Imagine having to suffer and endure serious and chronic injuries as a result of a motor vehicle accident due to no fault of your own, and then undeservingly labeled a “malingerer” or the like by an insurer’s “independent” medical examiner (often referred to as a “hired gun”). And imagine if because of this expert’s opinion, you are denied funding for rehabilitation and lost income. Unfortunately, this scenario is not uncommon.
Insurers typically use independent medical examinations in two scenarios:
- When their own insured needs coverage for ongoing treatment or therapy (referred to as Section B benefits)-although these examinations are not technically considered to be “independent”; and
- When defending their at-fault insured driver (who they are required to also indemnify) against a third party’s bodily injury claim.
Independent medical examiners are required to be objective and impartial. A biased expert witness raises the potential for a miscarriage of justice. Recent court decisions, however, highlight the recurring problem of expert bias. For instance, in the Alberta Court of Queen’s Bench decision of McLean v. Parmar, 2015 ABQB 62, the Honourable Madam Justice K.M. Eidsvik flatly rejected the expert testimony of the defence neuropsychologist, stating at paragraphs 32 and 33:
The Defendants’ neuropsychologist expert was Dr. Green. His evidence was not only off base on the facts but was offensive, unhelpful and distressing. An expert is supposed to approach a case with an open mind. This is especially so in cases such as this one where the problems are mainly of a soft tissue and psychological nature…
Dr. Green testified that 40% of personal injury Plaintiffs “malinger to get money out of the system”. He said that there were “numerous studies about this” but did not give any references to them. Later, when discussing the treatment note that stated that the Plaintiff suffered from anxiety post-accident and as a result had difficulty driving a small car, he indicated that he did not believe the Plaintiff because he “has heard too many cock and bull stories from people trying to get money out of the system”. In my view, Dr. Green is blatantly biased against Plaintiffs and he tarred Ms. McLean with this brush. His views therefore are not helpful. In my view, this bias taints and discredits everything Dr. Green had to offer to the Court.
In the Ontario Superior Court of Justice decision of Bruff-Murphy v. Gunawardena, 2016 ONSC 7, the Honourable Mr. Justice P. Kane similarly rebuked the expert testimony of the defence psychiatrist that “the plaintiff is faking”, stating at paragraphs 64 to 65 and 122 to 125:
Dr. Bail testified in conducting an IME, he does not accept what the person being assessed says due to their possibility of seeking secondary gain. He at the same time has a financial incentive in repeatedly being engaged to conduct IMEs by defendants.
He testified that his job is to determine whether the person’s description of their condition is accurate and he makes a diagnosis based on that. He stated that he explores and follows up leads to see if what they are telling him is truthful. He stated his responsibility is to critically assess and determine whether their claims are bona fide. A private investigator hired by the defendant might similarly describe their mandate.
Dr. Bail was not a credible witness. He failed to honor his obligation and written undertaking to be fair, objective and non-partisan… The vast majority of his report and testimony in chief is not of a psychiatric nature but was presented under the guise of expert medical testimony and the common initial presumption that a member of the medical profession will be objective and tell the truth.
The vast majority of Dr. Bail’s testimony to the jury amounted to nothing other than the following:
- The plaintiff did not tell me the truth in my interview;
- Here are all the instances I found in my 10 to 12 hour review of her medical records which prove that she did not tell me the truth;
- If I as a psychiatrist cannot believe her; how can you?
The primary purpose of R. 4.1.01 is to prohibit and prevent such testimony in the guise of an expert. Dr. Bail undertook and thereby promised to not do what he did in front of this jury.
I will not qualify witnesses as experts in the future whose reports present an approach similar to that of Dr. Bail in this case.
Accordingly, if you are injured in a motor vehicle accident, it is always advisable to seek the advice and representation of an experienced personal injury lawyer.