1 COURT FILE NO.: 99-CV DATE: ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ASSESSMED INC., JACK RICHMAN and HEMENDRA SHAH -and- CANADIAN BROADCASTING CORPORATION, DAVID STUDER, DAVID KAUFMAN, LINDEN MacINTYRE and MICHEL P. RATHBONE Plaintiffs Defendants ) ) ) Philip Healey and Timothy J. Hill, for the ) Plaintiffs ) ) ) ) ) ) M Philip Tunley andlinda Shin, for the ) Defendants, Canadian Broadcasting ) Corporation, David Studer, David Kaufman ) and Linden MacIntyre ) ) Jenny P. Stephenson, for the Defendant ) Michel P. Rathbone RIVARDJ. HEARD: The trial ofthis case was heard on the following dates in 2003: February 25,26,27,28; March 3, 4,5, 10, 11, 12, 13, 17, 18, 19,20,24,25,26,27; ~pril 14, 15, 16, 17,22,28,29,30; May 5, 6, 7, 8, 12, 13, 15,20,21,22,26,27,28,29; June 2,3,4,5,9, 11, 12, 16, 17, 18, 19; July 14, 15, 16, 17,21,22,23,24,25,28,29,30,31; August 1; September 8, 9, 10, 11, 15, 16, 17, 18,22,23.
2 TABLE OF CONTENTS OVERVIEW 1 BACKGROUND 1 Research for the Program "Prove It IfYou Can" 1 AssessMed Inc 4 Dr. Shah 5 The Program "Prove It IfYou Can" 8 Dr. Richman's Article "Manufacturing Disability" 24 Dr. Michel Rathbone 25 Was the broadcast defamatory ofthe Plaintiffs? 27 Are the words defamatory ofthe Plaintiffs? 28 The Pleaded 'False' Innuendoes 30 Were the words understood in their Defamatory Senses? 38 Defence ofqualified Privilege 40 Defence offair Comment 40 Are the words complained ofcomments or Statements offact...41 Were the comments based on facts referred to in the broadcast that are themselves true? 44 Were the statements in issue on a subject ofpublic interest and importance? 54 Were the comments an expression ofthe speaker's own, subjectively honest opinion or conclusion on the subject matter in issue? 56 Were the statements objectively fair? 56 Express Malice 57
3 DAMAGES 60 AssessMed's Damages 64
4 OVERVIEW  The business of the plaintiff AssessMed Inc. ("AssessMed") is the performance of independent medical and psychological evaluations. Its work is carried out primarily for insurance companies.  On November 10, 1998, the Canadian Broadcasting Corporation ("CBC") broadcast, as a segment ofthe Fifth Estate, a program entitled "Prove It IfYou Can". This program was shown again on the CBC network on November 15,  "Prove It IfYou Can" told the stories ofthree individuals who suffered serious injuries in motor vehicle accidents. It depicted how insurance companies did not always treat accident victims fairly. The program alleged that insurers accomplished this, in the Janet Hough case, by referring her to a medical assessment finn such as AssessMed and obtaining a neuropsychological report which supported the view that she was not disabled. Accident benefits payable under existing insurance legislation were then discontinued, in spite of medical reports from her treating physicians which supported her entitlement to these benefits.  The plaintiffs claim damages, alleging the CBC program 'Prove It If You Can' defamed them. BACKGROUND  The plaintiff Jack Richman ("Richman") IS a medical doctor. He IS a director of AssessMed and is its ChiefMedical Officer.  The plaintiff Hemendra Shah ("Shah") is a psychologist who worked under contract for AssessMed.  The Fifth Estate is a television program which engages in investigative reporting. The defendant David Studer ("Studer") is the executive producer of the Fifth Estate. The defendant David Kaufman ("Kaufman") was the producer of the program "Prove It If You Can". The defendant Linden MacIntyre ("MacIntyre") was the host ofthe program.  The defendant Michel P. Rathbone ("Dr. Rathbone") is a neurologist who appeared on the program "Prove It IfYou Can". Research for the Program "Prove ItIfYou Can"  The three individuals whose stories were presented on the Fifth Estate Program were Janet Hough, Brian MacMullin and Tracy Prewer. The story idea for this television show originated with a complaint received by Anita Mielewczyk at the CBC from Brian Francis, the spouse of Janet Hough. Ms. Mielewczyk was the principal researcher and associate producer of "Prove It IfYou Can".  Brian Francis' complaint to Ms. Mielewczyk first came in December of Mr. Francis, in a telephone call, said he had a perfect story for The Fifth Estate. He told Ms.
