Preparing medico-legal reports: What GPs need to know

Neelima Choahan

5/07/2018 1:53:01 PM

For the first of a series on legal matters in general practice, newsGP spoke with two experts about the best way to prepare medico-legal documents – and how to avoid the pitfalls.

GPs may receive a request for a medical report from patients, solicitors, insurers, statutory authorities, or employers.
GPs may receive a request for a medical report from patients, solicitors, insurers, statutory authorities, or employers.

It was a simple request from the client’s solicitor, but it led to the GP’s professional conduct being investigated by the Australian Health Practitioner Regulation Agency (AHPRA).
The GP had received a letter from his patient’s solicitors requesting a report including the patient’s initial presentation, diagnosis and management.
It came with an enclosed authority signed by the patient.
The GP provided a report that included a description of the initial consultation:
‘The patient first came to see me with Mrs Z, her mother-in-law. I had treated Mrs Z for many years for chronic depression, which was the result of domestic violence, and she thought the patient would benefit from my considerable expertise in managing mental health problems.’
One year later, the GP received a letter stating that AHPRA was conducting an investigation into his professional conduct.
In her letter of notification to AHPRA, Mrs Z had stated that the patient had used the GP’s report in Family Court proceedings.
This had caused Mrs Z considerable distress, revealing confidential information that was not known to her family.
A request for a treating doctor to prepare a report for legal purposes could be received from a:

  • patient
  • solicitor
  • insurer
  • statutory authority (eg WorkCover)
  • employer.
Stuart Le Grand, Le Grand Margalit Lawyers
Stuart Le Grand, from Le Grand Margalit Lawyers, said GPs can be approached either by solicitors for a plaintiff or defendant in a request for a report or the GP’s clinical notes. Insurers can also make such requests.

stu_le_grand-Article.jpgPersonal injury lawyer Stuart Le Grand says it is important for healthcare professionals to provide facts rather than opinions in medical reports.
Whose side are you on?
Mr Le Grand, who specialises in personal injury law, told newsGP it is important that GPs need to remember a witness does not ‘belong’ to either the plaintiff or the defendant’s lawyer. 
‘In other words, just because he or she is the plaintiff’s GP, that doesn’t mean they can only be contacted by the plaintiff’s solicitor,’ he said.
‘A doctor is independent because they provide an opinion based on their clinical expertise.’
What are the lawyers looking for?
Mr Le Grand said it is also important that GPs understand why the lawyers require the notes or report.
For the plaintiff’s lawyer, he said, the treating doctor’s notes are one way to establish the veracity of the client.
‘One reason a plaintiff lawyer would request notes or a report, or both, is to see if there are any pre-existing injuries,’ Mr Le Grand said.
‘So if a person comes to me and says “I have got a bad back” and I say “Have you injured your back before?” and they say no, their reports and notes will tell me whether that is right or not.’
The GP’s notes can give an injured person’s life story.
‘The notes may tell me whether they have served prison time, or whether they have been in trouble with the law,’ Mr Le Grand said.
‘They will tell me whether they have been doctor-shopping. Because if an injured person is seeing 20 doctors they might be seeing those doctors to get a particular medication, or they might be trying to structure their case to suit them, trying to get their GP to say what they want them to say.’
A defendants’ solicitor – usually representing WorkCover or the TAC  – is also looking for any previous evidence of compensation claims that sometime appear on the notes.
‘A defendant’s solicitor would like to get the GP’s notes to get a pattern of behaviour of the plaintiff if they want to arrange surveillance on the plaintiff,’ Mr Le Grand said.
‘So if the notes say they are a member of the ten-pin bowling club in Chadstone, well, what a great spot to go and get surveillance.
‘So it gives you their movement and their interests, including any travel past or present.’
However, Mr Le Grand said when requested to prepare a report the GP’s role is to answer the questions that have been put to them by the solicitor.
‘When responding to a request, a doctor should not be focusing on what the plaintiff and defendant is planning to do, it’s just part of litigation,’ he said.
‘Their job is simply to respond honestly to the questions because they are not an advocate for their patient and, in fact, doctors can fall into error when they try to be an advocate for their patient.
‘But if a question is asked in a report, “Do you believe a plaintiff is feigning the injury?”, then they can give their opinion on that.’
Mr Le Grand said lawyers often calculate the client’s future wage loss based on the GP’s report or notes.
‘It gives you an idea of the general health of the injured person,’ he said. ‘When it comes to loss of wages, our calculations of compensation are based on predictions of how long the plaintiff is going to live and work.’
Similarly, a person’s health is relevant to an assessment of their pain and suffering damages and quality of life. For example, if an injury prevents the patient from playing the violin, that is relevant to the value of their claim.
Mr Le Grand said GPs should be aware that they can be cross-examined in court on the report or the notes, but they should not answer any question if they feel it is outside of their expertise.
‘If they are giving advice about highly specialised surgery, but they do not hold that expertise,  then that may be questioned in court,’ he said.
‘And that can impact the injured person’s case.’
He said the GP can also go over the crucial points with their patient to make sure the facts are correct.
‘A defendant’s solicitor will use the notes that are supplied to create pitfalls for plaintiffs to fall into when giving evidence,’ he said.
‘The notes are a valuable tool for a solicitor to attack an injured person’s credibility.’
Mr Le Grand said it is important for GPs to make a practice of keeping detailed notes so they can be relied upon if called to make a report.
‘Your notes will form the basis of a report. So if you don’t have good notes, you are not going to write a good report, as you will be relying on memory,’ he said.
‘GPs should also write professionally. There are some doctors who can use some descriptors which can be seen as inappropriate, like “23-year-old pretty young lady”.
‘These notes are scrutinised by lawyers and barristers in court. They also can be replicated in a written judgement, so it doesn’t just sit on their computer.’
He said GPs should also avoid using medical acronyms in the report, as well as any frivolous language that may be used among medical colleagues to describe a person or situation. GP should also write the report themselves, rather than passing it on to anyone else in their practice.
‘Because, ultimately, the doctor will be asked about their report if [the matter] goes to court,’ Mr Le Grand said.
‘And if a lawyer suspected that the doctor didn’t write the report it would be a great way to attack the doctor’s credibility.’
Mr Le Grand said many lawyers are happy to take a phone call from GPs to discuss medical reports.
Send the bill
Lastly, Mr Le Grand said GPs should submit a bill based on the work required.
‘If the lawyers are requesting far too much information, the GP could say, “This is onerous”,’ he said. ‘The request by the lawyer should be no more than what is reasonable.’
‘I encourage GPs to pick up the phone to talk to the requesting lawyer, but bear in mind that conversation should be noted by both the lawyer and the doctor.’
Dr Sara Bird, Manager, Medico-legal and Advisory Services, MDA National
Dr Bird told newsGP the preparation and provision of medico-legal reports by the treating doctor is an inevitable but sometimes unwelcome part of general practice. She said a structured and comprehensive medico-legal report may minimise the chances of having to give evidence in court.

