As noted below, the treating physician is not required to conform to the rule relating to the expert report.1 The requirement, however, of notice to produce the clinical notes is still required by the relevant Evidence Act as business records. Where the clinician’s notes and records include reports and opinions from other consulting physicians, notice of the intent to produce medical records of these consulting physicians must also be given.2
Once the plaintiff gives notice of the intent to use the medical report at trial, the defendant may request that the plaintiff produce the physician at trial for cross-examination. 3 Once the notice has been served, either party may file the report as evidence at trial.
The treating physician often has no idea of the legal issues involved in the disability claim. They will be asked by the insurance company usually to complete a questionnaire without any knowledge of the significance of the answers to the questions they are providing. Similarly the insured will be requested to sign a consent form which allows the insurer full access to the insured’s complete medical history which goes well beyond the duty of the insured to prove the present disability. 4
Ontario’s protective legislation is typical of provincial statutes which state that, even when there is such a written consent, the medical information to be used or disclosed shall be effected only to the extent reasonably necessary to serve the particular purpose.
Similarly there are often issues created by the physician’s overly zealous advocacy of behalf of the patient insured which are discussed below.
The lawyer for the insured must walk a fine line as they cannot be seen to be guiding the physician as to how the forms of the insurer should be completed because there is a need for an impartial objective response to the questions asked. The physician is unlikely to have ever sought independent advice on how these forms are to be completed.
One apparent solution is to provide to the clinician an independent guide on the issues in a disability claim and notes and guidance and why certain questions have been asked and also how to consider and reply to the patient-insured’s counsel’s request for a medical legal report.