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					            Interaction




&
              Between

      Lawyers
    Physicians
         In Litigation




        Sixth Edition - August 2011
           by Rose M. Carter, Q.C.
                                 Interaction




&
                                   Between

      Lawyers
    Physicians
                             In Litigation




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


              by Rose M. Carter, Q.C., The Law Society of Alberta
                  6th 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, 2010.


       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




Interaction Between Lawyers & Physicians in Litigation
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 5.44.................................................................................................... 10
      (c) Billing for Rule 5.41 Examinations ......................................................................... 10
      (d) Consent Order for Rule 5.41 Examinations ............................................................ 10
      (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 ..................... 12


                                                     Interaction Between Lawyers & Physicians in Litigation
                                                                                                                                             i
     Medical Legal Reports not Involving Attendances with Patients ...................................... 12
     (i) Request for “Medical Legal Reports” .......................................................................... 12
     (ii) Reports from Physicians who have only Attended with Plaintiffs on one Occasion .... 12
     (iii) Timeframe for Responding to Requests for Medical Legal Reports ........................... 13

     Fees for Medical Legal Reports......................................................................................... 13
     (i) Responsibility of Lawyers ............................................................................................. 13
     (ii) What Physicians should Charge Lawyers .................................................................... 14
     (iii) Disclosure by Physicians of Hourly Rates .................................................................. 14
     (iv) When and How Payments are made to Physicians ..................................................... 14

     Retention of Medical Records ............................................................................................ 14
     (i) Length of Time Medical Records must be Retained ...................................................... 14

     Closing A Medical Practice ............................................................................................... 15

     Production of Medical Records at Request of Patient ....................................................... 16
     (i) Requests for Medical Records ....................................................................................... 16
     (ii) Requests for Medical Records not Medical Legal Reports .......................................... 17
     (iii) Right of Patients to their Records ............................................................................... 17
     (iv) Refusal to Release Medical Records ........................................................................... 17
     (v) Clerical Resources of Physicians ................................................................................. 17

     Production of Medical Records at Request of Lawyers ..................................................... 18
     (i) Why Medical Records are Requested ............................................................................ 18
     (ii) Lawyers Obligations to Clients upon Requesting Medical Records ............................ 18
     (iii) Why Lawyers are Interested in Reviewing Medical Records ..................................... 19
     (iv) Format for Requesting Medical Records .................................................................... 19
     (v) Need for Written Consent of Patients ........................................................................... 19
     (vi) Timeframe for Releasing Medical Records ................................................................. 19
     (vii) Disclosure of Medical Records................................................................................... 19
     (viii) Waiver of Confidentiality by Patients in Litigation ................................................... 20

     Physicians as Witnesses ..................................................................................................... 20
     (i) Physicians as Expert and Ordinary Witnesses .............................................................. 20
     (ii) Physicians need not act as Experts .............................................................................. 20
     (iii) When Physicians must Attend as Ordinary Witnesses ................................................ 21
     (iv) Service of Notice to Attend .......................................................................................... 21
     (v) Discussion Prior to Issuing Notice to Attend ............................................................... 21
     (vi) Patient Confidentiality................................................................................................. 21
     (vii) Briefing Physicians for Court Attendance .................................................................. 21
     (viii) Physicians Subpoenaed to Give Evidence out of Province ....................................... 21

     Complaints by Lawyers to the College of Physicians & Surgeons of Alberta ................... 22
     (i) When to Complain ......................................................................................................... 22
     (ii) How to Complain ......................................................................................................... 22

     Complaints by Physicians to the Law Society.................................................................... 23
     (i) When to Complain ......................................................................................................... 23
     (ii) How to Complain ......................................................................................................... 24




     Interaction Between Lawyers & Physicians in Litigation
ii
B. Criminal Proceedings ................................................................................................... 25

Attendance in Court by Physicians in Criminal Proceedings............................................ 25

“Experts” Defined ............................................................................................................. 26

Retaining Experts ............................................................................................................... 26

Confidentiality of Information Received ............................................................................ 27

Documentation to Assist Experts ....................................................................................... 28

Qualification of Proposed Experts ..................................................................................... 28

Fees Paid by the Crown .................................................................................................... 28

Assessments Done for Medical Reasons ............................................................................ 29
(i) Referrals from Physicians for Medical Assessments ..................................................... 29
(ii) Assessments for Medical Legal Purposes .................................................................... 29
     (a) Physicians cannot be both Independent Examiners & Treating Physicians........... 29
     (b) College of Physicians & Surgeons of Alberta Standards of Practice ..................... 29

Medical Legal Reports not Involving Attendances with Patients ...................................... 30
(i) Request for “Medical Legal Reports” .......................................................................... 30
(ii) Reports from Physicians who have only Attended with Patients on one Occasion ..... 30
(iii) Timeframe for Responding to Requests for Medical Legal Reports ........................... 31

