Joe Thorne and Brandon Gillespie

An independent medical examination (“IME”) is a useful tool for insurers. An IME is an objective assessment of the claimant’s condition for the purpose of evaluating coverage and compensation.

Where a physician is engaged to conduct an in-person IME, the physician owes the claimant/patient a duty of care.

But what if the physician is asked only to conduct a review of the claimant’s medical records, without ever seeing the claimant or assessing his or her condition in person?

A recent decision from the Newfoundland and Labrador Court of Appeal confirms that paper-only IMEs will attract the same duty and standard expected in an in-person setting.¹

This decision is important for insurers and particularly doctors who undertake both in-person and paper-only IMEs.

Background

Dr. Rubens, a psychiatrist, was engaged by Mr. Sansome’s insurer to conduct an IME of Mr. Sansome to assist in evaluating Mr. Sansome’s claim for disability benefits. Mr. Sansome declined to travel out of the province, so the insurer asked Dr. Rubens to conduct a paper-only review of Mr. Sansome’s medical records.

Mr. Sansome’s records disclosed that he had previously been diagnosed with a major depressive disorder, that he was obese, and that he had Type II diabetes.

Dr. Rubens, in his report, stated that Mr. Sansome’s liver function was consistent with the profile of an alcoholic. Dr. Rubens had a “high level of suspicion” that alcohol abuse was a contributing factor to Mr. Sansome’s condition. After reviewing Dr. Rubens’ report, the insurer denied Mr. Sansome’s disability benefits claim.

Mr. Sansome sued Dr. Rubens and alleged unfairness, lack of consent to review, malicious handling of medical records, misdiagnosis, and defamation.

Dr. Rubens applied for summary trial dismissing Mr. Sansome’s claim. Dr. Rubens stated that he had consent to report on the medical records and that the defamation claim could not succeed because the report was protected by qualified privilege.

Before the Application Judge, Dr. Rubens acknowledged that he owed a duty of care to Mr. Sansome, but maintained that he had not been negligent in preparing his IME report.

Mr. Sansome’s family physician testified that he had been his doctor for 25 years and that Mr. Sansome had never displayed substance abuse problems during that time.

The Application Judge agreed with Dr. Rubens on the issue of consent to review and the issue of defamation.

However, the Application Judge found that Dr. Rubens was negligent in preparing the IME report.

The Application Judge held that Dr. Rubens:

• “had a duty to review and opine on Mr. Sansome’s medical record in accordance with accepted and current medical knowledge”; and
• “ought to have realized that his diagnosis of alcohol ingestion being responsible for [the condition] was questionable in light of information in Mr. Sansome’s records and from his treating specialists.”²

Dr. Rubens appealed the negligence findings. He also claimed that he had mistakenly acknowledged that he owed a duty of care to Mr. Sansome.

Court of Appeal Decision

The Court of Appeal overturned the finding of negligence against Dr. Rubens.

Was negligence pleaded?

The Court of Appeal noted that Mr. Sansome did not explicitly allege negligence in his pleading. In fact he did not, at any point, state that Dr. Rubens was negligent or even use the word negligence in his claim. In his Amended Defence, Dr. Rubens did state that his report “constitute[d] reasonable conclusions based on current psychiatric knowledge” and that he acted “with the standard of care, skill and attention required of a physician.”³

The Court held that a cause of action need not be specifically named in the pleading, but that there must be material facts to constitute the cause of action in the pleading.

Justice Hoegg stated that Dr. Rubens’ defence demonstrated that he identified negligence as an issue from Mr. Sansome’s Statement of Claim. Together with the evidence and submissions of both parties, that was sufficient to justify the Application Judge’s conclusion that negligence was alleged.

The proper interpretation of summary trial under Rule 17A

The Court then turned to the issue of whether or not the Application Judge could make a finding of negligence while also finding “no genuine issue for trial.”

Summary trial under Rule 17A is generally permissible in two circumstances:

1. (Rule 17A.03(1)) where there is no genuine issue for trial with respect to a claim or defence; or
2. (Rule 17A.03(2)) where the court decides that there is a genuine issue with respect to a claim or defence, unless
   a. the judge is unable to find the facts necessary to decide the questions of fact or law; or
   b. it would be unjust to decide the issues on the application.

