioned on Listserve, Dr. Platnick persuaded a physician to change her opinion, to the insurer’s benefit.
Bent successfully brought a motion to dismiss the libel suit in the Superior Court of Justice Ontario. Dunphy found that “the portions of the email referring to the plaintiff appear to have been substantially true and correct or are fair and reasonable comment upon those facts.”
He also weighed the public interest in the matter in Bent’s favour, saying, “The plaintiff’s suit has in fact had a substantial chilling effect on discussion and debate about the proper use and utility of this type of derivative expert’s report in the accident benefit claims process whereas substantially all of the damages alleged by the plaintiff arise either from the unauthorized and unanticipated leak of the email communication to a broader audience by others and the ‘broken telephone’ manner by which its contents were conveyed to some of the plaintiff’s clients, neither of which avenues of damage appear reasonably likely to be shown to have been caused by the defendant.”
“The case is not really saying anything against consensus reports themselves,” observes Richard Shekter of Shekter Dychtenberg LLP in Toronto. “It’s saying the co-ordinator of it didn’t fairly or accurately represent the other opinions. He prepared a summary and said it was a consensus report. He didn’t speak to the constituents.”
Josh Nisker, a partner at McLeish Orlando LLP in Toronto, says misrepresentation in ESRs is a serious matter.
“As it stands, accident victims’ rights are eroding. Historically, they’ve been reduced and still are being reduced,” he says. “They don’t need, on top of restricted access, medical professionals engaging in this type of behaviour.”
Wagman questions the use of the reports at all.
“There’s no provision in the legislation,” he says.
“It’s a construction of the insurance industry and, for the most part, the assessors that serve them. These assessors and all stakeholders should consider whether it is even necessary or appropriate in the circumstances of the particular case. In the vast majority of cases, they are doing nothing more than reiterating the other reports.”
Nisker says, “When you have different physicians or specialists opining on different areas, on occasion, one person’s opinion may result in a diagnosis of catastrophic impairment in and of itself. Each on its own doesn’t necessarily meet the threshold.
“It’s useful to have a consensus report as long as it’s done in a complete formulaic manner,” he says. “There should be no discretion offered to the person, because as you saw in the Bent case, it’s open to manipulation.”
Wagman says that, in rare cases, because of the nature of the claim made and the injury sustained by the victim, a report might be necessary.
However, he says, the consensus must be real and meaningful.
“When individual assessors are not actually coming together to form a consensus, it is a sham,” he says.
“When someone else is reviewing and arriving at a consensus, that’s not a consensus at all. The individual assessors must communicate in order to formulate a consensus.”
Nisker says a report can be useful depending on how it is used.
“If, as in this case, you hold it out as a consensus report, there has to be a meeting of minds and discussion about how the findings affect the determination of the case,” he says.