Fees for Medical Legal Reports......................................................................................... 31
(i) Responsibility of Lawyers ............................................................................................. 31
(ii) What Physicians should Charge Lawyers .................................................................... 32
(iii) Disclosure by Physicians of Hourly Rates .................................................................. 32
(iv) When and How Payments are made to Physicians ..................................................... 32

Production of Medical Records at Request of Patient ....................................................... 32
(i) Requests for Medical Records ....................................................................................... 32
(ii) Requests for Medical Records not Medical Legal Reports .......................................... 33
(iii) Right of Patients to their Records ............................................................................... 33
(iv) Refusal to Release Medical Records ........................................................................... 34
(v) Clerical Resources of Physicians ................................................................................. 34

Physicians as Witnesses ..................................................................................................... 34
(i) Physicians as Expert and Ordinary Witnesses .............................................................. 34
(ii) Physicians need not act as Experts .............................................................................. 34
(iii) When Physicians must Attend as Ordinary Witnesses ................................................ 34
(iv) Discussion Prior to Issuing Subpoena ........................................................................ 34
(v) Patient Confidentiality .................................................................................................. 35
(vi) Briefing Physicians for Court Attendance ................................................................... 35
(vii) Physicians Subpoenaed to Give Evidence out of Province ........................................ 35

Complaints by Lawyers to the College of Physicians & Surgeons ................................... 35
(i) When to Complain ......................................................................................................... 35
(ii) How to Complain ......................................................................................................... 36



                                                  Interaction Between Lawyers & Physicians in Litigation
                                                                                                                                       iii
     Complaints by Physicians to the Law Society.................................................................... 36
     (i) When to Complain ......................................................................................................... 36
     (ii) How to Complain ......................................................................................................... 36

     Appendix A           Alberta Rules of Court, Form 25 ................................................................ 37

     Appendix B Alberta Rules of Court, Rule 5.39 ............................................................... 38

     Appendix C Suggested form letter to confirm arrangements with a lawyer in advance .. 39

     Appendix D Alberta Rules of Court, Rule 5.41; Rule 5.42 .............................................. 40

     Appendix E Consent Form to Release Medical Information ........................................... 42

     Appendix F Alberta Rules of Court, Rule 5.13 ................................................................ 45

     Bibliography ..................................................................................................................... 46

     Endnotes............................................................................................................................. 47




     Interaction Between Lawyers & Physicians in Litigation
iv
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.




                             Interaction Between Lawyers & Physicians in Litigation
                                                                                      1
    Interaction Between Lawyers & Physicians in Litigation
2
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 Act1

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

                               Interaction Between Lawyers & Physicians in Litigation
                                                                                        3
    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


    Interaction Between Lawyers & Physicians in Litigation
4
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




                              Interaction Between Lawyers & Physicians in Litigation
                                                                                       5
                 (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


    Interaction Between Lawyers & Physicians in Litigation
6
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.)
                                Interaction Between Lawyers & Physicians in Litigation
                                                                                         7
    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.



    Interaction Between Lawyers & Physicians in Litigation
8
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 decision5 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. 77

(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

                              Interaction Between Lawyers & Physicians in Litigation
                                                                                       9
     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


     Interaction Between Lawyers & Physicians in Litigation
10
(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 cross-
examination 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.



                              Interaction Between Lawyers & Physicians in Litigation
                                                                                       11
     (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.



     Interaction Between Lawyers & Physicians in Litigation
12
(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.12



                              Interaction Between Lawyers & Physicians in Litigation
                                                                                       13
     (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

     Interaction Between Lawyers & Physicians in Litigation
14
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.

                              Interaction Between Lawyers & Physicians in Litigation
                                                                                       15
                • 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 2011. Alberta Medical Association members
     may access the Guidelines by logging into the members-only website
     at www.albertadoctors.org.

     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 5.1320 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.




     Interaction Between Lawyers & Physicians in Litigation
16
(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.



                              Interaction Between Lawyers & Physicians in Litigation
                                                                                       17
     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.




     Interaction Between Lawyers & Physicians in Litigation
18
(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
Act27, 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.



                              Interaction Between Lawyers & Physicians in Litigation
                                                                                       19
     (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.


     Interaction Between Lawyers & Physicians in Litigation
20
(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 non-
lawyers, 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.


                              Interaction Between Lawyers & Physicians in Litigation
                                                                                       21
     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


     Interaction Between Lawyers & Physicians in Litigation
22
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.




                             Interaction Between Lawyers & Physicians in Litigation
                                                                                      23
     Interaction Between Lawyers & Physicians in Litigation
24
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.
                              Interaction Between Lawyers & Physicians in Litigation
                                                                                       25
     “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.
     Interaction Between Lawyers & Physicians in Litigation
26
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 Smith36 sanctions
the disclosure of communications, otherwise protected by solicitor-
client 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


                              Interaction Between Lawyers & Physicians in Litigation
                                                                                       27
     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 410.2 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) 422-1111 or the Chief
     Crown Prosecutor in Calgary at (403) 297-8444.




     Interaction Between Lawyers & Physicians in Litigation
28
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:

                              Interaction Between Lawyers & Physicians in Litigation
                                                                                       29
               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.