5 -2- Mielewczyk his wife had suffered serious injuries in a motor vehicle accident. He complained about insurance companies denying benefits to claimants thereby downloading treatment and rehabilitation costs to taxpayers. He alleged Janet Hough's insurer had obtained a biased neuropsychological report from Dr. Shah at AssessMed which was then relied upon to deprive her of accident benefits, in the face of her treating doctors' reports which had confirmed her disability. Ms. Mie1ewczyk asked him to put his complaints in writing and to send these to her.  Brian Francis then sent a package to the CBC which included his history ofjanet Hough's difficulties.  Medical reports, including Dr. Shah's neuropsychological assessment and a medical report by Dr. Rathbone, Ms. Hough's treating neurologist, formed part ofthis package.  Ms. Mielewczyk reviewed this material.  It was clear to Ms. Mielewczyk that Brian Francis felt very strongly about what he perceived to be an unfair situation and that he would use all means available to him to help his wife. He had filed a complaint with the College ofpsychologists about Dr. Shah and he told Ms. Mielewczyk he wanted to see Dr. Shah's license pulled.  Brian Francis sent the CBC "a flood of materials". Ms. Mielewczyk felt he was extreme in advocating on his wife's behalf. She understood the role he was playing and concluded she could not be drawn into his obsession. She knew she had to be careful about the information he was conveying to her.  Ms. Mielewczyk continued to receive documents from Mr. Francis. By May 4, 1998, she had concluded there may be a story in this material suitable for a Fifth Estate program and she drafted a 'story pitch' for consideration by her bosses, David Studer and Susan Teskey. As a result of presenting this story idea, she was instructed she could pursue it, but, if it became an actual story for the Fifth Estate, it could not be about only one person. She continued with her research.  By late May 1998, Kaufman was assigned as producer for this story. MacIntyre was subsequently assigned as host.  Ms. Mielewczyk's research was extensive. In addition to reading all the reports and material sent to her by Brian Francis, she met with Janet Hough to obtain her first hand account. She read and studied the changes to the Ontario insurance legislation under Bill 68, Bill 164 and Bill 59.  Inquiries were made to the Ontario Brain Injury Association, and its paper entitled "Adding Insult to Injury" was reviewed. Newspaper searches were conducted. She had discussions with persons such as Dr. Gates at Columbia Rehabilitation, Dr. Harmine at Workers' Compensation, and Brendan Crowley at the Ministry ofthe Attorney General. These discussions related to neuropsychology, Bill 59, Designated Assessment Centres (DAC's) and independent medical examination.
6 -3-  Ms. Mielewczyk spoke to Willy Handler at the Ontario Insurance Commission, to Deborah Reid (Minister Sampson's media relations person), and to Ombudsman Lee Algar.  Submissions to Minister Sampson were made regarding the two-year review of Bill 59, including submissions from the Ontario Trial Lawyers' Association, the Advocates Society, the Insurance Bureau ofcanada and the Association ofrehabilitation Centres ofontario.  Ms. Phillippa Samworth, a defence lawyer and chairperson of the DAC Committee, was interviewed. John Watkin of the Citizens' Forum Advocating Insurance Review, an advocacy group interested in lowering insurance premiums, was consulted.  Doctors experienced in treating accident victims were interviewed; these included the physiatrist Dr. Girotti, Dr. Rathbone, Dr. Finlayson and Dr. Corey.  Lawyers who practiced in the field of personal injuries were consulted, including Mr. Gluckstein, Ms. Samworth, Ms. Hillier and Ms. Legate.  Efforts were made to speak to Dr. Shah, but he declined because the Janet Hough neuropsychological assessment he had authored was the subject ofa complaint to the College of Psychologists. Efforts were also made to obtain some input from insurance companies but they would not comment on the issues being researched.  Minister Sampson was interviewed. The standards of the Canadian Society of Medical Evaluators ("CSME") were obtained and studied. Included in the material sent by Mr. Francis to Ms. Mielewczyk was an article authored by Dr. Richman, entitled "Manufacturing Liability". This article, which I propose to discuss later, revealed a clear and strong view held by Dr. Richman that the majority of claimants studied at AssessMed wilfully misrepresented their situation, and that they did so often with the assistance oftheir health care providers.  As Ms. Mielewczyk's research progressed, the focus of the story became about accident victims who had suffered brain injuries and who had encountered difficulties with their insurance companies in collecting accident benefits.  Ms. Mielewczyk's research led her to Brian MacMullin and Tracey Prewer. Both had suffered serious injuries in motor vehicle accidents and both had encountered substantial difficulties in obtaining accident benefits from their insurers.  Janet Hough's accident fell under the O.M.P.P. Tracey Prewer's claims were under Bill 164 while Brian MacMullin was subject to the amendments under Bill 59. All three had been denied benefits under the three different insurance schemes. Ms. Mielewczyk concluded the story was going to be about the confusion and difficulties which had been created for motor vehicle accident victims with serious brain injuries, as a result of the three versions of the changing insurance legislation.
