Michael Ford
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More mediation, less adversity needed in accident cases: Ford

The adversarial legal system creates ethical challenges for medical experts and allows simple cases to become unnecessarily lengthy and expensive, says Toronto orthopaedic spine and trauma surgeon Dr. Michael Ford.

He suggests more mediation and decisions based on consensus are needed to deal with the tsunami of minor accident cases flooding the legal system.

"The nature of the problem is that it's an adversarial situation," Ford tells AdvocateDaily.com.

"In some cases, giving an opinion is very easy, with objective, identifiable injuries," he says. But potential ethical issues arise when people complain of aches, pains and other physical problems "where there are no objective determinants," Ford says.

In other words, the ailments don't match the medical evidence.

"There has to be some consensus, some agreement that this individual did not incur any injuries and just let it go, or it's not significant — or if it is significant and should be appropriately compensated," he says.

"If the experts are in agreement, then obviously the parties are going to settle out of court or through mediation, which is what should happen to the vast majority of these cases," he says.

"That's the way it should be done, and it's not," Ford says. "I've been involved now in a recent number of court cases where minor motor vehicle accidents ended up going to court and they go on for three or four weeks, trial by jury.

"I think the whole process needs to be revamped" where cases don't take years to settle and confrontation is avoided, he says. "Minor motor vehicle accidents are a billion-dollar industry" that places tremendous burdens on medical systems, EMS and rehabilitation services, he adds.

"It's an incredible demand on those who sit as jurors, as basically, their lives are on hold for three or four weeks on cases that I firmly believe should not be going to court," Ford says.

"Obviously, there will be many lawyers who don't agree with me, but I think there is a better way," Ford says.

He says cases would be simplified and costs reduced by getting the experts in one room to reach an objective agreement based on medical evidence.

Opinions by medical experts must be fact-based and objective but the structure of the process also sometimes has specialists pushing the boundaries of where they can comment, Ford says. The requirement to provide fair, objective and non-partisan evidence is stated in Rules 4.1.01 (1) and Form 53 of the Rules of Civil Procedure.

An Ontario Court of Appeals decision in 2015 also outlined the expectations in the use of expert witnesses.

"This is the reason they came up with it, to emphasize the fact we have to be objective because unfortunately some medical experts out there are not," Ford says. "But some will spew out a long list of diagnoses of an individual who has multiple complaints for which there is nothing objective to confirm their analysis.

"And the experts don't qualify their statements as being supposition on their part and is totally dependent on the complaints of the individual," he says.

Ford says some specialists will "fill out the form but they don't adhere to the tenets. They don't produce a report that is truly objective."

He suggests there are two reasons why some would risk their reputations by pushing the limits of an expert's parameters: an obligation to the payer to produce a favourable report which in turn creates more business; and firmly believing what they say despite not having complete knowledge of the issues.

"I've seen that time and time again," Ford says. "In many cases you have experts opining on a case where they shouldn't be."

He says a line of questioning that frustrates him is when he's asked if he believes a client is lying.

"In fact, some of the experts will say an individual is forthright. An orthopedic surgeon saying someone is forthright? That's ridiculous," he says. "You can't tell if someone is forthright, and that's not an orthopedic medical objective determination, yet some experts will say that to bolster their opinion. That's not right.

"I have been doing medical-legal work for more than 30 years and reading medical literature and trying to be as objective and evidence-based as I can, but not everybody is doing that," Ford says.

He'd like to see Form 53 be more precise to clearly define the boundaries as to what's permissible.

"Sure, I would love to add some things," Ford says, including that opinions be evidence-based and completely objective and any statements that are not would be clearly identified as supposition, and that experts should be able to show they're qualified to deal with the case at hand and have extensive experience with similar injuries.

"There are many grey areas and unfortunately people slide into those areas whether it's intentional or not and it does nothing but make things problematic," he says.

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