Medical experts play a crucial role in personal injury lawsuits: they are enlisted by plaintiff and defense-side lawyers to establish the facts of disputes, including the existence and extent of damages. Their testimony helps the court determine what compensation, if any, is owed. As such, personal injury lawyers are quick to confront the possibility of bias in medical expert reports.
Unfortunately, the system by which medical experts provide their opinions is far from perfect. Last month, Law Times reported that personal injury lawyers have called for an end to the use of ‘ghostwriters’ in medical reports, referring to third-party agencies through which lawyers retain expert witnesses. These agencies essentially work as middle men, handling the flow of medical records and other pertinent information to experts and providing summaries of reports to lawyers.
Some personal injury lawyers fear these agencies have an outsize influence on the tone and contents of expert reports. In April 2018, their worries were validated by the testimony of a medical expert in Harb and Allstate who stated that the submitted report did not align with his dictation, according to Law Times.
The issue becomes more insidious in cases that are settled out of court, when the expert reports are largely subject to lawyers’ and mediators’ interpretations and aren’t exposed to the scrutiny of cross-examination. In the 2017 case Kushnir v. Macari, Justice Helen MacLeod-Beliveau warned that for the sake of out-of-court settlements, “the expert report must be that of the expert and not a report written partly by administrative staff or other individuals employed by the agency through which the doctor provides expert services.”
Personal injury lawyers are, in essence, calling for improved transparency with regards to these reports. In situations where a third-party agency contributes editing, summarization, or opinions, plaintiff-side lawyers want the contributors to be available for testimony. If a non-expert’s biases made their way into an expert report, the jurors or mediator tasked with resolving the dispute ought to be made aware, especially when an injury victim’s potentially life-changing compensation is at stake.
If you or a member of your family has suffered an injury in an accident, contact Neinstein Personal Injury Lawyers today to arrange a free, no-obligation consultation with an experienced personal injury lawyer. Our team has proudly represented some of Ontario’s most vulnerable accident victims for decades, and can provide the guidance and counsel you need to facilitate your recovery.
Greg Neinstein
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