Tracy Leyden uses the word ‘brutal’ to describe a visit to Alexander Levin, a doctor chosen by her insurer regarding a mental-health crisis.DARRYL DYCK/The Globe and Mail
In June, a B.C. Supreme Court judge rejected the testimony of psychiatrist Alexander Levin in a motor-vehicle insurance case. The plaintiff's car had been rear-ended in Port Coquitlam nearly five years earlier, and she reported debilitating headaches. Dr. Levin was an expert witness for the defence. He argued that the woman did not have a concussion.
Justice Robert Sewell said in his ruling that Dr. Levin "seemed anxious to convey the impression that [the plaintiff] was in no distress whatsoever." He said Dr. Levin paid scant attention to the headaches and provided no explanation for them.
The judge added that he found Dr. Levin's report to be adversarial and his responses when cross-examined to be argumentative. He ruled Dr. Levin's evidence lacked the impartiality and objectivity expected of an expert witness.
It was not the first time Justice Sewell had determined that he could give Dr. Levin's expert testimony no weight. Six months earlier, the judge said in a ruling that he was concerned Dr. Levin "had some animus" toward the plaintiff, who reported physical and psychological injuries after a motor-vehicle crash in Fort St. John. He said Dr. Levin mentioned the plaintiff's reported pain only in passing, described her as unreasonable and unco-operative, and at times stressed that she was seeking compensation.
Several B.C. judges have discounted Dr. Levin's testimony in recent years, including Justice Miriam Maisonville, who in 2015 said in her ruling in another auto insurance case she that could give the doctor's evidence no weight. The judge said Dr. Levin concluded the plaintiff did not develop a psychiatric condition after her accident, but failed to ask the plaintiff questions that would determine if she had the condition.
Justice Maisonville also noted the income the doctor generated writing independent medical evaluations for the Insurance Corporation of British Columbia (ICBC).
"It is difficult to ignore the percentage of yearly income gained by the doctor as an expert for one particular party, ICBC, although this alone is not determinative in my finding that Dr. Levin's report should be afforded little weight," she wrote.
Dr. Levin acknowledged in an interview that some judges have criticized him, but said others have accepted his work.
"I am trying to be as objective as I can. I don't believe that I am biased or anything like that," he said.
Dr. Levin pointed to a 2014 case in which a judge accepted his evidence over that of another expert. The judge's ruling said Dr. Levin had more extensive education and experience, and "gave more thorough consideration to all the relevant aspects of the plaintiff's previous personal and medical history."
A judge in another case that same year also accepted Dr. Levin's testimony over that of another expert.
A Globe and Mail investigation has reported on concerns about independent medical evaluations (IMEs) that doctors conduct for the insurance industry, finding that some injury-assessment firms and doctors created medical reports that were found to be inaccurate or unfairly biased against victims.
After The Globe's reporting, the Ontario government said it will establish independent assessment centres where medical professionals examine accident victims and advise insurance companies on treatment and support.
The ICBC, a provincial Crown corporation and the province's public auto insurer, has said it is reviewing which doctors can assess accident victims. The review comes at a time when the B.C. government is struggling with ICBC's financial situation. Payouts of legal costs and auto repairs are essentially exceeding premiums collected, and the corporation lost more than $500-million in 2016. Attorney-General David Eby has said the government is considering changes that would, among other things, lead to quicker resolutions and require fewer experts.
ICBC announced its review of which doctors can conduct IMEs in early December, and expects to complete it within 90 days. The insurer has already removed one doctor, Martin Grypma, from the roster.
An ICBC spokesperson said Dr. Levin would be reviewed with all of the approximately 700 medical experts on the list.
IMEs can be highly lucrative for doctors. A recent ICBC financial report said for the 15-month period ending on March 31, 2017, it paid more than $1-million to two doctors, $500,000 to $1-million to seven doctors and between $250,000 and $500,000 to 20 doctors.
The report said Dr. Levin was paid just under $700,000 in that period.
