Key takeaways from the IME and third-party medical reports policy
August 13, 2021
Physicians who conduct independent medical examinations (IMEs) and provide third-party medical reports and testimony are increasingly the subject of complaints by patients, their insurance companies and their lawyers.
The College of Physicians and Surgeons of Ontario (CPSO) recently issued a policy that provides important direction to physicians who work in this space that must be understood and followed in reports and expert testimony.
I would recommend that every Ontario physician read through this policy, as this document, together with the Practice Guide and relevant legislation and case law, will guide the College when considering a physician’s practice or conduct.
Takeaway instructions from the policy, which are often overlooked or not appreciated by IME/third-party medical experts include:
- Do not start or accept the request for your service before asking yourself if you do or may have a conflict of interest. If you are uncertain, ask a lawyer. That would include if you have a personal or professional relationship with one of the parties involved in the third-party process. Even if there is a conflict, the policy adds it may be possible to proceed if you have determined the conflict would not affect your objectivity or impartiality, the conflict has been disclosed to all parties and “all parties expressly waive the conflict.”
- Your role is “to provide information and/or opinions for the third party … not to decide how the information and/or opinions will be used.”
- The reports you create must provide information in a fair, objective, nonpartisan and transparent manner. Use non-technical language that is easily understood and explain any abbreviations or technical terminology.
- Patients must be permitted the option to have an observer present but you do not have to agree to recordings. These observers are to be informed that they cannot “interfere or intervene in any way during the examination.”
- Consent must be expressed in a direct, explicit and unequivocal manner, preferably in writing and witnessed. Keep in mind you are conducting an IME for the purpose of a third-party process, not for the provision of health care. You should put that statement on the consent form. Consent can be withdrawn at any time, though this may prevent you from completing the IME and/or third-party medical report.
- If the patient is at imminent risk and requires emergent or urgent health care, communicate with their primary care provider. If there is no primary care provider, direct the person to the emergency department of the closest hospital and facilitate the transfer of pertinent medical information.
- If you receive a subpoena from a lawyer requesting personal health information, you are not allowed to disclose that without the patient's consent. You can only share personal health information either with the consent of the patient or when you are in a courtroom or tribunal under an actual order to proceed to provide the information in the absence of the patient's consent.
More information about the policy and a physician’s rights and responsibilities regarding IMEs and third-party requests can be found in the CPSO companion resource, Advice to the Profession. This is an easy-to-read summary of the more official policy. It also lists resources “to assist physicians who conduct IMEs and provide third party medical reports and testimony.”
Physicians who want more information or guidance about their responsibilities under this new policy can contact me or an associate at TTL Health Law. We are constantly monitoring new developments affecting health-care professionals in Ontario and can help you with your legal matters.