7 -4-  While conducting her research, Ms. Mielewczyk regularly spoke to Kaufman and discussed with him the story she was developing. As MacIntyre's involvement in the preparation ofthe program increased, her discussions included him as well..  On camera interviews were conducted. Transcripts of these interviews were prepared. Clips ofthese interviews were then selected in the preparation ofa 'rough cut'.  The producer and the editor refined the piece and it was submitted to Mr. Studer and Ms. Teskey. A vetting process followed, involving approximately three screenings.  MacIntyre then drafted a written script which was reviewed by Ms. Mielewczyk. The program was finally completed and appeared as a twenty-minute segment of the Fifth Estate on November 10, AssessMed Inc.  AssessMed Inc. was incorporated in 1995 by Brian Sutherland and Dr. Richman. The business ofassessmed was to provide independent medical and psychological assessments and functional capacity evaluations. It carried on business in Mississauga.  In the early 1990's, the medical assessment business became increasingly competitive. AssessMed put on seminars to educate its clients, primarily insurance adjusters. Dr. Richman promoted AssessMed by asserting it followed an evidence based approach. This meant "a methodology to impairment and to symptoms was applied."  The assessor attempted to search for the symptoms which caused the impairment. If symptoms were found, evidence existed to support a conclusion of impairment. Without symptoms, there was no impairment.  AssessMed was driven to be seen as having a desire for quality in processes and standards. This was important to enable the assessors to defend the opinions rendered. It was also important to detect symptom exaggeration and malingering.  In 1995, AssessMed purchased the exclusive rights to use "AssessAbility", a physical work capacity evaluation system developed at the University of Virginia. This system was intended to redesign the disability determination process. With "AssessAbility", AssessMed marketed itself as a firm with reliable and validated functional testing methods.  In the early 1990's, some doctors who performed medical assessments felt there was a need to establish standards and to follow processes to support the work they did as evaluators. Dr. Richman was a proponent of this. He and a small group of medical evaluators founded the CSME. In 1997, Dr. Richman became president ofthe CSME. A consensus guide to third party evaluations was drafted and by September of 1997, standards for members of the CSME were approved by its membership. These standards did not apply to psychologists.
