ONCA Clears Up the Law on Expert Reports
Ontario litigators breathed a sigh of relief last Thursday when the Court of Appeal overturned a trial judge’s ruling that it was improper for a lawyer to review and discuss draft expert reports with an expert witness, and that such discussions must be documented and disclosed to an opposing party.
During the course of cross examination of an expert at the trial of a medical malpractice claim, it emerged that an expert had reviewed his draft report with defence counsel in a 90 minute phone call, and made changes to the draft. The judge took up the issue and directed the expert to return to court with his draft reports and the notes he made while discussing them with counsel. The judge questioned the expert on the precise changes he made as a result of those discussions and concluded the changes were significant. She found the expert’s opinion was “shaped by defence counsel’s suggestions”. She wrote:
“The practice of discussing draft reports with counsel is improper and undermines both the purpose of Rule 53.03 as well as the expert’s credibility and neutrality.”
Her Honour ruled the practice of reviewing experts’s reports should stop and that all discussions between expert witness and counsel should be subject to disclosure and production.
In the words of Sharpe J.A. writing for the court (Laskin J.A. and Simmons J.A. concurring), this ruling “caused considerable concern in the legal profession and in the community of expert witnesses.”
After stating there was nothing in the record to indicate any impropriety by defence counsel or the expert, Sharpe J.A. conducted a detailed review of the law governing expert’s reports.
He noted the changes to Rule 53.03 did not create new duties but codified and reinforced basic common law principles. He found the independence and objectivity of experts is sufficiently fostered by the ethical standards of legal and other professional bodies, and by cross examination.
The court concluded the well-established practice of counsel meeting with expert witnesses to review draft reports should not be disturbed.
On the question of the production of notes and drafts of the report, the ONCA ruled these documents, and any records of consultations between experts and counsel, fall into the “zone of privacy ” created by litigation privilege. The privilege is qualified however. Foundational information mandated by Rule 53.03(2.1) must be disclosed. In addition the privilege yields where required to meet the ends of justice, for example where there are reasonable grounds to suspect counsel communicated with an expert in a manner likely to interfere with the expert’s duty of independence and objectivity.
The finding by the trial judge that all changes in the expert’s report should be routinely documented and disclosed, has now been set aside.
A prominent litigator once told the Medical Post (below) that it was the “norm” (“a common practice”) for auto insurer defence litigators to tell their medical experts what to write in expert reports and even to write the expert reports themselves. He went on to say that now this is a “less ordinary” practice – which begs the question – how often is less ordinary? Not all that long ago a prominent Ontario personal injury told the regulator (FSCO) that the “doctoring” of medical assessments (expert medical reports) is common (further below). Given this background, one could argue that in the Ontario personal injury context allowing litigators to help experts do “minor editing” to their reports opens the door to a return of the “industry norm” chronicled in the Medical Post. No?
Do litigators confer with the staff at medical assessment firms (vendors of expert opinion evidence) as well as the experts themselves? It is disturbing (even “vexing”) to hear that secretaries are editing expert medical reports and then “signing” them with signature stamps (all without the knowledge of the author of the expert reports or the litigator who hired the her/him?) This ONCA decision might be good for litigators but it may not be in the best interests of the subjects of the expert reports. Any thoughts?
Macdonald v. Sun Life Assurance Company of Canada, 2006 CanLII 41669 (ON SC) — 2006-12-13
Superior Court of Justice — Ontario
report — highlighted portion — cauda equina compression — straw that broke the camel — deletion
[…] It was only on May 30, 2005 that he discovered that Riverfront had sent out a report with his stamped signature affixed that was different from what he expected. […] Although the action out of which the problem arose has long been concluded, this case raises vexing issues as to what role may be properly played by organizations such as […]
Here are other examples of (quasi)judicial comments regarding altered/doctored/forged expert medical reports. They don’t inspire confidence in this ONCA decision that litigators conferring with experts to edit expert reports is always safe for the subjects of those reports.
“… After the report left the hands of Ms. Lipka, the report was altered, for reasons unclear, by others… ”
from the FAIR website:
There is increasing evidence that Ontario’s auto accident victim’s medical files are being routinely changed to suit the needs of Ontario’s insurers to save money by deflating an MVA victim’s injuries. Portions of reports have been removed, manipulated or even changed entirely without the author’s knowledge or consent. Signatures have been forged or used without permission in many cases. Victims and their legal representatives should be viewing reports and evidence with a critical eye to insurer fraud whether it be an adjuster, an assessor, assessment centers, treatment facility or even your own lawyer’s staff. This abuse of evidence is widespread and should be a major factor in the fight on fraud and yet it isn’t. Accident victims are often re-victimized and defrauded out of the coverage they paid for by the fraudulent acts of others.
A leaked document from a discussion forum
I am involved in an Arbitration on the issue of catastrophic impairment where Sibley aka SLR Assessments did the multi-disciplinary assessments for TD Insurance. Last Thursday, under cross-examination the IE neurologist, Dr. King, testified that large and critically important sections of the report he submitted to Sibley had been removed without his knowledge or consent. The sections were very favourable to our client. He never saw the final version of his report which was sent to us and he never signed off on it. more…
Ansari and State Farm [+] Arbitration, 2014-12-24, Reg 403/96. Final Decision
Medical Rehabilitation Benefits/Cost of Examinations
10. The Respondent submits that given the Treatment Plan of November 5, 2010, was not signed by a health practitioner and part 4 was admittedly “forged”, the Treatment Plan should not be considered in the context of this arbitration hearing. Additionally, it was also withdrawn; therefore it is not properly in dispute in this proceeding and is not payable .
For the purposes of this Hearing, I find the Treatment Plan, as completed and signed by Ms. Lipka, a registered nurse, is valid. After the report left the hands of Ms. Lipka, the report was altered, for reasons unclear, by others as to her designation. No evidence was introduced at the Hearing to show the assessment was withdrawn.
Burwash v. Williams, 2014 ONSC 6828 (CanLII) 2014-11-25 http://canlii.ca/t/gfdrp
 The Plaintiffs assert that they had no reason to suspect that Cira was involved in the review, revision and editing of draft expert reports until the examination for discovery of Dr. St. Pierre when answers and subsequent productions indicated that Cira may be using third parties to review and revise the Defendants’ expert reports.
 The Plaintiffs provided documents that indicate that there may have been third party manipulation and alteration of the expert reports that the Defendants will rely upon at trial. Relevancy is established since this issue goes straight to the heart of the Plaintiffs’ case and the medical evidence they intend to lead to prove damages. more…
MC v KE, 2013 CanLII 55435 (ON HPARB), 2013-09-04 http://canlii.ca/t/g0c3g
10. However, the Committee did express concern about the information uncovered during the course of the investigation related to Riverfront having altered the Respondent’s report. The Committee noted the “egregious” impact that these changes could have had on the Applicant’s entitlement to benefits. In the result, the Committee decided to offer advice to the Respondent about the importance of ensuring that she personally reviews and approves any assessment report she completes prior to the report being issued. more…
Please note in this decision the ONCA made it absolutely clear that the protection of litigation privilege is qualified and yields where required to meet the interest of justice, for example where there are reasonable grounds to believe the expert’s duty of independence and objectivity has been interfered with.