Ontario auto insurer’s examiner gets day in court

Last week’s court ruling against a prominent personal injury lawyer could give Ontario auto insurers’ medical examiners recourse if those doctors feel their conduct has been publicly maligned.

Dr. Howard Platnick is a Toronto physician who does medical examinations for Ontario auto insurers. He filed a $15 million libel lawsuit in 2015 against Maia Bent, a London, Ont.-based personal injury lawyer with Lerners LLP. Bent is former president of the Ontario Trial Lawyers Association (OTLA).

Platnick v. Bent, released this past Thursday by the Court of Appeal for Ontario, does not mean that Bent libelled Dr. Platnick. It does mean that the lawsuit can now proceed to trial and overturns a 2016 ruling that threw the lawsuit out of court.

Libel is “any statement which tends to discredit or lower an individual in the estimation of right-thinking members of society generally,” the Canadian Judicial Council notes.

An earlier email by Bent made reference to two insurers’ examination reports provided by Dr. Platnick and “was subsequently leaked by one of its recipients to a broader audience,” Justice David Doherty wrote in the ruling released Aug. 30, 2018.

As a result, Dr. Platnick reported he was “dropped as a service-provider by many of the insurance companies for whom he had worked over the years, developing along the way a lucrative practice,” added Justice Doherty.

People who are sued for libel have several defences. For example, they can prove the allegations are true and if not, there is also a defence of qualified privilege – which includes but is not limited to reporting statements made in court or a legislature.

In 2014, Bent represented Dr. Laura Carpenter, who was injured in 2007 in a motor vehicle accident. Dr. Carpenter (who happens to be a medical doctor), claimed she was catastrophically impaired. A motor vehicle accident claimant who is catastrophically impaired can get accident benefits of $1 million, while a claimant who is not catastrophically impaired has much lower coverage for medical, rehabilitation and attendant care. The exact coverage depends on when the accident occurred and whether the insurance policy had optional additional benefits.

Dr. Carpenter’s insurer, TD Insurance, retained independent medical examination provider Sibley, which in turn had several medical assessments done. Sibley also had Dr. Platnick prepare a report. Dr. Platnick reviewed documents written by professionals about Dr. Carpenter’s condition and concluded that Dr. Carpenter did not meet the criteria for catastrophic impairment.

Dr. Platnick was not commissioned to assess Dr. Carpenter “from a clinical perspective” but rather to “do an impairment calculation” by applying the statutory accident benefits schedule “to the entirety of the medical information available, including the assessments prepared by the various experts,” Justice Doherty of the Court of Appeal for Ontario wrote.

Dr. Carpenter’s accident benefits claim went before the Financial Services Commission of Ontario, which at the time arbitrated disputed accident benefit claims. TD later settled with Dr. Carpenter.

The email that gave rise to the libel suit was sent by Bent to an OTLA “listserve,” meaning that Bent’s email was distributed to OTLA members who subscribe to that listserve.

In 2015, Bent asked the Ontario Superior Court of Justice to summarily dismiss Dr. Platnick’s lawsuit, which it did in 2016. Justice Sean Dunphy ruled that Bent would “likely succeed” on the defence of qualified privilege. This is because of an Ontario law – passed in 2015 – designed to block “strategic lawsuits against public participation,” or SLAPP. The new law means it is not libel if a statement is made on a “matter of public interest.”

Bent cannot use that defence to have Dr. Platnick’s lawsuit against her thrown out of court, Justice Doherty countered. This was one of several findings made in the unanimous Court of Appeal for Ontario ruling released Aug. 30, 2018.

Bent made several allegations about Dr. Platnick in her message in 2014. One of those allegations was “not necessary” for Bent to make the point that “lawyers representing claimants must be wary of medical reports presented on behalf of insurers and must check the entirety of the medical evidence available on the arbitration,” Justice Doherty of the Court of Appeal for Ontario wrote.

Concurring were Justices Grant Huscroft and D.M. Brown.