8 - 5 -  In 1995, AssessMed began the process to become the first medical clinic in North America to be ISO registered. Registration was achieved in 1997 after quality assurance guidelines had been developed by ISO and AssessMed had satisfied ISO those guidelines were being followed. This added to the credibilityofassessmed and facilitated its marketing efforts.  AssessMed Inc. earned gross revenue totalling $541,698 in 1994 and $1,957,171 in The year 1996 saw these revenues improve to $3,187,877.  Mr. Sutherland and Dr. Richman decided to open assessment offices at other locations. AssessMed Toronto East Ltd. was incorporated on May 27, 1996 and that corporate entity commenced operations in Scarborough during the summer of  On March 10, 1997, AssessMed Hamilton Ltd. was incorporated and commenced operations two months later in Hamilton.  On June 14, 1998, AssessMed B.C. Ltd. was incorporated and that company commenced operations in Vancouver in July of  AssessMed Inc.'s gross revenue for 1997 declined to $2,965,257, but that decline was due, in part, to the opening of the Scarborough office by AssessMed Toronto East Ltd., which took away from the Mississauga office clients situated in Toronto East.  AssessMed Inc.s gross revenues for 1998 totalled $3,120,300. Dr. Shah  AssessMed retains the services of physicians and psychologists to perform the medical assessments for its clients.  In 1995, Dr. Shah began doing psychological assessments of people who had suffered injuries in motor vehicle accidents. He realized all referrals for these assessments were from AssessMed. In 1996, he approached Dr. Richman and was subsequently retained on a fee-forservice basis by AssessMed. Doctors at AssessMed are trained to carry out AssessAbility protocol and techniques.  Dr. Shah's qualifications to do neuropsychological assessments were questioned by the defendants. In 1979, Dr. Shah obtained a Doctor of Education from the University of Toronto. His undergraduate degree had been in psychology and special education. His Master's degree was in education, with some courses in neuropsychology.  From 1973 until 1977, Dr. Shah worked as a psychometrist, administering neuropsychological tests. He worked under the supervision of Dr. Ridgeley, who was said to be Ontario's first neuropsychologist.  From 1977 to 1980, Dr. Shah supervised five psychometrists who conducted neuropsychological testing for the Wellington County Board ofeducation.
9 -6-  From 1980 to 1982, he was director at the Community Mental Health Centre of the Cobourg Hospital where he set up neuropsychological services.  From 1982 until 1993, Dr. Shah worked in a hospital setting as a clinical psychologist. During this time, he did very little neuropsychological work, although he did attend some neuropsychology workshops.  From 1994 until recently, Dr. Shah was involved in the preparation ofpsychological and neuropsychological assessments.  On March 10, 1997, Dr. Shah conducted a neuropsychological assessment of Janet Hough. This assessment had been requested by Economical Insurance, Janet Hough's insurance company.  Dr. Shah's assessment ofjanet Hough started with a meeting where Dr. Shah explained to her what the assessment would consist of. Dr. Shah's psychometrist then administered testing over several hours. This testing included two tests to measure effort, tests to measure her perception of her difficulties, personality tests and the Halstead Russell battery of tests to determine her level ofcognitive function in various areas.  After this testing was completed, Dr. Shah conducted his clinical interview of Janet Hough. This involved obtaining her account ofthe accident, the injuries she suffered, her present complaints and a history ofher marital, health and work status. Dr. Shah then reviewed medical reports and information he had received from Economical Insurance and from Ms. Hough.  Dr. Shah's neuropsychological assessment report regarding Janet Hough is dated March 21, It concluded that the "assessment failed to identify significant symptoms directly related to the accident except, perhaps, some difficulty with immediate verbal memory and the long-term storage of verbally learned material". The memory impairment was said not to result in disability. Dr. Shah concluded that from a neuropsychological perspective, Ms. Hough's injuries did not prevent her from participating in her pre-accident occupation, which included continuing her doctoral studies and teaching university courses.  As a result of this report, Economical Insurance discontinued the payment of accident benefits.  Ms. Hough disagreed with these findings. She complained to the College of Psychologists and an investigation was undertaken by the College in which Dr. Shah's qualifications to do neuropsychological assessments were questioned. The College informed Dr. Shah it was not prepared to recognize him as an expert in neuropsychology. Dr. Shah then applied for Judicial Review because he could not agree with this decision. He then took additional courses in neuropsychology and in 2000, he received Diplomate status from the American Board of Neuropsychology. The College withdrew its decision that Dr. Shah was not qualified to perform neuropsychological assessments and the application for Judicial Review was withdrawn.
