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

Transcription

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

2

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

10 2

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

23 is recommended that two years be added to the age of majority (18 in Alberta), or 10 years since the date of last service, whichever is longer, for retention of medical records, including images stored on film and mammography films. 15 Physicians are encouraged to use their judgment and keep any medical records longer than required under the Standards of Practice, if deemed appropriate. Closing a Medical Practice With closure of a medical practice, physicians must attend to the ongoing management of patient records. As such, consideration must be given to: Medical records (refer also to the Health Information Act). If a physician closing his/her medical practice is unable to provide ongoing management of patient medical records, either personally or through a colleague, the records should be put into commercial storage for custody, transferred as necessary, or properly destroyed (only when that is appropriate). It is the physician s responsibility to arrange for the secure storage and accessibility of these records. Records must be retained for a minimum of ten (10) years following the date of last service; in the case of minor patients, they must be kept at least until two (2) years past the age of majority or ten (10) years, whichever is longer. When the physician who is leaving a practice plans to relocate and may require some or all of the records from the original practice, there will be difficulty if there is not good will on all sides and, ideally, provision for records set out in a contract, which spells out ownership of medical records. The College of Physicians & Surgeons of Alberta strongly recommends all practices have contractual arrangements for the disposition of records should the partnership dissolve. 16 In any event, the information in a medical record belongs to and must be provided to the patient in question. Costs of copying and transfer become the issue. It is that point that requires good will or a legal commitment. 15

24 Records can be transferred to the physician leaving if he/she is the only physician in the office who had seen the patient. In that case, the office should keep a list of those files that were transferred. If a physician retires, the College of Physicians & Surgeons of Alberta must be notified. 17 To ensure continuity of care, physicians are required to notify the College about how patients can access their records, including the name of the new custodian of the records. 18 It is always necessary that patients know how to access their records. Production of Medical Records at Request of Patients (i) Requests for Medical Records Patients have the right to access their medical records. The Health Information Act Regulations list fees to be charged for patient access to their records. 19 See Appendix E for a form of release. However, if a third party such as a lawyer requests medical records, the Health Information Act Regulations do not apply. Most physicians will follow the Alberta Medical Association Guidelines to Billing Uninsured Services, revised June Alberta Medical Association members may access the Guidelines by logging into the members-only website at Medical records such as hospital charts (which include x-rays, ultrasound films, ECG strips and reports etc.) or office charts are legal documents. Requests for hospital charts should be made directly to the hospital instead of treating physicians. Rule affords lawyers an opportunity to bring a court application for a court order directing the production of records. This Rule may be invoked by lawyers in cases where physicians or others have not produced the requested medical records in a timely fashion. See Appendix E. 16

25 (ii) Requests for Medical Records not Medical Legal Reports Physicians can expect to receive requests for patient records in the absence of requests for medical legal letters. Often, all that is requested from the physician is a copy of the patient treatment record. Unless requested to do so, it is not expected a physician will prepare a medical legal report, decipher patient records or give an explanation of the contents of the record. (iii) Right of Patients to their Records The Health Information Act recognizes the right of patients to gain access to their medical information. 21 Physicians are owners of the records, but information contained in those records is to be used by physicians for the benefit of their patients. Patients are entitled, upon request, to inspect and copy all information in their medical records which their physicians have considered in administering advice or treatment. Therefore, the complete medical record is producible. Correspondence from physicians to treating physicians such as consultation reports, referral letters, laboratory reports, x-ray reports, or correspondence in which physicians provided advice or suggestions for treatment must be produced upon presentation to the physician of a consent for release of information. 22 (iv) Refusal to Release Medical Records Refusal by physicians to release medical records when requested must be exercised using proper principles and not in an arbitrary fashion. Refusal to release medical records can only arise if the physician is concerned that disclosure will harm the patient, a third party or poses a threat to public safety. 23 Should access be denied by the physician, it is incumbent upon the physician to satisfy the courts that nondisclosure is necessary to prevent potential harm. (v) Clerical Resources of Physicians Many physicians have limited support services. Even though physicians are obligated to provide records, often they do not have facilities to photocopy, assimilate and distribute requested records within a short period of time. 17

