Audiotaping Independent Medical Examinations

In Adams v. Cook (2010), 100 O.R. (3d) 1 (C.A.), the defendant sought an independent medical examination of the plaintiff by a specialist in physical medicine and rehabilitation. The plaintiff would consent only if the examination was audio recorded. In the initial motion, plaintiff’s counsel swore an affidavit alleging there was a systemic bias by those conducting IMEs. He made no allegations against the specific specialist selected by the defendant. The motions judge refused to order the IME without audiotape and the Divisional Court dismissed the appeal. The defendant then appealed to the Court of Appeal.

The Court of Appeal allowed the appeal. In order to show that audio or video recording is necessary, there must be something more than an allegation of general bias among doctors who perform IMEs; there has to be something specific to the case.

The Court was invited to opine on whether there should be routine recording of IMEs in all cases; however, it declined to do so, preferring to leave this issue for the Rules Committee.

Independent medical examinations seem to be an area ripe for disputes between plaintiffs and defendants. The Court of Appeal’s decision is one that may assist the defence in opposing requests to record the examination, although it seems that the Court of Appeal has left the door open for plaintiffs to argue for recording of IMEs in specific cases.

Posted by Tara Pollitt on 7/07/2010,
To visit the original posting of this article, please visit http://ontarioinsurancelaw.blogspot.com/2010/07/audiotaping-independent-medical.html.

To learn more about Independent Medical Examinations visit July’s Tips or http://www.cpso.on.ca/policies/policies/default.aspx?ID=1658 for more information.

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Access to the information in these reports is governed by both Federal and Provincial legislation.  In Nova Scotia, physicians who conduct third-party examinations have been advised to inform patients:

• Whoever pays for a third-party examination owns it and controls its release. It is not the same as an examination done under a provincial health insurance plan and patients will only see the results if the third party that paid for the report releases them.
• In some cases physicians pass along information resulting from a third-party examination to the patient’s doctor, but rules are fuzzy and vary according to the physicians and third parties involved. In most cases patients will not be allowed to see these reports¹.

The College of Physicians and Surgeons of Ontario has published a report in 2009 entitled, “Access to Reports”, which states:

Physicians should be aware that after the report has been submitted to the third party, patients or examinees may contact physicians directly to request a copy of the report or a copy of documents relied upon when preparing the report.

Physicians must comply with any statutory obligations they may have to provide access to reports, documents or notes. This includes but is not limited to applicable obligations under Ontario and Canadian privacy legislation.

Should physicians be uncertain how to respond to a request for access, or what obligations they may have, the College advises them to seek the guidance of the Canadian Medical Protective Association (CMPA), or their legal counsel².

Whether you’re conducting a third-party report, or if your patient is being sent for one, it’s important to know when and how you can access this information, and to counsel your patient accordingly. The full report can be accessed at http://www.cpso.on.ca/policies/policies/default.aspx?ID=1658#9.

¹ Excepted from Can Med Assoc J 1997;156(1):73-5 by Dorothy Grant, coordinator of patient-physician relations with the Medical Society of Nova Scotia.

² Third Party Reports: Reports by Treating Physicians and Independent Medical Examiners, Dialogue, Issue 1, 2010, College of Physicians and Surgeons of Ontario.

Check our medical transcription dictation tips next month to learn more.