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Insurers fighting injury claims hire doctors slammed for shoddy work as key
medical experts | CBC News Loaded
Health·GO PUBLIC
INSURERS FIGHTING INJURY CLAIMS HIRE DOCTORS SLAMMED FOR SHODDY WORK AS KEY
MEDICAL EXPERTS
Some doctors are being accused of offering shoddy or biased evidence in cases
where big insurance companies are looking to block or reduce payouts for people
hurt in car crashes. Yet they face no penalties or sanctions for their flawed
reports, and nothing is stopping them from appearing in court again, says an
expert.
MEDICAL EXPERTS SAY THE OPINIONS THEY PROVIDE ARE NOT INFLUENCED BY WHO HIRES
THEM
Rosa Marchitelli, Jenn Blair · CBC News · Posted: Nov 18, 2024 4:00 AM EST |
Last Updated: 6 hours ago
In a December 2017 crash, Jonathan Graul's vehicle ended up in a ditch after he
was hit head-on by a driver travelling in the wrong lane. (Submitted by Jonathan
Graul)
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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."
* Got a story you want investigated? Contact Rosa and our Go Public team at
gopublic@cbc.ca
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."
Jonathan Graul suffered a traumatic brain injury after a car crash and took on
the other driver and his insurance company in court to get compensation. (Rob
Krbavac/CBC)
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:
Doctors who'd been criticized for testimony hired as experts by insurers | Go
Public
11 hours ago
Duration 2:13
A CBC Go Public investigation reveals insurance companies looking to block or
minimize compensation for people hurt in crashes are hiring doctors called out
for giving shoddy testimony. Advocates say doctors with histories of reprimands
shouldn't be allowed to work as experts.
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.
Dr. Lawrence Freedman was criticized by a judge for offering ‘tainted’ evidence
after being hired by the insurance company Aviva. (Peel Memory and Cognitive
Disorders Clinic)
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:
Medical expert's talk show comment used in court years later
6 hours ago
Duration 0:12
Neurologist Dr. Sara Mitchell offered information about concussions in this 2018
interview on CBC's daytime talk show The Goods. Years later, her comments from
the interview were used in court to challenge her medical opinion.
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.
Graul's lawyer, Gary Will, says lawyers for injured parties need to do their
research when it comes to medical experts hired by insurance companies looking
to deny claims. (Rob Krbavac/CBC)
"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."
* Ont. lawyers question impartiality of provincial tribunal that hears
insurance car crash claims
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.
Rhona DesRoches, an advocate for people injured in car accidents, says motor
vehicle accident victims often struggle to get their rightful compensation from
insurance companies. (Greg Bruce/CBC)
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."
Aviva tried to deny Graul compensation after he suffered a traumatic brain
injury in a car crash, so he took the insurance company to court. (Google Maps)
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."
SUBMIT YOUR STORY IDEAS
Go Public is an investigative news segment on CBC-TV, radio and the web.
We tell your stories, shed light on wrongdoing and hold the powers that be
accountable.
If you have a story in the public interest, or if you're an insider with
information, contact gopublic@cbc.ca with your name, contact information and a
brief summary. All emails are confidential until you decide to Go Public.
Read more stories by Go Public.
Read about our hosts.
ABOUT THE AUTHOR
Rosa Marchitelli
@cbcRosa
Rosa Marchitelli is a national award winner for her investigative work. As
co-host of the CBC News segment Go Public, she has a reputation for asking tough
questions and holding companies and individuals to account. Rosa's work is seen
across CBC News platforms.
CBC's Journalistic Standards and Practices|About CBC News
Corrections and clarifications|Submit a news tip|Report error
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