Insight: Truth Lies and Videotape

To the already controversial topic of Independent Medical Examinations (IMEs), one can now add the following twist: claimants requesting a videotape recording of their sessions with a physician. Medical evaluators, insurance companies and defence counsel have noticed an increase in applications for videotape requests from plaintiffs’ lawyers and patients undergoing a defence medical examination, particularly in Ontario and British Columbia.

It is an issue that threatens to bring more delays and uncertainty to the IME process, with defence lawyers arguing that it sharply reduces the available number of medical specialists it can potentially use, as many doctors will simply not permit the sessions to be videotaped.

Of the tens of thousands of IMEs done each year in Canada, only a small percentage – some estimate less than two per cent – are actually filmed. Yet defence lawyers and medical evaluators see greater demands for videotaping of medical examinations, particularly in the past year.

For insurance companies facing a backdrop of rising med/rehab costs for auto insurance injuries at roughly $4 billion per year on the private industry side, these requests can be problematic. According to the Insurance Bureau of Canada, between 15 to 22 per cent of injury claims are fraudulent, costing the insurance industry more than $430 million per year.

One of the key ways insurers hope to figure out who is exaggerating their injuries is through IMEs. Companies have the right to order an assessment by a medical specialist of their choice. If the case goes to trial or mediation, this request is often known as a defence medical examination. It is typically these assessments that plaintiffs’ lawyers argue should be videotaped in certain circumstances.

NOT READY FOR A CLOSE-UP

The Canadian Society of Medical Evaluators (CSME) has “noted a significant, increasing trend in requests for recording of IMEs” and developed a position on the issue that “the use of electronic recording is generally undesirable and unnecessary and creates a significant potential to invalidate the evaluation process.”

The CSME has surveyed several groups across the country on the issue of recording IMEs, including medical colleges, lawyer groups and individual medical practitioners to get a sense of where people stand, according to Dr. Michael Ross, past president of the CSME and an occupational and organizational psychiatrist in Toronto. He spearheaded the survey for the CSME to develop a considered opinion of various factors in videotaping IMEs. The society is currently compiling results of the survey and will be holding sessions on videotaping IMEs at its annual conference this fall.

Ross notes that even some medical colleges differ on their view of allowing videotapes of medical exams. “There is a wide variation in opinion. Some colleges think it is a good idea as it creates a record that is permanent and accurate, and protects both the patient and the doctor,” he observes. “Others think videotaping is a bad idea in that it intrudes on the clinician-client relationship and can involve an unconscious play toward the camera, skewing the results. And there is also a wide variation among individual clinicians.”

Defence lawyers, such as Eugene Mazzuca a partner at Blaney McMurty LLP, also note a “growing trend amongst plaintiffs’ counsel to request that defence medical examinations be either audiotaped or videotaped.” He contends that videotaping presents a number of difficulties and can “result in an unfair litigation advantage in favour of the plaintiff as the defence is unlikely to have tapes of the plaintiffs’ medical examinations by medical/legal experts.”

Other lawyers, such as Danielle Goose, an associate at Reisler Franklin LLP, say videotaping “limits the choice of doctor for the defence as many doctors will refuse to conduct an examination if it is recorded. If forced to have a video/audio recording, the defence would be denied the medical professional of their choice.”

PLAINTIFFS STATE THEIR CASE

However, plaintiffs lawyers say there are compelling reasons why an exam should be recorded and that recent judicial decisions have laid out clear criteria for how and when videotaping can be used in limited situations.

Patrick Brown, a partner with McLeish Orlando LLP and incoming president of the Ontario Trial Lawyers Association, says these decisions have provided guidelines and offered important safeguards for plaintiffs and lawyers in specific cases.

“The whole concept of recording defence medical examinations is dictated by the rules of court,” Brown notes. “The way the courts have interpreted those rules to afford protection when necessary is appropriate. I have no problem with the way the present system is run, which is that defence medical exams ought to be videotaped where warranted and under the circumstances outlined by the court.”

“In my view, if a medical specialist is a participant in the system and agrees to conduct defence medical examinations, then he or she is part of the litigation process,” Brown adds. “They are being asked to do a videotaped session in regard to the litigation process, and they are being paid accordingly.”

A leading case in this area is the Ontario Superior Court of Justice 2003 decision in Willits v. Johnston, In the Willits case, the plaintiffs wanted to have their defence psychiatric examinations videotaped, expressing concern that their poor English would prevent them from properly relaying to counsel what happened during the exam.

Mr. Justice Quigley allowed the exam to be recorded, relying on the 1992 Ontario Court of Appeal decision of Bellamy v. Johnson. In that decision, Justice Doherty set out several factors that the court should take into account in permitting an IME taping:

* the opposing party’s ability to learn the case it has to meet by obtaining an effective evaluation;

* the likelihood of achieving a reasonable pre-trial settlement; and

* the fairness and effectiveness of the trial.

According to Mazzuca, since the Willits decision, the issue has been before the Courts on several occasions, “but it has really come up significantly in the past year,” The results, he notes, have been fairly evenly split as to whether judges allow or deny the videotaping of IMEs.

COURTS USUALLY IN FAVOUR

Typically, the courts have granted the request when there is sufficient reason, particularly in cases involving memory or neurological impairment, language comprehension issues or, more rarely, allegations of bias against a medical evaluator. Moreover, the courts have put rules on how the videotaping process should be conducted, including the use of a professional videographer, no edits or manipulation of the tape and a defined timeline recording of the exam from start to finish.

In May 2007, a decision by The Ontario Superior Court of Justice in Dempsey et al v. Wax confirmed the potential benefits of videotaping. In that judgment, Mr. Justice Quigley ordered that a neuropsychological assessment sought by a defendant in a motor vehicle case be videotaped due to memory problems the plaintiff was suffering.

