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Advice to the Profession: Third Party Medical Reports

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Advice to the Profession companion documents are intended to provide physicians with additional information and general advice in order to support their understanding and implementation of the expectations set out in policies. They may also identify some additional best practices regarding specific practice issues.

Physicians play an important role when conducting independent medical examinations (IMEs) and providing third party medical reports and testimony. Expectations regarding this role are set out in the College’s Third Party Medical Reports policy. This document is intended to help physicians interpret their obligations in this policy and to provide guidance around how these obligations may be effectively discharged.

Definitions

Are both litigation experts and participant experts captured by the ‘medical expert’ definition in the policy?

In the policy, we use the term ‘medical experts’ to generally mean physicians who are retained by a party to provide independent opinions and do not have a prior treating relationship with a patient. They may be referred to in legal proceedings as ‘litigation experts’. The purpose of their opinions is to assist those involved in the legal proceeding understand the medical issues. Treating physicians may also be called upon to provide their opinions in a legal proceeding and are referred to as ‘participant experts’. Further information regarding ‘litigation experts’ and ‘participant experts’ is provided below.

Physicians’ Obligations

Do family physicians have an obligation to provide third party medical reports about patients when the information relates to care provided by a specialist?

If the third party is requesting information about care provided by a specialist, the family physician may not have the information, or the information may be outside of the family physician’s scope of practice and area of expertise. As such, family physicians would only be obligated to provide the third party with the relevant information they have, and the information that is within their scope of practice and area of expertise.

In these circumstances, it may be in the patient’s best interest for the family physician and specialist to discuss how to proceed with the request, as providing the requested information may require some collaboration between the family physician and specialist.

As a treating physician, may I be called upon to provide opinion evidence in legal proceedings?

Yes. A treating physician may be called upon to provide opinion evidence in a legal proceeding as a ‘participant expert’.

Participant experts are treating physicians who have personal, first-hand knowledge about the matter at issue and who form expert opinions based on their participation in the underlying events. The participant expert forms their opinions in the ordinary exercise of their skill, knowledge, training and/or experience while observing or participating in the underlying events.  

Participant experts may be asked or ordered (e.g., by subpoena or summons) to provide information, including the opinions they formed, in a legal proceeding. This may include factual information, such as: what symptoms the patient reported, what examinations were undertaken, and what observations the physician made, and may include opinions, such as: what the diagnosis was, and what treatments the physician determined would be appropriate to offer the patient. In some cases, participant experts may be examined and cross-examined under oath about the information recorded in their medical records and/or provided in third party medical reports.

When would it be appropriate to accept a request to conduct an IME?

Physicians must only accept a request to conduct an IME if they meet the requirements set out in provision 5 in the policy. In determining whether the physician meets the policy requirements, the following considerations are relevant:

  • Whether they have proficient knowledge of the relevant clinical practice guidelines.
  • Whether they have current or recent experience (within the last two years) practising within the scope of practice and area of expertise the matter requires.1

Physicians who have not been engaged in practice2 for a period of two consecutive years must comply with the reporting and re-entry process in the College’s Ensuring Competence: Changing Scope of Practice and/or Re-entering Practice policy before accepting a request to conduct an IME.

What qualifies a physician to act as a medical expert? When would it be appropriate to accept a request to act as a medical expert?

In a legal proceeding, an expert is someone with demonstrated specialized knowledge beyond that of the ordinary person. Specialized knowledge may be gained through academic study, professional qualification, training and/or experience. The adjudicative body uses the Mohan/White Burgess framework3 to decide whether or not a physician is qualified to provide an expert opinion in a given case. If the physician is qualified as an expert, the adjudicative body will typically set parameters on the scope of the expert opinion that is admissible in the legal proceeding.

