Interaction Between. & Physicians. Lawyers. In Litigation. Sixth Edition - August 2011 by Rose M. Carter, Q.C.

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1 Interaction Between Lawyers & Physicians In Litigation Sixth Edition - August 2011 by Rose M. Carter, Q.C.

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3 Interaction Between Lawyers & Physicians In Litigation Sixth Edition - August 2011 Interaction Between Lawyers & by Physicians Rose in M. Litigation Carter, Q.C.

4 Interaction Between Lawyers & Physicians in Litigation by Rose M. Carter, Q.C., The Law Society of Alberta 6 th Edition, August 2011, Edmonton, Alberta Initially published as guidelines for Lawyers and Physicians by the Joint Medical-Legal Committee of the College of Physicians & Surgeons of Alberta, Alberta Medical Association and the Law Society of Alberta, this updated edition reflects the New Rules of Court, which came into effect on November 1, Prepared by Rose M. Carter, Q.C.*, Adjunct Professor for the Faculty of Medicine, Bencher Law Society of Alberta, With the grateful assistance of Mr. Lamont H. Bartlett, Summer Student* Dr. Trevor Theman, Registrar, CPSA Ms. Catherine V. McCann, Senior Policy Advisor, CPSA Ms. Shannon E. Rupnarain, Director, Public Affairs, Alberta Medical Association, Mr. Steve Bilodeau, Q.C., Chief Crown Prosecutor, Edmonton, Ms. Michelle Halwa, Executive Assistant to Mr. Steve Bilodeau Ms. Shannon Kovacs*, Assistant to Ms. Carter, Q.C. and Mrs. Carmelita Hallett* *Bennett Jones LLP

5 Contents Introduction... 1 A. Civil Proceedings... 3 Synopsis of the Litigation Process in Alberta... 3 Limitations Act... 3 Statement of Claim... 3 Production of Records... 4 Questioning... 4 Undertakings... 4 Prohibition on using Questioning Evidence in Another Proceeding... 5 Experts Defined... 5 Retaining Experts... 5 Documentation to Assist Experts... 5 Contents of Form 25 Statement... 6 Qualification of Proposed Experts... 7 Fees for Experts... 7 Service of Expert Opinion... 8 Service of Rebuttal Expert Opinion... 8 Medical Assessments during Course of Litigation... 8 Assessments Done for Medical Reasons... 8 (i) Referrals from Physicians for Medical Assessments... 8 (ii) Assessments for Medical Legal Purposes... 9 (iii) Rule 5.41 Medical Examinations... 9 (a) Documentation... 9 (b) Copy of Rule (c) Billing for Rule 5.41 Examinations (d) Consent Order for Rule 5.41 Examinations (e) Testing at Rule 5.41 Examinations...11 (f) Written Reports from Physicians to Lawyers...11 (g) Court Attendance by Physicians...11 (h) Physicians cannot be both Independent Examiners & Treating Physicians...11 (i) College of Physicians & Surgeons of Alberta Standards of Practice i

6 Medical Legal Reports not Involving Attendances with Patients (i) Request for Medical Legal Reports (ii) Reports from Physicians who have only Attended with Plaintiffs on one Occasion (iii) Timeframe for Responding to Requests for Medical Legal Reports Fees for Medical Legal Reports (i) Responsibility of Lawyers (ii) What Physicians should Charge Lawyers (iii) Disclosure by Physicians of Hourly Rates (iv) When and How Payments are made to Physicians Retention of Medical Records (i) Length of Time Medical Records must be Retained Closing A Medical Practice Production of Medical Records at Request of Patient (i) Requests for Medical Records (ii) Requests for Medical Records not Medical Legal Reports (iii) Right of Patients to their Records (iv) Refusal to Release Medical Records (v) Clerical Resources of Physicians Production of Medical Records at Request of Lawyers (i) Why Medical Records are Requested (ii) Lawyers Obligations to Clients upon Requesting Medical Records (iii) Why Lawyers are Interested in Reviewing Medical Records (iv) Format for Requesting Medical Records (v) Need for Written Consent of Patients (vi) Timeframe for Releasing Medical Records (vii) Disclosure of Medical Records (viii) Waiver of Confidentiality by Patients in Litigation Physicians as Witnesses (i) Physicians as Expert and Ordinary Witnesses (ii) Physicians need not act as Experts (iii) When Physicians must Attend as Ordinary Witnesses (iv) Service of Notice to Attend (v) Discussion Prior to Issuing Notice to Attend (vi) Patient Confidentiality (vii) Briefing Physicians for Court Attendance (viii) Physicians Subpoenaed to Give Evidence out of Province Complaints by Lawyers to the College of Physicians & Surgeons of Alberta (i) When to Complain (ii) How to Complain Complaints by Physicians to the Law Society (i) When to Complain (ii) How to Complain ii

