Doctors who are often criticized for their biased, unreliable, or negligent testimonies when acting as expert witnesses in court have increasingly found employment with insurance companies intent on denying valid injury claims, particularly for individuals injured in car accidents.
One individual facing this challenge is Jonathan Graul from Fergus, Ontario, who experienced a traumatic brain injury as a result of a head-on collision in December 2017. Following the accident, Graul found himself defending his injury claim against two physicians employed by Aviva, a leading insurance provider.
With mounting medical bills and an inability to return to work, Graul initiated legal proceedings against both the other driver involved in the crash and the associated insurance company—Aviva—in pursuit of the compensation he believed he rightfully deserved.
“The experience was dirty,” Graul recounted during an interview with Go Public. “It felt like a personal attack throughout the entire process.”
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In the realm of legal disputes, medical professionals hold a crucial role, as they are expected to provide unbiased, independent evidence to assist the court in resolving conflicts over factual matters.
Unfortunately, according to Rhona DesRoches, an advocate for accident victims, medical professionals who deliver unsatisfactory testimony often face no repercussions, allowing them to continue acting as experts in numerous court cases without pause.
“These medical reports are pivotal to the outcomes of these cases,” DesRoches stated, who is the executive director of the FAIR Association of Victims for Accident Insurance Reform, an organization that supports individuals affected by motor vehicle accidents navigating Ontario’s insurance system.
“It is crucial for the public to be aware,” she emphasized. “The integrity of the medical evidence used in courts is a significant concern… The financial incentives are substantial, and they should be held to a higher standard regarding their statements.”
Following his December 2017 collision, Graul experienced severe repercussions. His vehicle was struck head-on by a motorist driving in the opposing lane, forcing his car into a ditch. The aftermath left Graul bleeding from his face and hands, battling the physical and mental toll of his injuries.
In a court document, Graul’s wife described him as a “shell” of his former self, highlighting the profound impact of the trauma on his overall well-being.
Graul continues to confront a persistent barrage of symptoms, noting, “Headaches and confusion consume my daily life. The ringing in my ears is relentless, a constant reminder of my condition.” He also expressed concerns over fading memory and vision issues, stating, “My wife frequently checks in on me to ensure I’m managing okay.”
Despite feeling confident in his medical evidence—bolstered by the support of over a dozen health professionals—Graul found himself bewildered when Dr. Lawrence Freedman, one of Aviva’s expert witnesses, proclaimed in court that his traumatic brain injury was non-existent.
Another witness, Dr. Sara Mitchell, asserted that Graul’s injury had resolved, which left him in disbelief. “I’m still angry. I can’t comprehend how that could happen,” he shared.
WATCH | Medical experts criticized for testimony in insurance cases:
Doctors who’d been criticized for testimony hired as experts by insurers | Go Public
A comprehensive CBC Go Public investigation has revealed a pattern in which insurance companies hire medical professionals known for providing faulty testimony, aiming to undermine or reduce compensation claims for injuries sustained in accidents. Advocates argue that doctors with questionable backgrounds should not be permitted to act as expert witnesses.
Judge calls some evidence ‘tainted’
In Graul’s case, an Ontario Superior Court judge harshly criticized two of Aviva’s four hired medical experts, as detailed in a ruling released in April 2022.
Justice G.D. Lemon, having reviewed the evidence, confirmed Graul’s traumatic brain injury after examining the corroborating testimonies of multiple physicians.
The judge specifically denounced the evidence provided by Freedman, labeling it as “tainted.” Lemon characterized the neuropsychologist’s testimony as more akin to “a biased, paid expert attempting to conceal substantial evidence from the court,” rather than adhering to the role of a neutral witness.
According to the judge’s decision, Freedman had not treated any patients with traumatic brain injury since 2006.
Freedman declined to comment when contacted by Go Public regarding his court appearance.
Video shows doctor contradicted herself, judge says
The judge also called out Aviva-hired neurologist Dr. Sara Mitchell for her “alarming” inattentiveness to detail.
Mitchell faced criticism for providing contradictory statements about Graul’s vacant stare, which she claimed was not a “red flag” during her testimony, despite having stated otherwise in a 2018 interview on the CBC daytime talk show The Goods discussing concussions.
WATCH | Dr. Sara Mitchell on a CBC TV interview in 2018:
Medical expert’s talk show comment used in court years later
Although Mitchell’s credentials as a clinician and academic specializing in intricate brain disorders are highly regarded, the judge’s decision noted her impressive curriculum vitae.
Despite the criticisms raised in court, Mitchell asserted her professional integrity, defending her expert opinions in an email to Go Public. “My obligation is to provide unbiased and impartial assessments, assisting the court in a civil litigation context,” she stated, pointing out her experience working on behalf of both plaintiffs and defendants.
See Dr. Sara Mitchell’s full response here.
Experts for hire
Graul’s legal counsel, Gary Will, expressed concern that some medical experts might be incentivized to favor insurers for future work opportunities if they provide favorable opinions, particularly those who primarily work for insurance companies.
Will characterized it as a “highly lucrative” niche for certain experts. “They are well aware that if an insurance company is satisfied with their testimony, further employment will likely follow,” he stated.
Aviva, like many insurance companies, acknowledged to Go Public that it frequently engages a third party to supply medical professionals for both plaintiffs and defendants in injury-related cases.