“A full and accurate recording might well enhance settlement prospects at a pretrial by reducing the potential for any ambiguity arising from the examination,” Justice Quigley wrote.

Brown concurs with that reasoning. “Videotaping facilitates the fact finding process, it does avoid controversy and it can expedite the conduct of the trial.”

Another recent case, a prehearing decision by Ontario arbitrator David Muir, in late May, involved Natalia Vasina and ING Insurance Company. Vasina, who was hurt in a car accident in 2004, argued that she had been injured in a prior insurer’s examination and did not wish to repeat that experience. She agreed to attend an insurer’s examination to determine if she had suffered a catastrophic impairment, under the c ondition that it be videotaped. ING argued that Vasina was making herself “unreasonably unavailable for assessment.”

In a non-binding decision, arbitrator Muir concluded that “to the extent that a video recording might eliminate questions about when, how and why certain things are said and done during these assessments, it may enhance the possibilities for settlement by increasing Vasina’s confidence in them.”

WORTH THE TIME AND MONEY?

For insurance companies, the main concern seems to be not whether patients should have access to videotaping for medical exams, but the potential for higher costs and longer delays.

“Videotaping the medical examinations provides some comfort to our clients that the examination is being properly conducted, which we have no objection to,” notes Ed Nolan, vice president of claims for ING Canada. “However, from a business perspective, we are concerned that this will drive up the cost of the entire legal process.”

The expenses of videotaping extend to the hiring of a professional videographer and copies of tapes/disks, but also higher costs paid to the IME doctor for allowing the service and the time spent reviewing the videotape by both medical and legal professionals.

“You are looking at substantial costs and if you look at those costs over the system it really does become a concern,” notes Ross. “We have a system that can’t afford to add thousands of dollars of costs to cases generally. Is there a point when those costs create a burden of access to the legal system and to medical care?”

Mazzuca says he “read an article prepared by a plaintiff’s lawyer involved in this type of situation and he, alone, spent over 60 hours reviewing and comparing reports. To translate, that is over $15,000 for one witness on the stand for one day.”

The issue goes beyond costs, however, according to Mazzuca. “My personal view is that the courts should be very wary of ordering the videotaping of IMEs,” he says. “The real fallacy is suggesting that videotaping is likely to increase the possibility of pretrial settlement. If you have only one side videotaping, this is going to lead to unfairness at trial. If either side has that advantage, that is going to lead to even less impetus to find a reasonable resolution to the claim.”

Mazzuca cites a decision by the Superior Court of Justice earlier this year in the case of Benner v. Walsh in which a judge refused a request for recording a medical examination.

“The plaintiff would have a tactical advantage to attack the examining physician’s credibility without a similar chance for the defendant since the plaintiff’s doctor’s exams have not been taped,” according to Justice Festeryga. “With the greatest respect to Mr. Justice Doherty in ‘Bellamy,’ I cannot agree that recording the exam could make settlement chances better.”

On the plaintiff lawyer side, Brown acknowledges “there is little doubt that the plaintiff lawyers can use the videotape at trial, but the purpose of (the court) ordering it is not for that. At the same time, think about the prejudice that a plaintiff’s counsel has when his client can’t come back and tell him what happened during the exam because of a cognitive impairment. There has to be a balance of competing issues.”

A QUESTION OF HUMAN NATURE

For Mazzuca, the very act of videotaping may change the nature of the medical exam itself. “The other thing that has not been raised that much in case law is that it is human nature to act differently in front of a camera,” he says. ” I think it adds that unnecessary level of complexity to what has been a longstanding and recognized way of defending these claims. You could get an actual questioning of the veracity of the exam itself.”

“The use of the videotaping would threaten the integrity of the examination and affect the ability of the doctor to properly conduct a complete psychiatric examination,” argues Goose.

Michael Ross says there is a “time-honoured and proven method of evaluation that involves the clinician in a one-on-one basis with the patient. Medically, we ask, ‘is there some reason to stray from the traditional method?’ So far I have uncovered very few medically indicated reasons for videotaping. Through the work we are doing at CSME, we are looking to find as many as we can.”

Ross says medical evaluators should be trained on how to deal with the effects of videotaping on patients and the examination process. “I believe you do have to have proper training and experience where you feel comfortable in front of the camera,” he notes. “And you have to be on the lookout for the person you are interviewing if he or she is consciously or unconsciously playing to the camera.”

Brown says such videotaping is not uncommon among health care specialists, particularly during training in medical schools. “Videotaping has taken place in a clinical setting for teaching purposes, so it is not unusual to suggest that it take place,” he notes. “It has been done in the past, outside of the litigation process.”

Contrary to opinions about the increasing trends towards videotaping of IMEs, Brown argues that its use is limited in Canada. He notes that in some American states, the recording of IMEs is widely practiced and there is actually an onus on the defence to show that is not appropriate.

“It is a reversal here,” Brown observes. “The standard in Canada is that defence medicals will take place under a court order unless you can provide evidence to show that it ought to be videotaped, such as brain injuries or cognitive deficit. The one issue I think people most fear is the allegation of bias. But if you look at the number of times it has been awarded, it is very few and far between. If a plaintiff lawyer alleges bias against a medical specialist, he or she had better have some good grounds.”

In fact, there may be a tenuous balance right now in both the legal and medical worlds on whether videotapes actually harm or help the evaluation process.

“We have achieved a reasonable status quo whereby recording of IMEs does not occur unless there is some reason why it should,” concludes Ross. “I think it would be heavy handed to say that this should never occur, I think it would be completely unaffordable to try to make it happen all the time.”