On October 15, 2014, the plaintiff, Slava Kushnir, was accidentally struck by the defendant’s vehicle as she was walking across the parking lot of a shopping plaza. Ms. Kushnir was thrown onto the hood of the defendant’s car and then onto the pavement. She sustained serious injuries to her back, neck and pelvis, as well as a brain injury, and was transported to the hospital by ambulance immediately after the car accident. Ms. Kushnir subsequently commenced a claim for $750,000 in damages for permanent and serious injuries.
Although the plaintiff had already completed medical assessments by experts, prior to the trial, the defendant requested that she submit to two additional independent medical examinations which would be conducted by doctors chosen by the defendant. The plaintiff agreed to the examinations; however, a few months before the scheduled examinations were to take place, in a correspondence pertaining to the conditions for the examinations, the plaintiff requested that the medical reports must be prepared by the practitioner who had examined her (rather than being ‘ghostwritten’).
The defendant and his counsel were taken aback by the request and informed the plaintiff that they took offence to it. More information was demanded of the plaintiff, such as whether or not she was suggesting that defense counsel had engaged in ghostwriting and if so, to provide specific examples. The plaintiff did not provide clarification on the matter. After a series of correspondence in which the defendant sought to confirm that the plaintiff would attend the examinations and the latter continued to reiterate that without an agreement to the condition of no ghostwriting she would not attend the examinations, the defendant filed a motion to compel the plaintiff to attend the examinations.
The two key issues to be decided in the motion, in Kushnir v. Macari, were: 1) whether or not the court should impose terms requiring counsel and health practitioners to confirm that they will not engage in ghostwriting and have it set out as a condition of the examination; and 2) who is responsible for paying the $3,107.50 cancellation fee imposed by one of the medical examiners, when a late cancellation of the plaintiff’s examination resulted.
The two parties’ position on the matter was as such. The plaintiff’s counsel argued that ghostwriting is becoming commonplace and problematic in litigation files and in expert reports in general; therefore,, the condition of ‘no ghostwriting’ is required to protect a plaintiff and ensure trial fairness. The plaintiff stressed that the request was not an indictment or specific accusation against defence counsel or the medical examiners in question. Finally, on the matter of the cancellation fee, the plaintiff argued that since there was no agreement on the terms of consent for the assessments and there was no court order ordering her to undergo the assessments, she was not responsible for the cancellation fee.
The defendant took the position that the no ghostwriting condition implicitly suggested some form of improper conduct and was an attack on the integrity of counsel and health practitioners in general. Defence counsel argued that a condition that the medical examiner’s report is compliant to Rule 53.03 (2.1) of the Rules of Civil Procedure was enough to ensure and address the concerns of plaintiff’s counsel regarding the issue of ghostwriting. On the matter of the cancellation fee, the defendant argued that because the plaintiff did not attend the December 1st appointment and only advised counsel on short notice that she would not be attending, she was responsible for the cancellation fee.
Justice MacLeod-Beliveau began her analysis of the case by first acknowledging that ghostwriting in the legal profession does exist and that currently, there is limited jurisprudence on the issue. The judge referenced Lavecchia v. McGinn, which highlighted that ghostwritten reports were becoming a problem when an expert during the trial admitted that much of her report was written by someone else. In Lavecchia, the court acknowledged that “Suffice to say that there is merit to the argument that greater rigour and predictably concerning the role and use of experts might save time at trial and promote settlements.”
Justice MacLeod-Beliveau noted that the issue of who actually writes an expert medical report is, in fact, of particular concern to the litigation bar because many cases are resolved prior to trial and often on the basis of these expert reports. Medical reports often form the basis of counsel’s assessments of a case and subsequent settlement offers. The judge noted that if parties cannot rely on the reports being the sole work of the author, then the benefit of medical expert reports becomes dubious, and such practices as ghostwriting attack the very foundation and purpose of the expert report and wreak havoc with the litigation process.
For all these reasons, Justice MacLeod-Beliveau ruled that the plaintiff had established sufficient evidentiary basis for the Court to consider the issue in the interest of fairness to the parties and disagreed with the defendant that the plaintiff’s condition regarding ghostwriting was unnecessary. The judge stated that the plaintiff met the onus of providing a compelling reason why the court should impose a condition to ensure that expert reports are written solely by the author.
Having carefully considered the interest of all the parties involved, Justice MacLeod-Beliveau ruled that there was sufficient reason to set some basic conditions to address the issue of ghostwriting. However, while the judge accepted the plaintiff’s request, she did take issue with some of the wording of said request. The judge noted that the proper interpretation of Rule 33.06 is that the medical report must be written solely by its author and the plaintiff’s first order in her request states this condition. Justice MacLeod-Beliveau also stated that the plaintiff’s request that the expert not engage in ghost writing was harsh and overreaching and she agreed with the defendant that it did suggest some form of improper conduct by the expert or counsel when none was evidenced. The judge found it reasonable that the expert and counsel might take offense and feel their integrity was being called into question as a result of the wording. Justice MacLeod-Beliveau further noted that it was redundant for the plaintiff to request that “the research and medical record review leading to the report will be conducted solely and entirely by the examining doctor”, as this requirement was already covered in the condition that the report must be written solely by the examining doctor.
On the matter of the late cancellation fee, the defendant argued that prior to the pre-trial, the plaintiff had agreed to the request for defence medical examinations and consequently, the defendant took the action of scheduling the appointment. The defendant added that the condition of no ghostwriting came as a complete surprise and he should therefore not be responsible for the cancellation fee. The plaintiff disagreed and argued that the defendant jumped the gun in scheduling the appointments before all conditions pertaining to the examinations had been made and agreed to.
While the judge agreed with the plaintiff that the defendant did schedule the doctors in advance of the plaintiff’s full consent, she stressed that the plaintiff did, in turn, agree to those scheduled dates. On this basis, Justice MacLeod-Beliveau ruled that both parties contributed equally to the delay and to the incurring of the cancellation fee. The judge noted that the cancellation fee was excessive and instead calculated it to be at approximately $1,375.00 and ordered the plaintiff to pay half of the amount.
This matter also involved the issuance of a Supplementary Order by Justice Macleod-Beliveau that clarified how a medical expert is able to utilize the services of ancillary personnel in preparing the medical file pre-assessment and drafting the report post-assessment. In short, Justice Macleod-Beliveau explained that while she had previously indicated that any expert medical assessor should be the sole author of his or her report, it is permissible for any medical expert to utilize administrative help for the “preparation of the file, typing and/or editing of the report”. This was certainly an important clarification as the cost of medical expert reports would likely soar in price if expert assessors are unfairly barred from using support staff to complete their reports; not unlike lawyers use law clerks or legal assistants in the handling of their own case files.
While the majority of personal injury cases are settled without a trial and there is an onus on medical experts to submit only credible, defensible and objectively-based reports, it is incredibly important that the legal community support medical experts in the process. Lawyers need to do their due diligence by seeking out experienced and qualified medical experts that routinely prepare, fair and balanced expert reports as opposed to retaining the proverbial “hired gun”. Retaining a medical expert that prepares a report that is biased in nature makes the expert in contravention with Rule 53 and ultimately does a disservice to the plaintiff while potentially compromising the case. Retaining medical experts with experience in performing medical legal work for both defence and plaintiff counsels is one key way to ensure a balanced report is submitted to the referral source and most certainly, the courts look more favourably upon expert opinions when the medical expert has a strong ongoing clinical practice and provides medical opinion evidence for both defendants and plaintiffs.