Advice to the Profession: Medical Expert: Reports and Testimony

At times, physicians may be asked to participate in legal proceedings as medical experts. A medical expert’s role is to assist those involved in the legal proceeding to understand the medical evidence. A medical expert’s opinion is relied upon to make important decisions that have a significant impact on all parties involved in the legal proceeding.

As such, there are important considerations for any physician acting as a medical expert. This document is intended to help physicians understand the role and responsibilities of a medical expert and how to discharge them, in line with their professional expectations set out in the Medical Expert: Reports and Testimony policy.

What is the role of a medical expert?

Medical experts may provide opinions in writing (i.e., a report) and/or orally (i.e., testimony). Physicians may provide opinions about an individual, or opine on broader topics, such as an area of medical practice, or a medical condition, provided that they have the expertise the matter requires. When physicians are asked to provide expert opinions about an individual, they may review personal health information provided to them about the individual, or information they obtain themselves (e.g., during a medical examination), to formulate their opinions.¹

Who can be a medical expert?

Any physician (treating or non‐treating) could be a medical expert by virtue of his or her knowledge and experience as a physician, provided that the issue falls within his or her area of expertise and he or she has no actual or potential conflicts of interest. It is not only leading specialists that are qualified to act as experts.²

What kind of situations would constitute a potential conflict of interest?

Examples of situations where physicians could have a conflict of interest include: the physician acted as the opposing party’s treating physician, the physician had previously discussed the case with another party, or the physician had a personal or professional relationship with any of the parties involved.

What is the difference between a witness of fact and a medical expert?

A witness of fact is typically asked or required to provide information about a patient, in his or her capacity as a treating physician. Physicians may be asked to provide information regarding what the patient stated, what symptoms were reported, what examination was undertaken, what the diagnosis was, and what advice or treatment was offered. A medical expert is expected to provide an opinion. Expert opinions are given in situations where someone with a layperson’s knowledge or experience is unlikely to reach the correct inference from the facts alone.³

How does a physician become a medical expert?

Physicians are asked to be medical experts. For example, physicians can be asked by a lawyer to provide expert opinions. Before a medical expert’s report and/or testimony are considered by the adjudicative body, the adjudicative body must qualify the physician as an “expert”. Typically, physicians are required to provide their curriculum vitae and the adjudicative body uses the criteria in R v. Mohan⁴ to determine the admissibility of expert evidence.  

What types of legal proceedings may require a medical expert opinion?

There are many different types of legal proceedings which may require a medical expert opinion. Some examples include proceedings before the following adjudicative bodies: a federal or provincial court (e.g. medico‐legal litigation cases, criminal trials), a tribunal established under an Act of Parliament or under an Act of the Legislature of Ontario (e.g. a hearing before the College of Physicians and Surgeons of Ontario’s Discipline Committee or Fitness to Practise Committee), a commission or board appointed under an Act of Parliament or under an Act of the Legislature of Ontario (e.g. workplace safety and insurance board), or an arbitrator, etc.

If I am asked to provide an expert opinion about a specific individual, what information would I review?

When physicians are asked to provide expert opinions about an individual, they may review personal health information provided to them about the individual (e.g. their medical records), or information they obtain themselves (e.g. during a medical examination), to formulate their opinions. Those instructing the physician will explain what information he or she is expected to review/obtain.

Are reports written by medical experts considered third party reports, and does the Third Party Reports policy apply?

Yes, the reports medical experts write are considered ‘third party reports’ because they are being prepared for a third party process (e.g. legal proceeding), instead of for the purpose of the provision of health care. The report requirements contained in the Third Party Reports policy are consistent with those found in the Medical Expert policy. However, the Third Party Reports policy does not contain professional expectations regarding the unique role physicians must fulfill when acting as medical experts. Therefore, the Medical Expert policy contains the professional expectations that apply to physicians who write reports and/or provide testimony as medical experts.

When will consent for obtaining, using or disclosing personal health information be required?

Obligations with respect to consent will differ depending on whether physicians are asked to provide opinions about a specific individual, or whether physicians have been asked to comment on more general matters, such as a specific area of medicine, or a medical condition.

Where physicians are providing opinions on more general matters and no information about a specific individual has been obtained or will be disclosed, consent is likely not required.  Where information does not identify an individual or where it is not reasonably foreseeable in the circumstances that the information could be utilized, either alone or with other information, to identify an individual, consent is not required to collect, use or disclose the information.

As the policy outlines, where you are asked to:

• review the personal health information of a specific individual, or
• conduct a medical examination on a specific individual

you must obtain proper consent to use and disclose that information, unless you are permitted or required to do so by law

Who am I providing the expert opinion for?

Even though physicians may be asked to be medical experts by a party involved in the legal proceeding (i.e. Crown prosecutor in a criminal case), medical experts are not advocates for either side. Their duty is solely to the adjudicative body. A medical expert’s role is to assist the adjudicative body by providing an objective and impartial opinion.

How much can I charge for providing an expert report and/or testimony?

Providing expert reports and/or testimony is an uninsured service. As with any uninsured service, physicians are able to charge a reasonable fee for the services they perform.⁵ As the policy states, physicians must discuss fees for acting as medical experts with those who are instructing them. In some instances, financial arrangements for witnesses are established in law. If a physician has been summoned to testify in court as a witness/medical expert, the daily attendance is set in the rules that regulate the procedures of that particular trial or hearing. This can include the Rules of Civil Procedure, the Family Law Rules, etc.

In addition to any attendance fees that may be set for specific proceedings, some organizations (e.g. the CMPA) have set fees for physicians who are retained as medical experts by that organization. Physicians can also refer to the Ontario Medical Association Physician’s Guide to Uninsured Services for guidelines and/or other guidelines prepared by relevant organizations (e.g. Canadian Society of Medical Evaluators), as appropriate.

Where can I find out more information about being a medical expert?

There are a number of different resources to assist physicians who act as medical experts. Please see the following resources for more information:

• Canadian Medical Protective Association, Treating physician reports, IME reports, and expert opinions: The way forward (CMPA, 2019).
•  Canadian Medical Protective Association, Testifying: what it involves and how to do it effectively (CMPA, 2018).
•  Medico-Legal Society of Toronto, Medico-Legal Report (MLST, 2008).

Endnotes

^1. Where personal health information is reviewed or obtained, physicians may only collect, use and disclose personal health information with the consent of the individual to whom the personal health information relates, or as permitted or required by law.

^2. Canadian Medical Protective Association, A Medico‐Legal Handbook for Physicians in Canada (CMPA, 2010)

^3. Frank Iacobucci & Graeme Hamilton, “The Goudge Inquiry and the Role of Medical Expert Witnesses” (2010) 182 (1) CMAJ 53.

^4. R. v. Mohan, [1994] 2 S.C.R. 9.

^5. Section 1(1), paragraph 21 of Professional Misconduct, O. Reg., 856/93, enacted under the Medicine Act, 1991, S.O. 1991, c. 30.