7 B. Criminal Proceedings Attendance in Court by Physicians in Criminal Proceedings Experts Defined Retaining Experts Confidentiality of Information Received Documentation to Assist Experts Qualification of Proposed Experts Fees Paid by the Crown Assessments Done for Medical Reasons (i) Referrals from Physicians for Medical Assessments (ii) Assessments for Medical Legal Purposes (a) Physicians cannot be both Independent Examiners & Treating Physicians (b) College of Physicians & Surgeons of Alberta Standards of Practice Medical Legal Reports not Involving Attendances with Patients (i) Request for Medical Legal Reports (ii) Reports from Physicians who have only Attended with Patients on one Occasion (iii) Timeframe for Responding to Requests for Medical Legal Reports Fees for Medical Legal Reports (i) Responsibility of Lawyers (ii) What Physicians should Charge Lawyers (iii) Disclosure by Physicians of Hourly Rates (iv) When and How Payments are made to Physicians Production of Medical Records at Request of Patient (i) Requests for Medical Records (ii) Requests for Medical Records not Medical Legal Reports (iii) Right of Patients to their Records (iv) Refusal to Release Medical Records (v) Clerical Resources of Physicians Physicians as Witnesses (i) Physicians as Expert and Ordinary Witnesses (ii) Physicians need not act as Experts (iii) When Physicians must Attend as Ordinary Witnesses (iv) Discussion Prior to Issuing Subpoena (v) Patient Confidentiality (vi) Briefing Physicians for Court Attendance (vii) Physicians Subpoenaed to Give Evidence out of Province Complaints by Lawyers to the College of Physicians & Surgeons (i) When to Complain (ii) How to Complain iii

8 Complaints by Physicians to the Law Society (i) When to Complain (ii) How to Complain Appendix A Alberta Rules of Court, Form Appendix B Alberta Rules of Court, Rule Appendix C Suggested form letter to confirm arrangements with a lawyer in advance.. 39 Appendix D Alberta Rules of Court, Rule 5.41; Rule Appendix E Consent Form to Release Medical Information Appendix F Alberta Rules of Court, Rule Bibliography Endnotes iv

9 Introduction A good relationship is based on sound communication, mutual respect, trust and understanding. It is hoped this publication may assist in fostering such a relationship between our respective professions. The primary focus of these guidelines is the interaction between lawyers and physicians during lawsuits arising as a result of claims for personal injuries. This publication covers the litigation process in Alberta, criminal proceedings and other matters such as requests for the general release of medical records. These guidelines have been written for members of both professions and are approved by the College of Physicians & Surgeons of Alberta, the Alberta Medical Association and Law Society of Alberta. 1

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11 A. Civil Proceedings Synopsis of the Litigation Process in Alberta Most physicians will encounter the justice system through civil proceedings where one party has sued another usually in relation to personal injuries. An example of civil proceedings for personal injuries in Alberta is where parties have been involved in a motor vehicle accident and injured parties sue. The term criminal proceedings applies to cases where a law has been broken and charges have been laid, for example, where charges are laid by the police as a result of an assault. In both examples, injuries were sustained, and it is highly likely physicians will be involved in treating the injured parties. Following treatment, the physicians could be served with Notices to Attend to give evidence in relation to treatment they provided to the injured parties. Limitations Act 1 Legal actions for personal injuries must, as a general rule, be commenced within two years from the date the patient discovered or should have discovered his or her right to sue. It is difficult to be definitive as to the time period after which physicians can be certain they no longer need to retain medical records. The Limitations Act provides for an ultimate limitation period so that no action can be commenced after the expiry of 10 years from the date of the event giving rise to the claim. This is subject to a number of exceptions, however, such as cases where the Plaintiff has been under a disability or there is an allegation of fraudulent concealment. 2 Statement of Claim A lawsuit is commenced by filing a document called a Statement of Claim with the Clerk of the Court. The person commencing the action is called the Plaintiff, and the person being sued is called the Defendant. (Plaintiff and Defendant may also be known as the parties or opposite 3

