This information is designed to aid practitioners in making decisions about appropriate care. This document does not define a standard of care nor should it be interpreted as legal advice. Variations in practice may be warranted based on the needs of the individual patient, resources, and limitations unique to the institution or type of practice.

Definition


IME (Independent Medical Examination) is familiar terminology in widespread use. However, the term NTME (Non-Treating Medical Examination) has been used in this Guideline as it more accurately conveys the physician's relationship with the person being examined.

A NTME is a clinical examination performed at the request of a third party (the "requesting party") by a physician for employment, legal, financial, or insurance reasons relating to the person being examined (the "examined person"). The examination commonly includes a review of clinical data (history, physical examination, and test results). The examining physician often is required to answer questions concerning diagnosis, impairment, and causal linkage.

One must distinguish a NTME from a medical report to a third party by a patient's treating physician (e.g. driver's medical report). In the case of a NTME, the examining physician has not been involved in the patient's care previously and will not be involved actively in the care afterward. Sometimes the physician is mutually acceptable to the requesting party and to the examined person, being paid equally by those parties, and reporting to both sides. In other cases, the examined person may feel that he or she is under some compulsion, legal, financial or otherwise, to submit to the NTME. What is expected of the examining physician will vary according to the purpose and context of the examination, the contractual arrangements involved, and the desires of the examined person, the primary care physician, and others who may wish to utilize the examination results.

A physician conducting a NTME ought to be impartial, ideally through having no involvement at any time in the examined person's medical care; in other words, separation from the examined person being examined. If there has been a therapeutic relationship in the past, this should be disclosed by the physician to the requesting party when contacted to do the NTME. That disclosure might be seen as disqualifying the physician. There also should be no relationship between the physician and the requesting party except on a fee-for-service basis for the NTME; where another relationship does or may be perceived to exist, it must be declared openly by the physician to the examined person and in the report.

The examining physician should be wholly objective and impartial. This does not mean that the physician is to be professionally "unsympathetic", brusque, or indifferent to the examined person's concerns or complaints. A truly professional physician can be helpful and supportive to the examined person as well as objective and impartial in commenting on such issues as diagnosis, causation, and prognosis.

Concerns regarding NTMEs

Questions and complaints arise about third party services, of which NTMEs are a large component, at a greater rate than most other types of service provided by physicians. Provision of NTMEs tends to attract complaints; available statistics from other Canadian jurisdictions show that this practice type is over-represented among physicians with multiple complaints. This observation is not specialty specific other than to the extent that certain specialty groups tend to be asked to do NTMEs more commonly than members of other specialities.

The CMPA also has observed that physicians who do NTMEs are at a higher risk for complaints to licensing authorities such as the College of Physicians and Surgeons of Newfoundlandand Labrador. These complaints touch on a number of specific issues including:

 

  • Timeliness of reporting
  • Content of report; inaccuracies of findings and interpretations
  • Perceived conflict of interest
  • "Hired gun" perception; perceived bias
  • Ownership of report
  • Responsibility to pay for report
  • Adequacy of consent process
  • Discomfort with the perceived "power" of the examining physician
  • Opinion outside the limits of the physician's perceived expertise.

Purpose and Limits of this Guideline


This Guideline is intended to serve as an aid to physicians who do NTMEs by setting out principles which may reduce the possibility of dissatisfaction with the examination and of confusion regarding the purpose of the NTME.

Some types of non-treating medical assessments may differ from the above "Definition" of the NTME in ways that make it inappropriate to apply all of the principles in this Guideline to them. Examples of similar professional activities would include:

1) Occupational health examinations and fitness for work assessments; even though frequently undertaken by non-treating physicians these differ from NTMEs in that:

 

  • disclosure of clinical findings and opinions (regarding prevention, diagnosis, or treatment) to the job candidate or employee is usual and proper, as is appropriate communication with the treating physician;
  • disclosure to the employer (as the requesting party) is usually limited to fitness for job demands, and does not usually include clinical details or options;
  • occupational health examinations provide a health benefit to the job applicant or employee; for example, education about job hazards, identification of individual risk factors, and assessment of work-related health effects.

Notwithstanding these differences, the principles regarding disclosure, consent, and conduct of the examination outlined in this Guideline are still applicable.

2) File reviews; these are done without explicit consent from, or direct contact with, the examined person. Such reviews call for extra caution, especially when commenting about the appropriateness of past medical care.

Potential for Conflict and Dissatisfaction


Even prior to the NTME, there may exist an adversarial or potential adversarial relationship between the examined person and the requesting party. The relationship between the requesting party and the examined person may be one of employer and employee, insurer and insured, or defendant and plaintiff.

In cases of such an adversarial relationship, the examined person may be predisposed to disagree with the examining physician's report when it impacts unfavorably on a claim for damages, benefits, or pension. This disagreement may concern the presentation of facts, diagnosis, causation, prognosis, recommendations concerning treatment, rehabilitation efforts, complementary therapies, and/or return to work, disability, impairment and/or accuracy of medical history. It may simply be based on a misunderstanding of the role and/or impact of the examining physician's opinion.

Arranging the NTME


The examining physician should:

 

  • Provide the requesting party with clear directions as to the location and appointed time for the NTME. This will be useful to assist the examined person in finding the correct location at the correct time.
  • Understand the purpose of the NTME and discuss that understanding with the examined person.
  • Confirm with the requesting party the time lines requested, and the fees and expenses payable and by whom. A fee may be included for cancellation with short notice or no show where there is not an adequate reason.
  • Confirm that the requesting party will pay for any new or repeat testing (lab, x-ray, etc.), if necessary.
  • Adhere faithfully to the contractual terms and instructions. Never accept a fee where there is an expectation, direct or indirect, that the physician will write a report favourable to the requesting party in this matter or generally.
  • Consider providing a sample consent form so that the examined person can consider it and, perhaps, review it with a lawyer. This will avoid delay at the physician's office.
  • Understand that when a NTME is being conducted under the Newfoundland Rules of the Supreme Court (Rule 34) the examined person may appoint a physician of his/her choice to be in attendance at the NTME. That physician has no right to participate actively or interject in the NTME. His/her role is that of observer. You should be aware that the observing physician may be required to comment upon the NTME report, recording his/her observations as to the physician's manner, technique, tests conducted, etc.

Disclosure of NTME Report

Depending on the circumstances, the NTME report may or may not be disclosed to the examined person. The NTME physician should enquire of the requesting party before agreeing to conduct the NTME as to whether or not there will be disclosure of the report to the examined person. Where the requesting party's direction is that the NTME report will not or may not be disclosed to the examined person, then the NTME physician should be reasonably satisfied that the examined person has given his or her informed consent to the non-disclosure. This may mean that the examined person should be advised to seek the prior advice of his or her own lawyer before submitting to an NTME whose results will not be disclosed.

NTME physicians should be aware that even when there has been prior agreement that the NTME report would not be disclosed, there may nonetheless be subsequent disclosure as a result of a court order or a subsequent mutual agreement of the examined person and the requesting party. 

Informed Consent

Although the requesting party may have the power to oblige the examined person to submit to a NTME, the NTME physician for his/her own protection should obtain the examined person's fully informed consent to the NTME. In procuring proper informed consent from the examined person for the NTME, it is important to:

  • Make reasonable effort to communicate using plain language and in such a way that information exchange is understood. Do not be casual in demeanor or language, and remain professional in the face of strong emotional reactions.
  • Give information required for informed consent in both oral and written forms.
  • Inform the examined person that the consent may be withdrawn at any time prior to completion of the examination and reporting.
  • Be clear that the examined person understands the nature and extent of the NTME physician's responsibility to report to the requesting party.
  • Answer the examined person's questions, including those about the physician's role in NTMEs, the consent process, and the procedure for reporting the findings and opinions. Do not engage in discussion about correctness of diagnosis, adequacy of care, prognosis, etc.
  • Describe in general terms the medical questions to be explored and body systems to be examined and the reasons for them.
  • Clearly declare qualifications (training, credentials) and perform NTMEs only within one's area of expertise. Many medical conditions cross specialty lines; thus the examining physician may be asked to explain his/her role, especially when dealing with subjects that may not appear to be within his/her speciality.
  • Clarify that the NTME is occurring at the request of a requesting third party and identify that person or agency.
  • Notify the examined person that he/she generally has no direct right to a copy of the report from the physician. It may, however, be obtained directly from the requesting party. If the examined person's lawyer obtains the NTME, the examined person should obtain it from the lawyer, not directly from the examining physician.
  • Explain that the examined person may or may not agree with the report's contents and/or recommendations. The examining physician may wish to clarify that he/she does not control the manner in which the report may be used.
  • Indicate that the contents of the report may be used to formulate decisions about overall disability, rehabilitation, benefits, or disposition of the claim, but that the examining physician's opinion is only one part of the information upon which the requesting party will assess the claim.
  • No ongoing or therapeutic patient/doctor relationship will be established and no involvement in medical care of the examined person will result. You should make it clear to the examined person that you are an independent examiner and not the examined person's treating physician as well. (It might be acceptable to treat the individual in the distant future for an unrelated condition or, in extraordinary circumstances, for the same condition on referral by the examined person's treating physician.)

It is permissible to do NTMEs for more than one requesting party on the same individual, again provided that this is disclosed at the time of the being recruited. Exercise caution so as not to act for parties with competing interests.

Conduct of NTME

  • Introduce oneself to the examined person. This is extremely important.
  • Consider first the well-being of the examined person. Avoid roughness or abrasiveness.
  • Review the entire person; maintain objectivity and do not focus only on the injury/disability. An underlying general medical condition may put the presenting problem in an entirely different perspective.
  • Offer appropriate time, comfort, and privacy. Allow, or sometimes insist on, a chaperone. Employ proper gowns and draping.
  • Children, if brought along, should have a caregiver so that the NTME can occur in an atmosphere that is quiet and stress-free for both the examined person and the examining physician.
  • Treat all examined persons with respect. Avoid demeaning or judgmental comments. Allow the examined person to tell his/her story.
  • Audiotape and/or videotape only with the examined person's knowledge and permission in advance. Its use is strongly recommended.
  • The examined person may wish to purchase a copy, or to make his/her own audiotape and/or videotape of the NTME. It is permissible but not mandatory, to agree to such requests.

