Ghostwritten medical reports should not be permitted: Ford
By Paula Kulig AdvocateDaily.com Contributor
Ghostwritten medical reports are not the same as consensus reports and should not be allowed in medical legal cases, says Toronto orthopaedic spine and trauma surgeon Dr. Michael Ford.
“Unfortunately, ghostwriting gets confused with consensus reports, and they’re not the same at all,” he tells AdvocateDaily.com.
A consensus report is commonly written by a medical professional or consultant working at a facility that provides assessments of a plaintiff’s injuries. The document takes into account all of the original reports prepared by various medical specialists who examined the accident victim, including a general practitioner, occupational therapist, chiropractor, orthopaedic surgeon, psychiatrist/psychologist or physiatrist, explains Ford, a medical expert who has provided advice and testimony to the legal community for almost 30 years.
“It basically just streamlines things. It allows the legal professional to look at a consensus report very quickly and get a sense of what the final opinion was,” he says.
“The individual who is doing the consensus report may in fact not have seen the plaintiff, but they generate a consensus report based on what they’ve read from the original examiners. It’s perfectly alright as long as it’s accurate and those original reports are included in their submission. And typically that is what happens.”
A ghostwritten report, on the other hand, “significantly alters” a medical professional’s report, and “That’s not something that should happen. The report is changed with respect to content and then it’s released without the permission of the original author,” Ford says, adding that he doesn’t know why changes are made.
“I don’t have an issue with an assessment centre, for instance, fixing grammatical errors and spelling mistakes. But it’s been my experience that it is then sent back to me and I have to approve of any changes that have been made, even if they’re minor grammatical changes and spelling mistakes,” he says, adding that with a consensus report, the report’s content isn’t changed.
In a 2017 case heard by the Ontario Superior Court of Justice that dealt with ghostwritten reports, the judge wrote: “The issue of who actually wrote the report is of particular concern to the litigation bar as many cases are resolved prior to trial on the basis of the expert reports received which form the basis of counsel’s assessment of the case and subsequent offers to settle. The parties pay substantial fees to experts for their reports and they have a right to expect those reports to be written by the author of the report.
“If the parties cannot rely on the reports being actually written by the author of the report, it attacks the very foundation and purpose of the expert report in the first place, and frankly wreaks havoc with the litigation process. If reports cannot be relied upon, unnecessary litigation is promoted.”
Changing a report’s content “is not right and it shouldn’t be done,” Ford says, adding that he doesn’t believe it happens very often.
“The whole idea of the medical expert is that we are supposed to be objective and non-partisan, and our role is to assist the court in understanding what is potentially a complex medical issue,” says Ford.
“We are not supposed to be advocates, and we’re not supposed to be pro-plaintiff or pro-defence. We’re supposed to be referees. That’s what our role is, that’s what we’re supposed to do.”
While a consensus report, if done properly, is “perfectly acceptable,” Ford says he doesn’t think it’s necessary in many cases. “I think that you should read through all the reports anyway. I don’t think you should be going straight to the Coles Notes. But for whatever reason, assessment centres do this, feeling that they’re generating a better product.”
Consensus reports are particularly useful when it comes to catastrophic assessments, where an accident victim is seen by several different medical specialists and the findings can be complex, he says.
“The individual who’s generating the consensus report then goes through all the different criteria to establish whether or not the injuries were catastrophic. And that’s sort of a numeric compilation of their psychiatric/psychological, as well as their physical problems. In that case, it is useful for catastrophic assessment.”