12 parties.) Following filing, the Statement of Claim is served on the Defendant. Usually, the Defendant files a Statement of Defence with the Clerk of the Court. Following filing, the Statement of Defence is served on the Plaintiff. A filed document will bear the stamp of the Clerk of the Court denoting the date it was filed. Production of Records Parties on both sides are required to swear a document called an Affidavit of Records disclosing all documents which are or have been in their possession or power and which are material to the issues in the lawsuit. Records include, for example, recordings of sound, photographs, films, x-rays, charts, graphs, and paper or electronic records of any kind. Medical records kept by physicians are considered documents for purposes of litigation and physicians can expect to be required to disclose them. Affidavits of Records are served by the Plaintiff upon the Defendant and by the Defendant upon the Plaintiff. Questioning After the Statement of Claim and Statement of Defence are filed and served, Questioning is often conducted to discover relevant and material records and relevant and material information. At Questioning, the lawyer representing the Plaintiff has an opportunity to question the Defendant under oath. At the conclusion of Questioning, the lawyer representing the Defendant has an opportunity to question the Plaintiff under oath. The evidence given at Questioning may be produced in hard copy called a transcript, which becomes part of the permanent record of the proceedings. At Questioning, documents relied upon by the parties may be entered as exhibits and form part of the permanent record. Undertakings The parties may be asked during their respective Questioning to give undertakings. An undertaking involves a promise by either party to provide answers to questions by seeking further information and 4

13 providing the acquired information to the lawyers. Parties are often requested, by way of undertakings, to provide medical records secured from present or former treating physicians and from hospitals where they attended as patients and are obligated to obtain and produce the medical records. Prohibition on Using Questioning Evidence in Another Proceeding With certain very limited exceptions, the law in Alberta prohibits the use of Questioning evidence for any purpose other than in the lawsuit for which the evidence was taken. Thus, the use of Questioning evidence obtained in a lawsuit cannot be used in Hearings before the College of Physicians & Surgeons of Alberta or in hospital discipline matters. Experts Defined Experts are often called upon to give evidence in both civil and criminal proceedings. Experts are those who either through education or experience have developed skill or knowledge in a particular subject enabling them to form an opinion that will assist the fact-finder. 3 Retaining Experts During the course of a lawsuit it is not unusual for experts to be retained by one or more parties. Experts retained may include medical doctors, other health caregivers, economists, accountants, statisticians or others whom the lawyers deem would be of assistance. Documentation to Assist Experts Individuals retained as experts usually base their opinions on documentation provided to them by the lawyers retaining them. Documents usually include, but are not limited to, the following: (i) Statement of Claim; (ii) Statement of Defence; and 5

14 (iii) Documents provided either in the Affidavit of Records of each party or in response to undertakings (including medical records such as patient charts and x-rays, business documentation, etc.). Questioning transcripts may or may not be provided to the expert. Contents of Form 25 Statement Rule 5.34 is a Rule of Court which governs the use of expert witnesses at trials in civil proceedings. An expert s report under Rule 5.34 is to contain the information and be of the form required by Form 25, as it appears as Appendix A. As seen in Appendix A, the substance of the opinion is to be included in the Form 25 Statement. It is not sufficient to append only the physician notes. Experts must provide references to documentation to which they referred in forming their opinion and the facts on which their opinions are based. If a party wishes to have an attending physician also give expert opinion, that physician must be properly retained. A physician should not be asked to sign a document entitled a Form 25 Statement without an explanation to that physician of the ramifications of doing so. There is no obligation on a physician or anyone else to sign Form 25 Statements. 4 Before agreeing to be an expert and signing a Form 25 Statement, physicians should obtain an explanation of the process; discuss and agree to retainers; discuss the substance of their opinions and review their Curriculum Vitae with those wishing to retain their services. Physicians should thoroughly discuss the contents of the Form 25 Statement with lawyers prior to signing and initialing each page. Lawyers should advise physicians that they may be called to give evidence at the trial of the action; that counsel on the other side will be relying on the contents of the Form 25 Statement in any pre-trial 6