26 Production of Medical Records at Request of Lawyers (i) Why Medical Records are Requested Physicians may sometimes wonder why medical records are requested and question the relevance of treatment rendered years before the circumstances giving rise to the present lawsuit for personal injuries. Lawyers understand and respect the desire of physicians to maintain confidentiality of information provided by patients as required by the Code of Ethics, 24 but lawyers involved in personal injury litigation also have obligations to clients. Lawyer obligations include being certain that all relevant information is put forward at Questioning, to experts and the courts. The search for objective medical information is not a fishing expedition. Rather it is the professional requirement to have all relevant information before the courts (while considering security of information) so that the interests of clients are carefully presented. Lawyers are well versed in confidentiality, and it is not their intention to put forward irrelevant information. A judge will determine relevancy of medical information to lawsuits. (ii) Lawyers Obligations to Clients upon Requesting Medical Records In a personal injury claim, one party is requesting the party opposite to pay monies for injuries suffered. Generally speaking, when such a claim is made, patients are putting their entire medical history at issue in the action. For a proper assessment of damages, it is essential the relevant medical history of patients be produced. Lawyers will explain to clients why medical information is needed and what purpose such information serves. Clients must recognize that in the litigation process, there can be a requirement for disclosure of past and present medical information. Release of medical information is ultimately the decision of clients, as they must provide consent (Release) to their lawyers for presentation to physicians when requesting records. 18

27 (iii) Why Lawyers are Interested in Reviewing Medical Records Medical records are invaluable because they are made contemporaneously by objective observers such as physicians. Therefore, contents of medical records are a trustworthy source of information for parties involved in lawsuits. They assist Plaintiffs in validating claims and Defendants in refuting the validity of these claims for compensation for injuries allegedly sustained. (iv) Format for Requesting Medical Records There is an appropriate structure for requesting medical records. It is recommended lawyers state in a covering letter to physicians the name of the party they represent; if they wish for a complete copy of the medical records rather than a synopsis or a medical legal report; and that they will pay reasonable photocopying charges for production of the record. The request must be accompanied by a currently dated, signed and witnessed authorization of the patient advising which medical records are to be provided. 25 (v) Need for Written Consent of Patients Under the Health Professions Act 26 and the Health Information Act 27, physicians are obliged not to divulge confidential information without receiving consent from the patient. Lawyers requesting medical information are responsible for obtaining a valid and current authorization from the patient and providing it to the physicians. (vi) Timeframe for Releasing Medical Records When physicians receive requests from lawyers for production of medical records, they are required under section 12(1) of the Health Information Act to respond within 30 days. 28 Patients, through their lawyers, must be prepared to pay physicians a reasonable fee for duplication of medical records. (vii) Disclosure of Medical Records Upon receipt of medical records, the lawyers may have to provide medical records to lawyers representing opposite parties. It is also possible patients will receive a copy of the medical records from their lawyers. 19

28 (viii) Waiver of Confidentiality by Patients in Litigation This issue involves balancing the right to privacy and society s interest in the fair administration of justice. For the Plaintiff, protecting the confidentiality of the physician-patient relationship is paramount. For the Defendant, the principle involved is the ability to prepare a full defense. Following a decision of the Alberta Court of Appeal decision in Drew, the College of Physicians & Surgeons of Alberta issued a statement stating, in part, that: Even though a patient consents to his or her doctor being interviewed by another party, the physician can decline to do so. The physician cannot decline, however, to testify in Court if served with a Subpoena or a Notice to Attend. There is always the practical consideration that agreeing to an informal interview may avoid the need to be called as a witness at trial. Accordingly, any physician who receives a request to be interviewed by a third party should advise his or her patient that the patient has the right to insist on his or her lawyer being present during that interview, if the physician agrees to grant the interview. The presence of the patient s lawyer adds an additional safeguard to ensure only relevant questions are asked and answered and that the interview does not become a fishing expedition. 29 Physicians as Witnesses (i) Physicians as Expert and Ordinary Witnesses Physicians may be required to attend at court as an expert or ordinary witness or both. Treating physicians, if called to give evidence, usually appear as an ordinary witness. (ii) Physicians need not act as Experts Physicians have the right to decline to act as experts or to sign Form 25 Statements. 20

