Insurers fighting injury claims hire doctors slammed for shoddy work as key medical experts
Rosa Marchitelli, Jenn Blair | CBC News | Posted: November 18, 2024 9:00 AM | Last Updated: November 18
Medical experts say the opinions they provide are not influenced by who hires them
Doctors called out for being biased, faulty or careless expert witnesses in court are being hired by insurance companies looking to deny injury claims for people hurt in car crashes.
Jonathan Graul, from Fergus, Ont., says he found himself under attack in court by two doctors hired by insurance giant Aviva after suffering a traumatic brain injury during a December 2017 crash.
Unable to work and facing mounting bills, he says, Graul took on the other driver and his insurance company — Aviva — in court for compensation.
"It was dirty," Graul told Go Public. "It was just a personal attack the whole time."
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Medical experts have a duty to help the court by offering independent, objective and unbiased evidence in cases where opposing sides often clash on what the facts are.
Despite that, doctors and other health professionals who are called out for shoddy testimony face no consequences and there's nothing stopping them from appearing in court again, according to accident victim advocate Rhona DesRoches.
"Everything hinges on these medical reports," said DesRoches, who heads the not-for-profit FAIR Association of Victims for Accident Insurance Reform, which is made up of motor vehicle accident victims struggling with the auto insurance system in Ontario.
"I think it's important that the public knows," she said. "The quality of the medical evidence that is used in courts is a big concern ... I mean, they make a lot of money doing this, and they really ought to be sure about what they're saying."
Injuries from the crash
Graul was hit head-on while driving on the highway by a driver who was in the wrong lane. His car ended up in a ditch and he was bleeding from his nose and mouth, with burns on his hands and face.
After the accident, his wife described him as a "shell," according to a court document.
"Headache, confusion. To this day ... my ears are ringing incessantly, and it's 24-7," Graul said.
"I've had a lot of issues with my vision, and it's unnerving ... I have memory issues ... my wife is checking on me, you know, just to make sure I'm not slipping up too badly."
When Graul sued for compensation, he says he knew the medical evidence was on his side because more than a dozen health professionals supported his various claims.
Yet one of the medical experts hired by Aviva, Dr. Lawrence Freedman, told the court Graul's traumatic brain injury didn't exist.
Another, Dr. Sara Mitchell, testified the injury had resolved. Graul couldn't believe what he was hearing. "I'm [still] angry. I just don't see why that happens," he said.
WATCH | Medical experts criticized for testimony in insurance cases:
Judge calls some evidence 'tainted'
In Graul's case, an Ontario Superior Court judge lambasted two of Aviva's four medical experts, according to a decision that was released in April 2022.
In it, Justice G.D. Lemon accepted that Graul suffered a traumatic brain injury, after multiple doctors backed that up.
Lemon described the evidence Freedman gave, as "tainted," saying that rather than being a neutral expert, the neuropsychologist's reporting was more like "a biased, paid expert trying to hide real and significant evidence from the court."
For almost two decades, according to Justice Lemon's decision, 75 per cent of Freedman's practice has been related to testifying "almost exclusively" for insurance companies as a paid medical expert.
The decision shows that, as of 2022, the neuropsychologist hadn't treated any traumatic brain injury since 2006.
Freedman declined to answer Go Public's questions.
Video shows doctor contradicted herself, judge says
The judge also criticized another expert hired by Aviva, calling neurologist Dr. Sara Mitchell out for her "alarming" lack of attention to detail.
Mitchell was also criticized for contradicting her own medical opinion, when she testified that Graul's vacant stare wasn't a "red flag" — even though she said the opposite in an interview on the CBC daytime talk show The Goods, according to the written decision. The interview was about concussions in general.
WATCH | Dr. Sara Mitchell on a CBC TV interview in 2018:
She says the interview she had done years earlier on CBC was in a "completely different context" and what happened in court was "an attempt to make me look contradictory when it was clear to me that the things that I said were not inconsistent."
Mitchell is highly accredited as a clinician and academic specializing in complex brain disorders. According to the judge's decision, "Dr. Mitchell's curriculum vitae is quite impressive."
When asked about Graul's case, Mitchell told Go Public she stands behind the opinions she offered the court.
"I understand and take seriously an expert's obligation to provide an unbiased expert opinion and in the context of civil litigation, to assist the court," Mitchell wrote in an email to Go Public, pointing out that she's worked for both plaintiffs and defendants and gives her "unbiased opinion regardless of which side retains me."
See Dr. Sara Mitchell's full response here.
Experts for hire
Graul's lawyer, Gary Will, believes some doctors are motivated by the potential for more work with insurers if they provide favourable opinions, referring generally to medical experts who do almost all their work for insurance companies.
"It's an area which is extremely lucrative to the experts themselves," Will said. "And they know that if the insurance company is happy with their opinions, there's going to be a lot of future work."