15 settlement discussion; that physicians can expect to be subjected to vigorous cross-examination by the opposing lawyer and perhaps questioning by the trial judge. Physicians should be advised that parties opposite may retain experts to rebut their opinions. Qualification of Proposed Experts When a party proposes to rely on expert opinions of physicians at trial, the parties calling physicians must offer the proffered experts to the Court and satisfy the Court that the proposed experts have expertise in the areas in which testimony will be offered. That is why Form 25 requires the proposed expert s Curriculum Vitae be attached to Form 25; thus, the request by lawyers for the Curriculum Vitae or resumes from physicians. Prior to opinion evidence being offered, the Court is asked to rule on whether or not the proposed experts are qualified to give opinions in specified areas. Once qualified, experts will be allowed to give evidence to assist the Court in understanding topics beyond the understanding of the average lay person. Fees for Experts Physicians are entitled to be paid as experts, and it is expected lawyers will enter into contracts with physicians acting as experts. Lawyers retaining physicians to act as expert witnesses will ascertain the hourly fee to be charged by physicians for preparing reports and attendance at trial. Lawyers will advise clients of the expected costs for retaining experts and should secure instructions from clients authorizing them to retain experts. Physicians will advise lawyers, in writing, of their agreement to act as expert witnesses, their hourly fees for preparing and discussing expert reports with retaining lawyers and expected costs for their attendance in court to give opinion evidence. It is in the interest of all parties that the role and financial burden of each party is clearly understood prior to a contract being undertaken. The Law Society of Alberta, the College of Physicians & Surgeons of Alberta and the Alberta Medical Association strenuously recommend that physicians and lawyers negotiate, in advance, physician fees when physicians are asked to be experts. (See Appendix B for a suggested form letter.) 7

16 Service of Expert Opinion The substance of the expert opinion is converted to the format required by the Alberta Rules of Court commonly referred to as a Form 25 Statement. The Form 25 Statement must be served in the sequence listed under Rule 5.35(2), with the party bearing the onus of proof serving their expert report first. This is followed by the other party serving their expert s rebuttal report (if any), and finally, the serving of a surrebuttal expert s report by the first party to respond to any new issues that may have come up following the rebuttal report. The timeline for when these reports are filed is generally determined by the parties in advance, with no specific timelines specified by the Rules of Court. Service of Rebuttal Expert Opinion A rebuttal expert opinion is allowed under Rule 5.34 in response to the initial Form 25 Statement, and shall be served on the opposite party following receipt of the Form 25 within the timeframe established by the parties. Unless both parties agree the Form 25 Statement will go in as evidence without calling the expert as a witness, it is expected the expert will give evidence at trial. If the expert is called to give evidence, the expert s Statement will be before the Court. Medical Assessments during Course of Litigation Assessments Done for Medical Reasons (i) Referrals from Physicians for Medical Assessments Referrals from one physician to another physician for an assessment are made in the best interest of the patient s health. The College of Physicians & Surgeons of Alberta stresses that referring physicians receive an assessment (consultation report) from consulting physicians, not a medical legal report. The purpose of the reports from consulting physicians is for medical reasons, not for use in litigation. If lawyers wish clients to undergo assessments for the purposes of a legal action, those must be specifically requested so the most appropriate assessments are done. 8

