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We're All Crash Test Dummies

BRIAN FRANCIS
The Hamilton Spectator  (Ontario, Canada)
October 1, 2002; Page A13

Do you think you're covered if you're injured in a car crash? If so, you'd better think again. Photo by Insurance Inst. for Highway Safety.

In 1998, the "Fifth Estate" aired Prove It If You Can, which showed three Ontario accident victims' horrifying experiences with insurer-sponsored medical assessments.

They had different insurers and had been sent to different doctors for assessment. But all three were frustrated with assessments that ignored or understated significant medical problems documented by their treating doctors.

Shortly after, The Hamilton Spectator began tracking insurer- sponsored assessments in a series of reports. Though initially about one case, The Spec series found systemic problems with the car insurance industry's use of "preferred vendors" for assessments, particularly their use of unqualified health professionals.

The political satire magazine Frank has now jumped into the fray, reporting on disability claimants being reclassified as healthy in order to be "kicked off the insurance gravy train."

With all this media attention, has anything changed since Prove It If You Can was broadcast? The short answer is no.

Now, let's look at our neighbours to the south to see what they did when the U.S. media reported on questionable medical reports used to deny or reduce legitimate insurance claims.

In July 2000, "Dateline" focused on a woman whose benefits were stopped after what all now agree was an unqualified and biased insurer report. Followup showed hers was not a unique case but an unsavoury example of what has long been standard practice by many insurers. 

The "Dateline" piece was remarkably similar to that of the "Fifth Estate." The aftermath, however, couldn't be more divergent.

Washington's response to "Dateline's" story was immediate and unequivocal. The chair of the House Commerce Committee dedicated "full investigative powers" to examine the scope of the problem. 

Speaking of "Dateline's" coverage, committee member Billy Tauzin said, "What you've uncovered is probably just the tip of the iceberg ... you can bet there will be hearings."

Similarly, Senator John McCain, chair of the Senate Commerce Committee, wrote to U.S. insurance commissioners raising concern at "possible collusion" between insurance companies and the firms they hire for second opinions.

A multistate investigation into the practices of major insurers ensued and continues to expand in scope. George Nichols, who heads up one aspect of the investigation, summed up the unanimous reaction of U.S. industry watchdogs, saying: "We feel like 'Dateline' has provided a public service that has allowed us to recognize a national problem."

U.S. insurance industry employees have broken rank to charge their employers with using bogus medical reports to deny reasonable and necessary treatment. They have all been fired.

Not only have U.S. federal and state authorities put insurers under intense scrutiny, there has been a stream of press coverage of shady medical reports slanted to favour the denial or reduction of claims. 

U.S. courts are being flooded with cases dealing with fraudulent medical assessments. The ones that have been decided so far have been damning of "partisan physicians" selected by insurers to produce "fictitious reports" and "manufacture evidence" to defeat legitimate claims.

"Slanted and biased reports" are being produced "under the guise of obtaining independent and objective medical assessments" and examiners are encouraged by management to use these "as cost-cutting devices."

Courts have called these insurer practices "outrageous, intentional, harmful and an extreme deviation from reasonable conduct."

This penchant for systematically commissioning incompetent reports to deny or reduce legitimate claims has attracted the attention of several consumer groups, as well as the Washington-based Trial Lawyers for Public Justice Foundation.

These groups are trying to unseal court records to shed light on the extent of the problem. Not surprisingly, insurers are blocking it. This is by no means an exhaustive account of the fallout in the United States over the media reports.

Coverage of similar practices in Ontario, however, received a more muted response. In contrast to the accolades "Dateline" got (and flying in the face of the stereotype of the United States as being the more litigious of the two countries), the "Fifth Estate" has been hit with lawsuits and injunctions forbidding it to air or otherwise circulate the offending program segment.

Insurance industry critics see this as an attempt to muzzle the press. Though Ontario health regulators have officially censured those involved in practices highlighted in the "Fifth Estate" and The Spectator pieces -- in essence confirming the media reports were accurate -- Ontario law forbids consideration of these censures in defence of those being sued.

Moreover, the doctors who were censured continue to provide insurer assessments.

Unlike some of their U.S. counterparts, members of the Ontario Trial Lawyers Association have, with rare exceptions, shown little interest in pursuing these kinds of abuses in defence of their clients' access to statutory accident benefits.

Confronted with a host of problems in insurer assessments, Rob Sampson, then the Ontario cabinet minister in charge of auto insurance reform, had only this to say: "No system is perfect."

Proponents of the status quo like Sampson point out that due to rising costs, insurers are under tremendous pressure to reduce expenses.

One step insurers take is to closely review the treatment plans recommended by claimants' doctors to make sure they are "reasonable and necessary." Containing costs by refusing to pay for unnecessary treatment sounds reasonable.

But shouldn't the people who decide what is necessary -- in this case, insurer doctors -- be qualified to make that determination?

Neither Sampson nor Health Minister Tony Clement has been willing to take the steps required to ensure this is so. As in a number of other areas, the Ontario government is hoping that self-regulation is the answer. Ontario Tories have been charged (or credited) with lifting Republican platforms and importing them into the Ontario political landscape.

In the United States, it is the Republicans, both federal and state, who are leading the charge against the insurance industry on this matter. For example, the Florida Attorney General's office -- Governor Jeb Bush country -- has been aggressively pursuing investigations.

Why is the Ontario government so reluctant to take instruction from them on this particular initiative? The answer may lie in our government's own reliance on second opinions for hire.

Many if not most of Ontario's doctors whose earnings rely on making insurer-sponsored assessments, supplement that income by writing assessments for the Worker Safety Insurance Board (WSIB).

The government cannot investigate auto insurers' practices without calling into question their own. This is an issue that affects more than a handful of accident benefits claimants. Ontario's seven million drivers pay for insurance for themselves, their passengers and the pedestrians on the streets they drive. If the time comes when a claim is made on that policy, Ontarians must be able to trust that they will receive the best medical care available. Their recovery must not be hampered by unethical and/or incompetent doctors paid by insurers to write slanted reports intended to justify the termination of benefits.

Perhaps Clement and Sampson might want to rethink their commitment to the status quo and offer their belated congratulations to the "Fifth Estate" for providing a valuable public service.

Brian Francis of Caledonia is a social worker. He became an activist after his wife's auto accident in 1993.