Aviva tells Go Public that, like a lot of insurance companies, it goes through a third party that provides medical doctors to both sides looking for experts for injury cases.
The insurer says it's part of the normal process for judges to comment on evidence from experts provided by both the defence and the plaintiff in these kinds of cases.
"At Aviva, we expect experts to provide opinion evidence that is fair, objective and non-partisan," a spokesperson for Aviva wrote in an email to Go Public.
See Aviva's full response here.
More experts called out
Graul's experience led to a wider Go Public investigation which found more than two dozen other injury cases where medical experts hired by insurance companies were called out by the court.
One such medical expert, psychologist Dr. Curtis West, has been the focus of serious criticism by both a judge and arbitrators.
In 2016, an arbitrator in an accident injury case found West had a "lack of willingness to accept objective data, which raises questions of bias."
West's expertise was also called into question in a 2018 case that was not insurance related, when a judge referred to West's medical opinion as nearly "so unreliable as to be useless" and noted that his education and expertise on his CV was misleading.
And in 2022, an adjudicator for an appeal board criticized West's testimony for an insurance company saying, "I find that Dr. West discounted the evidence ... that Dr. West was unwilling to take other factors into account or consider them in a neutral fashion as a result."
West also faced disciplinary action for professional misconduct with the Ontario College of Psychologists in July 2023 over "concerns relating to professionalism and communication in written reports."
The College of Psychologists wouldn't say if that disciplinary action is related to his work as a medical expert, saying it won't comment on specific registrants.
West did not respond to Go Public's repeated requests for comment.
Physiatrist Dr. Alborz Oshidari has been called out more than a dozen times by adjudicators and arbitrators in accident injury cases. A physiatrist is a doctor who specializes in physical medicine and rehabilitation.
While no court has questioned Oshidari's objectivity, he has repeatedly been criticized by adjudicators at the provincial insurance appeal tribunal for shoddy work — including "illogical" and "outdated" conclusions that have "no factual basis."
He has also been called out for offering medical opinions outside his area of expertise.
Oshidari says he's acted as an expert witness approximately more than 50 times over his 25-year career, saying many adjudicators have agreed with his medical opinions.
He also told Go Public he isn't influenced by who pays him. When asked to explain why his medical expertise has been criticized so many times, he suggested it might be due to the arbitrators' lack of medical training and tendency to base judgments on sympathy for the injured.
"None of them has medical background, many of them do not have any experience and use the feeling, use the sympathy, for the person to come to this conclusion," he told Go Public in a phone interview.
Later, in an email to CBC News, Oshidari wrote that having his testimony rejected by a court "is a normal part of the adversarial system. It is the adjudicator's function to weigh and consider all of the expert evidence and to prefer some evidence over other evidence."
He declined to reveal how much he earns doing legal-medical work but says insurance companies pay a lot more than lawyers for injured parties.
See Alborz Oshidari's full written response here.
Who's to blame?
Advocates say it's time for reform, with DesRoches arguing that oversight is sorely lacking.
"And it's creating a huge problem for these accident victims," she said.
DesRoches says the blame lies with professional colleges that oversee these doctors, the Ontario government and the doctors themselves.
The College of Physicians and Surgeons of Ontario (CPSO) does have a policy that requires doctors working as medical experts to be "comprehensive and relevant; fair, objective and non-partisan; and transparent, accurate and clear," but the college says it's up to courts to decide if an expert is qualified to testify.
Go Public got a similar response from the College of Psychologists and Behaviour Analysts of Ontario and the Ontario Attorney General's office, which is in charge of the Ontario court system.
"It is ultimately up to the judge to determine whether expert evidence is admitted, based on factors established through case law," a spokesperson for the Ontario Attorney General's office wrote in an email to Go Public.
The Graul court decision was appealed by the other side, but both sides reached a settlement in the end, according to his lawyer.
Graul says navigating the system was an ordeal.
"I never asked for any of this to be happening for me," he said. "This is a whole world new to me.... But in my opinion, I think change is necessary."
DesRoches says Graul was lucky because he had a good lawyer, but she says the system needs to change, too.
"Even in this case ... where the justice spoke out so plainly about what happened to Mr. Graul, there's nothing to prevent that same expert showing up tomorrow, perhaps even in front of that same judge."
She says it's not just a problem in Ontario, since doctors called out for questionable expertise are hired to testify in injury cases across the country.
As a result, she says claimants give up or settle out of court for much less than what they are entitled to.
Graul's lawyer says it's also up to all attorneys to do their research and to let the court know if an expert has been criticized in previous cases.
That way, judges can take the information into account when considering an expert's credibility.
He says he too is concerned about how the system allows doctors called out for their behaviour to continue working as medical experts in injury cases, but says the questionable conduct of some shouldn't reflect on doctors who are doing good work.
"Not all experts are biased," Will said.
"There are experts out there that take their role seriously and have a high degree of credibility when it comes to giving opinion evidence."
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