Originally published June 2019
Physicians may be asked to prepare various types of medical-legal reports, most commonly “treating physician reports.” On occasion, physicians may be asked to prepare an independent medical examination (IME) report or an expert opinion. Knowing how best to respond and prepare these reports will help ensure they fulfil their intended purpose and will mitigate your risk of a potential regulatory authority (College) complaint or legal action.
Legal proceedings against physicians related to the preparation of medical-legal reports are uncommon. In the event there is a dispute related to a medical-legal report, physicians who author these reports will be judged by whether they exercised the degree of care that could reasonably be expected of a prudent and diligent physician in the same circumstances, including ensuring the statements and conclusions in the report are accurate and reasonable. In the CMPA’s experience, physicians have sometimes been criticized for making inaccurate or misleading statements about patient injuries and prognoses, or failing to request the necessary background information needed to complete the requested review.
Treating physician reports
You are generally obliged to comply with requests you receive for a report about the care provided or medical condition of a patient you are currently treating or had previously treated. A treating physician report is typically used as evidence of the patient’s medical condition, treatment, or prognosis. For example, it may be used by an insurance company or the court in a legal claim for injuries the patient sustained in an accident or in a medical negligence claim.
A request for a treating physician report should be received in writing and should specify the purpose of the request. A written authorization, signed by the patient before releasing information or the report to someone other than the patient, is required. If the patient is incapable or deceased, written authorization from the substitute decision-maker or the estate representative is similarly required. You may charge a reasonable fee for the report.
If you receive a request to provide copies of the patient’s medical records along with your report, first verify you have written authorization from the patient. Provide copies of the relevant records for which you are the custodian, unless the information may cause harm to the patient or a third party, or if another exception set out in privacy legislation applies. Consider contacting the CMPA to discuss your obligations before disclosing medical records.
You may be asked to conduct an independent medical examination of an individual who is claiming compensation for injuries and to report on his or her current status, physical limitations, and prognosis. An IME report is commonly used when assessing an individual’s entitlement to compensation in the context of a legal action, a claim for insurance benefits, or a worker's compensation claim.
It is your decision whether or not to perform an IME. For more information about conducting IMEs, see the CMPA article “Independent medical examinations: be prepared.” If you agree to perform an examination, the report should be an objective summary of your findings and conclusions. Privacy legislation generally provides examinees with the right to access the report and parts of any notes you made in preparing the IME, unless a statutory exception applies.
You may be asked by a party in a legal proceeding to prepare a report that documents your opinion on issues in the legal action, such as whether the defendant physician's care met the requisite standard. Whether you agree to provide your expert opinion is your choice, based on factors such as whether you feel sufficiently qualified in the subject.
Before providing an expert opinion, you should be satisfied that you have the necessary expertise and no conflicts of interest. You may also want to ask the retaining lawyer if you are likely to be required to testify at trial.
Regardless of the nature of the retainer or who pays the account, experts have a duty to be objective, professional, and fair. Experts should not act as advocates for the party who retained them. In some provinces, experts must certify that they understand that their duty is owed to the court and not to any particular party.
Ensure that you have received and carefully reviewed the required documents so that you are aware of the relevant facts on which you can base your opinion. These documents generally include the pleadings, relevant medical records, and transcripts of evidence given in the proceeding.
In some jurisdictions, experts are required to include in their reports a list of any literature or other documents they reviewed, instructions given, a description of factual assumptions, summary of the range of opinions, and the reasons for the expert's opinion within that range. You may also be requested to disclose all or parts of your compiled file, such as letters from the retaining lawyer or drafts of the report. Before responding to such a request, contact the retaining lawyer and, if necessary, the CMPA.
As a CMPA member, you may request assistance from the CMPA should a medical-legal issue later arise from your role as an expert.
Preparing the report
Consider the following suggestions when preparing a medical-legal report. In addition, check with your College for policies and statements it may have on the preparation of medical-legal reports in your province or territory.
- Confirm the date on which the report is needed. If you feel you likely cannot meet the deadline, raise this with the requester at the earliest opportunity.
- If appropriate, conduct a medical examination or request a screening test to determine the patient’s present condition.
- Review the scope of the questions or issues you have been asked to address.
- Respond only to the specific questions posed, and seek clarification if the questions are unclear.
- Feel free to say “I don’t know” if you lack specific factual information or if questions are outside your area of expertise.
- Refrain from making corrections to a report at the patient's request, unless you are satisfied the correction is warranted. Where appropriate, document in the record your rationale for making the correction.
- Avoid making pejorative comments about the patient, which may call your objectivity into question and undermine your credibility.
- Avoid making statements or offering specific conclusions on issues related to the patient’s credibility.
- Avoid “borrowing” (restating) the words of others. If you rely on statements made by others, attribute these in your report.
A medical-legal report might typically comprise the following information. While the length of your report will vary depending on the complexity of the matter, avoid creating overly long or repetitive reports.
- The purpose of the report, for example, to answer questions about an individual’s current medical condition or to review the care provided by a physician.
- Your credentials and experience. Your CV will typically be appended to your report, though a summary within the report may be helpful or required.
- The documents and information you have reviewed, including any photographs, diagrams, calculations, and other research.
- Any assumptions you have made in preparing the report.
- Relevant details of the patient’s history.
- If applicable, your examination of the patient and functional enquiry.
- In your conclusions, a summary of your response on the specific issues on which you were asked to comment. For long reports, consider also including an executive summary.
- Do not discuss fees in the report. (Such details should be discussed in separate correspondence with legal counsel.)