While it is not uncommon for a judge to choose one expert's testimony over another, it is unusual for a judge to specifically rebuke an expert repeatedly, as they have with Dr. Levin.
In the 2015 ruling, Justice Maisonville said reports for ICBC accounted for 91 per cent of Dr. Levin's income in 2013. Dr. Levin in the interview said this statement was incorrect and did not properly account for all of his medical work. He said the correct figure was closer to 60 per cent, although he did not provide documentation to support that point. An ICBC financial report said it paid Dr. Levin just under $860,000 in 2013.
Dr. Levin said he has revised his practice over the past year. He said half of the cases he now takes on are for plaintiffs, while the other half are for ICBC.
One plaintiff, Tracy Leyden, said her insurance company sent her to Dr. Levin in 2014 for an assessment of whether she could return to work after a mental-health crisis. Ms. Leyden said her father had recently died and she was suffering from a high level of stress and other issues, and was on a leave of absence.
Ms. Leyden said the visit with Dr. Levin went terribly, and the questions he asked did not appear aimed at promoting her well-being. Among other things, Ms. Leyden said Dr. Levin told her people with depression lose weight and she did not look as though that was happening to her.
"It was brutal. I walked out of there completely drained, not supported at all," she said in an interview.
Ms. Leyden said she was in bed for two days after the appointment.
"I just walked out of there so defeated," she said.
Ms. Leyden said she had been hoping to discuss what types of support would be most beneficial for her. She said she ultimately grew weary of the insurance battle and left her job.
When advised of Ms. Leyden's memory of her visit, Dr. Levin said he was sorry. "I try to be compassionate, and if she felt like that, my apologies," he said.
Dr. Levin said he has completed about 3,000 IMEs. He said between 95 per cent and 98 per cent of those cases settled without proceeding to trial, and the number of cases in which he has been criticized is small.
He said he is "not a wishy-washy psychiatrist," and that can sometimes come across the wrong way, as rough.
He said the court process can also be very adversarial.
"It's an industry. It's a fight between lawyers. They are very vicious, and doctors get in between them," he said.
Dr. Levin declined to comment specifically on other cases.
"I can give you general [information], but … I don't want to get into any arguments," he said. "Because I am, as I am telling you, I am trying to adjust in a different culture, trying to be more diplomatic. But sometimes I am not. And so in this situation, I am trying not to engage in any arguments."
Other cases in which judges accepted Dr. Levin's evidence include: a 2014 ruling in which a judge favoured Dr. Levin's testimony over that of another expert; another 2014 ruling in which a judge accepted Dr. Levin's opinion about a plaintiff's emotional state and the causes of it; and a 2013 ruling in which a judge accepted Dr. Levin's conclusion that an accident did not cause the plaintiff any new emotional or psychological disorders.
But Daniel Richardson, a lawyer for the plaintiff in the June case, said in an e-mail that the judge in that case "came to the same conclusion that a number of other judges have come to: that Dr. Levin was not an impartial expert witness."
In 2015, a judge rejected Dr. Levin's opinion that the plaintiff's psychological reactions did not require medication or treatment, and in another 2015 ruling, a judge said Dr. Levin took an unduly narrow view of post-traumatic stress disorder and its causes.
"I will start by saying that I find I cannot attach any weight to Dr. Levin's opinion," Justice Terrence Schultes wrote. "Dr. Levin made assumptions that are not borne out by the evidence."
In a 2014 case, Justice Barry Davies concluded that "Dr. Levin's opinions suffer so greatly from overstepping the proper bounds of opinion evidence into the assessment of credibility (a function for the trier of fact), advocacy and bias, that they are inadmissible."
Mr. Richardson said an expert witness has a duty to assist the court and not be an advocate for any party.
But he said in the case he handled, Dr. Levin repeatedly emphasized facts that were "either harmful to [the plaintiff's] credibility or helpful to ICBC's efforts to minimize her symptoms and injuries. At the same time he seemed to ignore important facts that supported [the plaintiff's] injuries and disability."
The plaintiff received slightly more than $1-million in damages related to the accident.
With a report from Kathy Tomlinson