An article for physicians by CMPA General Counsel
Originally published May 2001 / Revised July 2008
Care should be taken when writing medico-legal reports, such as reports of treating physicians, independent medical examinations and expert opinions. Suggestions are made as to factors to consider when preparing such reports.
Of interest to physicians who may be asked to prepare a medico-legal report
You may be requested by a lawyer to provide a medical report for legal purposes. Such requests generally fall into three categories:
Report of treating physician
The most common request is for a report on the condition of a patient you are treating (or have treated). The patient's lawyer will use this report to substantiate the client's medical disability, treatment and prognosis. It may be presented to an insurance company in the course of settlement negotiations or to a Court in the event that the claim is not settled.
Independent defence medical examination
A lawyer may ask you to conduct an independent medical examination in a personal injury lawsuit. You will be asked to examine a plaintiff who is claiming compensation for personal injuries and to report on the plaintiff's current status, physical limitations and prognosis. This report will be used by the parties involved in the litigation and by the Court as a basis for assessing compensation. You may also be asked to perform an independent medical examination to help an insurer evaluate the extent of an injury or to help a Worker's Compensation Board determine the extent of a disability.
In medical malpractice actions, you may be asked by either side to provide a report addressing the question of whether a treating physician's medical care of the plaintiff was in compliance with professional standards.
Are you obligated to prepare a report?
Report of treating physician
You are under a professional obligation to provide a report on your own patient's medical condition. You should insist that the request be in writing and specify the purpose for which the report is requested. You should also insist on a written authorization, signed by the patient, for the release of this information to the person requesting it.
You are entitled to a reasonable fee for the preparation of this report.
The Supreme Court of Canada clarified in 1992 that, where there is a doctor/patient relationship, the patient is entitled, for a reasonable fee, to obtain a copy of any records concerning his/her medical treatment in the physician's chart, including any consultants' reports. Privacy legislation now provides patients with specific rights of access to their personal health information, the scope of which may differ from jurisdiction to jurisdiction. The legislation also prescribes fee structures relevant to access requests.
On occasion, you may be asked to supply copies of records to your patient, or to his or her authorized representative, with or without an accompanying request for a medico-legal report. Upon receipt of such a request and an appropriate written authorization from the patient, you should forward copies of the relevant records unless there is a valid concern that information in the records may cause harm to the patient or a third party, or if another exception provided by privacy legislation applies. You must be prepared to prove that there is a legitimate basis upon which to justify the refusal. Members should seek advice from the CMPA if they are unsure whether certain information in the record should be disclosed and what provisions of applicable privacy legislation in their province or territory govern the request.
Without a request or authorization from your patient, you should not release any information from or copies of patient records unless you are required or permitted to do so by law. For example, you may receive a Court Order requiring you to produce information or you may have to do so pursuant to a statutory requirement such as reporting of child abuse or compliance with a College investigation. You should seek advice before disclosing any information if you are unsure whether there is legal authorization for the disclosure.
Independent defence medical examination
It is your personal judgment as to whether you wish to be retained to examine a claimant as an independent medical expert. If you do so, you should carry out a thorough examination including history, physical exam, appropriate tests, etc. and report fairly and objectively on your findings and conclusions.
Again, this is a matter of choice and there is no obligation to act as an expert. However, many physicians feel a professional obligation to do so (for either side). The CMPA endorses this view.
Before acting as an expert, you should be satisfied that you have the specific expertise the matter requires and that you have no actual or potential conflict of interest. For example, it would not be advisable to be an expert witness for the defence when either you or your colleagues at the same institution are or have been one of the plaintiff's treating physicians. As an expert, you should ensure that you have received and carefully reviewed all the required documents so that you are aware of all relevant facts on which to base your opinion. These documents should include the pleadings, all relevant medical records of the plaintiff's treatment and transcripts of the evidence from Examinations for Discovery.
You should understand that the purpose of your report and your opinion is to assist the Court in determining the standard of care that the defendant physician was expected to meet at the time the care was provided.