sara_bird-Article.jpgMDA National’s Dr Sara Bird says GPs must ensure they seek permission from their patients before handing over any information in a report.
GPs’ obligations
According to Dr Bird, however, GPs are not legally obliged to provide a report.
But, she said, a treating doctor has a professional and ethical obligation to assist by providing factual information concerning a patient’s condition or injury, at the patient’s request, to the patient’s legal advisers or, with the patient’s consent, to other nominated third parties.
‘There is no law that requires you to provide a report,’ Dr Bird said.
‘Sometimes the solicitors can be quite forceful in their assertions and, an alternative can be to offer a complete copy or part of the patient’s medical records. But, of course, you would only do that if you had permission from the patient.’
‘Importantly, although there is an ethical obligation to assist the patient by providing a factual report, you are under no obligation to provide an opinion in your report.’
Dr Bird said the patient often may have given permission to provide only certain details, but the solicitor’s request will try to obtain more information.
‘Frequently, you have an authority that is signed by a patient when they have had a motor vehicle accident,’ she said.
‘But if you read the fine print of what the patient signed at the time, they have said “You can provide information relevant to the accident” and then you find in the request that the [lawyers] say “Please provide us with all medical records or information which predates the accident”.
‘So it’s a matter of making sure that the patient has given appropriate consent to provide any information to a third party.’
Purpose of the report
Dr Bird said occasionally GPs can be asked to provide a report without being told the purpose of the report.
‘I think it’s very important that there is an understanding as to why you are being asked to write a report,’ she said.
‘Doctors have written a report in good faith and given to a patient saying “To whom it may concern” and then the patient has used it as a reason not to turn up to court when they were meant to be prosecuted.
‘Sometimes that can result in the court actually calling the doctor to give evidence.’
Dr Bird said GPs should make sure what they include in the report is consistent with the medical records.
‘Lawyers spend their time trying to find any discrepancies to try and damage people’s credibility,’ she said.
‘So simple things like having the dates wrong can inadvertently cause a GP’s credibility to be damaged. That can ultimately damage all of the evidence of that person.’
Reporting as fact
‘It is quite important not to record the patient’s history as facts that you know,’ Dr Bird said.
‘The patient comes in and says, “I fell over in Woolworths and I have injured my elbow”. And you would write in the medical records, “Patient fell in Woolworths, injured their elbow”. But, ultimately, that is the patient’s history; you weren’t there, you didn’t see what happened.
‘So when you are writing the report for the solicitor … write, “When asked what happened, the patient reported that they fell in Woolworths”.’
Dr Bird said GPs should also be sure they differentiate between fact and opinion, and not make any assumptions.
‘The fact will be, “I observed scarring on the patient’s elbow”, the actual description of what you saw,’ Dr Bird said.
‘“The patient is unable to return to work in his previous role”. That is providing an opinion.’
According to Dr Bird, GPssometime  receive formal complaints about not providing a report in a timely fashion after agreeing to do it.

‘We have had complaints where there has been a delay of six months or more in preparing a report and that might potentially make it difficult for the patient to make a claim,’ Dr Bird said.
‘So if you are not planning to provide a report then it’s best just to write back and say “I am unable to provide a report; however, I am happy to provide a copy of the patient’s medical record if you provide me with an authority”.’
Dr Bird said although some GPs might sometimes feel uncomfortable if their report inadvertently adversely affected their patient’s claim, GPs are obliged to provide the truth.
‘Ultimately, you are providing a factual report about a person’s circumstances,’ she said.
‘Facts are facts.’
Medical defence organisation
‘Remember all GPs are a member of a medical defence organisation,’ Dr Bird said.
‘And if they are asked to write a complex report or if they have any questions or concerns about it, I’d encourage them to get in touch with their medical defence organisation.’

AHPRA Australian Health Practitioner Regulation Agency medical reports medico-legal documents

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David Maconochie   23/07/2019 10:13:45 AM

Pretty much universally, I have the patient in to the surgery to review his consent and to read the report before I send it out.