29 (iii) When Physicians must Attend as Ordinary Witnesses Physicians do not have the right to decline to appear as ordinary witnesses to give evidence concerning treatment provided by them to their patient. (iv) Service of Notice to Attend Physicians, not acting as experts, should expect to be served with a Notice to Attend as Witness (subpoena) along with allowance monies at least ten (10) days before trial. In 2011, the fee allowed by the Alberta Rules of Court for attendance at trial by a professional person is $50 plus meals, travel and accommodation. 30 (v) Discussion Prior to Issuing Notice to Attend Lawyers should speak to physicians prior to issuing a Notice to Attend as Witness (subpoena), so that physician schedules can be considered. Once served with a Notice to Attend, the physician must attend court to give evidence or risk a civil contempt charge. 31 Physicians so served should note on reviewing the Notice to Attend as Witness the instruction to bring to court documentation in their possession pertaining to the lawsuit. For a physician testifying regarding a patient, that means all medical records pertaining to that patient in the possession of the physician. (vi) Patient Confidentiality Patient confidentiality is not an issue when physicians give evidence in court. (vii) Briefing Physicians for Court Attendance Physicians should discuss with lawyers the need to be thoroughly briefed prior to giving evidence. The court room is alien to most nonlawyers, and it is of assistance to physicians to be thoroughly briefed and prepared by the lawyers calling them prior to their attendance in court. Physicians should be advised they may be subjected to vigorous cross-examination, normal under our adversarial system. (viii) Physicians Subpoenaed to Give Evidence out of Province Unless a subpoena is received and adopted by the Court of Queen s Bench of Alberta, a physician need not attend to give evidence out of province. 21

30 If the subpoena is adopted by the Court of Queen s Bench, it will be accompanied by the prescribed witness fees and traveling expenses. Complaints by Lawyers to the College of Physicians & Surgeons of Alberta (i) When to Complain Lawyers who do not receive medical legal reports within a reasonable period of time from physicians who have previously examined or treated their clients and have been provided with proper authorization for release of information may complain to the College of Physicians & Surgeons of Alberta. When the College of Physicians & Surgeons of Alberta receives a letter from a lawyer requesting assistance in acquiring a report from a physician, it is often noted the lawyer has made many attempts over weeks and months. Under the Standards of Practice, the physician has 30 days to respond to the request and supply the report or to inform the lawyer there will be a delay, the reason for the delay and indicate when the report can be expected. 32 Before lodging complaints, lawyers should advise physicians of the intention to do so and afford physicians an opportunity to respond. (ii) How to Complain Complaints must be made in writing and directed to the Complaints Director of the College. 33 The physicians should be identified and circumstances of the complaints specified. Complaints by Physicians to the Law Society Similarly, physicians may complain to The Law Society concerning the conduct of lawyers. Before lodging complaints, physicians should advise lawyers of their intention and afford lawyers an opportunity to respond. If the physician does not receive a satisfactory response within a reasonable period of time, the following steps may be taken. (i) When to Complain Physicians who are not given a reasonable period of time to respond to lawyers requests; have difficulties reaching an agreement as to what 22

31 they will be paid for either attendances with lawyers clients or for producing their records; examining a party at the request of a lawyer or attending in court or non-payment of fees may complain to The Law Society of Alberta. (ii) How to Complain Complaints should be made in writing and directed to the Executive Director of The Law Society of Alberta. The lawyers should be identified and circumstances of the complaints set out. 23

