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Use of 'hired gun' expert witnesses draws blanks in Canada

The role of an expert witness in a medical malpractice suit in Canada is much different than in the United States, says Toronto orthopedic spine and trauma surgeon Dr. Michael Ford.

“In the United States a true medical expert witness is often reluctant to get involved in a case, and so the plaintiff and defence counsel must turn to a so-called hired gun,” Ford tells AdvocateDaily.com.

“These expert witnesses may not have the training or experience to comment on cases. They are out to make a buck, and they will generate opinions tailored to the payers,” he says.

Ford believes this has led to malpractice suits and awards getting out of hand in that country.

“The defendant may be found guilty of providing below standard care when that wasn’t the case at all,” he says.

Ford says in Canada, the Canadian Medical Protective Association (CMPA) will defend members only if they consider the care to have met or exceeded standards.

“Down south, the private insurers will pay in frivolous suits because it is cheaper for them to do that. The CMPA won’t do that," he says, adding that plaintiff law firms in Canada ensure they have a case first before filing.

“That is some of the work I do. They send me a case, and I will be frank with them if I believe a lawsuit is not something they will win. They trust me.”

Ford says when he is required as an expert witness, he asks for all medical records involved in the case.

“Everything hinges on the record. You can’t rely on what the patient or physician has said about the details,” he says. “It can be years after the event before a case makes its way to court.”

Ford says he will ask to look at the imaging studies, not just at the reports provided.

Sometimes it can be frustrating trying to obtain everything needed, including handwritten notes, he says.

Those notes may be illegible, so Ford asks that they be typed out to ensure information is not misinterpreted, he says.

“There are a variety of reasons a patient might have received care below standard, and a number of aspects need to be examined to reach the correct conclusion.”

One of the main questions the court will want answered, Ford says, is if the correct diagnosis was made.

“If a patient presents with a specific array of symptoms, there will be a list of potential diagnoses and all should be entertained and investigated,” Ford says. “Making the correct diagnosis through an appropriate history, physical examination and subsequent investigation is extremely important.”

He says care can also be substandard if the incorrect treatment plan was instituted.

“If you establish a treatment plan, the patient must give informed consent in elective procedures,” Ford explains.

“If you have a tumour compressed against the spinal cord and you are becoming paraplegic, nobody is going to say, ‘Hey, I don’t want the operation. It’s too risky.’”

But it’s not always that straightforward.

“Informed consent can be extremely important where there is equipoise — where the risk is fairly similar to the benefit,” he says.

Ford says he sees his role in the courtroom as that of an educator.

“I need to be objective and to educate the court with respect to some of the complex medical issues,” he says.

“I am not out to determine if the patient is lying. However, I will challenge the defendant if they say something egregious or they are trying to pass off medical information that is not fact.”

Ford says medical experts are a necessity and should be willing to testify.

“We have to be involved. We may be reluctant to do so because we know the defendant, as I often do. But if we don’t participate and we don’t police ourselves, it will be taken out of our hands, and someone without the medical knowledge and expertise will get involved.”

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