In the case of Kushnir v Macari, the defendant sought an order for defence medicals with an orthopedic surgeon and a neuropsychologist. The plaintiff sought terms to ensure that the reports were not “ghost written”. The court noted that there were reported decisions where an expert had testified that part of their report was in fact written by someone else. Accordingly, the plaintiff wanted an order including the following terms for the assessment/report:
- That any independent medical examination conducted of the plaintiff shall not be ghost written, including inter alia:
a) The written report will be drafted solely and entirely by the examining doctor; b) The research and medical record review leading to the report will be conducted solely and entirely by the examining doctor; and c) The records will not be shared with any third parties
The court lamented that a few rogue experts who had admitted to ghost writing had caused this to become an issue. However, the court was not prepared to use the language of the plaintiff and instead, opted for a more generic approach, ordering the following terms:
- The report of the expert shall be Rule 53.03 (2.1) compliant.
- The report of the expert shall be Rule 33.06 compliant and shall be written solely by its author.
- Health records and information of the plaintiff shall not be disclosed by the expert to any other person or entity other than defence counsel.
Furthermore, the court made a specific note that the results of the case could not in any way be considered to impugn the integrity of counsel for the defendant, or the proposed assessors.
Interestingly, the court was not directed toward analyzing any broad based consequences of restrictions such as these. For example, the court was not directed to Moore v Getahun where the Court of Appeal considered that a lawyer’s consultation role with experts at the draft stage of a report “entails a risk of loss of objectivity on the part of the expert.” The offset to that risk though, was, as noted by the court, that the adversarial process, particularly through cross examination, provides an effective tool to reject or limit the weight of evidence by an expert where there is evidence of independence or impartiality. Accordingly, there is some flexibility given to experts who write reports for the legal arena.
What this case does do though – or should do – is to send a reminder to counsel that they ensure that from retention to examination, the expert is properly educated on his or her role. As noted by the Court of Appeal in Getahun (paragraph 62):
Just as lawyers and judges need the input of experts, so too do expert witnesses need the assistance of lawyers in framing their reports in a way that is comprehensible and responsive to the pertinent legal issues in a case.
Therefore, while some may say that this case ushers in a new era of gatekeeping by the judicial system, in fact, when you look at the actual terms imposed by the court, the opposite is true. This case simply reiterates two key principles around medical examinations which we already knew: 1) that they comply with the Rules; 2) That the examination process respects the privacy of the plaintiff’s medical records.