32 24

33 B. Criminal Proceedings Many of the previous matters apply to criminal proceedings and should be read in conjunction with this section. In criminal matters involving personal injuries the alleged victim (injured party) is not represented by a lawyer during the criminal trial. All representations in relation to the injured party are made by the Crown Prosecutor. Thus, if evidence is to be offered regarding injuries suffered, the Crown Prosecutor may be calling physicians who treated the injured party. The lawyer for the accused also has the option of calling the treating physicians of the injured party but this is more rare. It is not unusual for the treating physician to have seen the injured party once in an emergency situation and not thereafter. Thus, the physician is unable to assist in testifying to the outcome of the treatment. Usually in criminal proceedings the Crown calls a physician by subpoena to give evidence on behalf of the injured party to whom medical attention was rendered. Allowance monies are not provided to treating physicians called to testify in criminal matters. Attendance in Court by Physicians in Criminal Proceedings Given the nature of many criminal cases, attendance in court of treating physicians to give evidence is often required. The Crown Prosecutors office encourages prosecutors to avoid calling physicians to give evidence unless absolutely necessary. The Crown Prosecutors office advises that while prosecutors attempt to avoid having physicians attend at Court, usually when physicians attendance is necessary, it results from the Crown and the accused or defence counsel being unable to agree on the physicians report being used as evidence without the need for questions. Counsel will generally attempt to accommodate schedules of physicians by having them give evidence at an agreed time in the trial. Often, the need to have a physician attend in Court can be avoided by dialogue between the prosecutor and defence counsel before trial. Promptness in responding to requests for medical records or follow-up questions by the prosecutor or defence counsel will minimize the need for physicians to attend in court. 25

34 Experts Defined 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. 34 Retaining Experts During the course of criminal proceedings, it is not unusual for experts to be retained by one or more parties. Experts retained may include medical doctors and other health caregivers, or others whom the lawyers deem would be of assistance. If prosecutors or defence counsel wish to have an attending physician also give expert opinion, that physician must be properly retained. A physician should not be asked to give a written expert opinion without an explanation to that physician of the ramifications of doing so. The Criminal Code provides that the evidence of experts can be given by Affidavit or solemn declaration. Notice must be given to the other party when it is expected expert evidence will be called. The expert s name and Curriculum Vitae must be provided well in advance of trial. In criminal proceedings, all relevant evidence must be disclosed by the Crown to defence counsel. Thus, in most cases when the Crown hires experts, either intending to call them to give evidence at the trial or for reports alone, the Crown must disclose such to defence counsel. Defence counsel is under a similar obligation to disclose information regarding experts they may call to give evidence at trial but only in respect to their names, area of expertise and qualifications. While defence counsel does have to disclose expert reports (or summaries of their opinions in the absence of any report) no later than the close of the Crown s case at trial, nothing of this nature need be disclosed before then. 35 Unlike in civil proceedings, there is no privileged communication between the Crown and an expert. Thus, it is assumed whatever an expert tells a prosecutor will be disclosed to defence counsel. 26

35 Confidentiality of Information Received Usually any information given by an accused person to a physician retained to evaluate his/her condition is confidential and cannot be disclosed. However, there may be exceptions. The Supreme Court of Canada s 1999 decision in Smith 36 sanctions the disclosure of communications, otherwise protected by solicitorclient privilege, in certain situations involving danger to public safety. This narrow public safety exception can be utilized by any persons employed by a solicitor in connection with his or her representation of the client, including medical experts. In Smith, the accused was charged with the aggravated assault of a prostitute and underwent a psychiatric assessment at the request of his defence counsel, who advised him the consultation was as privileged as any consultation with a solicitor would be. The accused told the psychiatrist performing the assessment the details of his plan to kidnap, rape and kill prostitutes. The psychiatrist advised defence counsel that the accused posed a continuing danger to the public but was advised by defence counsel that his concerns would not be communicated to the court during the accused s sentencing. The psychiatrist sought a declaration to be allowed to disclose the privileged information. The Supreme Court confirmed that in certain circumstances, persons may breach solicitor-client privilege in the interests of public safety. The Supreme Court set out three factors that must be considered in every situation: 1) Is there a clear risk to an identifiable person or group? 2) Is there a risk of serious bodily harm or death? 3) Is the danger imminent? If, based on a consideration of all of these factors, the threat to public safety outweighs the need to preserve solicitor-client privilege, that privilege should be set aside. The Supreme Court further confirmed, though, that only information that is necessary to protect public safety should be disclosed. In Smith, the psychiatrist was allowed to reveal the accused s statements made to him during the consultation and his opinion based on them. The Court observed that a person holding privileged information does not necessarily have to bring a legal action 27

