Canada: Negligence Claims In Paper-Only Independent Medical Examinations: Rubens v Sansome, 2017 NLCA 32

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

    1. the judge is unable to find the facts necessary to decide the questions of fact or law; or
    2. 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.

Footnotes

1. 2017 NLCA 32 ("Rubens")

2. Rubens, para 11.

3. Rubens, para 19.

4. Rubens, para 28.

5. Rubens, para 57.

6. Rubens, para 66.

7. Rubens, para 80.

8. Rubens, para 95.

9. Rubens, paras 94 - 96.

10. Rubens, paras 101 - 110.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Brandon Gillespie
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions