SHOPPING AROUND FOR MEDICAL EXPERTS IN PERSONAL INJURY CLAIMS
Although the title to this post should more appropriately be “PLAINTIFFS CANNOT REFUSE TO PRODUCE ORIGINAL IMAGING FILMS,” the case really highlights the mistrust between litigants, especially when it comes to medical experts: the hired-gun psychosis.
During an examination for discovery, the lawyer for a personal injury plaintiff took the position that their client’s original imaging films only had to be produced to the defendant’s medical expert. In other words, according to the plaintiff, the defendant didn’t have the right to see the original imaging films, or possess them, on the basis that such films are meaningless to lay people, and once the defendant retains an expert, the imaging films become meaningful because that expert can make “sense” of what is on display in the imaging films.
Put it another way, although the original imaging films were relevant, their relevancy only truly materialized when in the hands of an expert.
The “boogieman” for the plaintiff, and for the plaintiff bar in general, is the concern that defendant insurance companies will simply take these documents and “shop them around” to various medical experts until they find the one that will give them an opinion that is favourable to the defendant before this expert is formally retained to conduct a defence medical examination of the plaintiff. The Plaintiff bar reasons that the only reason a defendant would need such a document ahead of time is to allow them to have people (in this case medical experts) read the document for them: hence opening up the door to having multiple experts providing various opinions so that they can select the one they like the best. The Plaintiff wanted, in effect, to pin the defendant into selecting the interpreter first, then providing the document to that expert interpreter.
But the court disagreed with the plaintiff. In this regard, the court said:
“ (I do not) … accept the plaintiffs’ argument that the production could lead to a fishing expedition by the defendants because they would then be able to present the diagnostic imaging to multiple medical practitioners who could produce reports that the defendants are not obliged to provide to the plaintiffs. The defendants are entitled to receive the original diagnostic imaging, which is relevant, and it is not for the plaintiffs to determine how the defendants choose to use it. Further, I do not accept the plaintiffs’ argument that the existing production of medical reports that refer to the original diagnostic imaging is sufficient. The original diagnostic imaging should be produced to the defendants so that they can decide whether they wish to seek opinions based on those records or use it at trial.”
I do not agree with the opening statement above: simply put, imaging films can be shopped around and I don’t understand the legal gymnastics in refusing to “accept” this fact or possibility. Indeed, and to go one step further, imaging films can be shopped around by both sides: making this a classic “what’s good for the goose is good for the gander” type situation. Defendants always have to contend with the prospect that plaintiffs can shop around for experts that are “supportive,” and in this landscape, it would be trifling unfair to permit one party to do this, while the other party’s hands are tied. So just like the defendants can’t control how the plaintiff uses the imaging films, so too “it is not for the plaintiffs to determine how the defendants choose to use it:” to this I agree.
But the hope is that everyone is simply searching for the truth, and not scheming to twist it. Shopping around does not serve anyone. If any party finds themselves doing this, then there is likely a big problem brewing: grounding your position on lies and deceit (ie: two doctors already disagree, but I found one that supports my theory). With deception, bad decisions are made: more money is invested, more time is consumed, and if the position taken by the party is poorly grounded (whether it be by the defence or by the plaintiff), the end result is typically not very good for that party.
There is no harm in a defendant receiving medical opinion categorizing a plaintiff’s injuries and impairments as catastrophic if such is the case because then good decisions can be made thereafter (proper adjustment, proper trial strategy, proper settlement strategy, etc). Conversely, there is no harm in a plaintiff receiving medical opinion to the effect that their injuries are minor and are very unlikely to cause any long-term deficits. Again, good decisions can be made thereafter, including, if necessary, dropping the case before the plaintiff gets consumed by a mountain of disbursements and years of unnecessary worry and stress, or perhaps choosing to pursue damages in Small Claims Court where theories can be tested quickly and without too much downside (see Personal Injury Claims in Small Claims Court).
Han et al v. Elliott et al, 2022 ONSC 857
https://www.canlii.org/en/on/onsc/doc/2022/2022onsc857/2022onsc857.html