Hired gun in a lab decorate: How medical experts help car insurers fight accident claims
January Five, two thousand seventeen Three:45 PM EST
Last Updated January 6, two thousand seventeen Three:13 PM EST
In the years after being rear-ended in a car accident, Liese Bruff-McArthur eyed a puny army of medical professionals. Most agreed the crash had left her with chronic agony, depression, PTSD and other troubles, making a comeback to work untenable.
Then she met Dr. Monte Bail.
Hired by the insurance company she was suing, the psychiatrist spent an hour and a quarter with the Ottawa-area woman – the kind of work that earned Bail as much as $77,000 a month – and concluded Bruff-McArthur was essentially faking it.
After listening to the doctor`s testimony late last year, a jury awarded the motorist nominal compensation, which meant she would actually get nothing.
But then a judge did something unusual, castigating Bail for biased, invented evidence in the «guise» of being a medical pro. A few months later, a different judge cited that case and others and refused to even let the psychiatrist examine another accident victim.
«Dr. Bail … fell far brief of his obligation to be fair, objective and non-partisan,» wrote Justice Paul Kane at the Bruff-McArthur trial. «(He) was not a credible witness.»
In personal-injury lawsuits that are by nature adversarial, «independent medical examiners» like him are supposed to be above the fray – very regarded professionals who assess patients impartially.
But the decisions critiquing Bail were among a series in latest years to paint many of those doctors and other experts as «hired guns» whose appraisals inevitably give insurers what they want – a reason to deny the injured benefits.
Most of the cases have escaped public attention. But the issue came to the fore this month when a judge threw out the libel suit filed by another doctor/assessor, siding with the lawyer who accused the physician of massaging the facts to help his insurance-company client.
A string of written judgments suggests the doctor`s alleged bias was anything but unique in the insurance world.
Ontario physiatrist Dr. Rajka Soric – an experienced in physical medicine and rehabilitation – was repeatedly criticized as recently as this year for acting as an «advocate» for insurers; psychiatrist Dr. Stanley Debow was accused by a judge this January of stepping «way outside of his area of expertise» to help the company that hired him.
It’s clear from the (reported) cases that it is far too prevalent.
A judge in Calgary last year flatly rejected the testimony of a neuropsychologist testifying for an insurance company.
«Dr. (Paul) Green is blatantly biased against plaintiffs,» said Court of Queen`s Bench Justice Kristine Eidsvik. «This bias taints and discredits everything Dr. Green had to suggest to the court.»
And such cases are likely just the peak of the iceberg, say lawyers signifying accident victims, the plaintiffs. Judicial criticisms arise only in the five per cent or so of cases that get to trial, they note, so most instances of bias stay under wraps as lawsuits are lodged out of court.
«It`s clear from the (reported) cases that it is far too prevalent,» says Adam Wagman, a plaintiff lawyer and president of the Ontario Trial Lawyers Association. «That attacks the very foundation of our system of justice.»
For claimants like Bruff-McArthur, there are more than just principles of justice at stake.
If an accomplished concludes an injury doesn`t exist, that motorist can be denied funding for rehabilitation or lost income, often essential to resuming a normal life, says Rhona DesRoches, who runs Ontario`s Association of Victims for Accident Insurance Reform.
Eric Dreger / The Canadian Press
A biased pro witness raises «the potential for a miscarriage of justice,» said the judge who refused to let Bail examine a patient.
But the psychiatrist himself says he`s been unjustifiably attacked by the courts, arguing he does assessments almost exclusively for insurers simply because lawyers for the other side don`t take him on.
If his opinions usually align with the insurance company that employed him, Bail said, it`s only because he`s asked to examine a minority of cases that have already raised suspicions.
«To have your reputation impugned in that way … it`s not right, it`s a major unfairness in my mind,» he said about Kane`s comments. «I`m not partial to the insurance side … If I find that what the patient is telling is true, I truly go to bat for them, and I don`t care if that lawyer will ever hire me again.»
While almost all the judicial criticism has been leveled at doctors retained by insurance companies, even lawyers who represent victims admit there is a roster – tho’ smaller – impatient to help their side, too.
A two thousand eleven court ruling in Ontario, for example, concluded Dr. Darrell Ogilvie-Harris, an orthopedic surgeon, was acting not as an impartial pro but as an advocate for the injured plaintiff in the case.
You have good experts, you have bad experts … and you have a system that is working very hard to attempt to end the use of experts who are biased in one way or another.
As for experts testifying for insurers, their alleged bias for the company signing the pay cheque is often just a perception, based on the fact they do most of their assessments for the defence, argues Eric Grossman, an insurance-side lawyer.
