An article for physicians by CMPA General Counsel
Originally published December 2003 / Revised April 2008
Exercise caution in
reports: consider the
nature and extent of risks
and whether those risks
are probable or, if
serious but remote, would
be risks the patient would
want to be informed
about. Avoid potentially
Adapted from an
article in the Alberta
Alberta Doctor's Digest,
Of interest to physicians who may be asked to prepare a medico-legal report
Cases against physicians alleging negligent misrepresentation in the preparation of medico-legal reports are rare, but can be difficult and costly when they do occur.
In one such case, a 37-year-old woman suffered significant abdominal injuries in a car accident. Her rural family physician properly diagnosed her and saved her life by having her rushed to a tertiary care centre for surgery. The general surgeon who operated discovered the patient suffered from severe peritonitis. The patient recovered well from the surgery. However, she sued the driver responsible for the accident.
Her lawyer asked both the family physician and the surgeon to prepare medico-legal reports to help settle the action. Both doctors prepared reports predicting an excellent prognosis for full recovery. No specific inquiries were made of either doctor with respect to possible infertility, and the lawsuit was settled based on injuries suffered due to the peritonitis.
Subsequent to the settlement, the woman discovered she was infertile and that there was a strong possibility her infertility was a result of scar tissue from the peritonitis. The patient then sued her treating physicians for negligent preparation of the medico-legal reports.
The trial judge awarded $100,000 to the patient on the basis that if the doctors had properly identified a risk of loss of fertility in their medico-legal reports, the patient would have settled her lawsuit against the driver for that additional amount. The trial judge found that the doctors knew the patient suffered from adhesions, that they knew adhesions were a possible cause of infertility and that infertility was a material risk of the injury she sustained. The doctors were said to have been bound to identify that risk and, as they failed to do so, were held to have made negligent misrepresentations in their medico-legal reports. The doctors appealed that decision.
The provincial appeal court subsequently upheld the trial judge's finding of liability against the family doctor, although the amount of the award was reduced by about one-third. The Court held that the action against the surgeon could not succeed as it had been brought too late.
Standard of care for medico-legal reports
The appeal court held that the appropriate standard of care for medico-legal reports is whether the defendant doctor exercised the degree of care that could reasonably be expected of a prudent and diligent doctor in the same circumstances to ensure the statements in such a report were accurate and not misleading. The standard is fact-dependent and is in part based on specific questions asked by the lawyer requesting the report.
Expert evidence given at trial by two doctors on the preparation of medico-legal reports was supportive of the defendant doctors, to the effect that most family doctors and general surgeons would not have mentioned the risk of infertility in the circumstances. Despite this evidence, two of the three appeal judges agreed with the trial judge that the statements given by the family doctor were, nonetheless, negligent. While courts will, therefore, show deference to professional standards, such opinion may not be determinative of whether the doctor met the standard of care.
It is important to note that in this case the family doctor had made unqualified statements that she did not foresee "any long-term sequelae" and the plaintiff's "prognosis for full recovery is excellent." While the doctor likely did not intend the statement to be taken beyond meaning excellent recovery from the injuries treated (i.e., peritonitis), the Court held that these statements were inaccurate or misleading as the doctor should have considered the possibility of infertility.
Two of the appeal judges also felt that the defendant family doctor's negligence consisted of a failure to secure a copy of the surgeon's operative report before preparing her medico-legal report, described by one as a "critical omission." Also, the doctor did not disclose in the report that she had not seen the operative report, which was a negligent failure to disclose the limited scope of her inquiries. Finally, her statements as to a "full recovery" were said to imply there were no other risks to the patient's health and thus gave false and misleading comfort to the patient and her lawyer.
The bottom line
Physicians are advised to take care in the preparation of medico-legal reports. The licensing authorities in many jurisdictions have also developed guidelines, policies or statements on medico-legal reports. This information should be taken into consideration, along with the appeal court's decision in this case, when preparing medico-legal reports.
Comments by the various judges in this case suggest that the following steps merit consideration when preparing medico-legal reports:
Unless it is inappropriate to do so, consider conducting a medical examination before preparing the report to determine the true nature and extent of the injuries.
Answer the specific questions posed by the lawyer; if the questions are unclear or generic, ask the lawyer for clarification.
Consider if a sufficient period of time has elapsed to fully determine the extent of the injury.
Qualify your statements in the report, e.g., such statements being made within the scope of your specialty (named), and that the report deals with probable risks only.
State what reports, diagnostic tests or physical examination(s) you relied on, and state if there were any that were unavailable or not conducted, or to which you did not refer.
Consider if a screening test is appropriate to rule out a serious but remote consequence.
Consider all risks or consequences arising out of the injury suffered by the patient, and consider whether those risks are probable or, if serious but remote, would be risks that the patient and his/her lawyer would want to be informed of.
Consider recommending further inquiry by a specialist in a particular area of medicine, where appropriate.
Identify, and state that you cannot answer, questions requiring opinions that exceed your medical knowledge, technical expertise or area of specialization.