10 -7-  In 1987~ Division 40 ofthe International Neuropsychological Association (I.N.S. Div. 40) established guidelines to be followed for the credentialling of clinical neuropsychologists. The Canadian Psychological Association did not define such standards, but deferred to I.N.S. Div. 40.  The recognized criteria to practice in clinical neuropsychology were the following: 1. A doctoral degree in psychology; 2. Internship or equivalent hands on training in a clinically relevant area of professional psychology; 3. The equivalent of two (full time) years of experience and specialized training, at least one of which is at the post-doctoral level, in the study and practice of neuropsychology and related neurosciences. These two years were to include supervision by a clinical neuropsychologist; 4. A provincial license to practice psychology and/or neuropsychology, or employment as a neuropsychologist by an exempt agency.  Dr. Shah did not meet these criteria. It must be noted, however, that Dr. Shah received his training in the 1970's when there existed very few formal training programs in neuropsychology. There was no post-doctoral training in neuropsychology in the 1970's. At that time, people studied and participated in discussions in neuropsychology to gain competence and to practice as clinical neuropsychologists. They eventually qualified themselves to practice in neuropsychology.  Psychologists who trained in the 1970's were not expected to have attained the educational and training experiences that became the norm in the 1980's and 1990's. They were not required to meet every criteria established by I.N.S. Div. 40.  I am satisfied that by training under the supervision of Dr. Ridgely; by going to the United States to train in the Halstead-Reitan battery of tests; by attending conferences in neuropsychology; and in interpreting neuropsychological test results and formulating opinions over a number of years, he had, by the mid-1980's acquired the education and experience to practice in the area ofneuropsychology. It is accepted that the credentials Dr. Shah acquired in the area of neuropsychology should not be negated by the credentialling criteria established in  In preparing the Janet Hough neuropsychological assessment report, I am ofthe view that he used well validated tests and followed accepted procedures.  It is in the interpretation ofthose test results and in failing to consider important evidence that his report may have fallen into error.
11 - 8-  For example, he failed to consider the results of an MRI scan of Janet Hough's brain which revealed "degrees of central atrophy". He failed to report that although she had achieved 'borderline' results in one effort test, she had displayed good effort in a second test. Both test results should have been considered and reported.  Dr. Shah failed to take into account the fact that Ms. Hough had attempted to return to her Ph. D. studies and to her teaching but had been unable to continue.  Dr. Shah's approach was to look to test results, establish a hypothesis and proceed to find evidence to support that hypothesis. This becomes obvious when one reviews those portions of the reports he quoted from for his assessment. The selective approach he maintained can be viewed as consistent with confirmatory bias.  I am satisfied that, upon a review of all the medical and neuropsychological information available to Dr. Shah at the time he completed his assessment ofjanet Hough, on the basis ofthe medical and psychiatric evidence which became available after this report was prepared, in light ofthe efforts made by Ms. Hough to return to her teaching and Ph.D. thesis, one could conclude that Dr. Shah's assessment was in error.  The general philosophy of AssessMed, the manner in which Dr. Shah crafted his report, and the conclusions he expressed can also lead to a reasonable conclusion that his report was biased. The Program "Prove ItIfYou Can"  The television program "Prove It If You Can" was divided into three parts; headlines, an introduction and the presentation ofthe account.  In the headlines, a voice over announcerintroducesthe story as follows: "The fifth estate. Tonight: they pried Tracey Prewer out of this with injuries that nearly killed her." A photo ofa badly damaged car appears followed by a phtograph oftracey Prewer in a hospital bed and footage oftracey Prewer who states: "This wrist was shoved in a few inches into my arm, this forearm was broken, both ankles were broken, and my face... my face was completely ruined.". A photo oftracey Prewer's injured face then appears. The announcer then states: "But when doctors said Tracey's life would never be the same, an insurance company said, 'Prove it'."
