Medical experts in the context of civil litigation: Why haven’t we done this before?
It is well known that civil litigation in Ontario is a lengthy process, one that requires patience, time and deep pockets. Civil matters from the cause of action to trial in Ontario take on average between four to five years to get to trial. (See “The Advocates Society: Delay No Longer. The Time to Act is Now. A Call for Action on Delay in the Civil Justice System 2023”
At Page 3,
Most recently in an article from the CBC News posted July 10/20/23 entitled “Canada is Backlogged. Civil and Family Courts in Crisis, According to Lawyers Group”., this thought was echoed.
With the recent pandemic and ensuing hangover, cases continue to be adjourned for various reasons, i.e. lack of judicial resources but oftentimes blamed on the ongoing delays caused by the pandemic. However, no one will argue that there were delays present well before the pandemic.
One of the reasons for the delay specifically in civil litigation is the length of the trials. Where liability and damages are in dispute, it is often rare for cases to be heard within a two-week time frame, often requiring three or four weeks. Despite the numerous reasons contributing to these delays, this article focuses on a potential solution, which is reducing the number of witnesses, namely expert witnesses that may testify or can be cross-examined on their reports.
In Ontario, plaintiffs who bring claims, are for the most part not restricted in terms of the number of experts they may retain in any given matter as long as they have access to the funding. Though they are limited how many can testify, they may bring a motion for, or seek leave of the court to allow more than three experts to testify at trial. In those cases, leave is often granted, allowing a party may have three to five expert witnesses. These experts can be range from non-party accident benefit assessors, doctors whose reports were commissioned outside the context of the litigation in question, simple participant witnesses, like family physicians, and treating doctors, etc. It is not uncommon for plaintiffs to have 5-6 and even up to 10 or more medical witnesses.
Bearing in mind this does not include any defence experts, non-party witnesses or participant witnesses themselves.
The issue of ‘like for like’ experts comes up in these situations where for example, the plaintiff requires experts to opine on an orthopedic issue, perhaps a chronic pain component or physiatry opinion along with the psychological component that may also delve into neuropsychology. Defendants will inevitably seek, either through consent or through a motion, responding reports. Parties then find themselves, before any lay witnesses testify, with double the medical experts which results in trial requiring double the time and incurring double the expense. Further, scheduled trials are often adjourned because parties need responding reports resulting in further delays.
Rules and Law in Place
Section 105(4) of Courts of Justice Act allows a court to order further medical assessments, physical or mental when requested by way of motion. This often occurs when the Plaintiff obtains a second or third or even 4th expert report or more, and the defendant seeks corresponding, reports.
Specifically, section 105(2) states:
“Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.”
Rule 33 of the Rules of Civil Procedure allows for these types of motions to be brought before the court, specifically sections 33.01 and 33.02(2) state:
“A motion by an adverse party for an order under section 105 of the Courts of Justice Act for the physical or mental examination of a party whose physical or mental condition is in question in a proceeding shall be made on notice to every other party.”
And
“The court may order a second examination or further examination on such terms respecting costs and other matters as are just.”
Further, a motion brought pursuant to Rule 33.03 allows the court to determine any dispute relating to the scope of an examination.
I would be remiss if I did not also mention our guiding principle in civil litigation, Rule 1.04(1) that states:
“The rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.”
Some may argue, I should have started with that.
I digress.
Potential remedy
The Advocates Society has offered suggestions to address delay and provided examples of solutions to assist in addressing the problem. Namely, these include; setting trial dates early, expanding the use of applications and summary trials, reducing the discovery-related disputes and increasing the availability of case management. I offer a fifth solution that may have previously been discussed in the context of “hot tubing” and expert assessments.
Given the court’s discretion and mandate to provide the “just, most expeditious and least expensive determination of every civil proceeding on its merits”, it begs the question, “Why haven’t we done this before?”
Take For example, a common situation would be that of a motor vehicle accident where a plaintiff sustained soft tissue injuries potentially resulting in an orthopedic injury coupled with a psychological component. Typically, in that such a case the plaintiff will either retain an orthopedic surgeon or a physiatrist, or perhaps both, and a psychologist and/or potentially neuropsychologist if there is an alleged brain injury.
I propose, in this situation, is one examination per area of injury or complaint, by a specialist agreed upon by the parties or. Using the example above, the parties would have to either agree upon the court authorized orthopedic surgeon, physiatrist, psychologist and/or neuropsychologist (possibly accessible from a portal) or ask for the court’s direction by way of a written motion. The parties would then be obliged to have the plaintiff assessed by the selected specialist and a report would be provided to all parties. Regardless of the outcome, all parties could cross examine this particular expert, if necessary, at trial. This would eliminate the allegation that the defence hired a “defence expert” or that the plaintiff hired a “Plaintiff expert”. This expert would be viewed as truly independent and unbiased This was clearly the legislators’ intent when adding particulars to rule 53 and the Form 53, an Acknowledgment of Expert Duty that is now required to be signed by all expert witnesses proposed to give opinion evidence. (Rule 53.03)
The portal is suggested because it would provide a court authorized list of physicians from various medical specialties to choose from or be appointed as required. Where the parties cannot agree on an expert, three may be chosen from the list and written motion submissions made (emphasis highlighted as a motion in writing would in theory be the least expensive way to resolve this issue, consistent with Rule 1.04(1)). Motions in writing would be the perfectly appropriate and save court time.
Downfalls
Potential downfalls of this proposed solution would be; more motions brought before the court, additional costs to the parties and possibly some delays.
Benefits
Motions would be heard in writing and therefore not require live court time. Over time it is expected, parties would work together in avoiding unnecessary motions.
While there would be resulting costs initially from these motions, the associated costs would be far less than those inevitably incurred due to numerous medical experts being present at trial. Not to mention, the advantages of reduced trial length. Moreover, the cost of the actual assessment and incidentals related to it would be borne by the party requesting that particular specialty or shared by the parties. (A schedule of expenses could be created, a topic outside the scope of this article.) Also, Plaintiffs could still recover the individual or shared portion of the cost as a disbursement later. Arguably, when viewed as a whole, there would be far fewer hours or days spent on these motions as opposed to days preparing for and attending trial, preparing for and witnesses attending trial, as well lower disbursements incurred.
This system proposed would inevitably provide more certainty in terms of the number of witnesses and encourage more settlements. Parties who receive a favorable report will maintain the right to have the expert testify and be cross examined in the usual course not unlike what happens currently. If a party receives an unfavorable opinion with respect to their client’s case, maintain the right to cross examine this expert. Not unlike the current norm, there will be cases where both parties question the expert at trial. The advantage being that there is only one expert from each specialty is present at trial and even in cases as mentioned above, less court time is required. The party(ies) who wish(es) to cross examine the expert would be required to provide notice to the opposing party within a certain amount of time before trial.
The expert’s opinion is just that, an opinion, and not accepted evidence just yet. The trier of fact (or the trial Judge in cases where statutory thresholds apply for example) would still have to listen to the evidence and decide whether or not it accepts the opinion, or what weight it wants to attribute to this particular expert.
Parting thoughts
Parties in Toronto, Ottawa and Windsor have mandatory mediations and may choose either from the roster list or private mediators. (This has been the case for many years, and for the most part, have done so without the need of motion). It is expected that with time this same situation would apply in the context of scheduling medical examinations.
The ideal outcome of this proposed solution would be that parties spend less time retaining experts and more time focusing on settlement. where settlement is not feasible, the new approach to expert witness would result in shorter, less costly trials.
Respectfully submitted,
Scott T. Croteau
Lawyer, Partner at Weaver Simmons LLP
Mediator