36 to disclose information required to protect public safety, and that it may be appropriate to notify the potential victim or the police or a Crown prosecutor depending on the specific circumstances. However, in these situations, physicians should consider seeking advice from legal counsel. Documentation to Assist Experts Individuals retained as experts usually base their opinions on documentation provided to them by the lawyers retaining them. 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. 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 paid by the Crown The fee schedule effective June 12, 2007 sets out the allowable payment by the Crown to physicians. Physicians may request a copy of the Alberta Justice Policy Directive No. CRIM. JUST when requested to act as a witness by the Crown. Should physicians encounter any difficulties arising from the above, they should speak with the prosecutor or they may contact, for example, the Chief Crown Prosecutor in Edmonton at (780) or the Chief Crown Prosecutor in Calgary at (403)

37 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 court proceedings. 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. (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 court proceedings. 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. (a) Physicians cannot be both Independent Examiners & Treating Physicians Physicians may be asked by third parties to perform examinations 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 any report prepared by the physician. (b) 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. Standard 14 of the College of Physicians & Surgeons of Alberta Standards of Practice entitled Non-Treating Medical Examinations effective January 1, 2010 states: 29

38 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. 37 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. 38 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 Periodically, 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 court proceedings. Contents of medical legal reports will vary with the particular circumstances in each case, including whether the physician is currently treating the Plaintiff. Often, lawyers and physicians misunderstand each other when medical information is sought, and, as such, communication is very important. When a medical legal report is requested, lawyers will expect physicians to charge a fee but need to know the amount in advance. If the lawyer is seeking records or clarification, the receipt of which will hopefully avoid issuing a subpoena, a fee from the physician will not be expected. Dialogue between lawyers and physicians regarding the request made and fees requested is important to avoid any misunderstandings. (ii) Reports from Physicians who have only Attended with Patients on One Occasion Where a physician has only attended with a patient on one occasion, all that may be required is a description of injuries observed on examination, diagnosis, treatment and patient s response to treatment. 30

39 (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 that 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. 39 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

40 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. 41 According to the College of Physicians & Surgeons of Alberta Standards of Practice, a physician must inform a third party of any fee to be charged before the provision of an uninsured medical service. 42 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. Production of Medical Records at Request of Patients (i) Requests for Medical Records Patients have the right to access their medical records. The Health Information Act Regulations list fees to be charged for patient access 32

41 to their records. 43 See Appendix E for a release form. However, if a third party such as a lawyer requests medical records, the Health Information Act Regulations do not apply. Most physicians will follow the Alberta Medical Association Guidelines to Billing Uninsured Services, revised June Alberta Medical Association members may access the Guidelines by logging into the members-only website at Medical records such as hospital charts (which include x-rays, ultrasound films, ECG strips and reports etcetera) or office charts are legal documents. Requests for hospital charts should be made directly to the hospital instead of treating physicians. (ii) Requests for Medical Records not Medical Legal Reports Physicians can expect to receive requests for patient records in the absence of requests for medical legal letters. Often all that is requested from the physician is a copy of the patient treatment record. Unless requested to do so, it is not expected a physician will prepare a medical legal report, decipher patient records or give an explanation of the contents of the record. On the other hand, physicians should be aware that if an explanation is necessary, a failure to provide an explanation may result in an otherwise avoidable court appearance. (iii) Right of Patients to their Records The Health Information Act recognizes the right of patients to gain access to their medical information. 44 Physicians are owners of the records, but information contained in those records is to be used by physicians for the benefit of their patients. Patients are entitled, upon request, to inspect and copy all information in their medical records which their physicians have considered in administering advice or treatment. Therefore, the complete medical record is producible. Correspondence from physicians to treating physicians such as consultation reports, referral letters, laboratory reports, x-ray reports, or correspondence in which physicians provided advice or suggestions for treatment must be produced upon presentation to the physician of a consent for release of information