12 -9- A photo ofa wrecked car is then shown followed by film footage ofjanet Hough and of Brian Francis. The announcer continues: "Janet Hough was pulled out of this, with her brain so injured doctors said she'd never work again. And again, the insurance company said, 'Prove it'." Brian Francis, seated beside Ms. Hough then states: "Things became real clear real quick, that it was about minimizing and trivializing Janet's injuries." Dr. Richman and Dr. Amies are then shown standing, reviewing material in a book, while the announcer says: "Some people in the insurance business say a hard nosed attitude is only good business." Dr. Richman then states: "There's an honest belief in many of the claimants we see that they are disabled, and unless you do..." MacIntyre then asks: "And they're not?" Dr. Richman responds: "And they're not." Ms. Barbara Legate, president ofthe Ontario Trial Lawyers' Association, is then shown being interviewed by MacIntyre. The announcer says: "But this senior lawyer says that skepticism goes far too far." Ms. Legate then states: "Tomorrow I or you could be hit by a drunk driver, and you would be treated as a fraud. And that's exactly how the industry starts looking at their claimants." The program then moves to introduce the second segment ofthe show which deals with radioactive waste. The introduction of "Prove It If You Can" follows with MacIntyre standing before the television audience saying:
13 -'10 - "Good evening. If you were permanently injured in, say, a car accident and could never work again, you'd assume that your insurance company was going to look after things. That was the deal when you signed up and paid. But if you get hurt in Ontario, where the law has been tinkered to tatters by three governments in a row, brace yourself for a second collision between you and an insurer that assumes you're a liar. Insurance companies do run into frauds, ofcourse, but some seem to treat everyone, no matter how badly damaged, as a faker. They won't take your word for it; they won't take your doctor's word either. Instead, they probably send you to people whose hard-nosed attitude, right from the start, is, Prove it... ifyou can." The program then shows pre-accident photos of Tracey Prewer followed by the recreation of a car accident with sounds of a crash. While this is shown, MacIntyre continues: "At the age of 29, Tracey Prewer was putting her life on track, finally finishing high school, apprenticing as an auto mechanic. An auto accident would change her plans and her life utterly. One night in April 1995, as she was driving home near Barrie, Ontario, a drunk driver rammed an oncoming car into her path. The impact demolished the Honda Tracey was driving, and it shattered her face, arms and legs." Photos oftracey Prewer's injuries as she lay in a hospital bed are then shown, followed by Ms. Prewer being interviewed, saying: "I had casts on both my legs, casts on both my arms. There was cotton up my nose, my teeth had braces, my jaw was wired shut. This wrist was shoved in a few inches into my arm. This forearm was broken. Both ankles were broken, and my face... my face was completely ruined. I lost my eye, my right eye." MacIntyre then states: "The obvious injuries were horrifying, but Tracey and her mother were just as concerned about what they couldn't see inside her head." Tracey Prewer then continues: "Apparently my brain jiggled around quite a bit, which they were very worried about, concussion, aneurysms. Brain damage definitely was the number one concern." Film footage of Janet Hough and Brian Francis walking a dog is then shown while MacIntyre says:
14 "Brain damage eventually became the number one concern of Janet Hough and her husband Brian Francis five years ago. She was finishing a Ph.D. and had just signed a contract to lecture at a university. June 3, 1993, she was in a car leaving a garden center near Hamilton, Ontario." Brian Francis is then shown in an interview, saying: "A pick-up truck, full force impact, no signs of braking, struck - and Janet was a back-seat passenger - and drove the car into oncoming traffic. And then that car was struck again. So we're not talking fender bender here." A photo ofthe damaged car appears and MacIntyre states: "The damage to the car was obvious. It took a little longer for the impact on Janet's life to sink in." Janet Hough is then shown in an interview, saying: "When I was lying in the hospital with a broken leg, a collapsed lung, tubes in allover the place, I told my husband, 'Oh, could you phone my yoga instructor and tell her I won't be able to make it next week but I'll be there the week after'. So it was like, OK. I'll be fme, like, two weeks from now, once my leg mends." While the camera focuses on Janet Hough, MacIntyre says: "But Janet wouldn't be fine two weeks after. Her legs and body would heal eventually, but the impact on her head had damaged her brain and altered her life irreversibly." MacIntyre then appears, standing beside a car and says: "In the aftermath ofa serious car accident, one reassurance should be that little insurance document that everybody keeps in the glove compartment. And it usually is, when the consequences of the accident are obvious and straightforward. For Tracey Prewer and Janet Hough the most serious consequences weren't obvious: they'd suffered brain damage. That kind ofinjury has to be discovered and treated quickly. But they live in Ontario, where the laws encourage insurance companies to stonewall some accident victims as long as they can." Brian MacMullin then appears on the screen holding his bicycle and demonstrating how the bicycle flipped. He says: "But when I hit the car, it just flipped."