The Application Judge held that “there is no issue for trial and it would not be unjust to decide the issue summarily.”⁴ Effectively, the Application Judge had combined the two inconsistent grounds for summary trial.

The Court of Appeal found that statement to mean that on the basis of the evidence, the Application Judge could make the necessary findings of fact and law to decide the negligence issue “fairly and justly” without a trial.

The Court effectively read into the Application Judge’s judgment that the phrase “no issue for trial” was not in reference to Rule 17A.03(1).

Rather, the Application Judge meant he could decide the case in line with Rule 17A.03(2).

Was Dr. Rubens’ negligence proved?

The Court went on to define negligence generally (i.e. a duty of care, a breach of that duty, and injury to the claimant).

From there, Justice Hoegg delved deeper into the issue of a paper-only IME and what principles apply to a relationship between doctor and patient in such circumstances.

Justice Hoegg held that even though Dr. Rubens and Mr. Sansome had never met, there was still a relationship between them. Dr. Rubens took the responsibility for producing a report, and that report was used to review Mr. Sansome’s claim. According to Justice Hoegg “Dr. Rubens actions had the potential to so closely and directly affect Mr. Sansome and his personal interests that Mr. Sansome could well suffer injury or loss if the doctor’s reviewing and reporting actions were negligently carried out.”⁵

Justice Hoegg concluded that the relationship between Dr. Rubens and Mr. Sansome was “sufficiently proximate to give rise to a duty of care” and that there were no relevant policy considerations to negate that duty.⁶

Justice Hoegg rejected the notion that recognizing a cause of action in negligence against a doctor conducting a paper-only IME will interfere with other principles of law. Justice Hoegg held that it was not inconsistent for the negligence claim to succeed while the defamation and breach of confidence claims failed.

In stating the applicable standard of care, Justice Hoegg held that a doctor’s opinion must be prudently and diligently formed on the basis of the degree of knowledge, competence, and skill of professionals in the field.⁷

Justice Hoegg held that the Application Judge’s determination that Dr. Rubens was negligent was essentially a finding that Dr. Rubens had breached the standard of care.

Justice Hoegg further stated that Dr. Rubens’ conclusion that alcohol abuse was the cause of Mr. Sansome’s condition was inconsistent with generally accepted medical knowledge regarding his symptoms.

In respect of damages caused by Dr. Rubens to Mr. Sansome, Justice Hoegg held that Mr. Sansome failed to tender any evidence of injury or loss as a result of Dr. Rubens’ actions. Mere injury to sensibilities, in the eyes of the Court, was not enough to justify a finding of negligence.⁸

Therefore, Justice Hoegg held that the finding of negligence could not stand despite the finding that Dr. Rubens had breached the standard of care.⁹

The Court of Appeal remitted the issue back to the lower court for trial on the basis that two of the elements of negligence had been established but the third (causation and damage) had not.

In concurring reasons, Chief Justice Green agreed with Justice Hoegg, but held that it was inappropriate to consider policy exceptions to the duty of care absent pleadings from the parties on that issue.¹⁰

Impact

The Court of Appeal’s decision is an important warning to physicians conducting paper-only IMEs.

Such paper-based reviews will still attract a duty of care to the patient. Justice Hoegg reinforced that the doctor-patient relationship gives rise to a duty of care when the doctor’s actions have the “potential” to affect the patient’s interests. Paper-only IMEs conducted for the purpose of evaluating insurance claims will inherently affect the interests of the claimant patient.

Insurers and consulting physicians will undoubtedly have to consider the potential liabilities associated with paper-based IMEs in light of this decision.

¹ 2017 NLCA 32 (“Rubens“)
²Rubens, para 11.
³Rubens, para 19.
⁴Rubens, para 28.
⁵Rubens, para 57.
⁶Rubens, para 66.
⁷Rubens, para 80.
⁸Rubens, para 95.
⁹Rubens, paras 94 – 96.
¹⁰Rubens, paras 101 – 110.