Termination of the NTME

The physician must terminate the NTME before completion, in the following circumstances:

  •  The examined person's refusal to provide consent.
  •  The examined person's withdrawal of consent previously provided.

It is reasonable, and may be best for all concerned, for the examining physician to terminate or at least interrupt the NTME before completion in the following circumstances:

  • The examined person's expression of significant physical or emotional discomfort during the NTME.
  • The examined person's lack of cooperation, perceived sexual behaviour, extreme rudeness or aggressive behaviour, bribery, or coercion before or during the NTME.

In these four circumstances the examining physician should notify the requesting party and discuss appropriate billing for work done and time committed. Some form of report to the requesting party should follow in writing, advising of the reason for the termination or interruption. 

Documentation

The examining physician should retain for ten years:

  • Informed consent document.
  • Contract (if it exists in written form) outlining scope, purpose, timeliness, and fee arrangements.
  • Notes of history.
  • Notes of physical examination.
  • Audio and videotapes if recording made.
  • A list of sources of ancillary information, including medical reports, records and any surveillance conducted by others.

The NTME Report

  • The report should be completed as soon as feasible after all necessary information is available. Specific time lines should be included in the contract. The requesting party should be alerted to necessary delays if they arise.
  • Be unambiguous, organized, and logical. Exercise care to avoid factual errors and unsupported assumptions.
  • Provide relevant qualifications. These may simply be shown on the letterhead or in an appendix to the report.
  • Limitations concerning availability of information or extent of examination should be noted in the report to the requesting party. The manner and degree to which this limits the examining physician's ability to form supportable opinions should be stated clearly in the report. Note information sources missing, unavailable, withheld, or outdated.
  • Acknowledge source of request for NTME or referral of examined person. Indicate purpose(s) of the NTME.
  • Review history - present, past, psychosocial (if relevant), and occupation. Respect the examined person's request to withhold sensitive personal information if irrelevant (e.g., if there were elective abortions in past not relevant to "whiplash", say "a number of surgical procedures with no bearing on injuries at hand").
  • May choose to dictate history and examination in presence of examined person. If that is done, it should be noted in the report. Record positive and negative physical findings. Document how measurements were done, comment on the reliability of the observations, and draw comparisons with any prior measurements on record.
  • Do not disparage other professionals (physicians or non-physicians) or their opinions on a personal level, but explain why one's opinion differs from that of another professional. ¬∑Summarize additional investigations or information obtained or required.
  • Conclude with formulation and opinion with recommendations as requested re: diagnosis, causation, impairment, disability profile, prognosis with/without interventions, medical restrictions, and further treatment recommendations, with time frames as appropriate. Impairment is a medical determination of measurable loss of function in an organ system. Disability includes non-medical considerations as well as medical, and may be defined on a legal contractual basis.
  • State the clinical criteria used in arriving at the diagnosis.
  • It is very important to list criteria used if one finds "total impairment".
  • Do not offer an opinion as to continuation or termination of claim benefits/payments. That decision must be made by the requesting party.
  • If a significant medical condition requiring treatment is found, the NTME physician is responsible to ensure its disclosure to the examined person, with a recommendation to seek treatment. (Any prior agreement for non-disclosure of the report should be subject to such limited disclosure of a significant medical condition.)
  • Any opinion should be supported by best scientific evidence whenever possible and not based on the examining physician's personal belief systems alone. Where there is more than one school of thought on an issue, that should be acknowledged and the examining physician should indicate the reasons for his/her viewpoint. Likewise, an examining physician who holds a view that would be seen as a "minority" opinion should openly acknowledge that.

Issue of Probability

In determining the cause of a examined person's complaint, the questions of correct diagnosis and causation are paramount. The examining physician should, so far as it is possible, address these matters in the NTME report, bearing in mind that the courts interpret probability in the legal sense, whereas physicians take the (often different) medical view. The medical model typically is to call a diagnosis "probably" correct if it seems more likely than several other possible diagnoses. The view in law is that, to be probable, a particular diagnosis must be likely to the extent of 50% + 1. This is referred to as proof on a balance of probabilities. This is not to say that the examining physician should adopt a legal model when addressing causation; that is the role of the Court. Expressed another way, a physician might report that there are three possible causes for a certain thing, but that he/she feels one cause is the more or most probable "for the following reasons...".

In the Courts the general, but not conclusive, test for proof of causation is that the event or result, i.e. an injury, would not have occurred "but for" the act or omission of a person. Where there are two or more factors causing the event or result, the act or omission of a person need not be the sole cause of the injury, but must be a cause such that it "materially contributed" to the event or result. To be "material", the act or omission must play more than a trivial role. While causation may not be determined with scientific precision in the Courts, being answered best in that arena by applying ordinary common sense, the physician should apply sound medical principles in forming his/her medical opinion.

Acknowledgement

The College of Physicians and Surgeons of Newfoundland & Labrador wishes to thank the College of Physicians and Surgeons of Alberta for supplying background information for this document.