42 (iv) Refusal to Release Medical Records Refusal by physicians to release medical records when requested must be exercised using proper principles and not in an arbitrary fashion. Refusal to release medical records can only arise if the physician is concerned that disclosure will harm the patient, a third party or poses a threat to public safety. 46 Should access be denied by the physician, it is incumbent upon the physician to satisfy the courts that nondisclosure is necessary to prevent potential harm. (v) Clerical Resources of Physicians Many physicians have limited support services. Even though physicians are obligated to provide records, often they do not have facilities to photocopy, assimilate and distribute requested records within a short period of time. Physicians as Witnesses (i) Physicians as Expert and Ordinary Witnesses Physicians may be required to attend at court as expert or ordinary witnesses or both. Treating physicians, if called to give evidence, usually appear as ordinary witnesses. (ii) Physicians need not act as Experts Physicians have the right to decline to act as experts. (iii) When Physicians must Attend as Ordinary Witnesses Physicians do not have the right to decline to appear as ordinary witnesses to give evidence concerning treatment provided by them to their patient. (iv) Discussion Prior to Issuing Subpoena Lawyers should speak to physicians prior to issuing a subpoena so that physician schedules can be considered. Once served with a subpoena, the physician must attend court to give evidence. 47 Physicians so served should note on reviewing the subpoena the instruction to bring to court documentation, such as medical records, in their possession pertaining to that patient. 34

43 (v) Patient Confidentiality Patient confidentiality is not an issue when physicians give evidence in court. (vi) Briefing Physicians for Court Attendance Physicians should discuss with lawyers the need to be thoroughly briefed prior to giving evidence. The court room is alien to most nonlawyers, and it is of assistance to physicians to be thoroughly briefed and prepared by the lawyers calling them prior to their attendance in court. Physicians should be advised they may be subjected to vigorous cross-examination, normal under our adversarial system. (vii) Physicians Subpoenaed to Give Evidence out of Province Unless a subpoena is received and adopted by the Court of Queen s Bench of Alberta, a physician need not attend to give evidence out of province. If the subpoena is adopted by the Court of Queen s Bench, it will be accompanied by the prescribed witness fees and traveling expenses. Complaints by Lawyers to the College of Physicians & Surgeons of Alberta (i) When to Complain Lawyers who do not receive medical legal reports within a reasonable period of time from physicians who have previously examined or treated their clients and have been provided with proper authorization for release of information, may complain to the College of Physicians & Surgeons of Alberta. When the College of Physicians & Surgeons of Alberta receives a letter from a lawyer requesting assistance in acquiring a report from a physician, it is often noted the lawyer has made many attempts over weeks and months. Under the Standards of Practice, the physician has 30 days to respond to the request and supply the report, or to inform the lawyer there will be a delay, the reason for the delay and indicate when the report can be expected. 48 Before lodging complaints, lawyers should advise physicians of the intention to do so and afford physicians an opportunity to respond. 35

44 (ii) How to Complain Complaints must be made in writing and directed to the Complaints Director of the College. 49 The physicians should be identified and circumstances of the complaints specified. Complaints by Physicians to the Law Society Similarly, physicians may complain to The Law Society concerning the conduct of lawyers. Before lodging complaints, physicians should advise lawyers of their intention and afford lawyers an opportunity to respond. If the physician does not receive a satisfactory response within a reasonable period of time, the following steps may be taken. (i) When to Complain Physicians who are not given a reasonable period of time to respond to lawyers requests; have difficulties reaching an agreement as to what they will be paid for either attendances with lawyers clients or for producing their records; examining a party at the request of a lawyer or attending in court or non-payment of fees may complain to The Law Society of Alberta. (ii) How to Complain Complaints should be made in writing and directed to the Executive Director of The Law Society of Alberta. The lawyers should be identified and circumstances of the complaints set out. 36

45 Appendix A Form 25 [Rule 5.34] Clerk s stamp: COURT FILE NUMBER COURT OF QUEEN S BENCH OF ALBERTA JUDICIAL CENTRE PLAINTIFF(S) DEFENDANT(S) DOCUMENT EXPERT S REPORT ADDRESS FOR SERVICE AND CONTACT INFORMATION OF PARTY PREPARING THIS DOCUMENT EXPERT REPORT OF [NAME] [An expert s report must contain, at a minimum: (a) the expert s name and qualifications, (b) the information and assumptions on which the expert s opinion is based, and (c) a summary of the expert s opinion.] DATE: SIGNATURE OF EXPERT PRINT NAME 37

