Incompetent or unethical doctors
Incompetent or unethical doctors hurt victim claimants on a regular basis. In any medical-legal case the medical diagnosis and prognosis are the foundation upon which a claim is built or upon which it crumbles. Therefore, when a plaintiff innocent victim brings a claim for injuries he or she is often asked to see a doctor chosen by the defendant insurance company. The doctor chosen by the defendant insurance company will provide a report to the insurance company which will often be extremely important in whether or not ongoing treatment benefits are terminated or not, and it will also affect the ultimate size of the settlement. Thus, the doctor for the insurance company plays a pivotal role in many personal injury cases. Therefore, it is unfortunate that numerous doctors now in Alberta have essentially retired from medical practice and are consulting almost primarily to the insurance industry in providing reports which, the vast majority of times, terminate the coverage and compromise the ultimate settlement of the case.
The Case of Jones v. Stepanenko
We do not make the foregoing comments lightly. As evidence of this practice consider the recent case of Jones v. Stepanenko, 2016 ABQB 295. The plaintiff innocent victim suffered injuries to her neck, back, left shoulder, jaw, right wrist and knees. She subsequently went on to develop fibromyalgia, all documented and supported by her treating doctors. The defendant insurance company sent her to Dr. John Bauman who prepared a defense medical-legal report 10 months after the accident. As a result of this report ongoing treatment benefits paid by the insurance company were terminated.
In his report Dr. Bauman indicated that the plaintiff innocent victim continued to be troubled by stiffness in her upper back, upper trapezii, and low-back areas. He diagnosed her with a minor dorsal lumbar strain with contusion strain of her left shoulder and right hip area. He did not comment on her neck or headache symptoms. He concluded that he could not find any orthopedic evidence of injury and opined that she had recovered from her injuries with some minimal ongoing subjective symptoms.
As a direct result of this report, the case could not be settled and it went to a lengthy and costly trial. At trial, during cross-examination, Dr. Bauman agreed to the following points which completely undermined the relevance and utility of his previous written medical-legal report which some time earlier caused ongoing treatment benefits for the plaintiff to be terminated:
- He agreed that his report was confined to a “snapshot” in time for the single time that he saw the victim.
- He admitted that he had not been provided with the innocent victim’s general practitioner’s treatment chart of symptoms prior to assessing the innocent victim.
- He admitted that the lack of evidence of ongoing objective injury did not mean that she was not still experiencing pain. (He of course did not say this in his written report two years earlier.)
- When questioned about treatment, such as physiotherapy, Dr. Bauman indicated that there was no value in ongoing physiotherapy, even if it might reduce the pain, if it simply meant that the pain would return. So in this doctor’s view treatment that temporarily reduces pain is of no value whatsoever.
- As summed up by the presiding Justice: “I reject Dr. Bauman’s opinion that at this time, ‘there was no evidence of ongoing injury.’ On the stand, even Dr. Bauman conceded that this meant no ‘objective’ injury and that it did not mean that Ms. Jones could have been still suffering from pain and headaches that are outside his realm of expertise.” So Dr. Bauman, incredibly, writes a report saying there is no objective evidence of injury and completely ignores the victim’s oral statements to him of pain. THIS IS AKIN TO YOU GOING TO YOUR DOCTOR’S OFFICE FOR A VISIT AND HE DOES NOT LISTEN TO YOUR COMPLAINTS AT ALL AND INSTEAD BASES HIS DIAGNOSIS ONLY ON HIS EXAM OF YOU. Such an approach is contrary to the most basic skills doctors are taught about assessing and diagnosing patients.
In a scathing comment the Justice presiding over the trial went on to say: “I know that this concession by Dr. Bauman is a little late for Ms. Jones (the plaintiff innocent victim). Because of his ‘no injury’ opinion, her Section B (treatment) benefits were cut off. Dr. Bauman may well have been using his orthopedic way of assessing the plaintiff’s injuries, but he appears to have forgotten his audience when he’s asked to what amounts to an important medical-legal assessment.” What the court is saying is that Dr. Bauman was hired by an insurance company to provide a medical-legal report for the insurance company which he knew would be used against the plaintiff and ultimately in a court of law and yet he continues to assess and write a report based upon his narrow-minded orthopedic approach rather than writing with a view to his audience in mind with respect to the full picture of the plaintiff and her ongoing ability to benefit from physiotherapy treatment and whether or not she could have pain and headaches that are outside his realm of expertise. Dr. John Bauman instead remained silent on those points and writes a report that appears, on the face of the report, to suggest that the plaintiff victim is completely healed from the collision.
Unfortunately, Dr. Bauman’s approach is all too common with reports requested by the insurance company. Such medical-legal reporting by doctors in Alberta for the benefit of the insurance industry is an outrageous violation of their ethical principles as medical doctors and accepted basic diagnostics and, in our respectful opinion, the court was overly polite to Dr. Bauman and should have used stronger terms in her condemnation of Dr. Bauman’s approach to assessing the innocent victim and writing a medical-legal report which ignores the Alberta Insurance Regulations regarding medical-legal reports. As a result of Dr. Bauman’s report, which terminated benefits for the plaintiff years before the trial, and due to the victim’s impecuniosity, compromised her subsequent recovery and likely resulted in the development of fibromyalgia.
Or in the polite words of the presiding Justice commenting on the role of medical-legal experts writing medical reports she said, “These medical-legal reports are relied upon by insured’s and injured parties and they need to be as accurate an opinion as possible. It is not appropriate in the legal setting for which these reports are prepared to rely on definitions and tests of disability that do not coordinate with the definition set out by our Legislature in the Regulations.” It is absurd that a Justice of the Alberta Court of Queen’s Bench has to admonish a medical expert to make his report as accurate an opinion as possible. Providing an accurate medical-legal report should be a given for a person who has a medical degree and who knows his report will be relied upon to continue or terminate benefits. We find doctors like John Bauman to be either incompetent, or if he knows what he is doing, then he is unethical.
Brent L. Handel, Q.C.