ICBC Law

Earlier this year I wrote about the UK Supreme Court decision stripping expert witnesses from immunity from lawsuits when they provide careless opinion evidence.

Some of my comments on this topic were picked up by the Law Times News where I exchanged my views that Canada should follow the UK’s example.  These views must have the medical community up in arms, right?  Surprisingly the answer appears to be no.

A follow up article published in the Law Times was recently brought to my attention where Dr. Michael Ford weighed in on the debate.  Interestingly he agreed that these lawsuits should be allowed arguing that they would bring an important element of accountability to the medico-legal process.  Specifically he stated as follows:

I like Britain’s approach because everyone, including expert witnesses, should be responsible for their actions.

That may seem simplistic, but if Canada adopted this approach, I would have no problem. It’s only fair. For example, if I assault someone on the street, I should pay the price.

By the same token, if I make an error or I provide care that’s below standard, I should be held responsible and I am. I don’t see why that responsibility should disappear because I’m now acting as an expert on the witness stand in court.

You can click here to read Dr. Ford’s full article.  As always, I welcome comments from any other doctors and lawyers (or anyone interested in this topic).  Feel free to weigh in on the debate.

Alan Shanoff of the Toronto Sun recently authored an interesting piece questioning whether insurance company practices could be viewed as insurance fraud.

When insurers catch customers defrauding the system the stories tend to make headlines.  That is a good thing.  Fraud should be weeded out and publicly condemned.  Alan suggests that these stories, however, may not be the only form of insurance fraud.  If insurers use practices that result in their customers being wrongfully deprived of their insured benefits can that constitute insurance fraud?  Should the media pay equal attention to stories of insurers short changing their customers?

As previously discussed, insurance fraud from either side of the fence deserves rebuke.   When claimants are unlawfully deprived of their insurance benefits they don’t have the deep-pockets that insurers have access to in order to find a legal remedy.  Alan makes some interesting observations in his article and I encourage anyone interested in the insurance fraud debate to review Alan’s article.

In response to criticism of BC’s auto insurance rates ICBC’s CEO Jon Schubert recently commented that while BC’s auto insurance system is not“perfect” it works due to it’s robust compensation rights.   Jon provided the following comments:

You can travel across Canada and find a range of public and private auto insurance and diverse arguments both for and against each system. We believe our system in British Columbia works for a number of reasons. We know some provinces offer lower-priced auto insurance but we also know some others offer higher-priced auto insurance — including some with private insurance. Any discussion on insurance should be based not just on what you pay but what you get for your money. Our medical and rehab benefits, for example, are three times more than those offered in Alberta….

This is one instance where I agree with ICBC.  While I won’t get into the debate about whether a system of private auto insurance is better than public insurance, one thing BC has done right is keeping a full tort system in place.

While other Provinces have stripped the rights of those injured to the benefit of insurance company profits, British Columbia has continued to preserve the right of victims to seek full lawful compensation when injured through the fault of other’s carelessness.

It is artificial to compare BC rates to those of other Provinces without looking behind the rates to the rights of auto-collision victims to seek compensation.   As an example, if a person suffers severe soft tissue injuries in BC due to another person’s careless driving they can seek meaningful damages for pain and suffering and loss of enjoyment of life.

The same injuries have been artificially capped in Provinces such as Alberta and Nova Scotia.  Ontario has also limited collision victim compensation rights and in a double blow are looking to reduce access to no-fault benefits.  Other Provinces like Manitoba and Saskatchewan have gone so far as to strip collision victims of the right to to sue for damages and instead instituted a WCB-like no-fault system.

Low rates are a good thing and provided the Government does not continue to raid ICBC’s revenues there is no reason why British Columbians could not continue to enjoy competitive rates and meaningful compensation rights when injured through the fault of others.

ICBC’s 2010 Annual Report was recently released to little media attention.   Perhaps little attention accompanied the release because there were few exciting facts in the report.  At $361 million of Net Income last year alone ICBC continues to be very financially sound and stable.

This stability, however, is newsworthy on its own.  British Columbia has Canada’s fullest tort system for motor vehicle collision victims.  That means if you are injured through the fault of another you will have access to more meaningful compensation here than anywhere else in Canada.  The important underlying story here is that victim rights don’t need to be stripped (as other Provinces have done or proposed) to have a viable auto insurance system.