     Interaction Between Lawyers & Physicians in Litigation
30
(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



                              Interaction Between Lawyers & Physicians in Litigation
                                                                                       31
     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

     Interaction Between Lawyers & Physicians in Litigation
32
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 2011. Alberta Medical Association members
may access the Guidelines by logging into the members-only website
at www.albertadoctors.org.

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.45


                              Interaction Between Lawyers & Physicians in Litigation
                                                                                       33
     (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.



     Interaction Between Lawyers & Physicians in Litigation
34
(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 non-
lawyers, 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.



                              Interaction Between Lawyers & Physicians in Litigation
                                                                                       35
     (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.




     Interaction Between Lawyers & Physicians in Litigation
36
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


                           Interaction Between Lawyers & Physicians in Litigation
                                                                                    37
     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




     Interaction Between Lawyers & Physicians in Litigation
38
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.




                               Interaction Between Lawyers & Physicians in Litigation
                                                                                        39
     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 fol-
     lowing:

                  (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 profes-
     sionals 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.




     Interaction Between Lawyers & Physicians in Litigation
40
(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 examina-
                tion 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 neces-
sary to limit or curtail a medical examination.




                               Interaction Between Lawyers & Physicians in Litigation
                                                                                        41
     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 identify-
     ing 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:




     Interaction Between Lawyers & Physicians in Litigation
42
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 im-
mediately 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


                              Interaction Between Lawyers & Physicians in Litigation
                                                                                       43
      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.




     Interaction Between Lawyers & Physicians in Litigation
44
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.




                             Interaction Between Lawyers & Physicians in Litigation
                                                                                      45
     Bibliography
                  1.     Medical Legal Society, “Medico-Legal Report”
                         (1991) 70:3 Can. Bar. Rev. 588.

                  2.     Ellen I Picard & Gerald B Robertson, Legal Liability
                         of Doctors and Hospitals in Canada 4th ed (Toronto:
                         Thomson, 2007)




     Interaction Between Lawyers & Physicians in Litigation
46
Endnotes
1
     Limitations Act, RSA 2000, c L-12, s 3(1).
2
     Ibid, ss 4, 5.
3
     Black’s Law Dictionary, 9th 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 2007.
5
     McInerney v. Macdonald, [1992] 2 SCR 138, 93 DLR (4th) 415.
6
     Health Information Act, RSA 2000, c H-5.
7
     The Law Society of Alberta, Benchers’ Advisory, December 1997.
8
     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 6.
10
     Ibid, Standard 14 s 4.
11
     Supra, Note 9, Standard 5 s 2.
12
     The Law Society of Alberta, Code of Professional Conduct,
     November 2008, Chapter 8.
13
     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 2.
15
     Supra, Note 9, Standard 21 s 9, revised July 1, 2011.
16
     The Messenger, October 2010.
17
     Supra, Note 9, Standard 22 s 1.
18
     The Messenger, May 2004.
19
     Health Information Regulation, AR 70/2001, ss 10-12 and
     Schedule.
20
     Supra, Note 8, Rule 5.13.
21
     Supra, Note 6, s 7.
22
     Supra, Note 9, Standard 21 s 18.
23
     Supra, Note 6, s 11.
24
     Canadian Medical Association, Code of Ethics, 2004, s 31.


                            Interaction Between Lawyers & Physicians in Litigation
                                                                                     47
      25
                 A form of authorization is attached as Appendix E.
      26
                 Health Professions Act, RSA 2000, c H-7.
      27
                 Supra, Note 6.
      28
                 Ibid, s 12(1).
      29
                 NM v Drew Estate, 2003, ABCA 231, discussed in The Messenger,
                 September 2003.
      30
                 Supra, Note 8, Rules 8.8(5); see also Schedule B, Division 3, Item
                 16.
      31
                 Supra, Note 8, Rule 10.52(3).
      32
                 Supra, Note 11.
      33
                 Supra, Note 26 s 54.
      34
                 Supra, Note 3.
      35
                 Criminal Code, RSC 1985, c C-46, s 657.3.
      36
                 Smith v Jones, [1999] 1 SCR 455.
      37
                 Supra, Note 9.
      38
                 Supra, Note 10.
      39
                 Supra, Note 9, Standard 5 s 2.
      40
                 Supra, Note 12.
      41
                 Supra, Note 13.
      42
                 Supra, Note 14.
      43
                 Supra, Note 19.
      44
                 Supra, Note 21.
      45
                 Supra, Note 22.
      46
                 Supra, Note 23.
      47
                 Supra, Note 31.
      48
                 Supra, Note 11.
      49
                 Supra, Note 33.
      50
                 Adapted from Health Information Act: Guidelines and Practices,
                 Alberta Health and Wellness, 2001




     Interaction Between Lawyers & Physicians in Litigation
48
Notes




        Interaction Between Lawyers & Physicians in Litigation
                                                                 49
     Notes




     Interaction Between Lawyers & Physicians in Litigation
50
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