Suggested format for a medico-legal report
Organize your report, using headings where possible. For example:
- Address the report to the lawyer or individual who requested it, never "To Whom It May Concern".
- Refer to the purpose for which the report is prepared, e.g., "You have asked me to assess Mr. Jackson and to answer your questions about his current medical situation and prognosis..."; or, in a medical negligence case, "You have asked me to review and comment on the standard of medical care in the spinal surgery carried out by Dr X."
- State your credentials and experience in one or two paragraphs. A résumé will likely have to be supplied before testifying at trial, but a brief summary is helpful in a report. For example, "I have practised as an orthopaedic surgeon in the City of Sawbones for the last 30 years and was, until recently, Chief of Surgery at the Sawbones General Hospital and former Chairman of the Department of Surgery at the Faculty of Medicine, University of Sawbones."
- Enumerate specifically what documentation you have reviewed to prepare the report. Ideally, this should be a complete list of the medically relevant materials available at the time your report was prepared. Again, ensure you have all relevant documentation, and if not, communicate with the requesting party.
- State any assumptions used in preparing your report and include any photographs, diagrams, calculations or other research data on which you have relied.
- Outline the relevant patient history.
- Describe your examination of the patient and functional enquiry if you have in fact examined the patient.
- Summarize and conclude. This will normally involve your opinion as to the patient's current condition, degree of disability and the cause of same, and prognosis.
In a medical negligence claim you will need to identify and comment on the deficiencies, if any, in the medical care rendered by the physician(s) in question and, of equal importance, state your opinion as to whether any deficiencies in the care have caused any direct harm or detriment to the patient. A medical negligence claim cannot be sustained unless a plaintiff is able to establish that one or more of the defendant physicians have failed to meet a recognized professional standard of care and that the breach of professional standards has actually caused harm to the patient.
Similarly, in a personal injury action, the report should address whether and to what extent the patient's complaints are caused by the accident.
While medical terminology is normally necessary, an effort to write comprehensibly for educated laypersons (lawyers and judges/juries) is very helpful. Unduly technical discussions, understandable only to experts, are of limited use in legal proceedings. Except in the case of "progress reports" provided by treating physicians, the medical report must address all the material issues that may be expected to be addressed by the expert in Court. For this reason, it is often helpful for the expert to discuss this content in advance with the lawyer who has requested the report. The report should be printed on the physician's personal stationery or that of the university or facility in which the physician practises.
Common problems with medico-legal reports
Experience has shown that avoiding certain practices in conducting a medico-legal examination and in report writing can optimize your contribution to the legal process and avoid difficulties with the litigant or the Court. Here are some problem areas you may wish to avoid:
- Avoid making critical comments to or debating issues with a patient when performing an independent medical examination. Patients in this situation are often defensive and inclined to take critical comments in a negative light and to retaliate by writing letters of complaint.
- Avoid words or actions that may appear to be insensitive. Take the utmost care in discussing matters relating to a patient's ethnic background, religious affiliation, sexual preferences, language abilities or family history. Where these are appropriate subjects for discussion, indicate to the patient your purpose in making such enquiries. This will help to avoid misunderstandings.
- Avoid using the phrase "dictated but not read" on your letter, and allowing anyone else to sign it. Sign the report yourself after a careful proofreading.
- Avoid mentioning your fee in the report. Medico-legal reports are usually filed with the Court. You therefore do not want to have something to this effect as the last line of your report: "My fee for this report is $750 and I will expect payment before its release." Also, your fee and the time it reflects provide ammunition for cross-examination. Your fee and payment terms can best be discussed before you agree to act as an expert or independent medical assessor.
- Avoid making overtly pejorative references to the patient in a medical report. For example, a psychiatric report stating, "This patient exhibits a rigid Teutonic personality" calls your objectivity into question and can undermine the credibility of your report.