This story dovetails nicely into another newsworthy matter.  HBO’s much anticipated documentary Hot Coffee has now aired.  This movie documents, amongst other things, the infamous story of the 1990’s American lawsuit against McDonald’s after a patron burned herself with their coffee.  This is a classic example of frivolous lawsuits run a muck, right?  Watch the movie and decide for yourself.  You can click here to listen to my take on the Hot Coffee case as discussed with Charles Adler last year.

If you don’t have time to watch the documentary I’ll summarize one of the important points made.  Stories of a broken system and frivolous claims are often bandied about by the insurance industry.  These generate a lot more headlines than stories of financial insurance company stability.

The insurance industry often uses the momentum of these stories to argue that “reform” is necessary because the system is failing due to abuse.  As Hot Coffee illustrates, it is important to step back and scrutinize any claims that victim rights need to be stripped in order to have a functioning insurance system.  This usually is not the case.  When tort reformers ask for proof, point proudly to British Columbia’s full tort system and ICBC’s 2010 Annual Report.

OK, this post is a little off-topic but when I came across this bit of legal folklore I had to dig deeper and find out if it was true.

Recently a regular reader of this blog shared a publication with me which stated that in the 1990’s a New Mexico politician became so fed up with psychiatric expert witnesses he proposed an amendment to a State Bill which would have required psychologists and psychiatrists to dress like wizards when giving expert evidence.   The Proposed law stated as follows:

When a psychologist or psychiatrist testifies during a defendant’s competency hearing, the psychologist or psychiatrist shall wear a cone-shaped hat that is not less than two feet tall. The surface of the hat shall be imprinted with stars and lightning bolts. Additionally, a psychologist or psychiatrist shall be required to don a white beard that is not less than 18 inches in length, and shall punctuate crucial elements of his testimony by stabbing the air with a wand. Whenever a psychologist or psychiatrist provides expert testimony regarding a defendant’s competency, the bailiff shall contemporaneously dim the courtroom lights and administer two strikes to a Chinese gong

A quick internet search fails to reveal any authoritative source verifying this story.  Nor could I find corroboration searching New Mexico’s Legislature’s website.

Having lived in The Land of Enchantment for close to a decade I thought I’d go the extra mile and see if I could verify this story myself.  This morning I went straight to the source and asked  former New Mexico State Senator Duncan Scott whether this bit of legal folklore was fact or fiction.  Mr. Scott, who is now in private practice in Albuquerque, NM, was kind enough to take my phone call.

Turns out the story is true.  Mr. Scott tells me that he tacked this amendment onto a Bill in 1995 and, despite its clearly satirical nature, it passed with a unanimous Senate vote.   The amendment was then removed from the Bill prior to receiving House approval so it never did become law.

As previously discussed BC’s Family Compensation Act(the statute dealing with lawsuits for damages for wrongful death in BC) is out of date, inadequate and in need of reform.  I’ve had the unfortunate experience of fielding too many phone calls over the years explaining that the wrongful death of many people was seen as worthless in the eyes of the law.  Members of the Trial Lawyers Association of BC along with other organizations such as the BC Coalition of People With Disabilities have been working for years to persuade the government that reform is needed in this area of law.  It seems all of this effort is slowly but surely paying off.

West Vancouver MLA Ralph Sultan has introduced a Bill which seeks to amend BC’s outdated Family Compensation Act.   Mr. Sultan stated as follows when introducing the Bill “The Family Compensation Act Amendment Act would permit the court to award damages up to specified limits for grief, and loss of guidance, care, and companionship to spouses of deceased persons as well as parents and children…This amendment is a carbon copy of the statute currently on the books in Alberta granting the potential for the court to grant awards, within limits, for those who have suffered the tragedy of wrongful death. The Family Compensation Act Amendment Act is consistent with the families-first agenda of this government.“

The Bill is titled “The Family Compensation Act Amendment Act” and can be found here.  It is designed to provide greater accountability for those who take the life of another in BC and will bring better compensation rights for families who lose a loved one through the wrongful act of another.  Specifically it seeks to amend section 3 of the FCA by adding the following provision:

I should point out that this new Bill is not law yet and likely won’t go beyond first reading before the Legislature’s Spring session closes on June 2, 2011.  The proposed amendment is a step in the right direction but can certainly go further in bringing meaningful compensation to those who lose a loved one through others actions.  I suggest all who support this much needed reform take a brief moment to contact Ralph Sultan and thank him for tabling this welcome legislation  along with making suggestions to improve these amendments before they become law.

Today Bill 13 (The Miscellaneous Statutes Amendment Act No. 2) received First Reading. I’ve had a chance to review some of these newly proposed laws and came across a potentially troubling section seeking to give ICBC significant powers to access the medical records of British Columbians.

