In personal injury lawsuits, ‘consensus reporting’ refers to when a single expert witness summarizes the opinions of other experts and delivers the findings to the court in the form of an executive summary. This practice is most often employed in accident benefits claims where injury victims and their insurers are engaged in a dispute over available benefits from a car accident.
Consensus reports have at times been criticized for delivering biased or skewed opinions, most often in favour of insurance providers. Now, after a recent Ontario Superior Court decision by Justice Sean Dunphy, the practice may be on its way out.
Platnick v. Bent, 2016 ONSC 7340 involved a libel claim by Dr. Howard Platnick against Maia Bent, the recent past president of the Ontario Trial Lawyers Association (OTLA). Ms. Bent had posted a warning about Dr. Platnick on the OTLA’s secure chatline. The post eventually leaked and became public, and Dr. Platnick’s business suffered.
Bent’s warning referred to two accident benefits claims during which she believed Dr. Platnick had acted unfairly. In the first instsance, the doctor delivered a consensus report which stated that Ms. Bent’s client did not meet the standard for catastrophic impairment, as stipulated by the Statutory Accident Benefits Schedule. However, it was later revealed that the doctors cited in the report had not endorsed it.
In his ruling, Justice Dunphy concluded that “the reports are not an objective summary of the underlying medical reports themselves so much as a summary of the conclusions reached by Dr. Platnick himself, applying their expert observations to his own understanding of the operation of the SABS regulations and the criteria incorporated therein.”
The second case mentioned by Ms. Bent involved Dr. Platnick convincing another physician to change their opinion in an insurer’s favour. Dunphy ultimately dismissed Platnick’s libel claim on the basis of Bent’s emails being “substantially true and correct.”
More broadly, Dunphy wrote that Platnick’s suit “had a substantial chilling effect on discussion and debate about the proper use and utility of this type of derivative expert’s report” in accident benefits claims.
Though the long term impacts of Justice Dunphy’s ruling in Platnick v. Bent remain to be seen, some prominent Ontario litigators hope it will stifle the use of consensus reports. The OTLA’s current president, Adam Wagman, told Law Times that consensus reports are “a construction of the insurance industry and, for the most part, the assessors that serve them. These assessors and all stakeholders should consider whether it is even necessary or appropriate in the circumstances of the particular case. In the vast majority of cases, they are doing nothing more than reiterating the other reports.”