17 When treating physicians refer patients to specialists for medical opinions for diagnostic and treatment purposes, whether at the request of lawyers or patients, medical reports so generated form part of the patient records and are producible under the principles set out in a Supreme Court of Canada decision 5 and now the Health Information Act. 6 (ii) Assessments for Medical Legal Purposes Physicians must be advised when assessments requested by parties are solely for medical legal purposes. Alberta Health and Wellness does not cover medical examinations done for the purpose of litigation. For lawyers to suggest to clients that they ask physicians for referrals to specialists under the guise the referrals are for medical reasons, when the real intention is to obtain independent medical specialist reports paid for by Alberta Health and Wellness for purpose of litigation, could be seen as a fraud on Alberta Health and Wellness. The Law Society has advised lawyers of the following: NOTICE TO THE LEGAL PROFESSION Concerns have been raised that lawyers are advising their clients in personal injury matters to attend at their family physician and obtain a referral to a specialist, when that referral is not necessary for the medical management of the patient but is only for the purpose of obtaining a medical legal report, at the expense of [Alberta Health and Wellness]. This practice is unacceptable. If the lawyer wishes a medical legal report from a specialist, the client should be referred to the specialist by the lawyer. The Law Society of Alberta, Benchers Advisory, December 1997, p. 7 7 (iii) Rule 5.41 Medical Examinations (a) Documentation During the course of a lawsuit, the Defendant may wish to have the Plaintiff undergo a Rule 5.41 medical examination, often referred to 9

18 as an independent medical examination, by a physician agreed upon by all parties. Rule 5.44 of the Alberta Rules of Court sets out how these examinations are organized by lawyers and the obligations of physicians. To assist the physician performing the Rule 5.41 Examination, the lawyer representing the Defendant usually provides the physician with documentation similar to that provided to experts. (b) Copy of Rule 5.44 Prior to conducting a Rule 5.41 Examination for the purposes of litigation, the physician being contracted should be provided with a copy of Rule 5.44 (Appendix D), so the physician can understand what is required from a legal point of view. The physician should tell the person being examined that the physician is not acting as a treating physician, and the physician will not be providing medical advice or treatment. The sole purpose of the examination undertaken by the physician is to provide an independent assessment for the party hiring the physician to perform the examination. (c) Billing for Rule 5.41 Examinations Rule 5.41 Examinations for the purposes of litigation are not covered by Alberta Health and Wellness. Therefore, it is suggested physicians discuss their fees for performing Rule 5.41 Examinations with the party retaining them. Lawyers and physicians should agree to a payment schedule prior to physicians performing Rule 5.41 Examinations. Under Rule 5.42, the party appointing the health care professional is the party responsible for the cost of the Rule 5.41 Examination. (d) Consent Order for Rule 5.41 Examinations Prior to Plaintiffs undergoing Rule 5.41 Examinations, lawyers may consider providing a Consent Order authorizing physicians to examine Plaintiffs. Lawyers may, by agreement, dispense with the need for a Consent Order. If so, the Plaintiff must consent, in writing, to undergo the examination. When performing Rule 5.41 Examinations, physicians may ask to be provided with a copy of the filed Consent Order or written authorization. The person to be examined pursuant to a Rule 5.41 Examination may nominate a medical practitioner to be present during the examination. 8 10

19 (e) Testing at Rule 5.41 Examinations Lawyers should contact the physicians retained prior to finalizing the Consent Order. If physicians wish to subject Plaintiffs to testing such as nerve conduction studies or even procedures such as photographing the injury, physicians should advise the lawyers retaining them of the need for these. That will enable lawyers to include the type of testing or procedures in the Consent Order, and physicians will not be put in a position where Plaintiffs, at the time of examinations, refuse to undergo certain testing or procedures which the physicians deem necessary for a complete medical examination. (f) Written Reports from Physicians to Lawyers Under Rule 5.44(3), an examination performed pursuant to Rule 5.41 requires examining physicians to provide retaining lawyers with written reports. Once Plaintiffs agree to undergo Rule 5.41 Examinations, confidentiality is forfeited allowing for submission of medical legal reports to the lawyers retaining the physician. These reports would include items such as test results and may require the physician to provide copies of reports of tests taken at examinations. Physicians should be advised that medical legal reports will be provided to the Plaintiffs lawyers and, perhaps, to Plaintiffs. (g) Court Attendance by Physicians If the matter proceeds to trial, the physicians performing Rule 5.41 Examinations may be required to attend in court to give evidence. Physicians giving evidence should expect to be subjected to crossexamination by lawyers representing the Plaintiff. Physicians and lawyers should agree to the physicians fees prior to the court attendance. (h) Physicians cannot be both Independent Examiners & Treating Physicians Physicians who perform independent medical examinations are hired by the requesting third party to conduct an examination and to offer an opinion. In this role, they are not treating physicians, and no formal doctor-patient relationship is established. The third party paying for the examination owns the report. 11