Specifically, the Government is proposing to amend section 25 of the Motor Vehicle Act as follows:

Information-sharing agreement for Medicare Protection Act purposes

25.02 (1) The Insurance Corporation of British Columbia may enter into an information-sharing agreement with the Medical Services Commission under the Medicare Protection Act for the purposes of collecting, using and disclosing personal information necessary for the administration of

(a) section 25 (1.3) of this Act, and

(b) the Medicare Protection Act, as it relates to the enrollment and renewal of enrollment of beneficiaries under that Act.

(2) If the Insurance Corporation of British Columbia enters into an information-sharing agreement under subsection (1), the Insurance Corporation of British Columbia may, in accordance with the agreement, collect and use personal information from, and disclose personal information to, the Medical Services Commission.

This new power is being given to ICBC to help introduce a new Care Card which is designed to cut down on fraud.  While fraud protection is laudable its important not to exceed this goal by unnecessary erosion of the privacy rights of British Columbians.  A review of the proposed change does not seem to put any concrete limits on ICBC’s power to access medical records or the use these can be put to once obtained.

If you have concerns about this new proposed power I suggest you contact your local MLA or BC’s current Minister of Public Safety and Solicitor General (Shirley Bond) and voice these before this bill passes into law.

Recently I’ve heard a lot of talk about an ICBC program called Transformation 2014.   I’ve been keeping my eye out for information on this project and last week it hit the mainstream media with CBC News breaking a story about it.

ICBC took issue that CBC had some facts wrong in their reporting with the following tweet:

In any event, shortly after this ICBC released an explanatory announcement on their website and further a 13 page document titled “Our Journey: building the new ICBC” to better explain what ICBC’s Transformation 2014 is all about.

This weekend I had a chance to review this document.  In short there is not much detail about how this transformation is going to take place or specifics of changes that will be made.  I posted the following question and thoughts on my twitter stream:

If anyone is aware of further details or has specifics regarding ICBC’s 2014 Transformation plan please don’t hesitate to contact me.

This blog is not politically oriented, however, one issue I like to keep my eye on is so-called tort ‘reform’.  As previously discussed, tort reform generally refers to limiting the rights of those injured through the carelessness of others to the benefit of insurance company profits.   Ontario is currently undergoing such a proposed ‘reform’.

With the significant recent changes in BC’s political landscape I’ve been curious about our political parties views on tort reform.  When Mike de Jong was running for the BC Liberal leadership he was kind enough to respond to my question addressing some positive changes that can be made to BC’s wrongful death laws.

More recently Dave Eby has thrown his hat into the political ring taking on Christy Clark.  I asked him about his views on tort reform and he advised that he does not believe in limiting the rights of injury victims through tort ‘reform’ with the following exchange:

Dave’s response was welcome and I was impressed with his accessibility.  I have asked Christy Clark about her views on the topic but she has not yet replied.   If she is from the same school of thought as Mike de Jong I am cautiously optimistic that she is not a tort ‘reformer’ but would of course be happy to have a clear reply on the topic.

If anyone has any insights with respect to the BC Liberals and NDP’s views on so-called reform feel free to share your insight with me.

As I’ve previously discussed, if a person dies through the carelessness of others in British Columbia claims for damages by surviving family members must be brought under the BC Family Compensation Act. This outdated law has been the subject of much criticism due to its restrictions for survivors claims. You can find an in-depth analysis on this topic here.

Recently BC Liberal leadership candidate Mike de Jong gave the following invitation:

I took this opportunity to ask Mike the following two questions:

Mike was kind enough to answer my first question on this recent video he uploaded to YouTube:

My question is addressed 1:13 into the clip.  For the sake of convenience here is Mike’s answer transcribed:

“That’s a good question because I think our laws in BC have fallen a little out of step with what’s happened in other jurisdictions and my belief is that if an accident occurs and someone loses a loved one they should be entitled to the same type of compensation as is available to the families elsewhere in Canada and that is not presently the case in British Columbia and I think it’s time we updated our laws in that respect.  It’s really about fairness for BC families.  Thanks for the question”

Maybe Mike will tackle my second question on his next episode of Open Mike Mailbag.  Given Mike’s views on wrongful death laws I’m optimistic he is not a tort ‘reformer‘  (for those unfamiliar with the phrase, tort reform generally refers to limiting the rights of those injured through the carelessness of others to the beneift of insurance company profits)  but a clear stance is always appreciated.  Thanks Mike.