In general terms, the following factors may be relevant to an adjudicative body’s determination of whether a physician is qualified to provide an expert opinion in a given case:

  • the education and training they have completed;
  • any additional qualifications they hold;
  • their knowledge of the relevant clinical practice guidelines in place at the material time;
  • the experience and proficiency they have in performing the relevant aspects of their practice;
  • the length of time they have been practicing in the requisite scope of practice and area of expertise and whether they were in practice at the material time;
  • teaching roles they have held;
  • the relevant research, articles, and/or textbooks they have published and presentations they have given;
  • the awards or other recognition they have received;
  • the uniqueness of their scope of practice and area of expertise;
  • the status of their certificate of registration at the time of the legal proceeding and at the material time;
  • the complaints and/or discipline history they have with the College; and
  • the civil and/or criminal actions against them.

In determining whether it is appropriate to act an expert, it is important for physicians to consider the nature of the opinion they are being asked to provide and the factors set out above to ascertain whether the subject matter of the opinion falls within their scope of practice and area of expertise and whether they have the requisite knowledge, skill, and judgment to provide the opinion. Physicians must only accept a request to act as a medical expert if they meet the requirements set out in provision 6 in the policy.

What am I permitted to do after I retire?

Treating physicians

  • Treating physicians:
    • may only start preparing new third party medical reports if they have an active certificate of registration; and
    • may be required to testify in a court proceeding after they resigned their certificate of registration (e.g., regarding the care they provided to a patient while they held an active certificate of registration).

IMEs

  • Physicians:
    • may only conduct IMEs if they have an active certificate of registration (and meet the other requirements set out in provision 5 in the policy); and
    • may be required to testify about an IME they conducted or third party medical report they wrote while they had an active certificate of registration.

Medical experts

  • Physicians:
    • May only accept a request to act as a medical expert if they meet the requirements in provision 6 in the policy.
      • An active certificate of registration from the College and current or recent practice experience (within the last two years) in the area for which the physician will be providing an opinion will often be relevant in determining whether the physician meets the policy requirements (i.e., when the opinion is regarding current medical standards or practices).4 This may be less relevant when the opinion relates to what the standard of practice was in the past.
    • May only perform controlled acts or hold themselves out as physicians qualified to practice medicine in Ontario if they have an active certificate of registration in Ontario.5,6
  • The adjudicative body ultimately determines who is qualified to give opinion evidence and who is permitted to testify in a legal proceeding.

All physicians are advised to be clear in third party medical reports and testimony regarding their registration status in Ontario and any limitations resulting from their registration status.

Privacy and Consent

What privacy and consent legislation applies to me?

Physicians conducting IMEs and providing third party medical reports and testimony may be subject to legislation governing the collection, use, and disclosure of personal information and/or personal health information. The Personal Information Protection and Electronic Documents Act (PIPEDA) applies to “personal information” collected, used, or disclosed in the course of commercial activities and to information about federally regulated employees.7 The Personal Health Information Protection Act, 2004 (PHIPA) applies to “health information custodians”8 or persons who receive personal health information from a health information custodian, in respect of that information.9 In some cases, neither PIPEDA nor PHIPA may apply, but other legislation may impose consent or confidentiality requirements on physicians engaged in third party processes.10 Physicians can seek independent legal advice if they are unsure what legislation, if any, applies to their specific circumstances.

Can I rely on consent obtained by someone else? Can I rely on pre-signed consent forms?

Yes. Consent to collect, use or disclose the subject’s personal information and/or personal health information, or consent to conduct an IME, may be obtained by someone else (e.g., a lawyer, employer, insurer, etc.). In addition, physicians can rely on pre-signed consent forms if they are satisfied that the consent applies to and authorizes the full spectrum of acts they will conduct in order to prepare the third party medical report (e.g., to collect, use and disclose personal information and/or personal health information, to conduct an IME).

If physicians have any doubts as to the validity or scope of the consent obtained by someone else or the pre-signed consent form, they can raise their concern with the requesting party and consider obtaining consent from the subject directly.

Is consent time-limited? Do I need to ensure consent has been obtained again if some time has passed since consent was first obtained?