- Avoid comments about the patient's socio-economic status. One sometimes sees broad-brush references to a patient's attitude being typical of the views of certain groups, e.g., "This man and his siblings have subsisted on welfare and he may see this injury as an opportunity for secondary gain." This may lead others to question your objectivity and doubt the credibility of your report.
- Avoid stating legal conclusions (i.e., who's at fault) in your report. A medico-legal report may not be admissible if it unduly goes into the cause of the accident and states whose fault the accident was. Do not state or quote the patient as stating anything like, "The patient's vehicle was sideswiped by a drunk driver who was speeding in the opposite direction."
- Avoid making overt statements or offering specific conclusions on issues of credibility. It is the function of the trier of fact (the judge or jury) to decide who to believe. It is seldom helpful to label someone a "malingerer" or to assert that someone is acting fraudulently or is lying. It will normally suffice to set out the facts that may lead to that conclusion.
- Avoid "borrowing" the words of others. If your report involves your reliance on other physicians' reports, say so, and properly attribute any quotes from them. At trial, it can be very embarrassing to find that portions of the text of a medico-legal report are in fact unattributed quotations from another physicians' examination or analysis.
- Avoid reference to insurance in personal injury actions (other than discussing no-fault or rehabilitation benefits). When in doubt, talk to the party requesting the report. Juries are not supposed to be told that the defendant is insured. They should not learn this indirectly through your report.
- Avoid criticism of other physicians or health care providers except when providing an objective opinion about standards when asked to do so in the context of a medical malpractice case, or other matter involving professional standards. Such gratuitous remarks can lead to mutual recriminations and may cast doubt on the quality of your report.
- Avoid lengthy and/or repetitious reports. The length of a report will of course vary with the complexity of the matter. However, overly lengthy reports (10 to 15 pages) are seldom helpful and should be avoided.
- Avoid making corrections to reports at a patient's request unless you are satisfied the correction is warranted. Patients sometimes improperly request that reports be changed when they realize the implications of what they may have told you. However, it can be embarrassing if your office chart records certain information given by a patient and your medico-legal report contains conflicting information.
- Don't be reluctant to be as helpful as possible with respect to a patient's prognosis. To compensate a personal injury victim, a Court must make certain assumptions about the patient's future. They do this by deciding what will occur on the balance of probabilities (i.e., what is the most likely scenario). An expert's views on this subject are crucial, even though it may seem to the physician to be "educated guessing". Medical standards of proof and of causation do differ from legal standards. Our system depends on guidance from experts concerning future events.
Most misunderstandings concerning medico-legal reports can be solved in discussion with the party who requested the report. Be aware that your report will become available to many people. You will want to ensure that your comments are professional, accurate, unbiased and objective.
Members who doubt the propriety of rendering a report or their right to decline to provide a report can contact the CMPA for advice.
Posted by Daniel N. Steven on May 7, 2012
For most health care providers, the intersection between law and medicine occurs most often in the area of medical reports. Although orthopedic surgeons are the most frequently involved in providing reports to attorneys, every provider will furnish medical-legal reports at one time or another. The most common type of lawsuit in which medical reports are requested are personal injury suits; however, other types of suits, from mental health proceedings to child custody disputes, will often require such reports.
Requests for Reports
Health care providers usually receive requests for reports from the attorney for one of the parties in a lawsuit. The form of the request is universal: a cover letter enclosing an authorization for release of medical information signed by the patient. In many states, it is customary for the authorization to be in the form of an “Assignment and Authorization.” Unless accompanied by such an authorization, the health care provider may not provide any information to the attorney.
NOTE: Health care providers also receive such requests directly from insurance companies in connection with reimbursement claims. The following discussion is equally applicable to such situations.
Progress Notes v. Reports
“Medical-legal report” is an ambiguous term. The requesting attorney usually specifically requests an evaluation of the patient. Sometimes a provider can satisfy this request by transmitting a photocopy of the provider’s office records or progress notes. It is seldom, however, that the requested information can be secured merely from the often cryptic notes of the patient’s office visits.
