Robert Kram, B.A. (Hons.), LL.B. Pace Law Firm
Purpose of the Medico-Legal Report
- To help a judge or jury decide the amount of compensation for an injured person.
- To assist in determining a claimants entitlement to statutory accident benefits (i.e. income replacement, housekeeping, attendant care and medical rehabilitation benefits)
- Should disclose any assumptions or factual bases for the opinions expressed.
- Report should be objective and credible.
- Write in a professional manner and avoid the role of advocate.
Form of the Medico-Legal Report
(a) Physician's Qualifications
- Duly qualified medical practitioner holding a certificate authorizing practice within the Province of Ontario.
- Outline year of graduation, fellowships, specialities.
- Attach resume to the report.
(b) Identity of Person Examined
- Name, date of birth, date, place and reason for examination.
(c) Purpose of Report
- Refer to matters lawyer has asked you to address in the report.
(d) Documents Reviewed
- List records and reports reviewed.
- Ensure you have all relevant medical records and review them.
(e) History of Injury
- Patients version of how injured.
- Check against information in documents reviewed.
- Comment on mechanism of injury but avoid detailed comments on liability.
(f) List of Injuries
- Significant or insignificant and whether individual has recovered.
- Past and current treatment.
(g) Previous Health
- Comment on previous conditions, whether or not they impaired function and whether they may affect disability/prognosis from traumatic event.
(h) Patient Examination
- Details of examinations and tests conducted.
- Findings regarding each complaint.
- Comment on diagnostic examinations that corroborate complaint (i.e. EEG, MRI, CT etc.)
- Explain in terms a layman can understand.
(i) Diagnosis
- Your diagnosis of each injury complained of.
- Specifically address any questions posed by lawyer.
(j) *Causation
- The relationship of the complaints to the traumatic event (cause of the condition).
- Whether condition was probably caused, aggravated or accelerated by the traumatic event.
(k) Treatment/Diagnostic Examinations
- Whether you recommend a certain course of treatment not yet undertaken or further diagnostic testing.
(l) Disability
- Degree of disability and extent of impaired function.
- Extent of pain and discomfort.
- Extent to which pre-accident activities have been impaired.
(m) Prognosis
- Whether maximal medical recovery achieved.
- Probability of further recovery and any permanent impairment.
- Comment on future deterioration, future treatment including surgery "reasonable possibility" is compensable.
- Hypothetical events or future events need not be proven on a balance of probabilities.
- Weight is given according to their relative likelihood.
- There must be a real and substantial possibility and not mere speculation.
- Assign a percentage to the future risk if possible.
Causation
- Plaintiff must show on a balance of probability that a breach of a duty of care resulted in harm.
- Conduct complained of must have made a difference to the plaintiff's physical, mental, psychological or economical condition.
- Primary test for link between wrongful act and injury is the "but for" test.
- If the injury suffered by the plaintiff does not happen but for the act of the defendant the plaintiff succeeds.
