The Globe and Mail has written another article about abusive practices in insurer’s examinations. The article has the headline, “Insurance assessment firms altered, ghostwrote accident victim reports“. A couple of the problems the article covers, are assessors taking comments out of context, and picking and choosing what to put in a report. In quoting one injured person, the article states, “He said he felt Dr. Graham was ‘trying to give the insurance company a case… ignoring some things and putting attention to other things, and just taking stuff out of context. His findings were biased. There was no other way you could look at that.'”
In this day when nearly everyone carries a cell phone capable of doing audio and video recordings, this misbehaviour should not be a problem. However, when clients ask to record these assessments, they are often refused. If the assessor intends to be fair and honest, you really have to question why they wouldn’t allow the assessment to be recorded.
In some cases it is possible to make a recording or have a person attend with the client, as a condition of the assessment. This person could be a family member, a friend, or a care provider. Having another person accompany the client is particularly applicable in the case of children and people with brain injuries. However, few lawyers are willing to push these issues.
The article also raises the issue of ghostwriting. This is when an assessment company or someone else on behalf of the expert writes some or all of the report. This practice can sometimes be more difficult to detect and prevent. However, the assessment company usually requires some kind of consent document be signed that allows them to share information with the expert.
What the Globe and Mail article does not explain, is that there are really two kinds of assessments: one conducted under the no-fault insurance regime and the other conducted in the course of litigation. Both kinds of assessment have different processes, but, in both cases, the client can have input into the process. However, it takes knowledge and proactive legal representation to protect the client’s rights in these cases.
A few things to consider when asked to attend an assessment:
- In advance of the assessment, ask in writing to record the assessment. This request will probably be refused, but when it is refused it will make the expert look bad on cross-examination if they fail to accurately report what was said.
- In some situations it is possible to negotiate for a treatment provider or a family member to be present. This helps to keep the process fair and honest.
- Anyone present at the assessment – client, friend, family member, or treatment team member – should make detailed notes about the assessment and provide those notes to the lawyer on the case.
- Ask to review any consent document ahead of time. Challenge it if it allows the expert to provide their report directly to the assessment company. The report should go to the insurer or the defense lawyer, then to the client or their lawyer, unedited.
- If the assessment is done as part of the Court process, the client can often insist on terms, and, if not agreed by the other side, it can be taken before a judge to make sure the process is fair.
- If the assessment is done as part of the no-fault scheme, then it is considered a ‘voluntary’ assessment. If the client refuses, there may be implications for benefit entitlement. However, the fact that it is voluntary means that there is some opportunity to negotiate for a fair process.