In a statement, an Aviva spokesperson emphasized its expectation that experts deliver fair, objective, and impartial opinions. “At Aviva, we prioritize the provision of non-partisan evidence,” the spokesperson articulated in an email.
See Aviva’s full response here.
More experts called out
The scrutiny surrounding Graul’s situation prompted a broader Go Public investigation, uncovering more than two dozen other cases where medical experts retained by insurers faced judicial criticism.
Among these, psychologist Dr. Curtis West has been notably criticized by both adjudicators and judges regarding his integrity in several cases.
In a 2016 ruling, an arbitrator observed that West exhibited a “lack of willingness to accept objective data, raising questions of bias.” Furthermore, in 2022, an adjudicator criticized West’s testimony for failing to consider relevant evidence and maintaining a narrow perspective on the case.
In July 2023, West faced disciplinary measures from the Ontario College of Psychologists on allegations of professional misconduct related to his report writing.
Despite multiple requests for clarification, West did not respond to inquiries from Go Public.
Additionally, physiatrist Dr. Alborz Oshidari has encountered criticism over a dozen instances from adjudicators regarding his testimony in accident injury cases. Although no court has raised doubts about his objectivity, he has faced scrutiny for providing inaccurate and unfounded medical opinions beyond his professional scope.
Oshidari claims he has served as an expert witness over 50 times in his 25-year career, suggesting that numerous adjudicators have assented to his findings. “I do not allow who pays me to influence my assessments,” he stated in a phone interview when asked about the criticisms he faces.
In an email to CBC News, Oshidari clarified that having his expert testimony disregarded by a court is merely part of the adversarial legal process. “It is the adjudicator’s role to weigh all expert evidence presented and determine its credibility,” he explained.
When approached about his earnings for legal-medical work, he noted that insurance companies often compensate experts at significantly higher rates than those offered to legal representatives for injured claimants.
See Alborz Oshidari’s full written response here.
Who’s to blame?
Advocates for change argue that robust reform is desperately needed, with DesRoches attributing the current crisis to insufficient oversight from governing bodies and professional colleges.
“This situation is creating significant hardships for accident victims,” she warned.
According to DesRoches, the responsibility lies with the professional colleges overseeing medical practitioners, the Ontario government, and the physicians themselves.
The College of Physicians and Surgeons of Ontario (CPSO) has established a policy mandating that medical experts provide comprehensive, relevant, and impartial opinions, insisting on the necessity for transparency in their testimonies. However, the CPSO maintains that it is ultimately up to the courts to determine expert qualifications.
Similar responses were received from the College of Psychologists and Behaviour Analysts of Ontario, as well as the Ontario Attorney General’s office, which governs the court system in Ontario. “It is the judge’s responsibility to evaluate whether expert evidence is admissible, utilizing established case law factors,” a representative from the Attorney General’s office elaborated in correspondence with Go Public.
While the ruling in Graul’s case was appealed, both parties eventually reached a settlement, according to his lawyer.
Graul described his tumultuous journey through the legal system as a daunting ordeal. “I never wanted to find myself in this situation,” he expressed. “This is an entire realm that was foreign to me. But it seems clear to me that reform is essential.”
DesRoches remarked that Graul was fortunate to have secured competent legal representation, but she emphasized that systemic changes are necessary. “Even in a case where a judge was candid about the faults of Mr. Graul’s medical experts, there is nothing preventing that same expert from appearing again tomorrow, perhaps before the same judge,” she pointed out.
She asserted that this issue is not isolated to Ontario, as questioned experts frequently testify in injury litigation throughout Canada.
Consequently, DesRoches expressed concern that many claimants feel compelled to settle their claims for significantly less than they are entitled to, discouraged by the ongoing challenges and obstacles in the system.
While acknowledging the troubling conduct of certain medical experts, Will stressed the need to differentiate between individuals who take their responsibilities seriously and those whose integrity is questionable. “Not all experts are biased,” he asserted. “Many professionals uphold their credibility and are dedicated to providing accurate, objective evidence.”
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What are the main challenges accident victims face when navigating the insurance and legal systems after an accident?
Ting process, filled with uncertainty and frustration. The experiences he encountered, from the initial trauma of the accident to the subsequent battle in court, highlighted the complexities that many accident victims face when navigating the insurance and legal systems.
Despite the challenges, advocates like DesRoches emphasize the need for increased accountability among medical professionals providing expert testimony, particularly when their opinions significantly impact the outcomes of compensation claims. They call for reforms to protect victims from the repercussions of biased or flawed medical evidence.
As onlookers and stakeholders in the legal and healthcare communities continue to scrutinize the intersection between medical testimony and insurance practices, it becomes clear that ensuring the integrity of expert opinions is paramount. Recognizing the profound effects that inaccurate medical evaluations can have on victims’ lives, advocates assert that systemic changes must be implemented to safeguard against compromised medical assessments in court.
The case of Graul is emblematic of a broader issue within the insurance system, underscoring the urgent need for reforms that can better protect accident victims and ensure that the medical professionals offering their expertise adhere to the highest standards of conduct. As the dialogue continues, the focus remains on improving the processes that govern expert testimony in legal situations, with the aim of achieving a fairer and more just resolution for those affected by accidents.