46 Appendix B Suggested form letter to confirm fee arrangements with a lawyer in advance Dear (Lawyer) As discussed on (date) your request for a (e.g. report) for (patient s name) has been received in our office on (date). My fee for this will be ($X.00). Other associated costs which may be incurred are listed below: Court time, per hour...$x.00 Waiting and/or travel time, per hour......$x.00 Photocopying, per page...$x.00 My payment schedule for the above services is as follows: Payment for the above services will be expected within two weeks of receipt of the completed request. In the event that payment is not received on time an additional X% will be added each month for overdue accounts. Please acknowledge your acceptance of the stated fees by signing a copy of this request and returning it by mail or by fax (your fax #). Sincerely, MD Date Signature 38

47 Appendix C Use of expert s report at trial without expert 5.39(1) A party serving an expert s report may, at the same time, also serve notice of intention to have the report entered as evidence without calling the expert as a witness. (2) If a party serves a notice of intention under subrule (1), no objection may be made at trial to entering the expert s report as evidence unless, within 2 months after service of the notice under subrule (1), any other party serves a statement on the party serving the notice of intention (a) setting out all or parts of the report that that other party objects to being entered as evidence under this rule, and giving reasons for the objection, or (b) serving on the party a request that the expert attend the trial for cross-examination. (3) Agreeing to have the expert s report entered as evidence without calling the expert as a witness, either explicitly or by allowing subrule (2) to operate without objection, is not an admission of the truth or correctness of the expert s report. 39

48 Appendix D Medical Examination Medical Examinations 5.41(1) The parties may agree that the mental or physical condition of a person is at issue in an action and agree on a health care professional to conduct a medical examination. (2) On application, the Court may in an action in which the mental or physical condition of a person is at issue do either or both of the following: (a) order that a person submit to a mental or physicial medical examination; (b) appoint a health care professional to conduct a medical examination. (3) The Court may order a second or further medical examination by a health care professional. (4) If the plaintiff has been the subject of a medical examination by a health care professional of the plaintiff s choice who will or may be proffered as an expert, the Court may order that the plaintiff be the subject of a medical examination by one or more health care professionals of the defendant s choice. Conduct of Examination 5.44(1) A health care professional conducting a medical examination may ask the person being examined questions relating to that person s mental and physical condition, and medical history, and the person being examined must answer the questions. 40

49 (2) If the person to be examined agrees in writing, or failing this consent, if the Court so orders, the examining health care professional may: (a) take or obtain samples from the person being examined and make an analysis of the samples, and (b) perform any test recognized by medical science. (3) The party causing the medical examination to be conducted: (a) must, on request, deliver promptly to each of the other parties a copy of a detailed written report of the health care professional s findings and conclusions, and (b) is, on request, entitled to receive promptly from the person examined a report of every medical examination previously or subsequently made of the physical or mental condition of the person resulting from the injuries sustained or the mental or physical condition that is in issue. (4) If a party refuses to provide a report in the manner described in subrule (3), the Court may order the report to be provided, and if the health care professional refuses to make the report in writing, the Court may make any order it considers proper, one of the provisions of which may be the exclusion of the health care professional s evidence if that person s evidence is offered at trial. (5) On application, the Court may make any order it considers necessary to limit or curtail a medical examination. 41

50 Appendix E Consent to the disclosure of individually identifying health information. 50 I, (Enter Name Here) authorize (the attached) individually identifying: diagnostic, treatment and care information registration information of myself to be disclosed by (Name of Custodian) in accordance with section 34 of the Health Information Act to (Name of Recipient) for the following purpose(s): I understand why I have been asked to disclose my individually identifying information, and am aware of the risks and benefits of consenting, or refusing to consent, to the disclosure of my individually identifying health information. I understand that, under section 58(2) of the Health Information Act, my express wishes must be considered, and I have the right to indicate any portion of my heath information that I wish to be kept confidential by my physician and not disclosed to others. I may revoke my consent at any time. Date: Expiry Date: Patient or Authorized Representative s Signature: 42