Fees for Medical Reports
If the requesting lawyer specifically requests a copy of existing records, then only a reasonable copy charge is appropriate. If the lawyer requests a written opinion that will require independent work and analysis by the provider, the provider may charge a reasonable free for the preparation and transmittal of the original and supplemental opinion letters to the lawyer. The provider should remember, however, that the patient, not the lawyer, ultimately pays these expenses.
Contents of Medical Reports
To be of value to the attorney (and thus the patient), the medical report should contain the following:
• The patient’s relevant medical history;
• A description of the onset of the patient’s condition;
• A description of objective findings on the first visit of the patient in connection with the present condition, and a narrative summary of subsequent objective findings;
• A recitation of clinical and diagnostic tests made and their results;
• A diagnosis;
• A prognosis;
• An opinion regarding the need for future medical services.
In addition, the provider should answer any specific questions asked by the attorney in the attorney’s cover letter, such as the causal relationship between the patient’s accident and the condition being treated; the degree of the patient’s disability, and the delineation of any pre-existing condition.
Some conditions are obviously traumatic in origin and the report need not specifically relate the accident to the condition.
A patient suffers facial lacerations after striking and breaking a windshield during a car accident. The attending physician need not address whether the lacerations were directly or indirectly caused by the accident — it is self-evident. However, a soft-tissue injury such as cervical strain often requires specific relation to the traumatic event.
Unfortunately, health care providers and attorneys have different vocabularies. Providers are usually reluctant to give unqualified opinions as to relationships between cause and effect; such statements offend their sense of scientific methodology. Lawyers, on the other hand, tend to use direct language in establishing causation: does the injury relate to the accident, or doesn’t it?
To further complicate matters, the law requires certain “magic words” in connection with opinion testimony. In most states, physicians must give their opinion based upon “a reasonable degree of medical certainty.” (In some states, “reasonable probability”).
Because this is such a crucial matter in most cases, health care providers should devote considerable thought to their opinions before committing them to paper. A phone call to the requesting attorney is often helpful in understanding the issues.
Further explanation in a medical report is often necessary to translate medical data about patient disability into meaningful information for the attorney. An orthopedic surgeon may describe a loss of motion in a joint in terms of range of movement: “patient moves her neck through a range of 35% rotation to the right.” Or: “patient has a 20% disability of the knee.” Such a percentage has little meaning to the legal issue of disability.
The important issue is what that loss of function means to the life of the patient. Would a loss of a percentage of visual field in an eye restrict the patient from driving? Would a loss of 20% function of the knee prevent the performance of ordinary daily chores? Relating the disability to a specific loss of function portrays the injury in meaningful terms and will often help resolve the case.
Frequently lawsuits involve cases where the patient-claimant has suffered an injury superimposed on a pre-existing condition or injury. These types of cases provide some of the thorniest problems for health care providers. For instance, many claims involve patients who have degenerative arthritic changes in their spine and then suffer an auto accident which exacerbates the condition. A medical report which simply details the patient’s present signs and symptoms is of little use to the attorney or the patient and will inevitably require further involvement by the provider. The provider can save all parties time by answering the following questions in the report:
• Was the previous or underlying condition painful or disabling, and to what extent?
• If there was a previous injury, was there full recovery, or are its effects still present?
• Was the previous condition or injury static, progressive, or regressive?
• Was the new trauma a “competent producing cause” of the patient’s present symptomatology and/or condition?
• Was the new injury a precipitating factor in converting a functional condition into a non-functional condition?
Health care providers should be extremely careful to exercise restraint in drafting a medical-legal report. The report should be strictly factual, without any editorializing or comment of any sort. Under no circumstances should the provider become an advocate, either for or against the patient. In addition to losing its value as a report, such extraneous matter can reflect upon the professionalism of the provider and even, in rare circumstances, subject the provider to liability.
Specifically, the medical report should not comment upon the patient’s economic needs, educational level, family needs, or any personal matter unless clearly related to the medical condition or treatment.