Duties and responsibilities
Legal liability of physician for medical certificates
An article for physicians by CMPA General Counsel
Originally published Winter 1994 / Revised October 2008
Medical certificates may be relied on by an employer or its insurer when making a determination concerning a patient's benefits.
Of interest to physicians dealing directly with patients
Physicians are frequently asked to provide medical certificates for a patient's employer. These certificates are often needed to meet requirements of the employer or the employer's disability insurer.
The following information may be asked for:
- Has the employee been under the physician's care throughout the period of the employee's absence from work?
- Was the employee unfit to perform his or her regular job during the period of absence?
- Was the employee fit to perform other suitable available employment during the absence?
- When will the employee be fit to return to his or her regular job or to other suitable employment?
- Are there restrictions on the type of work which the employee can perform?
- Will the employee's medical condition be likely to cause any absenteeism in the future?
A physician may be pressured by the employee to provide information to the employer which meets the employee's objectives. However, physicians must recognize that employers and their insurers will be relying on the information provided to them by the physician in making a number of decisions concerning questions such as those raised above. A physician may be required to testify in proceedings involving a dispute between an employer and an employee. These proceedings could be before courts, boards of arbitration under collective agreements, boards of inquiry in human rights disputes, or workers compensation boards. In such proceedings, the physician may be subpoenaed as a witness, required to produce clinical notes and examined and cross-examined under oath about the information already provided by the physician to the employer or the employer's insurer.
Employers and insurers do indeed rely on representations made by physicians concerning the matters referred to above and, in so doing, they may incur financial liability for sick leave or disability pay. Physicians should recognize that if they provide misinformation or erroneous or unfounded opinions concerning such matters, employers and insurers who have relied on such representations may have grounds for a claim for damages against the physician. Physicians may also find themselves the subject of a regulatory authority (College) complaint.
The following suggestions may be helpful to physicians:
- Statements you make should be, to the best of your knowledge, accurate and based upon current clinical information about the employee. For example, you should not certify that an employee has been unfit to work simply because the employee tells you so.
- Before giving an opinion on an employee's fitness to work, a physician should be satisfied he/she has sufficient accurate information about the requirements of the employee's job.
- The physician should not state that the employee has been under the physician's care for any time during which the employee was not in fact the physician's patient.
- Physicians should only provide information to the employer or its insurer with the employee's consent.
- Physicians should take care not to disclose more information than is covered by the employee's consent or is required by the employer's request. For example, diagnosis and treatment information is not normally required to questions concerning fitness to work or prognosis for future attendance at work.
While reference in this article has been to forms required by a patient's employer or that employer's insurer, the suggestions offered have just as ready application to the other sorts of forms which patients ask physicians to complete in order that patients can avail themselves of the benefits to which they may be entitled. No physician is immune from requests to complete forms, and all physicians know how repetitive, tedious and time-consuming this activity can be. The point is, however, that carelessness in the completion of forms can cause serious medico-legal difficulty for a physician.