Michael Ford (post until Oct. 31/19)
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Medical experts and the importance of being impartial

With growing scrutiny on expert witnesses, it’s important for medical specialists who prepare reports and testify before the courts in personal injury cases to adhere to evidence-based thinking and objectivity, says Toronto orthopedic spine and trauma surgeon Dr. Michael Ford.

An expert witness in multiple matters over the last two decades, Ford sees the issue of bias being raised more frequently — a reality that's placing more of a spotlight on medical experts and their testimony, he says.

“I’m routinely asked these days how much of my time is spent doing defence as opposed to plaintiff cases — and often, I am not given the opportunity to explain that I accept all comers,” he tells AdvocateDaily.com. “It’s not as if I decline referrals from plaintiff lawyers.”

Ford, whose medical-legal work comprises about 50 per cent of his practice, is a vocal advocate for change in the way personal injury litigation cases are handled in Ontario, particularly as they involve members of the medical community as experts.

“If you're providing a report that the — defence or plaintiff — payor likes, regardless of whether it’s objective or evidence-based, that’s wrong,” he says. “Your report should be the same, no matter who is paying you."

Ford notes that medical experts providing reports or testimony to the courts are bound by Form 53 of the Ontario Courts of Justice Act, which says that all experts have a duty to “provide opinion evidence that is fair, objective and non-partisan.” 

Those principles for expert witnesses are emphasized in the Supreme Court of Canada decision, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23.

“The expert’s opinion must be impartial in the sense that it reflects an objective assessment of the questions at hand. It must be independent in the sense that it is the product of the expert’s independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation,” the court says in the decision. 

“It must be unbiased in the sense that it does not unfairly favour one party’s position over another. The acid test is whether the expert’s opinion would not change regardless of which party retained him or her."

Ford says some of the most contentious personal injury cases relate to soft-tissue injuries, and medical experts play a large role in those matters.

“The reality is with that type of injury, there is nothing objective to be seen on diagnostic imaging,” he says. “These are often low-velocity, hit-from-behind motor vehicle crashes, resulting in the so-called whiplash-associated disorder.

“Unfortunately, some experts typically will say that the individual has incurred some serious impairment to important physical functions, despite the fact that the evidence clearly shows that no matter how hard you look, you’re not going to find anything objective. The evidence shows there is no structural, pathological change in such individuals.”

Symptoms are dependent on psycho-socio-economic factors and not on damage to the tissues or ligaments, he says. 

“Often, the most serious cases don’t go to court because there is clear and objective evidence of an injury,” he says.

"This means that, in many cases where there isn't anything objective, reports will be similar. To state that this implies bias is a fallacious argument. It only suggests consistency with the literature and the opinions are evidence based."   

To reduce the risk of bias and evidence that is too narrow in scope, it’s critical that a medical expert with the proper credentials is selected for the case, Ford says.

“All medical experts should have specific training and interests that pertain to the physiological issues at hand,” he says. “They should also be active clinically or have recent extensive clinical experience treating patients for that particular part of the body. That experience should include the complete spectrum from minor to serious injuries, and those treated conservatively to those treated surgically. The patient population should be comprised of those not involved in compensation and litigation as well as those who are.

“A medical expert has to be qualified and truly experienced in dealing with the injuries that apparently occurred in the case. For example, if it’s primarily a spine complaint, then you must have spine expertise. You can’t be a foot and ankle surgeon or a chronic pain specialist who doesn’t treat the full spectrum of musculo-skeletal post-traumatic pathology.”

The problem is too many physicians are providing expert evidence in cases where they don't truly have the appropriate clinical experience, Ford says.

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