«You have good experts, you have bad experts … and you have a system that is working very hard to attempt to end the use of experts who are biased in one way or another,» he said.
Regardless of who`s paying or how that might influence opinions, there is certainly lots of work, with insurance companies treating 364,000 auto claims and dispensing $Two.Trio billion in accident benefits in 2013, the most latest year reported, according to the Insurance Bureau of Canada (IBC).
[np_storybar title=»How to solve the hired gun problem» link=»»]
The law already says doctors and other health workers should never become “hired guns” for insurance companies or patients in personal-injury cases. But it still happens, judges say. Here are some ideas being proposed to address the problem:
Transparency: Track and make public experts` histories as insurance witnesses: how often they`ve done assessments, for which side and what judges said about them. At least then, they could be decently assessed themselves.
Videotaping: Require medical assessments to be recorded, ensuring the pro`s final report reflects what happened in the interview.
Hot-tubbing: Adopt this colourfully named system where experts from both sides meet and produce a joint report, outlining areas of agreement and disagreement. Developed in Australia, it`s received good reviews in the U.K. recently.
Three strikes, you’re out: Bar from the witness stand experts who are repeatedly exposed as partisans for the side that hired them.
Discipline: Regulatory colleges should be more aggressive and proactive in policing members who are criticized for biased assessment work.
Less outside assessing: Accident victims` claims should be based largely on their own doctors` opinions, as happens when someone applies for coverage under workplace health insurance.
And IBC statistics for one province, Ontario, suggest insurers can spend more on medical assessments than actual injury compensation: $Ten,700 vs. $9,700 per average claimant in 2011.
Companies typically request an independent exam in two scripts: where people sue their own insurer to obtain no-fault benefits they`ve been denied, or sue the at-fault driver`s company for more damages.
The experts` remuneration can be generous.
Dr. Soric made $450,000 in 2015, mostly from assessments for insurance companies, and yet «exceptionally» still believed she could be seen as neutral, a judge commented at a trial this June. Dr. Lawrence Reznek, another psychiatrist, exposed in a two thousand thirteen case he spends 25% of his time on assessments – mostly for insurers – but the income is dual what he earns from his clinical practice the rest of the time.
«There are no shortage of doctors who are looking for sources to augment their income, and this has been a very lucrative one,» said Grossman.
The industry says it has good reason to have experts scrutinize injury claims. Companies estimate that auto-insurance fraud costs hundreds of millions of dollars a year, some of it involving elaborate staged collisions that trigger phony health-care claims, with networks of health providers in on the scams.
And the cases where accomplished opinions become critical typically involve chronic agony, soft-tissue injuries like whiplash, or psychological problems – issues that can`t be determined with an X-ray or other physical evidence.
But Brenda Hollingworth, Bruff-McArthur`s lawyer, argues fraud is infrequent among those who actually sue, telling that drawn-out, strained litigation makes for a lousy get-rich-quick scheme.
«The benefits for a standard policy are so low, why would you give up a job, even if you`re only earning $35,000, to earn $Nineteen,000?» asks Jokelee Vanderkop, who described her own auto-insurance travails in a book, So You Think You`re Covered – the Insurance Industry Rip-off.
Bail did Five,500 assessments during his twenty five years in the business, charging as much as $Five,000 each and performing seven to fourteen a month, he testified at Bruff-McArthur`s trial last year. All but «a few dozen» were for insurers.
And for almost two decades, some adjudicators have accused him of having a pro-insurance bias. Judges in 1999, 2004, two thousand seven and two thousand fourteen called him an advocate or partisan for his insurance clients.
None of that prevented Bail from testifying last December about Bruff-McArthur, telling he did not believe the car crash had caused her any psychological problems, and that the woman`s account of her injuries was not credible.
The judge dedicated nine pages to explain why he was rejecting Bail`s evidence, then concluded the plaintiff`s claims were «strongly supported» by several other witnesses.
Bail notes bitterly that the assessment work has dried up since. He complained about the judge to the Canadian Judicial Council, only to be told Kane had a right to his opinion.
«This work is so adversarial, I don`t even like doing it, indeed,» says the psychiatrist. «Maybe it`s a bliss in disguise. Maybe it`s a ease not to do these any more, because it`s just not worth the aggravation.»
Meantime, the judge`s comments – made in response to a legal motility – were little more than a moral victory for Bruff-McArthur, pregnant at the time of the crash. The jury had already delivered its verdict: a $23,000 award that fell below the minimum threshold for damages in such cases.
Bruff-McArthur would get nothing– and be on the hook for the insurer`s likely massive legal costs, too.