Consent does not expire after a certain period of time (unless an expiry date is explicitly stated in a consent form), but it can be withdrawn.11 Some third party processes may take a long time and it is recommended that physicians make a reasonable effort to ensure that the consent obtained at the beginning of the third party process is still valid and hasn’t been withdrawn.

For example, if physicians are asked to provide an addendum report some time after the initial third party medical report was provided, they may want to confirm whether consent is required for the physician to use and disclose the subject’s personal information and/or personal health information in the addendum report, and if so, confirm whether there is consent to do so.

Fees

What requirements and considerations are there when charging for third party medical reports?

As per the College’s  Uninsured Services: Billing and Block Fees policy, physicians must consider the patient’s ability to pay when charging for uninsured services. Providing third party medical reports is considered an uninsured service.

When patients are paying out-of-pocket for the third party medical report, physicians may want to consider the type of report they are being asked to provide when determining fees and whether prepayment is required. For example, if the report is related to income or the necessities of life, it may be a financial burden for the patient to pay for the report, particularly if payment is required before they receive any benefits. Physicians may want to discuss this with patients to help them determine the patient’s ability to pay for the third party medical report.

Requirements for Independent Medical Examinations, Third Party Medical Reports, and Testimony

What steps do I have to take to obtain and review all relevant clinical information and opinions relating to the subject?

What steps are reasonable would depend on the specifics of the case but could include something as simple as asking the third party what relevant clinical information and opinions they are expected to obtain and review. The third party may provide the physician with a copy of the medical records and that may be sufficient. If, however, physicians notice that something relevant is missing (e.g., test results or a consultation report is missing from the medical record), physicians could raise this with the third party and take reasonable steps to obtain a copy.

Alternatively, taking reasonable steps to obtain and review relevant clinical information and opinions could include the physician directly getting this information by examining the subject themselves and reviewing it in the context of preparing the third party medical report.

What does it mean to be fair, objective, and non-partisan?

Even though physicians may be asked to be medical experts by a party involved in the legal proceeding (e.g., Crown prosecutor in a criminal case), medical experts are not advocates for either side. Physicians cannot be “hired guns” for any party in a third party process as their duty is solely to the adjudicative body.12  A medical expert’s role is to assist the adjudicative body by providing a fair, objective and non-partisan opinion.

What will I need to do if the requesting party does not give me a reasonable extension?

If the requesting party does not provide a reasonable extension for an IME, physicians could decline to conduct the IME.

If the requesting party does not provide a reasonable extension for a third party medical report and physicians do not have an obligation to provide the third party medical report (i.e., they are not treating physicians), they could decline to provide the third party medical report.

If physicians do have an obligation to provide the third party medical report (i.e., they are treating physicians), they could consider whether they are able to provide a ‘preliminary’ report within 45 days, as long as they are clear about the nature of the report, its limitations, and that their statements and/or opinions could change in the final report.

Independent Medical Examinations

When might an observer attend an examination? When might the examination be recorded?

In the absence of any legal requirements with respect to observers,13 physicians may want to consider having an observer present and/or recording the examination in circumstances where the subject is particularly vulnerable (e.g., if they are cognitively impaired or are a child) and consent has been obtained.

What will I need to do if the subject does not consent to the presence of an observer, or if an agreement with respect to recordings cannot be reached?

There may be situations where the physician wishes to have an observer present during an examination.  If the examination is court-ordered, the physician does not need to obtain consent to have an assistant present.14 If the examination is not court-ordered, the physician must obtain consent to have an observer present from all parties involved. If the parties disagree about the presence of an observer in these situations, or whether an examination will be recorded, physicians can postpone the examination until these matters can be discussed further so that a resolution can be reached. If a resolution can’t be reached after further discussion, the physician could decline to conduct the examination and a different physician could be sought to conduct the examination.

To prevent possible disagreements that may delay the examination, physicians may want to consider making arrangements with respect to observers and/or recordings in advance of the examination. This would give all parties an opportunity to consider the matter and if necessary, discuss it with someone (e.g., family member, friend, lawyer, etc.) before the subject attends the examination.

Is it appropriate to form a physician-patient relationship with an individual who is the subject of an IME?

