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B.C. right on track with personal injury expert limits: Ford

By AdvocateDaily.com Staff

Ontario should follow British Columbia’s lead by imposing limits on the number of experts who can file reports in auto insurance claims, Toronto orthopaedic spine and trauma surgeon Dr. Michael Ford tells AdvocateDaily.com.

The Canadian Press (CP) reports parties in fast-tracked litigation for claims worth less than $100,000 will be entitled to the use of just one expert opinion, while those above that amount would be allowed to call on three experts.

“I think it’s a great idea,” says Ford, who practises at Sunnybrook Health Sciences Centre in Toronto.

Ford, a spinal and orthopedic surgeon with more than three decades of experience, says he is most often hired by the defendants — insurance companies — to produce expert reports and give evidence at personal injury trials because he tends to deflate claims of long-term injury where there is no visible evidence.

“The thing that always shocks me is the number of people involved, from family physicians to therapists, chiropractors, physiatrists, orthopedic surgeons, and more, all for a motor vehicle accident where the delta in speed between the cars was 10 km/h, and there’s no visible or objective evidence of injury other than a long list of complaints," he says.

“It never made sense to me in terms of expense and efficiency, and I think B.C. is taking a step in the right direction,” says Ford.

B.C. Attorney General David Eby claims the amendments will curb the overuse of experts in litigation, which he says shares the blame for the ballooning cost of litigation involving the Insurance Corporation of B.C. (ICBC), which is on track to run a deficit of $1.2 billion this year, CP reports.

The public insurer has seen a 43 per cent rise in claims over the last five years, and a 20 per cent increase in the cost of settlements last year alone, according to Eby, who expects more court-appointed experts will be tasked to offer neutral opinions following the changes.

The proposal sounds ideal to Ford, who has long called for an end to the routine retention of experts by both plaintiff and defence.

“I think experts should be like referees — in the middle, coming to conclusions and submitting a report that goes to the judge, the jury or the arbitrator who will make the decision,” he says. “It has to be people who really understand this phenomenon of whiplash-associated disorders because it’s clear from reading these reports over the years that many do not, which is very frustrating.”

Ford says the B.C. proposal strikes the right balance by focusing on low-value claims while leaving open the possibility of more expert witnesses in cases of serious injuries.

“Victims of serious accidents need to be seen by appropriate experts,” he explains. “For instance, a person with a bad spinal injury should be reviewed by someone with experience in that area.”

In addition to expert witnesses, Ford sees the potential for further savings in the motor vehicle insurance industry in a crackdown on unproven treatments.

“That’s another abuse that is taking place in the sector. People are undergoing futile treatment for years without any evidence whatsoever to support them,” he says.

Still, Ford acknowledges his views will be unpopular with many in Ontario.

“It’s a billion-dollar industry, and a great many people could potentially lose out — including myself — if experts are limited,” he says. “Treatment centres will not be happy, and many lawyers would see a significant reduction in billable hours. Plaintiff lawyers would also see their returns reduced because there would be fewer high-cash awards which, in my view, are totally inappropriate.

“But I’m willing to share in that pain for the savings it would achieve,” Ford says.

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