51 Source of Representative s Authority: Patient or Authorized Representative s Name: Witness Signature:* Witness Name: Section 104 of the Health Information Act identifies those individuals who may, on behalf of another individual, exercise the rights and powers conferred on that individual under the Health Information Act. Those situations are listed below. Please check the box that applies to the right by which you are requesting access to health information: If the individual is 18 years of age or older, by the individual If the individual is under 18 years of age and understands the nature of the right or power and the consequences of exercising the right or power, by the individual If the individual is under 18 years of age but does not meet the criterion in clause (b), by the guardian of the individual If the individual is deceased and was 18 years of age or over immediately before death, by the individual s personal representative if the exercise of the right or power relates to the administration of the individual s estate If a guardian or trustee has been appointed for the individual under the Dependent Adults Act, by the guardian or trustee if the exercise of the right or power relates to the powers and duties of the guardian or trustee If an agent has been designated under a personal directive under the Personal Directives Act, by the agent if the directive so authorizes, If a power of attorney has been granted by the individual, by the attorney if the exercise of the right or power relates to the powers and duties conferred by the power of attorney 43

52 If the individual is a formal patient as defined in the Mental Health Act, by the individual s nearest relative as defined in that Act if the exercise of the right or power is necessary to carry out the obligations of the nearest relative under that Act, or (i) by any person with written authorization *The Health Information Act does not require a witness for disclosure. As a business practice, you may wish to include a witness if you think extra confirmation of the consent may be required. 44

53 Appendix F Obtaining Records from Others 5.13(1) On application, and after notice of the application is served on the person affected by it, the Court may order a person who is not a party to produce a record at a specified date, time and place if: (a) the record is under the control of that person, (b) there is reason to believe that the record is relevant and material, and (c) the person who has control of the record might be required to produce it at trial. (2) The person requesting the record must pay the person producing a record an amount determined by the Court. 45

54 Bibliography 1. Medical Legal Society, Medico-Legal Report (1991) 70:3 Can. Bar. Rev Ellen I Picard & Gerald B Robertson, Legal Liability of Doctors and Hospitals in Canada 4 th ed (Toronto: Thomson, 2007) 46

55 Endnotes 1 Limitations Act, RSA 2000, c L-12, s 3(1). 2 Ibid, ss 4, 5. 3 Black s Law Dictionary, 9 th ed, sub verbo experts. 4 College of Physicians & Surgeons of Alberta, Health Professions Act Standards of Practice, Edmonton: CPSA, 2010, Standard 5 s 3; see also The Messenger, October McInerney v. Macdonald, [1992] 2 SCR 138, 93 DLR (4 th ) Health Information Act, RSA 2000, c H-5. 7 The Law Society of Alberta, Benchers Advisory, December Alberta Rules of Court, Alta Reg 124/2010 Rule 5.42(1)(a). 9 College of Physicians & Surgeons of Alberta, Health Professions Act Standards of Practice, Edmonton: CPSA, 2010, Standard 14 s Ibid, Standard 14 s Supra, Note 9, Standard 5 s The Law Society of Alberta, Code of Professional Conduct, November 2008, Chapter The Alberta Medical Association s members-only guide for billing uninsured services is provided as a guide to physicians when considering appropriate charges for release of information. 14 Supra, Note 9, Standard 18 s Supra, Note 9, Standard 21 s 9, revised July 1, The Messenger, October Supra, Note 9, Standard 22 s The Messenger, May Health Information Regulation, AR 70/2001, ss and Schedule. 20 Supra, Note 8, Rule Supra, Note 6, s Supra, Note 9, Standard 21 s Supra, Note 6, s Canadian Medical Association, Code of Ethics, 2004, s

56 25 A form of authorization is attached as Appendix E. 26 Health Professions Act, RSA 2000, c H Supra, Note Ibid, s 12(1). 29 NM v Drew Estate, 2003, ABCA 231, discussed in The Messenger, September Supra, Note 8, Rules 8.8(5); see also Schedule B, Division 3, Item Supra, Note 8, Rule 10.52(3). 32 Supra, Note Supra, Note 26 s Supra, Note Criminal Code, RSC 1985, c C-46, s Smith v Jones, [1999] 1 SCR Supra, Note Supra, Note Supra, Note 9, Standard 5 s Supra, Note Supra, Note Supra, Note Supra, Note Supra, Note Supra, Note Supra, Note Supra, Note Supra, Note Supra, Note Adapted from Health Information Act: Guidelines and Practices, Alberta Health and Wellness,

57 Notes 49

58 Notes 50

59

60 Sixth Edition - August 2011