It depends.

Physicians will want to wait until after the third party process concludes to form a physician-patient relationship with the individual, as forming a physician-patient relationship could compromise the physician’s independence and may disqualify them from providing the third party medical report and/or testimony. However in some cases, it may be appropriate to begin treating the individual before the third party process concludes if no other physician is available. In these cases, it’s good practice for the physician to notify the requesting party of any change in status of their relationship with the individual’s consent.

Regardless of whether or not a treating relationship is formed, it is important for physicians to clearly communicate with the individual what the nature of the physician’s role will be (e.g., if they will solely do an IME and/or will form a treating relationship).

Documentation, Retention, and Access

How long do I need to retain the information I document and any related materials for, and can the subject access the information and related materials?

If the subject is a patient, physicians must comply with the retention requirements set out in the College’s Medical Records Management policy. If the subject is not a patient, then retention requirements set out in the in the College’s Medical Records Management policy likely would not apply.

Subjects may inquire about accessing third party medical reports or physicians may want to proactively discuss the issue of access with subjects when preparing third party medical reports. Access requirements can be particularly complex if the subject is not a patient and physicians may want to review the Canadian Medical Protective Association’s article Providing access to independent medical examinations for more information.

If physicians are uncertain about the retention and/or access requirements that apply to their specific circumstances, they may want to seek independent legal advice.

Resources

There are a number of different resources to assist physicians who conduct IMEs and provide third party medical reports and testimony. Please see the following for more information:

There are some additional resources regarding bias and using professional and inclusive language when communicating that may also be helpful to physicians. Please see the College’s Equity, Diversity and Inclusion webpage and the following for more information: 

Endnotes

1. A physician’s scope of practice and area of expertise may include conducting IMEs.

2. A physician’s practice may include conducting IMEs.

3. R. v. Mohan, [1994] 2 S.C.R. 9 and White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182.

4. The Ontario Superior Court has indicated that physicians are only permitted to provide the court with an expert opinion involving the assessment of a plaintiff or the diagnosis of a plaintiff’s condition because they are licensed to practice medicine (Klassen v. College of Physicians and Surgeons of Ontario, 2002 CanLII 6156 (Ont. S.C.), at para. 19).

5. Section 27(1) and Section 33(1) of the Regulated Health Professions Act, 1991, S.O. 1991, c.18 (hereinafter RHPA), and Section 9(3) of the Medicine Act, 1991, S.O. 1991, c. 30.

6. This applies to all physicians, including those licensed in other jurisdictions who provide expert opinions in legal proceedings in Ontario.

7. Section 4(1) of Personal Information Protection and Electronic Documents Act, S.C. 2000, c 5 (hereinafter PIPEDA).

8. The Information and Privacy Commissioner has indicated that individuals are only “health information custodians” when the service they provide is for a “health-related purpose”. See Morris (Re), 2015 CanLII 54751 (ON IPC).

9. Section 7(1) of Personal Health Information Protection Act, 2004, S.O. 2004, c.3, Sched A. (hereinafter PHIPA).

10. For example, assessors retained by health regulatory bodies are not health information custodians, nor are they engaged in a commercial activity, but they may be subject to Section 36 of the RHPA.

11. Clause 4.3.8, Schedule 1 of PIPEDA and Section 19 of PHIPA.

12. Any medical expert called in a civil proceeding under the Rules of Civil Procedure must complete Form 53 of the Rules of Civil Procedure R.R.O. 1990, Reg. 194, enacted under the Courts of Justice Act, R.S.O. 1990, c. C.43 (hereinafter Courts of Justice Act, Rules of Civil Procedure).  Participant experts are not typically required to complete the Acknowledgement of Expert’s Duty form, but the court may require it if the participant expert offers an opinion that goes beyond the scope of the opinion formed in the course of treatment or observation.

13. See footnote 21 in the policy.

14. Unless the court orders otherwise. See Rule 33.05 of the Courts of Justice Act, Rules of Civil Procedure.