Canadian Lawyer

40 A P R I L 2 0 1 6 w w w . C A N A D I A N L a w y e r m a g . c o m the discovery process were not the same reports that came out of the assessment centre. They changed the result from her being catastrophic to not being cata- strophic," says Bent. In the OTLA's confidential online chat where lawyers discuss legal issues, Bent posted about the case and the assessment clinic involved, but someone breached the confidentiality of the chat and her criti- cism of the doctor involved went viral. Now she's being sued for defamation. It's coming up on a year and the plaintiff is doing nothing to move the suit forward — Bent says it's a hallmarks of a SLAPP lawsuit intended to silence. "The point is that the conduct in the Macdonald case is still going on," she says. Bent says the OTLA is now focussing on the prohibition against referencing prior negative judicial comment. "If a judge critiques a doctor or a medical assessment clinic for conduct, the lawyer in a subsequent case can't bring it up in cross examination. If these experts in these clinics knew that these prior nega- tive judicial comments were going to be raised, at a minimum they would be much more cautious to be balanced and fair and neutral." Bent says if the worst offenders have no credibility they are not going to be hired. "You have medical practitioners who do have a certain philosophy or bias and it suits the insurance company's financial objectives and so they continue to use those experts over and over again." Then there is the issue of clinics active- ly altering reports. A doctor may in good faith put forward his true opinion, but the reports don't go directly to the insurance company — they go to the assessment clinic brokering the report. Those clinics do what they call "quality control," which has in many cases, including ones Bent has handled, involved re-writing the con- clusions and those conclusions are sent on to the insurance company. Bent says it's unclear to what extent the doctors even know this is happening. "I think that there is a fair assumption on the part of the doctors that the report they send in is the report that will go out, but that's not the case," she says. There's also a question as to whether the government knows the problem exists. "I think it's an open scandal in the legal community, but the government seems largely unaware and we're trying to raise their level of knowledge on the issue." David Festeryga told Law Times medi- cal witnesses — those who make a living treating or assisting accident victims — advocate on behalf of victims as well. Festeryga, a Hamilton, Ont., lawyer with Sullivan Festeryga LLP, is also first vice president of the Canadian Defence Lawyers. While he said advocacy does occur, they are the court's experts and are controlled by the courts. "Certainly, anyone who is biased will be vetted out by the court system," says Festeryga. "If a medical examiner is biased, they will not last very long. I don't think it's a problem." Merritt says some suggestions for improvement include legislating and lim- iting the number and frequency of inde- pendent medical evaluations. Merkur concedes there have been improvements over the last few years from the judicial perspective regarding experts. L E G A L R E P O RT \ P E R S O N A L I N J U RY ¡'='¡9;,'6¡!@-2+)'¡& by taking away an insurer's 139;'ø'$ࣅ='>'!632U JIM HOWIE OF HOWIE, SACKS & HENRY LLP 1-888-212-BICO | bicocanada.ca IN PA RTNER SHIP WITH AMTRUS T EUROPE 32;!$;<9(38!2-2(381!ࣅ326!$0!+'38=-9-;3<8>'#9-;'(38138'&';!-¡9U LEGAL COST PROTECTION TAILORED FOR YOUR LAW FIRM No upfront fees. Starting at $ 300 per file, payable only on successful claims. Protection amounts from $15,000 to over $ 250,000 per file. Available at any stage of litigation. All related claims protected for one fee. Protection available for dismissed, abandoned and discontinued claims. Over 30,000 plaintiffs across Canada have the reassurance 3('+!£39;83;'$ধ32#',-2&;,'-86'8932!£-2/<8@$£!-19W 3ø'89(<££@*'?-#£'!&='89'$39;!2&&-9#<89'1'2;683;'$ধ32 93£<ধ329(38-2&-=-&)81)£'-2='2;38-'9W Untitled-2 1 2016-03-18 11:30 AM

• Cover