20 (i) College of Physicians & Surgeons of Alberta - Standards of Practice Physicians performing independent medical examinations need to remain independent. It is important that the patient clearly understands the different role of the physician when acting as a non-treating physician. Under Standard 14 of the College of Physicians & Surgeons of Alberta Standards of Practice entitled Non-Treating Medical Examinations : A physician must not establish a therapeutic relationship with the person being examined unless: (a) there is no other physician readily available to provide those services, and (b) then only after concluding the process with the third party. 9 Physicians are obligated, however, to provide reports of findings and medical opinions contained in the medical record to third parties upon the request and consent of the patient or the patient s legal guardian. 10 A request for a medicolegal consultation should be made to the consultant by the patient s lawyer. Medical Legal Reports not Involving Attendances with Patients (i) Request for Medical Legal Reports Often lawyers request physicians to provide a report, commonly called a medical legal report, commenting on matters which occurred during the time a physician was providing care to a patient who is now involved in a lawsuit. Contents of medical legal reports will vary with the particular circumstances in each case, including whether the physician is currently treating the Plaintiff. (ii) Reports from Physicians who have only Attended with Plaintiffs on one Occasion Where a physician has only attended with the Plaintiff on one occasion, all that may be required is a description of injuries observed on examination, diagnosis, treatment and Plaintiff s response to treatment. 12

21 (iii) Timeframe for Responding to Requests for Medical Legal Reports Under the Health Profession Act that came into effect January 1, 2010 for the medical profession, the new Standards of Practice requires physicians respond to requests for medical-legal reports as soon as possible, generally within 30 days, by either providing the information requested, acknowledging the request and giving an estimated date for providing the requested information, or outlining why all or part of the information will not be provided. 11 Occasionally, lawyers are under time constraints for providing opposing lawyers with reports from physicians. In those circumstances, lawyers should advise the physicians of these time constraints. Fees for Medical Legal Reports (i) Responsibility of Lawyers Lawyers requesting medical legal reports from physicians are reminded that the Code of Professional Conduct makes them personally responsible for paying physician fees for providing reports. The Code of Professional Conduct states: The efficacies and time restraints of practice often require that lawyers incur financial obligations to others on behalf of clients. Such obligations include charges for medical reports... A firm, as well as each firm member, is responsible for an obligation incurred by the firm to a third party unless the third party is advised otherwise in advance. it is common for a lawyer to forward the third party s statement of account to the client for payment. While this practice is not in itself unethical, it does not divest the lawyer of responsibility for ensuring that the account is paid when due and seeking reimbursement from the client, if necessary

22 (ii) What Physicians should Charge Lawyers Physicians, in assessing the appropriate fee to be charged, should take into account the following: whether the request is urgent or non-urgent; amount of time spent; expertise and experience of physicians; complexity of the case; whether the report is repetitious of previous work already done; whether the report is a follow-up to an earlier report; and complexity and number of documents reviewed. (iii) Disclosure by Physicians of Hourly Rates Physicians should be prepared to disclose the hourly rate they propose to charge for preparation of a medical legal report. 13 According to the College of Physicians & Surgeons of Alberta, a physician must inform a third party of any fee to be charged before the provision of an uninsured medical service. 14 To assist in fostering good relationships, the fee to be charged should be communicated to lawyers prior to writing the report. (iv) When and How Payments are made to Physicians Physicians should ascertain the mode of payment of their fees prior to commencing work on medical legal reports. Physicians should provide an invoice for independent examinations or medical legal reports to requesting lawyers as soon as possible, preferably at the time of submitting a medical legal report, because once the legal case is complete the lawyers will disburse funds and close their files. Lawyers are reminded that, according to the Code of Professional Conduct, if the invoice arrives in their office after funds have been disbursed and files closed, lawyers may be responsible for payment from their funds. Retention of Medical Records (i) Length of Time Medical Records must be Retained The College of Physicians & Surgeons of Alberta Standards of Practice state that physicians must keep records, in general, for a minimum of 10 years following the date of last service. If the patient is a minor, it 14

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