15 - 12- MacIntyre then states: In August 1997, Brian MacMullin was riding his bicycle in downtown Toronto. A car cut in front of him. He flipped over it and landed on his head, and he wasn't wearing a helmet." A close up of Brian MacMullin's head is then shown which reveals a long scar. MacIntyre says to MacMullin: "Put your head down again. I was just looking at that... Wow!" Maclntyre then adds: "Doctors at first thought he was fine, but later that day had to remove a large part of his skull to deal with a huge blood clot that almost killed him and left a permanent mark on his brain and on his life. Brian MacMullin needed rehabilitation immediately. He and his mother assumed the insurer ofthe car, Liberty Mutual, would pay for it, but for four crucial months, they were ignored." Brian MacMullin and his mother, in an interview setting, then say: Brian MacMullin: "I gave up after the first five phone calls. They wouldn't return my phone calls." Mrs. MacMullin: "I expected that the insurance company would oblige us by providing my son with the rehabilitation that he needed. It was a battle and it still is a battle." Barbara Legate then appears in an interview setting and states: "So you have a crash victim who, with a brain injury in particular, is at their most vulnerable period of their life. They have no resources, they are dependent upon the insurance companies." MacIntyre then says: "Barbara Legate, president of the Ontario Trial Lawyers'Association, says Ontario law encourages insurance companies to behave aggressively, especially with victims ofbrain injuries." Ms. Legate then states: "Tomorrow I or you who pays that insurance premium could be hit by a drunk driver, and what would happen to you is that you would be lumped in with everyone else, absolutely everyone else, and you would be treated
16 - 13- as a fraud or as a potential fraud. And that's exactly how the industry starts looking at their claimants." Tracey Prewer and her mother are then shown being interviewed by MacIntyre and he states: "Tracey Prewer and her mother soon realized that they were at the beginning ofwhat would be a long battle." Tracey Prewer then says: "So the first two thoughts I had were, one, that medically I was in a lot of trouble, and two, that I had no idea what my legal rights were or even ifi was at blame. I had no idea what had happened." The show then moves to an interview with Ava Hillier, Tracey Prewer's lawyer. MacIntyre says: "A family friend recommended a lawyer, Ava Hillier. She visited Tracey in hospital, heard her story and quickly assumed that this was one case that was going to be pretty straightforward." Ava Hillier then says: MacIntyre asks: "I thought to myself, you know, we're really going to help you. We're going to get your face fixed, you're going to get your body fixed, you're going to get disability benefits. We're going to get you back to school, we're going to get you a computer, we're going to get you people who are interested in you, we're going to put you back together and we're going to help you emotionally. That's what I told her would happen, that's what I was expecting to happen." "And what happened?" Ms. Hillier answers: "Well, the opposite. I mean, everything became a fight." Tracey Prewer is then shown lying in a hospital bed. MacIntyre states: "The big fights would be for big items, like rehabilitation and income, but the company even fought paying for extra hospital food the doctors had ordered her to eat." Tracey Prewer, in an interview setting then says:
17 - 14- "I was nothing but literally skin and bones, and so I kept putting in expenses for all my food, and the insurance company was, like, we're not paying for that." While displaying a photo oftracey Prewer, MacIntyre states: "After two years and a partial recovery, the insurance company, H. B. Group Insurance, cut her off. Her lawyer was stunned at the turn of events." Ava Hillier, in an interview setting, then says: "I believe their position was, at the time, that Tracey is not disabled, not substantially disabled, not unable to carry on a normal life." MacIntyre then asks: "How substantially disabled is she?" Ms. Hillier responds: "The opinions that we've received from neurologists and from psychologists say that she is substantially and significantly disabled. They say that she needs all the help she can get if she is ever to go back to work." Tracey Prewer is then shown, in an interview setting, saying: "When there's bones broken, pins, screws, plates - I mean, and I'm not talking one or two, I'm talking like, at least 20 plates in my face, at least 30 pins in my face, screws, pins in my foot. I mean, like what have you got to do? I just don't get it." The program then shifts to Janet Hough who is shown sitting at a desk in front of a computer while MacIntyre says: "Three years after her accident, Janet Hough looked normal but couldn't escape what seemed to be permanent physical pain and a strange mental haze. She tried to pick lip where she'd left off before the accident teaching." Janet Hough, in an interview setting, then says: "I know I was.., did some teaching at McMaster and Wilfrid Laurier Universities, but... I know I did it, but I don't remember it. So..." MacIntyre then asks:
18 She replies: "You don't have specific recollections of.., " "No." MacIntyre says: Hough replies: "... days in class, faces ofstudents..." "No. No. Lecturing, I can't remember standing in front of a class lecturing." Janet Hough is then shown sitting at her desk with Brian Francis at her side. MacIntyre says: "University officials eventually told Janet she couldn't cut it. She had to give up her academic ambitions. Her husband had quit working to look after her when she was recuperating from her injuries, because the insurance company wouldn't pay for home help. The company, Economical Insurance, was giving them $350 a week as income replacement. Four years after her accident, the insurance company arranged their own psychological assessment and decided Janet was almost fully recovered. Their report said that there was nothing to prevent her from finishing her Ph.D. and going to work." When MacIntyre refers to the insurance company arranging its own psychological assessment, a photo ofa report with the heading: "ASSESSMED - NEUROLOGICAL ASSESSMENT REPORT - REQUESTED BY ECONOMICAL INSURANCE" is shown. Janet Hough is then shown saying: "The good news in a bad report really plays games with your head, because maybe he's right, maybe I'm just not trying hard enough, which you almost hope is true, that you're not trying hard enough, that if you justtry harder, you'll be able to do what you did before." While the camera pans on Janet Hough and Brian Francis, MacIntyre comments: "It wasn't that simple, but Economical Insurance immediately cut off most ofher benefits anyway. She and Brian ended up on welfare." Brian Francis then says:
19 - 16- "Once that report was in the hands of the insurer, there was no more wondering or questioning whether or not we were in a war, or a battle. I mean, things became real clear real quick, that it was about minimizing and trivializing Janet's injuries, and it was about cost containment." The program then shows Dr. Richman and Dr. Amies standing, reviewing material in a book (the same clip which appears in the headlines). While this is shown, MacIntyre states: "When we come back, doctors who play hardball for insurance companies." The program then returns to the clip shown in the headlines where Dr. Richman states: MacIntyre asks: "There's an honest belief in many of the claimants we see that they are disabled. And unless you do..." "And they're not?" Dr. Richman replies: "And they're not." The program then goes to commercial break. It then resumes with a voice-over announcer who says: "And now we return to the Fifth Estate." Dr. Murray Girotti is then shown in a hospital setting while MacIntyre states: "At the Health Science Centre in London, Ontario, doctors like Murray Girotti deal with the human consequences of car accidents. He's head of the trauma unit, but in recent years he's been continuously secondguessed by insurance companies." Dr. Girotti is then interviewed and says: "We, as the health care professional looking after that individual who would have been in that institution for say two, three, even four weeks, we knew what these patients were all about. We looked after them on a day-to-day basis. We could set up a rehabilitation program that made sense for that specific patient. And to turn around and have an insurance industry tell me as a health care professional what I should be doing with
20 my patient because someone passed a bill in the legislature two years ago galls me, drives me nuts." Janet Hough is shown sitting at her desk and MacIntyre states: "That was what happened to Janet Hough. Her insurance company was telling her she was well enough to work, in spite of the fact her own doctors had been telling her the opposite." Dr. Rathbone then appears on the screen and MacIntyre continues: "Dr. Michel Rathbone was her neurologist. He'd been treating her four years and didn't think she'd ever recover her lost ability to learn or to teach." Dr. Rathbone then appears and says: "She has a difficulty with her verbal memory and long-term storage of verbally learned material. If a person is to teach at a university level, to do a Ph.D. in an area of an arts subject that requires verbal learning, requires verbal skills, and they have these difficulties, they're not going to make it." MacIntyre asks Dr. Rathbone: "You are convinced that she is permanentlydisabled by that injury?" Dr. Rathbone responds: "Yes, there's no doubt about it: she will have permanentproblems." A photograph of Janet Hough is then displayed with a document entitled "Dr. Michel Rathbone, Neurologist, MEDICAL REPORT". This document is then replaced by a document entitled "Dr. Michael Sumner, Psychiatrist" which in turn is replaced by a document entitled "Ronald Kaplan, Psychologist". While this is shown, MacIntyre states: "Dr. Rathbone had given his considered medical opinion to Janet Hough's insurance company, and there were other reports leading to the same conclusion. A psychiatrist, Dr. Michael Sumner, told the insurance company: "My judgment is that this woman is totally disabled from competitive employment and... this will not improve." And Ronald Kaplan, a psychologist, wrote: "Janet has very major difficulties in maintaining anything near a normal life The accident is the cause of these difficulties. "